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.

I would not be so quick to file a CUE claim here because I believe that you might have a better option in getting that effective date. A revision under clear and unmistakable error (CUE) is extremely difficult because you are bound by the law and the evidence in the C file at the time of the decision. It is a claim of last resort. Not to mention, if you have a claim open on that issue then you are expressly not allowed to file a CUE claim on that issue. What I cannot tell from your facts is if VA did not get all your service medical records for the first decision. The BVA decision referred to the new evidence in this decision as current VA and private treating records but the subsequent rating decision granting benefits referenced service records showing headaches. Did VA have those service medical records when it decided your case? If VA did not and, instead, added those service records here then you have a claim for an earlier effective date under 38 C.F.R. 3.156©. Under this regulation, VA must review and reopen any previous claim on an issue if the new claim added service records to your C file. Where I see this happen most often is in PTSD cases involving combat or military sexual trauma. With combat cases-- especially in Vietnam-- VA would fail to get unit records to verify a stressor. In sexual assault cases, VA would get the veteran's service medical records but not the service records, which could show changes in performance. Once these records were added in a subsequent claim then that triggered the original claim to be reopened. The benefit of this regulation is that it treats the original claim as part of the current one and allows you to submit new evidence, as opposed to the CUE claim where you cannot add evidence. If the service medical records were considered in the original claim then it looks like CUE is your only route.

Playing video games is something that VA can consider but it is not something that the denial of IU can be based on. I have handled hundreds of IU claims but I am still amazed every day at the creative ways that VA denies IU claims (video games is new to me). I usually always have to get an expert to give an opinion as to why a veteran cannot work. Typically that expert is a doctor. But there are times, and your case seems to be one of them, where I get a Vocational expert. A Vocational expert can speak to how your disabilities, paired with your education and working background, keep you from working. VA must not only prove that you cannot get a job but also that you cannot maintain a job. The last part is key, and overlooked by VA. Lets say that you can play games for 4 hours a day. Well can you maintain concentration for the other four hours you would have been working? IU claims are unique in that VA has to look at and make its decision on your specific circumstances. In all other ratings, VA considers the 'average' veteran's level of impairment. But in IU claims the claim is unique to you. This is where an expert is so powerful, because he will consider your problems with the disability. Regarding SS records, if they help you great. If you are on SSD for a non-s/c condition then they are irrelevant. VA will still get them and try to use them against you. But the regulation, 38 C.F.R. 4.16(a), specifically states that VA shall only consider s/c conditions when making a determination on IU. When a denial is based on the vet's SSD claim being granted on non-s/c disabilities then that decision is wrong on its face. Hope this helps

If these disabilities are not service connected then there will not be a C&P unless you ask for one. Even if the VA scheduled you for an exam you do not have to go. If you do not attend there would be no adverse affect to your rating. You are IU P&T over ten years so they cannot attack your rating. The only requirement of you is complete the IU earnings reporting form annually. If you do not submit this to VA then they could propose a reduction by eliminating your IU.

VA has difficulty with claims they cannot physically see or touch- like PTSD and migraines. With migraines VA often underates the disability. The important tool that you have at your disposal here is your own competency to provide evidence on your behalf. What I mean by that is that you do not need any special medical training to state that your headaches are so bad that the only way that you can get them to go away is to lie down. Contrast that with you not being competent to say that the lump in your leg is a cancerous tumor-- you would need a doctor with special training for that statement. So what you need is, as Gastone stated, a sworn affidavit of your statement talking about your day to day life with migraines and how often you are laying down as a result of them. I use a VA 21-4138, Statement in Support of a Claim because you do not have to have the form notorized. I would also get statements from everyone that sees you on a daily basis as to how often they see you laying down. What you want from your doctor is not a prescription for lying down for your headaches but just to note it in your history of the disability. It would be great if he does that but it is not fatal if he doesn't because you are competent to enter this evidence yourself.

There are many disabilities were the rating schedule does not speak to the effect of medicine on the disability. In that case, you should be rated on the severity of the disability without medication. But when the schedule specifically speaks to the medicine you cannot really get around it. That is the case in the anxiety rating: Occupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress, or; symptoms controlled by continuous medication .................................................................................. 10 To get a higher rating you would have to show that even with the medication you have more significant symptoms.

icecube1986 Your rating should be 70%. The C&P form has that standard occupational language and whatever box is checked makes it easy for the VA rater to rate you on. The problem with this exam is that the specific findings in your case-- impulse control, suicidial ideation, and inability to maintain relationships-- are all indicative of a 70% rating. Additionally, if you are not working or making less than $10,000/yr you need to consider a claim for unemployability. Odds are that that rater takes the easy road and rates you at 30% based on that one question. But you cannot stop there. With the symptoms that you have VA must recognize how much it affects your day to day life.

Regarding time to decision, BVA keeps track of this and publishs it in it the BVA Chairman's annual report. You can find the reports here. When you look at time frames you see the typical shell game of when times are counted. Even though you file a VAF9 to the BVA the case stays at the RO for when you have a hearing. The time that it is at the RO-- two to three years-- is not counted as BVA having the case. BVA says that from the time of physical reciept of the file from the RO to decision is 235 days. The physical receipt language is more trickier in that I've seen it take up to six months for BVA to receive a file. Now that all files should be close to electronic, this delay should be taken out of the picture. So I would say that the average time is 235 days plus a couple of months for BVA to physically receive the file.

Add: If I'm reading your post right, VA finally granted service connected compensation for your back. As far as granting service connection for the various diagnoses of your back, it doesn't matter as long as they grant service connection for one then it is granted for all. For example, if you suffer from degenerative disc disease and a lumbar fusion those disabilities affect the same area of the body and, therefore, are rated under the same diagnostic code (in your case in should be 38 C.F.R. 4.71(a). This is a classic trick that I see all the time where VA grants s/c for one condition affecting a certain body area and then leaves unresolved s/c for the other issues. As a result, the veteran focuses on obtaining s/c for those issues and not the rating. Even if you obtained s/c for all the issues just affecting the back it would not increase your rating because you cannot receive multiple ratings for disabilities that affect the same body area. Your concern now should be forcing VA to grant you the proper rating. What I see happen is a veteran appeals the denial of s/c for the other back issues and does not appeal the rating. In the end, whether you are s/c for the other disabilities or not VA wins because you focused on service connection not rating. Now the above analysis does not apply where you have a diagnosis that affects a different area of your body. With back claims the most common separate diagnosis is a secondary diagnosis of radiculopathy—a pain or loss of muscle in the legs due to the back disability. This disability affects a separate body part and, therefore, can be compensated separately. Your claim encompasses both what you wrote down your claim to be and what the evidence shows it to be. So with radiculopathy if the C&P exam showed that you had this then the VA has to address it as a claim—even if you only filed for your back.

DejDan, I agree with Gaston in that VA has all the info it needs to grant your case. As far as you being in a combat zone, VA greatly expanded the definition of combat zone in 2011 and now just by showing that you were in Iraq is all you need. This coupled with your current diagnosis of PTSD and the C&P doc linking the two together is all the evidence VA needs to grant your case. The request for your STRs was probably VA pushing the wrong button on sending you the wrong form letter. Your case is complete as is. This is the VA's regulation on this issue 3.304(f)(3). Should VA mess up your case and not grant benefits then you need to appeal Good luck.

My client, Robert Gray, has asked me to share his Veterans Court case because it could have a profound impact on blue water veterans who sailed into Da Nang Harbor during the Vietnam War. The case is in the Court of Appeals for Veterans’ Claims (Robert H. Gray v. Robert A. McDonald 13-3339). The Court must decide whether Da Nang Harbor is an inland waterway. Our argument is simple: the Supreme Court's definition that a harbor is an inland waterway should be controlling in this case. VA states that VA has the ability to define words as it sees fit. The case is going to a panel of three judges at the end of February. We’ve done a write up (http://www.hillandponton.com/will-va-finally-admit-da-nang-harbor-inland-waterway) on it on our blog and will continue to update it as the case progresses. If the Court finds in our favor then VA will be bound by its decision that Da Nang Harbor is an inland waterway and it will have to compensate veteran sailors who have Agent Orange disabilities that went into the harbor. The odds are stacked against us, as this ruling would benefit tens of thousands of et but Mr Gray is excited to push this issue and, at the least, get publicity to the plight of those arbitrarily left out of Nehmer’s Agent Orange presumption. Mr. Gray wants to get the word out to as many blue water vets as possible. Regards, Matthew Hill