flores97

UPDATE JULY 25, 2019: A little over 3 weeks of sending off my CUE claim I found out today that my claim for 100% TDIU was..APPROVED! A very satisfying and relieving day for me. To all those who provided their insights and input, especially Berta and notably GeekySquid; I can't thank you enough and I appreciate all the advice that you took time out of your day to give.

A higher level review might be denied under the same mistake.  I would go with the advice to file a CUE and then appeal to the BVA if your CUE does not work.

Yippee! from above M21 link:
"d.  Rejecting Medical Evidence    Unless the historical facts upon which a medical conclusion is based are dubious or untenable, reject medical evidence only on the basis of other medical evidence.
The RSVR may not rely upon his/her own unsubstantiated medical conclusions to reject expert medical evidence provided by the claimant.
Reference:  For more information on the basis for rejecting medical evidence, see
•    Shipwash v. Brown, 8 Vet. App. 218, (1995), and
•    Colvin v. Derwinski, Vet. App. 175 (1991)."
You can add this as an additional CUE: Violation of M21-MR Part III, Subpart iv, Chapter 5, and what I have done is attach and refer them to a printout of the Actual M21-1MR above highlighting the part I quoted.
I did that for my SMC CUE.

It is  a CUE under 38 CFR 4.6:
" Every element in any way affecting the probative value to be assigned to the evidence in each individual claim must be thoroughly and conscientiously studied by each member of the rating board in the light of the established policies of the Department of Veterans Affairs to the end that decisions will be equitable and just as contemplated by the requirements of the law."
I suggest that you tweek this and get it to them:
To VARO name                                                                date 
Attention to: ( put the alpha part of the alpha nurmeric here- it is on the right hand top of the decision.
This is a Claim of Clear and unmistakable Error under auspices of 38 USC 5109.I have copied that part of your ( date) decision and enclosed it, regarding these CUEs.
You violated 38 CFR 4.2 thus:
4.2 It is the responsibility of the rating specialist to interpret reports of examination in the light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability present. Each disability must be considered from the point of view of the veteran working or seeking work.
You violated 38 USC 4.6 thus:
" Every element in any way affecting the probative value to be assigned to the evidence in each individual claim must be thoroughly and conscientiously studied by each member of the rating board in the light of the established policies of the Department of Veterans Affairs to the end that decisions will be equitable and just as contemplated by the requirements of the law."
The C & P examiner specifically stated I am unable to work:
"Logistics Health Incorporated LHI examination dated May 13, 2019 confirms that you are incapable of maintaining employment".
That is a medical determination. You are not an MD, you are a rater. You have not properly applied 38 CFR, 4.16 et al,
That also is a violation of  established VA case law and regulations.
These errors have manifested a detrimental outcome to me.
Please correct them.
 
Sign, copy for your records, and send in or via ebenefits  but before you do---Thank you Dawsonatl!!!!!!
We need more CUE people here!!!!!!  
I also want to see if I can find the CAVC decision or regs that says the raters cannot make medical interpretations----
Anyone knows?
It would be a nice final  additional touch!
 
 
 
 
 
 
 
 

This looks like a CUE to me. The rater lists 38 CFR 4.16 and then miss uses it. The rater then states you can't maintain employment and then misquotes 38 CFR 4.16 again. Then the rater lists the LHI exam as favorable. This looks like it violates the following 38 CFR regs - 
4.2 It is the responsibility of the rating specialist to interpret reports of examination in the light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability present. Each disability must be considered from the point of view of the veteran working or seeking work.
 4.6 Every element in any way affecting the probative value to be assigned to the evidence in each individual claim must be thoroughly and conscientiously studied by each member of the rating board in the light of the established policies of the Department of Veterans Affairs to the end that decisions will be equitable and just as contemplated by the requirements of the law.
 4.16 (a) Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities: Provided That, if there is only one such disability, this disability shall be ratable at 60 percent or more,
Just my opinion.

WHERE ARE THEY: Landrum, SC
NAME: CLIFFORD VOCATIONAL SERVICES
SPECIALTY: Employability Assessments and IMOs
COST:600
CONTACT: Cliffordvocationalservices.com
I have heard outstanding things about Dr Pat Clifford and especially his Employment Assessibility reports. Essentially, he takes your sc disabilities and records and writes a thorough report on whether you are employable or non employable, as well as permanently disabled, etc. This comes in extremely useful in obtaining TDIU. He is very vet friendly, and i know of two other vets that used his reports and were approved pretty quickly for tdiu. I would highly recommend him, also you can send your records to him, no need for travel. 

Thank you Vync, I'll be posting as much as I can, I hope everything is going good for you as well!

Good to see you back! Hope everything goes well.

It's been a year and some change since the last time I posted and I thought about this site almost every day. I'm still 100% p%t smc s, and not sure if I posted it but I was awarded SSDI about 5 months after the VA grant for 100% p&t. My health has fluctuated and been the major issue and reason I haven't posted in so long but it's stabilized hopefully so I intend to post as much as possible. Bronco and Buck, I especially missed you guys and I hope everyone and their families are doing well. 

Thank you.

Thanks flores97!   
The exam only lasted about 20 minutes, he asked me a few questions and basically typed the entire time.   I guess he got what he needed from our conversation.   Some of these guys have done this so long, they just know what to look for and then fill-out the DBQ.
I am hoping to get the 70% or dare a say it, 100%.   I am currently at 70%, but you know the drill, its so dang hard to get 100%.    Ultimate goal though, as it should be any and all veterans that have served our country.
 
 

Did you actually start to get the 50% ?
Call the White House Hot Line at 1-855-948-2311 and tell them what happened.

It's been a year and some change since the last time I posted and I thought about this site almost every day. I'm still 100% p%t smc s, and not sure if I posted it but I was awarded SSDI about 5 months after the VA grant for 100% p&t. My health has fluctuated and been the major issue and reason I haven't posted in so long but it's stabilized hopefully so I intend to post as much as possible. Bronco and Buck, I especially missed you guys and I hope everyone and their families are doing well. 

SSDI will let you do a trial thing for work and still keep benefits. Talk to an SSDI rep on this. Dont know what your disabilities are so I cant recommend much but VA disability does not restrict your ability to work unless they awarded you 100% IU (individual unemployability). If you have IU, when they find out that you are working (usually through SS and taxes) they will re-evaluate you, or you can notify them that you need a re-evaluation after you get a solid job. VA will also give you some room for a trial before they pull an IU award, but then your disability compensation will drop back to whatever it should be without IU.
 
You should check into CH 31 VR&E also. It will get you a degree if you are over 30% disabled and cannot work. You could get a 4 yr BA and be much better off in the long run with a degree of your choice. I did this, 59 Y/O in school, graduate next May. They pay everything including books, computers, pens, the whole shot plus you get a living stipend of 750+/- every month on top of your disability pay. If you already have a degree, they can get you the PhD also. Explore your options.

I have received my outstanding IMO from Dr John Ellis in Oklahoma City, OK and am attaching it here as an example of his excellent work, if anyone has any comments, advice or questions I would appreciate any input and thanks in advance!

Ranger11b, I know this is an old post, but here goes. Go to the nearest VA Hospital, and tell them you are a veteran and need treatment. I know you are going to school, so if you can prove you are in financial hardship you shouldnt have a copay. Tell them you need Mental Health care. Start getting treatment, counseling, etc as often as possible. This will build the paper trail needed to corraborate your claim. If you get a good MH Doc, after teceiving treatment for a few months, see if they will look over your records/cfile and provide an nexus for you, linking your PTSD to the stressors inservice. Good Luck, please keep us updated.

This is the ONLY accountability VA has, otherwise, they do as they please.  Im glad you filed a Writ.  More Vets should do this.   The VAOIG is useless or worse, protects their own and investigates Vets who would DARE expose the VA.  The VAOIG is the fox guardingt the hen house.  I hope the new legislation (The accountability act) forces VA to stop bullying everyone.  

Hey Gastone,
  It was actually me, not Flores......I submitted my own claim via ebenefits with everything laid out pretty good.  The new claim was then rolled up into an existing claim which was deferred from a previous claim.  When everything on the new claim came back rejected, I checked the evidence considered and none of the evidence on the new claim (which had been combined with my existing deferred claim) was considered.  I double checked everything on ebenefits and the documents are there electronically which is why it was really really frustrating.  I called the 800 number and they simply recommended filing a reconsideration.  Even called my VSO who initially told me to get an IMO....I told him I submitted an IMO with the initial claim package and it wasn't considered as evidence for some reason----along with 30-50 pages of additional documents lol  I already submitted the Reconsideration today but probably should've read up about a CUE as you suggested.....I may have screwed myself on that.  The entire situation is frustrating ----none of the new evidence was considered and it's all sitting there on ebenefits .... 

Flores, maybe I missed it, who submitted the IMO to the Rating Dept? Any proof of Delivery? If you have proof of Delivery, a possibility of requesting a CUE Review regarding the Rater missing the IMO. No Proof of Delivery could be a problem for the Review.
However, VA Regs require N & M Evidence of Compelling Nature to be addressed by the Rating Dept, when received Post Decision.
What does your E-Ben section regarding Evidence Submitted say?
Semper Fi

I have to put in a good word here for Valor as well. I, after reading some other posts, decided to check them out as well, and so far I am impressed. They even pay for you to ship your records to them for review. Husband/wife team, wife was the former c&p examiner, i spoke with her and she was very knowledgeable, in fact after filling out the new client application online she was able to view some of my prior c&ps. They are also willing to work with vets on payments and have a referral program, but by no means am i posting to try to get the referral bonus, i feel they truly want to help vets. I just sent my packet off to them, and will post the IMO's when received so everyone who needs a reasonably priced IMO can see if this might be an option for them.

ShuMan,  I had a NOD at about 15 months,  and I emailed the secretary and received my increased rating decision less than six weeks later. The only reason I sent the email is because my NOD was still awaiting review,  at 15 months.  I had also been told by Voc Rehab that I am permanently and totally disabled and unemployable due to my SC disabilities, and my counselor provided me a letter stating that.  I submitted the letter,  VA already had all other evidence,  waited a couple of months,  at the 15 month mark I sent the email asking to expedite the overdue nod.  I had my decision, 100% p&t, about six weeks later.  I also received a phone call from my RO about two weeks after sending the email to let me know a decision had been made.  If your nod is past due,  send the email,  and best of luck to you.

I wanted to sort of update this as it has been mentioned in other post about the tax implications of student loan forgiveness.  The taxes that play in that forgiveness can be substantial.  It will be counted as income.  My loan forgiveness was 44k.  Thats a pretty big chunk of taxable income.  I thought I was in serious trouble with taxes.  I was actually going to owe 9k to federal and 1k to state.
There is a remedy to this and it is insolvency.  You can file the form yourself through a program like Turbo tax and such, usually most say Home and business Taxes.  I could not find and online version or access to this process without buying the program in CD format.  Form 982 and insolvency worksheets.  It is a bit troublesome however, it will save you tons. In my case it did.  
Basically it looks at your financial picture before the student loan pay off, and sees if you were upside down.  Owe debt more than your assets combined.
It is definitely worth the investment and definitely needed information to be considered before going through the student loan forgiveness process.  
I was trying to find a post on here that discussed it as well but couldn't find it offhand, however, I do recall folks talking to me and others about where to seek advice.  In any case a tax attorney, an accountant, and other folks experience helped immensely.
Im not sure about other tax programs but I imagine that they would have access to the same forms, perhaps in deluxe or professional versions of their software.  Also it is worth a person's while to talk to a tax attorney and/or accountant as they are the experts in these types of situations.  
Hope that this is of some help to folks on here.
 

I filed my NOD on November 6 2015, ebenefits updated with my new rating yesterday and the actual rating decision was made on January 20, last month, out of Winston Salem Regional. Don't hesitate to go to the RO or send an Iris Inquiry to check the status as well,  Good luck. 

I think Mike is correct.  When your kid goes to college, and gets chapter 35, you dont ALSO get benefits for a "school age" child.  It probably has to do with pyramiding...you can not get paid for the same thing twice.  And, if your son gets ch.35, you dont get paid for him.  
However, you bring up an interesting point, that may have not been tested in court:
Can you get school age dependent benefits when the child is NOT collecting Ch 35 benefits.  
Its not a particulary large amount, so it may never get tested because, if he is attending college and getting ch. 35 most of the time, the benefits paid to you would be small and it would be an accounting nightmare. 
However, Ch. 35 used to be paid for the year, and they recently started "cutting" breaks, such as spring break, christmas break, summer break.
I think it may be a good idea for you to appeal this.  (I dont like them cutting ch. 35 for breaks).   I mean, gee whiz, does employee health insurance not continue while on vacation or even on weekends?  Its just another way they hornswaggle vets.  

Agent Orange:
   You are overthinking this.  While I certainly agree that VA does not always act in our best interests, it is POSSIBLE that it indeed happened THIS TIME.  Until you find out better, you need to accept that the VA is asking for "additional information" to get a higher rating, that the C and P exam was inadequate.  
    Indeed, if you think the VA "developed to deny" your claim, that is, asked for more information when it already had enough to give you a good rating, then you can challenge that.  
    But you cant challenge VA in what you think they will do.  Let it play out, and see if you get a bad result, first.  You may be suprised.