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HorizontalMike
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Posts posted by HorizontalMike
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2 hours ago, ATCJen said:
@flores97 @HorizontalMike @pete992 Thank you for the input. in your experiences, do you all think opting for the DRO route still supports the decision to hire a lawyer? Its what I am considering over the traditional appellate review process. For some reason I feel it will be "easier" that way in my circumstance. Maybe I'm wrong. Help me figure it out, please?
Here's my "circumstance": My husband is active duty and we will be PCSing to god-knows-where in about a month and a half. It's either WA, CA, or VA. He's an aviator and they get orders at the last imaginable minute. I know I have to update my addresses with both the benefits and medical sides of the VA as soon as I move. I also know I have to register at the new VAMC. What I don't know is what this will mean for this appeal. Does it mean anything at all? Will it just "transfer" to the new VARO once I'm in the new system? Should these circumstances affect my decision to choose a DRO?
Absolutely! When my appeal went to DRO last July 2015, my lawyer talked the DRO into doing an "informal" hearing (kind of like a remand to the medical raters). This like getting two DRO hearings at the price of one, IMO. PLUS, my lawyer was able to steer the questions that he wanted the rater(s) to revisit, since they missed valid points/concerns on their first "opinion." I would never have thought about doing such, but the lawyer has been there, done that, many times before (and possibly with this very DRO). FWIW, my lawyer will end up with ~$16-$18,000 of my retro, once the effective date is corrected. Money well spent, especially since my lawyer has a sizable dog-in-the-fight, so to speak.
RE the transfer: Can't help you there, as I do not know.
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10 hours ago, flores97 said:
ATCJen, I agree with Pete, but there are some advantages to having an attorney when you are about to take on BVA. I hired an attorney myself at that level for two reasons- First, i figured the attorney would know the complicated and ever changing VA laws much better than me, and they do-if you do your research and pick a good one. Second, i elected a BVA videoteleconference hearing, and i also figured that my attorney would know which judges were presiding that day, alot of times the attorneys know the judges and establish a working relationship with them. This shouldn't matter, they should treat you the same, but..Lastly, i researched quite a few BVA decisions, and i noticed a pattern. It seems when you go to BVA represented by an attorney, they are more inclined to-if not grant your claims, at least nit to bend over backwards to deny. Again, that shouldnt matter, the evidence should speak for itself. But i will say this, four years of 100% retro is a nice sum, and I would imagine you will have lawyers fighting over the chance to represent you. It really depends on how long you want to wait, but if you dont mind waiting and the BVA does deny, you will definitely need one. I wish you luck, since you won your 100% on your own i would say you have a good chance!
ABSOLUTELY CORRECT!
The conversations I have with my lawyer have really awakened my knowledge of just how the VA plays their game and the tricks that they pull. My lawyer also points out several tricks/procedures that they can use to circumvent the VA's procedural methodology in openly trying to deny your claim. Do NOT for a second, think that the VA has your needs for compensation "in their heart". THEY could care less.
Hire a good lawyer, after all the VA has their own small army of lawyers and raters who actually work at denying you. It is only AFTER the VA has been backed into a corner that they will begrudgingly give you your earned benefits, and THEN they will try to short-change you on the effective date hoping you will take the small check and go away. Do NOT let the VA'turds win!
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My original claim took 14 months. My appeal is still going forward another 26 months later. I have been awarded 100% TDIU, yet I have NOT received ANY award/rating letter. I still have appeals for MDD and OSA that have not been acted upon AND my "retro" compensation has been short-changed by at least 35 months @ 100%. That adds up to ~$80,000 and maybe more.
This all takes patience and perseverance. Two years into this I finally hired a lawyer because of the stress it was/is causing and the fact that I needed someone more experienced and on top of the VA game. Hang in there, you are in for a long haul unfortunately.
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13 minutes ago, broncovet said:
The VA feeds us a plate of Bravo Sierra, with most every claim. When we call "Whiskey Tango Foxtrot", they hire an attorney (one or more of 500 attorney's on staff at VA), to try to Foxtrot Uniform Bravo Alpha Romeo our claim.
Finally, after usually several appeals, the VA says, "Ok, gee we made an error", then lowballs or noballs the claim and its back to the hamster wheel again.
Bingo! When I recently got my TDIU 100%, the VA only went back 4-months for effective date and NOT ~40-months to the date of my original claim. There appears to be a missing $70-$80,000.00 in retro! You can be absolutely sure that that got my attorney's attention... ;-)
I think the VA likes 'flocking' with POAs as much as, or more so, than they like 'flocking' with veterans' claims...
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1 hour ago, justrluk said:
I can understand why you would be suspicious. If you go and feel better, are they going to challenge your rating? If not, are you just not trying? I think you should go and keep an open mind. If done at a VA facility, the results will be in your record. However, this doesn't mean a flag will go up at the VARO. They're swamped enough with the claims others send in without having to audit existing ratings. Even if they did, you still have years of an appeal to look forward to (dragging the issue out by their own processes). Don't worry - go and try to feel a little better. It could be worth it.
IMO, NEVER have a "good" day at the PT. Just have an "OK" day regardless, AKA always leave room for improvement. ALWAYS...
And remember, the NSA and the VA never look at your documents, conversations, medical appointments, and NEVER PT... LOL!
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38 CFR Book B 3.310 mandates secondary service connection for certain disabilities associated with traumatic Brain Injuries (TBI)
I have a couple of QUESTIONs since my MDD rating is still in limbo at the VARO:
- What does it mean by "...the secondary condition shall be considered a part of the original condition….”
- Does that mean MDD is to be rated separately as secondary service connected to TBI?
- OR,does that mean that MMD cannot be rated separately from TBI and receives just ONE rating?
- How can secondary service connected disabilities avoid the "pyramiding" accusation?
§3.310 Disabilities that are proximately due to, or aggravated by, service-connected disease or injury.
(a) General. Except as provided in §3.300(c), disability which is proximately due to or the result of a service-connected disease or injury shall be service connected. When service connection is thus established for a secondary condition, the secondary condition shall be considered a part of the original condition.
(b) Aggravation of nonservice-connected disabilities. Any increase in severity of a nonservice-connected disease or injury that is proximately due to or the result of a service-connected disease or injury, and not due to the natural progress of the nonservice-connected disease, will be service connected. However, VA will not concede that a nonservice-connected disease or injury was aggravated by a service-connected disease or injury unless the baseline level of severity of the nonservice-connected disease or injury is established by medical evidence created before the onset of aggravation or by the earliest medical evidence created at any time between the onset of aggravation and the receipt of medical evidence establishing the current level of severity of the nonservice-connected disease or injury. The rating activity will determine the baseline and current levels of severity under the Schedule for Rating Disabilities (38 CFR part 4) and determine the extent of aggravation by deducting the baseline level of severity, as well as any increase in severity due to the natural progress of the disease, from the current level. (Authority: 38 U.S.C. 1110 and 1131)
(c) Cardiovascular disease. Ischemic heart disease or other cardiovascular disease developing in a veteran who has a service-connected amputation of one lower extremity at or above the knee or service-connected amputations of both lower extremities at or above the ankles, shall be held to be the proximate result of the service-connected amputation or amputations.
(d) Traumatic brain injury.
(1) In a veteran who has a service-connected traumatic brain injury, the following shall be held to be the proximate result of the service-connected traumatic brain injury (TBI), in the absence of clear evidence to the contrary:
(i) Parkinsonism, including Parkinson’s disease, following moderate or severe TBI;
(ii) Unprovoked seizures following moderate or severe TBI;
(iii) Dementias of the following types: presenile dementia of the Alzheimer type, frontotemporal dementia, and dementia with Lewy bodies, if manifest within 15 years following moderate or severe TBI;
(iv) Depression if manifest within 3 years of moderate or severe TBI, or within 12 months of mild TBI; or
(v) Diseases of hormone deficiency that result from hypothalamo-pituitary changes if manifest within 12 months of moderate or severe TBI.
(2) Neither the severity levels nor the time limits in paragraph (d)(1) of this section preclude a finding of service connection for conditions shown by evidence to be proximately due to service-connected TBI. If a claim does not meet the requirements of paragraph (d)(1) with respect to the time of manifestation or the severity of the TBI, or both, VA will develop and decide the claim under generally applicable principles of service connection without regard to paragraph (d)(1).
(3) (i) For purposes of this section VA will use the following table for determining the severity of a TBI:
Mild
Moderate
Severe
Normal structural imaging
Normal or abnormal structural imaging
Normal or abnormal structural imaging
LOC = 0–30 min
LOC > 30 min and < 24 hours
LOC > 24 hrs
AOC = a moment up to 24 hrs
AOC > 24 hours. Severity based on other criteria
PTA = 0–1 day
PTA > 1 and < 7 days
PTA > 7 days
GCS = 13–15
GCS = 9–12
GCS = 3–8
Note: The factors considered are:
Structural imaging of the brain.
LOC—Loss of consciousness.
AOC—Alteration of consciousness/mental state.
PTA—Post-traumatic amnesia.
GCS—Glasgow Coma Scale. (For purposes of injury stratification, the Glasgow Coma Scale is measured at or after 24 hours.)
(ii) The determination of the severity level under this paragraph is based on the TBI symptoms at the time of injury or shortly thereafter, rather than the current level of functioning. VA will not require that the TBI meet all the criteria listed under a certain severity level in order to classify the TBI at that severity level. If a TBI meets the criteria in more than one category of severity, then VA will rank the TBI at the highest level in which a criterion is met, except where the qualifying criterion is the same at both levels. (Authority: 38 U.S.C. 501, 1110 and 1131)
[44 FR 50340, Aug. 28, 1979, as amended at 66 FR 18198, Apr. 6, 2001; 71 FR 52747, Sept. 7, 2006; 78 FR 76208, Dec. 17, 2013]
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Unfortunately, it could be another ~3years depending on how long you hang in there and keep pinging them. Never fun and quite frustrating, but this is how the VA plays the game, especially when it comes to retro-pay.... 8-(
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BroncoVet has good advise worth heeding.
FWIW, I am the "fortunate son" (unlike Creedence Clearwater Revival) in that 40months into my claim&appeal, I was granted:
- An increase from 40% to 70% TBI, Tinnitus stayed at 10%.
- TDIU granted P&T 100%(Dec. 2015), however we have to NOW play the "effective date game". It is a "game" because the VA immediately shortchanges you on the effective date of your claim "hoping" that throwing a little bit of $$$ your way so you will be happy and go away, for me <$7k and about 8% of what I am owed, or ~$80k.
Thus far, I have NOT applied for SSDI. Even though I have been unemployed for +10years now, I figured the VA would use SSDI, if denied, against me so "flock them" I did without. NOW, with TDIU, I will now apply fo SSDI even though I am coming up on my 64th birthday, just 2years shy of full SS. My SS is minimal due to having a short career in a private pension (school) system. The way I figure it, I would rather count on the VA rating than the SS. Just an opinion...
I did go through in ~$80k in that decade without employment and NEVER owned a CC.
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On 1/21/2016 at 8:59 PM, AppealingMarine said:
Hey all,
...Also I was wondering what I should check for first to see if my claim is done. On ebenefits, nothing has moved since 2014 (even though my exam was 2015). Should I keep checking that site or my bank account? I know this seems anxious but I have been in this process for over 5 years now and just want it over with.
In eBenefits, check "manage" your documents and letters. You will see things like your "Commissary Letter", Summary of Benefits, etc.
That is how I found my info this past month. I have been TDIU from early Dec. 2015 BUT still have NOT received an "official" rating letter from the VA. Got a small retro and monthly 100% $$$ in December 2015 but no letter. Tick, Tock, Tick, Tock... FWIW, I still have 2 more appeals "pending", even after being awarded TDIU. Very strange... and typical VA.
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I just happy that my TDIU 100% started this past December. Does not help my lawyer going forward, only to get the "Correct" effective date some +2yr back in time. THAT alone is ~$80k.
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Wow! Checked out the link and the 2014 report, "Life Cycle Chart" on page 30 specifically. As I wait for an appeal Rating decision, it will take me another three years to get a BVA decision and who knows how much LONGER to get one from the CVA! Considering that my claim is already 3 1/2yr old I am flabbergasted!
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Here is a link for the ENTIRE online book (searchable) from the Institute of Medicine Committee on Sleep Medicine and Research. This one is one of the best freebies from NIH Nationally ranked researchers I have found:
http://www.ncbi.nlm.nih.gov/books/NBK19960/
Sleep Disorders and Sleep Deprivation
An Unmet Public Health ProblemEditors: Harvey R Colten and Bruce M Altevogt. Institute of Medicine (US) Committee on Sleep Medicine and Research.
Washington (DC): National Academies Press (US); 2006.ISBN-10: 0-309-10111-5It is estimated that 50 to 70 million Americans chronically suffer from a disorder of sleep and wakefulness, hindering daily functioning and adversely affecting health and longevity. The cumulative long-term effects of sleep deprivation and sleep disorders have been associated with a wide range of deleterious health consequences including an increased risk of hypertension, diabetes, obesity, depression, heart attack, and stroke. The Institute of Medicine (IOM) Committee on Sleep Medicine and Research concluded that although clinical activities and scientific opportunities in the field are expanding, awareness among the general public and health care professionals is low, given the magnitude of the burden. The available human resources and capacity are insufficient to further develop the science and to diagnose and treat individuals with sleep disorders. Therefore, the current situation necessitates a larger and more interdisciplinary workforce. Traditional scientific and medical disciplines need to be attracted into the somnology and sleep medicine field. Renewed and revitalized commitments to the field from the National Institutes of Health (NIH), academic health centers, private foundations, and professional societies are essential to ensure appropriate public and professional awareness, education and training, basic and clinical research, and patient care. Finally, the fragmentation of research and clinical care currently present in most academic institutions requires the creation of accredited interdisciplinary sleep programs in academic institutions. -
On 1/17/2016 at 5:38 PM, Navy4life said:
BroncoVet;
I received confirmation of 74 pages being sent so I saved that in my records. I figured that is just as good as sending it Certified Mail b/c either way I am stating I sent them documents LOL - again thank you for your help
IMO, snail mail with "better" copies, is a better alternative. I would ALSO add "Signature Required" to the certified return receipt package. The goal here is to ELIMINATE any and all possibilities of excuses that the VA can come up with... ALL of them!
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No problems, been on my C-rap machine for 2 1/2 yr and counting. I hate it, but it does work for me. My AHI (Apnea/Hyponea Index) has gone from +10/hr to less than 1, and has allowed me to actually sleep on my back.
FWIW, my OSA appeal still has not been determined and is in limbo-land, since the VA has started fighting tooth and nail against any and all sleep apnea claims from about 2013 to present. IMO, the VA is making a budgetary decision here that has NOTHING to do with the effected veteran's needs. The only OTHER time I have seen the VA be so transparent about denying benefits is the VA's continual denial of "Blue Water Navy" veterans' presumptive exposure to AO, of which I am classified... }8-(
Here is the VA's BIG LIE about OSA not having any functional impairment:
http://www.military.com/benefits/2013/06/20/va-reconsiders-disability-ratings-for-apnea.html
It angers me every time I read that crap! Even if I haven't died from hypoxea yet, my quality of life went to hail. Plenty of research now, about results of OSA. Here is just one from the National Institute of Health (NIH). Just click on the quote to get the entire original article and original source:
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Broncovet,
That is probably true, but you need to think about why that is so. The biggest reasons that I can think of are:
- Claims appeals were drawn out much longer, going through the BVA and CVA process.
- Those vets with paid lawyers (+20% retro) are being paid to continue the fight/appeal to the very end and then some. Most vets who go it alone are beat into the dirt and through attrition, they finally give up too tired to continue.
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On 1/14/2016 at 2:20 PM, firemoth said:
Regarding the FOIA request and in-process claims. I asked this exact question three times while at the VARO yesterday. Since my C-File is now accessible online for all organizations, there is no requirement for the claim to be pulled out. Even more so since I filed a Fully Developed Claim via their online submission process, they already have all the documents they need (ignoring my obviously missing claims), to process the claim. So any FOIA request that comes through now will be processed CONCURRENTLY to any Benefits Claims in process.
Now, if you only had a Paper C-File, then yes. The FOIA request would interrupt the claims process because they would have to physically locate, and ship-off the C-File to St. Louis, or one of their other Records Management facilities to scan and ship you your request. At least that's how it was explained to me.
I think that only the "newer" medical records/c-files are completely digitized. Don't know how far back the purely digitized records go, but probably only 20yr or so. Mine from the early 1970s, and I am sure Rootbeers's from 1980s as well are going to be the LAST ones to be digitized from paper. I only got MY C-file last September, after the VARO spent ~2yr withholding my access to it while they "digitized." The Houston VARO then turned around and printed a hard copy to send to my lawyer, even after a digitized copy was requested.
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Don't fall for the standard line: "...How are you doing today?..."
Think about THAT line BEFORE you go to your C&P. The conditioned response of "...Just fine..." IS NOT FINE! Just remember that you do not want to be having a "good" day when you go to your C&P. Sounds simple, but you must be proactive about it or you will be tripped up by such lines. Just a thought.
How am I supposed to be feeling? I was in a tank explosion and lost my hearing!... etc...
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47 minutes ago, TALON II FE said:
I feel your pain, TVC did nothing but mess up my claim and delay an outcome thru misinformation and a complete lack understanding of the VA system. They were worthless and I plan to stop in at their HQ in Austin the next time I'm up there and let them know exactly how useless they have been, since you cannot actually talk to anyone on the phone. I am just far enough south to fall into the Houston VARO, but they farmed my claim to South Dakota so, like you, I will probably never get to see my actual C-File. I have also been given the impression that they will no longer fulfill FOIA requests while you have an active claim, they will hold off until after the claim is finalized. I believe they accepted this as policy in July or August, possibly. Someone else can maybe comment on the veracity of this.
Feel lucky that the Houston VARO farmed you out. According to my lawyer, who takes cases all across the USA, the Houston VARO is the very WORSE, yet I am stuck with them...
Can't speak to the FOIA directly, other than to say I got my FOIA (C-File) request while my claim continues 14months and counting. IMO, that FOIA request accusation is probably rumor mongering among the troops...
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7 minutes ago, Vync said:
This is a great idea, but if you do this, be sure to make sure you have plenty of storage room available on your device.
PLUS, once you have them in .jpeg format you can than take them into PhotoShop, or equivalent, and digitally enhance those images. Sometimes you can even bring out detail that the naked eye does not register.
TBI --- My Recent Journey
in Entitlement - Veterans Compensation Benefits Claims
Posted
Bingo on the need for an MRI of the brain. In my own TBI case, the MRI showed a "remote" lacunar infarct, AKA an old stroke, of the left globus pallidus. That area has much control over such area as executive functioning. And guess what, my own +40yr of post military/TBI occupational history SHOW JUST THAT.
So, that being said, do what needs to be done, including the MRIs. Can't the VA put you under anesthesia to an MRI? I'd ask if that were possible.