Matthew Hill

I went to the National Organization of Veterans Advocates seminar this past weekend in Las Vegas. The best surprise of the weekend was getting to meet Asknod in the flesh and seeing his airgun. I've gotten to represent over a 100 vets on Hep C service connection cases dealing with air guns. I've read through a ton of medical research and talked to lots of docs about these cases. But i've never seen one of these air guns. Asknod says that there are only three left in circulation. It was a real treat to get to check it out. Thanks for sharing! P.S. I can't imagine the look on the TSA folks' faces when they scanned that thing

Itllis1977, What you need to prove that you are unemployable is that you cannot 'secure gainful occupation'. That is the legal standard and, unfortunately, it has not been well defined by the VA. What it is not is an review of whether you are able to do sedentary work. That is a concept from Social Security law that has never been formally adopted by the VA. Nevertheless, you see denials from ROs on this basis. What VA must consider is your educational and vocational background and how your disabilities affect you. The key here is that the standard is a subjective standard--i.e. it is based on your situation not the average veteran standard, which is used in all other situations. Your job at USPS was marginal employment and does not count against you. If anything it shows that even when you try to work you cannot. Furthermore, even if you are looking for work that does not preclude IU. If you keep getting jobs and losing them this would be further proof of your claim. If you are interested in working then I would recommend going through VA voc rehab. This will result in one of two situations. One VA trains you/ helps you find a job where you can work and then you can reenter the work force. At that point, you don't need iU. Two, after a good faith effort on your part it is determined that you cannot work then you have evidence from VA's voc rehab that you cannot work. That is powerful evidence for your claim. Good luck

Saints13 From what you provided, you are TDIU P&T. Now its making VA concede that point. Frankly, you have overwhelming evidence showing that your disabilities leave you unemployable. I typically get a medical opinion to bring all the evidence together but you probably do not need that here. I would appeal the decision that got you to 70% back to 4/14 (I’m assuming that you haven’t worked since then). I would submit the IU form now too. VA will consider that a new claim but it isn’t; its part of your claim going back to 4/14. This is important because you are probably looking at another $20k in retro benefits. Also, the IU form-- 21-8940—take your time filling it out. I’ve seen several claims delayed/denied because VA did not get all the info it wanted from the form. Before handing it in, read this (http://www.hillandponton.com/va-individual-unemployability-tips-to-filling-out-the-va-21-8940-part-1/) As far as the HBT, Broncovet is spot on. I would just caution with the HBP claim don't let the tree block the forest. Your goal is 100% P&T through IU. Once you reach that status then getting other issues s/c probably will not add to your overall compensation. The medical for the HBP will be covered. So your main focus should be IU.

I agree with bluevet about the rating: it should be 70%. But first you need to make sure that they grant service connection. Once you get that then you need to appeal if you do not get 70%. Also, if you are not working, or working and making less than $12,000/yr, then you need to consider applying for IU. The doctor indicated some severe symptoms that would interfere with your ability to work

Bluevet-- My post was confusing on the mental diagnosis point. I was just trying to explain what VA had been doing with diagnoses until the Clemons case. Frankly, the actual diagnosis applied for does not matter because of Clemons. I agree with you as well on the direct vs. secondary claim here. Andy-- As far as what to tell the C&P doc, we need to back up first. Those symptoms you are battling are serious and life threatening. I would recommend first that you are telling your treating doctor about these. Your health comes first. Additionally, by telling your treating doc those symptoms should be marked in the file, which will help your claim. As far as telling the C&P doc, you need to be as honest and forthright as possible. Don't wait for him to ask the right question if there is important info he needs to know. If there is a possibility that you are struggling with PTSD this is my post on PTSD and C&P exams.

Andyman73, A claim for service connected compensation is what the veteran states and what the evidence states. So if you say it is directly related and they find that t was actually a 2nd issue, it does not matter VA must still process the case. VA used to do a similar thing with the diagnosis of a mental health disability. You would claim PTSD and VA would say you do not have PTSD but bipolar. Since you claimed PTSD and not bipolar you lose. The Veterans Court came down hard on the VA in this scenerio in Clemons, finding that a veteran is not competent to limit himself to a certain diagnosis. You fear of pleading your case wrong-- saying secondary and not direct-- is covered by the the Clemons case. As far as an incident, i would point to the drinking. Regarding the nexus, presumably, you have suffered from this problem since service. Good luck

Bronovet, You are right in that a law passed mandating that all new evidence entered after a VAF9 is filed go direct to BVA. The law is laid out in this fast letter. However, if you filed your first VAF9 before February 3, 2013 then the new law doesn't apply to you. You still have to waive consideration for all evidence. Chances are if you've already been to the BVA and been remanded then you filed an appeal to the SOC in this case (the VAF9s you might have filed to SSOC were all after the first one) before the law changed. I'm seeing a lot of vets still stuck in this hamster wheel when they thought that it was over. So check the date of your first VAF9. As far as RO fixing this, if you get traction through Hickey's office that is the fastest route. If you don't then BVA is way to go.

Bronovet, I hope that the Hickey approach works for you. If you were just denied on an SSOC then you are not alone. I recently found an internal VA stat showing that issues remanded from the BVA are denied, and put on an SSOC, over 90% of the time. I wholeheartedly concur with USMC_Vet that you resubmit all your evidence to the BVA via ebenefits and fax and cert mail. It is extremely important that when you submit that, across the top of your submittal letter, you put in caps I WAIVE ANY AND ALL CONSIDERATION OF THIS EVIDENCE BY THE RO AND REQUEST THAT IT BE SENT DIRECTLY TO THE BVA. If you don't do this then there is a chance that it will be shuffled back to the RO for another review by the same adjudicator that denied you in the first place. As far as filing a CUE claim, you cannot/should not do that yet. CUE is a claim of last resort that cannot be filed until your current claim has ended. Additionally, the burden of proof on you is tremendous to overcome. You have to show that there was no debating that the evidence was clearly in your favor. On the appeal you have right now, all you have to show is that it is as likely as not that the evidence supports you.

I have used Dr. Ellis and he is excellent. He is thorough and he is fiery.

Iceturkee, The regulation is confusing. It says that one disability must be 40% or 60%. But that one disability can be a combination of disabilities in these five scenarios. The regulation reads: "For the above purpose of one 60 percent disability, or one 40 percent disability in combination, the following will be considered as one disability: (1) Disabilities of one or both upper extremities, or of one or both lower extremities, including the bilateral factor, if applicable, (2) disabilities resulting from common etiology or a single accident, (3) disabilities affecting a single body system, e.g. orthopedic, digestive, respiratory, cardiovascular-renal, neuropsychiatric, (4) multiple injuries incurred in action, or (5) multiple disabilities incurred as a prisoner of war." This is the full text of the regulation 38 CFR 4.16(a) So even though it says 'one disability' it does mean that. This is classic VA language that just contradicts itself and makes it hard to understand what a veteran needs to win. Vietvet-- with those limitations I would contact a Voc expert to see if he will write an opinion for you. IU is a subject standard and VA must take into consideration your background when evaluating you. My firm has had good success with Patrick Clifford out of North Carolina. He has been an expert for veterans nationwide and he understands the VA process

Vietvet, You are correct in that you mean the rating combination for IU. The 40% does not have to be one disability. It can be a combination of disabilities. In your case, the diabetes and neuropathy are of common etiology and therefore count as one. I agree with Pete53 in that the PTSD rating is a good place to start. If you are easy to anger or do not do well with authority your rating should be higher. If these do not apply then I would contact a vocational expert.

There are so many ways to get the single disability at 60% or, in his case, one disability at 40% to then qualify for IU. You can combine a lot of different ways. VA will overlook the combo options too.

I would add a couple more things to consider. When you refile your claim it will most likely go to the same adjudicator that has just denied your claim. If you have new evidence that makes the grant of your benefits completely obvious then this is a good route (i.e. inpatient treatment for your condition). As far as retro benefits, you can actually go back to the claim you first filed. If you file the new evidence within a year of your rating decision then you are entitled to go back to that previously filed claim under 38 CFR 3.156.b. Essentially, the RO must consider that evidence as a part of the original claim. The problem is when you are submitting evidence that is not bullet proof, i.e. the RO can weigh your private doc's records versus VA treating records and find against you. Again, you dealing with the same person that just denied you. I've found that the likelihood of that person changing their mind is low. In this case, you get another denial 3 to 9 months after the first and you are then filing your appeal. You have lost those months that would have been counted towards your appeal wait time. It's a judgment call but just make sure you are making an informed decision.

Porg; I'm not going to sugar coat this-- Gainesville C&P is the worst PTSD C&P center in the nation. To be sure, there are individual examiners nationwide who believe that it is their job to go after veterans who have PTSD. But I have had 100s of vets go through Gainesville and not one of them has had a positive C&P because all three doctors go out of their way to discredit veterans. There are three main examiners-- Dr. Billy Warren, Dr. Todd Davis and the name of the other escapes me-- and they all are equally as bad. I recently had a DRO tell me to get an IME because he knew that the C&P services in Gainesville were awful when it came to PTSD. So here is what I would do. It is vital that someone with knowledge of the severity of your PTSD go with you. You will ask the examiner for the witness to be able to go in the room with you because he has knowledge of your claim. If the doctor does allow the person in then he needs to give examples of how severe your anger and isolation are. If the doc does not let the person in-- for the record, I have never seen a doc let someone in to a PTSD C&P-- then that person needs to mark the exact times that you went back to the exam and when you came out. Then that person writes a buddy statement about the facts-- what he observed about the doctor and the time that you were back with him. Also, he will write about why he came and the observations he has about your PTSD on a daily basis. When you are back with the doctor you need to tell him straight how the PTSD affects you. Before the exam, you need to think about your worst symptoms and discuss with you loved ones what they believe your worst symptoms are. You need to tell these to the doctor when you get a chance. If the doc does not give you a chance then you need to state this in a statement to RO. If the exam comes out saying that your PTSD is not worse or that you were malignering (faking) then you appeal and submit the statement of your friend, your statement about the exam and any other statements from friends or relatives. You also get an IME. The statements from you and your witnesses are the foundation of the IME because that is important evidence that the examiner did not bother reviewing. This is how your doctor will differentiate his evaluation from the C&P. The doctors in Gainesville are mean but they also are sloppy. They do not consider all the evidence of the severity of the problem like they are supposed to do. As a result, your doc's IME should be a lot stronger. Hopefully, I am wrong about how the exam turns out. But if I'm not, know that it is not you but that the examiners that are in the wrong. You must push forward and appeal.

Manni: I'm not sure if you got your rating yet but I had some thoughts on what you can do with these ratings. Usually what a doctor says always trumps what the veteran says when it comes to a medical diagnosis or the severity of a disability. This is not the case with migraines or dizziness. I would write out the details of your problems with both of these issues. State how often you have the migraines and if you need to lie down to help them go away. Also, state how long the migraines last. If they are once a week how does it affect your week-- i.e. if you work does it cause problems with the job or does it interfere with maintaining a job. Then turn to dizziness and discuss the how often and what happens when you get it. Next, I would get as many statements from loved ones and people that see you on a weekly basis and have them answer the same questions that you discussed above. If they can't answer some that is fine, just get them to answer what they can. After that, you need to write out a statement about your experience in the C&P exam. This statement needs to be factual and cold-- i.e. no emotion. Now that is easier said than done. When I come across something this awful sometimes I have to write a rough and raw draft. One where I lay out all my anger, any appropriate four letter words and anything else that comes to mind. Then, I walk away from it for at least 24 hours. If I have more distance from the problem at that point, I edit out all the emotions and stick to the cold facts. You don't need to state that the exam was a joke and that the doctor was a hack. Your story will make that plain. At the end, I would request another exam due to the inadequacy of this exam. Overall, you want your statements and friends/family statements to be factual-- no discussion of what your rating should be or how the exam was unfair, just how much these issues affect you. I would strongly encourage you to get an outside exam too. But the above is a lot easier place to start.