pwrslm

This would be called acceptable clinical evidence (ACE). Based on M21-1, a C&P can be done without the vet if ACE is already located in the vet's C-File/medical records. If a Vet has 70% disability granted as (100% P&T TDIU) "or" (a total 100% rating (the hard way)), (plus an additional 60%)beyond the basis for the TDIU, then the Vet is awarded SMC. A vet w/spouse is $3,915.42.

Hmm. Without looking at his actual ratings, there is no way to see what 20% would or would not do. If the prior rating was 94.2 he would be rated down to 90. Stop closing your eyes. But the Vet is already 100% P&T he said. If the 12 remanded conditions put the Vet to an additional 40%, 20% would put him into SMC payment. But this is all speculation. What is NOT speculation is the 0% from 2018. That is final.

Cook, 318 F.3d at 1339; Bissonnette, 18 Vet. App. at 112 (“In essence, the res judicata precedent ensures that a litigant may have his or her day in Court, but not two or three.”); see also Hazan, supra. There are two primary exceptions to the rule of finality, the reopening of a claim upon the receipt of new and material evidence, and/or revision on the grounds of clear and unmistakable error (CUE). Cook, 318 F.3d at 1337 (discussing 38 U.S.C. §§ 5108, 5109A, 7111). Even these limited exceptions are strictly bound by the principles of finality and res judicata. Russell v. Principi, 3 Vet. App. 310, 315 (1992) (entering a “cautionary note” that CUE does not mean that the same issue may be endlessly reviewed; that there is finality in veterans’ benefits jurisprudence; and that once CUE is addressed it may not be raised again, it is res judicata). See also Link v. West, 12 Vet. App. 39, 44 (1998) (citing Russell, 3 Vet. App. at 315) (stating that “under the principle of res judicata, ‘[o]nce there is a final decision on the issue of [CUE] . . . that particular claim of [CUE] may not be raised again”). https://www.va.gov/vetapp20/files11/20076092.txt

Final decision on CUE is final IAW 38 CFR 20.1409(c). "(c) Once there is a final decision on a motion under this subpart relating to a prior Board decision on an issue, that prior Board decision on that issue is no longer subject to revision on the grounds of clear and unmistakable error. Subsequent motions relating to that prior Board decision on that issue shall be dismissed with prejudice." Motion to remand, and dismissals are not FINAL decisions. If a remand or dismissal occur, the vet is granted permission to fix the problem the board noted. If the decision is made, no further action on CUE will be dismissed with prejudice. Anytime a CUE is presented, and denied, it will go before the board if the Vet pursues it. The cases shown are examples where remanded/dismissed w/o prejudice were provided so the Vet can correct problems. If the Judge were a hard axx, he could just as well have denied the CUE, and dismissed with prejudice. The Vet would then be forced to the CAVC if it were to be pursued. The point is that CUE should be set aside until the last straw. Mistakes can be brought to light without ever mentioning CUE, and preserve the issue that CUE provides. I have done this several times. The smart money is get a lawyer for CUE.

The VA will require your PCP to submit a consult on this. Instead of going straight to the specialist, the best route would be to get your primary to validate the condition and refer you. VA will not bend on this. Depending on your private insurance, you may be required to do the same thing. Some carriers allow direct consults by the insured, others do not, so check your insurance terms. I have CHAMPVA, and can go directly to a specialist. Ran into similar walls that you did. Solved that by going to a hospital that accepts Medicare. There is a federal law that requires them to refer you to a doctor/specialist if they participate in the Medicare program. I got a referral to a neurologist this way.

There ya go, missing the issue. The rating of 0% is final. Speculation on the outcome of the issues remanded is a blank check, in other words nothing is certain. It is certain that they awarded 0%. That is final, and a vet can raise that issue any time, not dependent on the outcome of the remand. All that was distraction, yet nothing changed. The truth is like that. The 20% "could" also be the bump for SMC. But the simple fact is, if the Vet can show that there was pain noted in his records, the 20% is an easy gimme.

Hi Berta, This is where I got the info that CUE can only be submitted once. Clarification that if the CUE is denied and appealed, then the following applies: The U.S. Court of Appeals for the Federal Circuit has held that "a veteran's assertion of a particular clear and unmistakable error by the RO constitutes a distinct claim." Andre v. Principi, 301 F.3d 1354, 1361 (Fed. Cir. 2002). Because the "Federal Circuit equates 'issue' with a 'claim' and not a theory or element of the claim," "an appellant has only one opportunity to raise any allegation of clear and unmistakable error for each claim decided in a Board decision and any subsequent attempt to raise a clear and unmistakable error challenge to the same claim contained in a Board decision will be dismissed with prejudice." Hillyard v. Shinseki, 24 Vet. App. 343, 354 (2011); 38 C.F.R. § 20.1409(c). A claimant, thus, has only one chance to file a CUE claim on a prior decision. Id. Can you explain?

But he should be prepared. SPO needs to scour his medical records and C&P from his shoulder to see if there is any mention of pain. Why are you so against this? 20% from 07/18 to 11/20 would be $301+ x16 months absent any other award. If the board made a mistake, it should be notified as quickly as possible because they may correct it on the spot.

Yup, I read the entire 11 pages now. This answer was on page 1.

Have you got a copy of your C-File? That would contain the C&P you do not have. Might be able to get a VSO rep to check for the C&P also, they have access to those records. If there is a problem, the VSO rep may be able to get it CUE by the VARO. Easier route, but you must rely on 3rd party.

At this time? The final determination is already in on the shoulder. It is time for SPO to check what the medical records and his original C&P say. If there was an error and he ID's mention of painful motion, he should file to correct it ASAP. It is very likely that the RO would consolidate this issue and he would not need to wait several months if there is an error. Why put it off, if it needs to be returned to the BVA, the sooner he initiates the action, the better.

You said?

Ask your VA PCP to provide an etiology for the knee and hip issues. If they will not put that into the record, then you will need a IMO/E. If they put this in your VAMC medical record, it should carry a lot of weight in your favor. If you do not have a VA PCP then you should go to your existing provider and ask for the etiology. Take the least expensive route first!

I am not saying anything about the 12 conditions remanded. All I am pointing out is all about the shoulder, which is rated at 0% up to 07/20. If you read what I wrote without inferring any other meaning, what I said makes perfect sense. I am saying he should dig into the records for any evidence of pain because that should give him an EED. Do your own homework. Scour the record, no one knows the veterans symptoms like the veteran. The minimum rating on a shoulder is 20%. He should not walk away from that if he does not need to. Pacman1 said: "...failed to realize that the veteran was also granted twelve (12) other service connections that have not been rated." The best answer to the issue about this was provided way back on page 1 by broncovet: "There is your answer. You may get an eed, or maybe smc. My advice is to attend C and P exams, as applicable, and wait for the results of the deferred issues. " There are a lot of confusing interests here. It does not help the veteran to over and over this for 9 pages.

My original SC issue was my spine. My left leg was rule secondary due to radiculopathy and foot drop (caused by damaged nerve in lumbar spine). Then they gave me pes planus (flat foot) secondary to my lumbar condition. 2 years later, my hips and knees had started to give me pain. When I submitted the claim, I was given 10% for one knee and both hips. The left knee got a 40% rating. Anytime your balance is off in your gait, it will eventually be reflected in the way your body habitus wears. if it begins in the back, it will eventually be reflected in your hips and knees. If it begins in your foot, it will eventually be seen in your spine and every joint in between.

In ref to your job. 70% qualifies for chapter 31 vocational rehab. You can apply to the VR&E to find out if you can qualify to go back to school. I did this and they sent me to school where I got a BA. You get a stipend to boot, which pays some of the bills. Your lack of progression should be enough to qualify for this program. Can you get a letter from your immediate supervisor saying that he is protecting you? That would seal the deal IMO.

I always filed my claims online because I get immediate notice that it has been received. Anything you put into the online claims system seems to make it much faster than snail-mail. The VBA is 90 days or more behind in their mail system, so if you are beyond that, it may be that they are worse off on incoming mail. Log into the Vets.gov website. Check your status. If you do not see anything, and the mail/fax has not been acknowledged, I would put it in again along with documentation that you also mailed it. Scan your receipts and return receipts/fax verifications and submit them as evidence to support your claim. You can also walk into any VBA office and they will give you a receipt for submitting your claim and/or evidence. When I did this it took about 3 weeks to get put into the system, but that was before COVID.

"We have assigned a noncompensable evaluation for your psoriatic arthritis of the left shoulder" Why would this be addressed by the VBA on remand? The appeal granted a 0% rating on it. There is no remand to rate this issue. The board granted a 20% rating from 07/20 already. Nobody is going to change that.

What did you do before you were 23? A 2 year enlistment would have given you the work credits required for a freeze. You get 1 credit per quarter, and the income would have been increased under SS because of the military service. I am surprised how you would not qualify because 6 credits takes so little to accumulate at that age. I started working at 16 and had 6 credits before I entered active duty. OK I noted you only were AD for a short time, did you have any employment before you enlisted?

No. The date of the award is already established. It was not deferred. "A noncompensable evaluation is assigned from November 16, 2018.We have assigned a noncompensable evaluation for your psoriatic arthritis of the left shoulder based on:• Objective evidence of rheumatoid arthritis without evidence of limited or painful motion (38 CFR 4.31)Note: In every instance where the schedule does not provide a zero percent evaluation for a diagnostic code, a zero percent evaluation shall be assigned when the requirements for a compensable evaluation are not met. {38 CFR §4.31}" Psoriatic arthritis is painful, and as I said above, should probably have been given a minimum compensable rating (10%) from the date of the claim (11/2018) or up to 1 year earlier if pain is documented in the record. The record needs to be gone over to see if he makes any complaints about pain to his PCP or the C&P examiner. Documentation of the nature of the pain caused by this condition in medical treatise would also benefit this for an EED. Painful Motion (§4.59): This is the most commonly used principle. Basically, regardless of how much the service member can move their knee (or any joint), if it hurts when they move it, then they will get at least the lowest Compensable rating for the knee–for example, 10% (money) instead of 0% (no money).

I did something similar to this. The VA 800 rep told me that she cannot do anything about the 3rd exam they ordered for radiculopathy of my LLE in 6 months. I told her that the VBA gave Vets no other option but to communicate through the toll free number, and if she did not have an answer for me, I would like to speak to her supervisor. The supervisor understood what I told him and sent a message through to the RO which was answered in 24 hours. The Exam was cancelled due to my age (56) as well as the fact that it was a 3rd exam is such a short period of time. I think this was in 2017. Y8 CFR 3.327 Reexaminations... (b) Compensation cases - (1) Scheduling reexaminations. Assignment of a prestabilization rating requires reexamination within the second 6 months period following separation from service. Following initial Department of Veterans Affairs examination, or any scheduled future or other examination, reexamination, if in order, will be scheduled within not less than 2 years nor more than 5 years within the judgment of the rating board, unless another time period is elsewhere specified. (2) No periodic future examinations will be requested. In service-connected cases, no periodic reexamination will be scheduled: (i) When the disability is established as static; (ii) When the findings and symptoms are shown by examinations scheduled in paragraph (b)(2)(i) of this section or other examinations and hospital reports to have persisted without material improvement for a period of 5 years or more; (iii) Where the disability from disease is permanent in character and of such nature that there is no likelihood of improvement; (iv) In cases of veterans over 55 years of age, except under unusual circumstances; (v) When the rating is a prescribed scheduled minimum rating; or (vi) Where a combined disability evaluation would not be affected if the future examination should result in reduced evaluation for one or more conditions.

A neurologist will be concerned with the operation of the brain and peripheral nerves. A Psych is dealing with mental health. A lot of the time, the two are intertwined. In cases of TBI, the neuro will be employed to figure out the actual physical damage to the brain. Physical damage to the brain can be expressed through physical and mental conditions. The residuals of such injuries could affect the behavior of the patient for the most part in a myriad of ways.

Privacy in the US has gone down the tubes in the last 20 or so years. With the advent of cell phone they know everything you do. Your modern cars also are tracked. If you ever drive down an interstate, they have camera's everywhere. Now, they installed devises to pick up cell phone traffic. It is being recorded in huge repositories that can hold tens of thousands of terabytes of compressed data that can be mined at the drop of a hat. Privacy is nothing more than a puppet in court cases.

You have been given a lot of good info here. Regarding the 0% rating up until 07/20, scour your medical records on this to see if you ever reported painful motion in this condition. If there is notation of pain that was not addressed, that date should be your effective date. Psoriatic arthritis causes swollen, stiff, and painful joints. Painful Motion (§4.59): This is the most commonly used principle. Basically, regardless of how much the service member can move their knee (or any joint), if it hurts when they move it, then they will get at least the lowest Compensable rating for the knee–for example, 10% (money) instead of 0% (no money). You would need to request a HLR on this because if it were already in your records you would not consider that new evidence that is required for a supplemental claim. Alternatively, you could also present them with a lay statement making the claim on painful motion and point out that they ignored evidence on this issue in you medical file. That may work for a supplemental claim.

VA hospital sends out notices for appointments. Takes 2-3 days, thats it.