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namvet6567
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Posts posted by namvet6567
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I don't know if they still are, but they used to be required to read your complete file prior to the exam, and failure to do so could be cause for a remand later. Problem with the remand is it just delays the favorable award. They generally try to blame everything on you, prior to your military service. Parents abused you, etc., etc.. Bear in mind that they want to continue to be utilized by the VA, so often lean towards the VA's side. jmo
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File the claim today!!!!!! The longer you wait the more it costs you when you win!! jmo
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Sorry for the delay in responding to this!! I'm still learning how to use the site, which is why I stopped posting some yrs back. I don't adjust well to change. Anyway, I believe the VA had/has a responsibility to consider pension or compensation with the original claim, just like SSDI and SSI. I was awarded pension because, at the time, I could not prove service-connection, which made sense to me, then. I had no memory of the incident, nor the time period prior and closely after. I was in a coma for about 3-5 days. Didn't realize it was a suicide attempt, until years later. I spent 2 yrs in VN and have little memory of much that happened there. I was Airborne/Infantry. I was denied SC but awarded pension w/around 60-70% residuals around '74/75 and awarded SSDI around the same time. Started using my VA educational benefits and lost my SSDI re-evaluation due to a Dr who was pissed I was receiving benefits, when some of his patients were denied. No big deal I was going back to work after I graduated community college.
Filed a VA claim for PTSD, in '89. Awarded 30% and thought I'd won the lottery, until I started learning more about PTSD and it's affects/effects on me. Appealed the 30%. Over the next 8yrs filed appeals of every decision and for TDIU (4 claims for TDIU in that period because I had no idea what I was doing but didn't want to lose due to some stupid mistake I'd made.). The VA awarded 50%, then 70%, then TDIU, then eventually 100% schedular w/P&T, retro to day of my original claim. The final decision was my 2nd or 3rd trip to the BVA and then the VARO shorted me a year of benefits $17k+, which I CUE'd them on. Had the check within 3-4 wks for the shortage.
The decision awarding me 100% schedular carried w/it the requirement that HB and A&A be considered. I thought about it and everything I didn't do and applied for both. Don't remember if it wasn't considered at the time or I just applied within the 1yr appeal period. Anyway, denied repeatedly for about the next 20yrs, always appealing and keeping the claim open. I know I been to the BVA about 5+ times and to COVA/CAVC twice. Lawyers always won remands at the court. Paid for by EAJA. The last win was HB around 3yrs ago, on a remand from the court to the BVA. I was denied A&A but should've continued that appeal. The last BVA attorney must have read my complete file and found an evaluation by my Vet Center counselor, that recommended I not work, that I rarely leave my home and felt that was best for me. The HB award went back to my original claim date in '89. Over my working career I've had over 50 employers.
Never give up!!! At this point I'm too old, altho I'd like the record corrected. The VA knows/knew about the suicide attempts and deaths caused by wars.
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pacmanx1 - yup, I believe that's correct! Thx
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A good friend (TDIU 8.5 yrs), had a knee replacement @ a VAMC in early November, 2023, all was going well for about a week, then it inflammation, drainage etc.. They initially treated it conservatively w/oral antibiotics but after about 3-4 weeks had him come in, admitted him, opened it up again, cleaned it out, closed it up and sent him home on IV-24/7 for 6 weeks. Seems to be doing better now. They found it to be a staph infection. Anyway, since the infection was the VA's fault, what options might he have?? Thanks for any assist!!
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I believe, generally, a veteran's claim dies with the veteran. However, the widow/widower can file for accumulated benefits, which there is a maximum of 2 yrs retro benefits that can be paid, if the claim is won. I'm unsure if that would extend to a child, unless the child was a dependent. I'm sure someone will correct me or explain further. It's sad how the VA system works or should I say doesn't work!!!!!!!!!
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File now don't wait. Give them notice of your intent to file, now and secure an earlier claim date.
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Thanks both of you for posting this!!
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Personally, as long as the VA rates claims based on worked finished( ie: speed) not quality/precision, the system will never change. Generally, the current claims person rubber stamps whatever the previous person rated. Rarely have I found this not happening, which insures future work. I've never seen a VA employee skip a break or lunch b/c they are busy. jmo
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I, personally, recommend that the claimant represent themselves, b/c no one cares about "your" claim as much as you!!! I used the DAV once, sat in their rep's office, asking the VSO about the 38 CFR's, while staring at a book titled 38 CFR's, on his bookshelf and him asking me "what are those?" BTW, to the best of my knowledge, the DAV still writes the guide for all the various service orgs to follow. Altho, I used attys when I went to the CAVC twice. Chisholm & Chisholm was the first, can't remember the second at this moment (Chris Attig turned me down) and both times each atty won a remand, w/the second atty winning remand and finally decided in my favor at the BVA by a Judge Alex Humphrey or Humphries. (I like to believe that he is the son of our Alex, who used to post here, before he passed away). Sad part is I'd say most attys go for the first simple thing they can get, get paid by EAJA and then abandon the client. In a way I can't blame them, they "are" in it for the money.
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I'm considering filing some claims for the following:
1.) In '71, I was involved in a near critical motorcycle crash/accident, excessive amount of speed (about 80mph) into a parked car in someone's yard (multiple fractures/3-4-day coma) which I finally recalled/remembered, in the mid '90's, (when some of my memory returned but I still have little memory of my 2 yr VN service), was a suicide attempt. At the time I had no memory of what happened, spent 5 days in ICU, for a total of 3wks hospitalization, and a few surgeries over the yrs for a non-union FX, from the crash. I applied for VA help and was awarded NSC at 100% rate around '75 (I believe less than $50 a month at the time). I believe they denied SC, at that time. I started receiving SSDI around '73 but lost it in '77, after the re-examing doc wrote a nasty letter, b/c I was receiving SSDI and some of his patients, whom he felt were more disabled and were denied it. I didn't appeal it b/c I knew I was going to try working again. I had been in VN, as an Airborne/infantryman for 2yrs, '65-67. Discharged honorably in '68. I went school from '77-'79 w/VA help (not rehab) graduated and went to work as an NREMT-A. I became an EMT instructor & advanced EMT instructor, operating my own ambulance service. Loved my career/job!!! Eventually became a volunteer firefighter a few yrs/then a career level full-time firefighter/EMT, for a year, at age 38. I eventually burned out. In '89 I filed a claim for PTSD and eventually won in '99, retro to '89. Filed claims for HB & A&A in '99 and won HB in '20, retro to '89, but denied A&A. I'm considering a CUE claim on my original '75 application, b/c the injuries/disabilities were caused by my suicide attempt and the VA never considered it.
2.) I'm also considering filing a CUE on my '20 A&A denial, as in 2014 I caused a kitchen fire that rendered my small house a total loss. The VA was aware of the fire and that I can no longer cook but denied the claim anyway. I've tried a couple of times since but ended up leaving the gas burner on and I'm forbidden to attempt again. Probably best that I don't try!! I'll probably file the CUE and a whole new claim on the A&A. I have many more things that may qualify me for A&A, but am able to brush my teeth, etc.
I know the rules and that a CUE is hard but I've won two before. One for me and one for another vet, thru the central office. He should have appealed that 3yr retro award to the 15yrs he was entitled to but chose not to. His decision, not mine.
Seeking any offering/advice any of you may have.
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I, personally feel you should file claims for everything that could be service-connected. If you don't then the VA wins and "you lose." Sleep apnea can be caused by many things, from weight gain secondary to ptsd/depression to diabetes, ortho injuries, etc. jmo
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On 11/8/2023 at 10:17 AM, Dot09 said:
Bronco
Thanks. I wasn’t trying to call you out. I just couldn’t remember exactly what you said in your post. The only thing I do remember is that since your sleep apnea didn’t count towards the 100/60 you should have not bothered filing the claim.
Vync
Thank you for the links
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I would get the insurance and the waiver. You should be eligible, even though you are working. And you may want to purchase the additional $10k, you are allowed to but have to pay for. It get harder and more costly as we age.
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I think, along with the chiro's and foot ortho's statements, that the hip ortho doc's opinion "that he thinks the left knee injury "could have certainly" impacted the left hip" may be enough to meet the "as likely as not" criteria, in the long game, however knowing how the raters process stuff it may take some appeals and yrs to get there. jmo
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Your award 100% award letter should state that it was awarded as of whatever the date was. It should go back to the date you filed the claim for 100%, not the date that the award letter was written. If you filed on say the 18th of September and have an award date of 18 September, payment would begin as of October 1st but the actual money would not be paid until the 1st November. (I hope I explained that correctly) It should also discuss whether they considered/decided on HB &/or A&A and denied it. Usually, their failure to do that should mean that that remains an open claim. If that is the case and you pursue that and win, it could possibly mean 19 yrs retro. Just saying! What you do is your decision. I also know that the VA uses that "sleeping dogs lie" thing so that vets are scared to apply for of what they earned/deserve.
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You might be able to get HB temporarily, post surgery. I believe they'll give it to you for 6 months, or more. In the meantime, you should look at your 100% award letter and see if they mentioned a decision on HB. That could be an open claim, still.
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14 hours ago, pacmanx1 said:
The way I see it is there is no reason for you to stop posting, I just did not understand what you were disagreeing to. Now as to the regulation and the VA making sure that veterans are confused. Keep in mind that the VA is supposed to follow not only the regulations, but they are supposed to follow Precedential Decisions. Once a veteran is rated 100% P & T, and then awarded additional ratings/benefits, the VA has a duty to assess all the veteran’s disabilities to determine if the veteran qualifies for SMC-S but instead, the VA forces veterans to file a claim for SMC-S and tries to cheat veterans out of retroactive benefits.
According to Precedential Decision Buie v Shinseki, the VA is supposed to assess the veteran’s disabilities to determine if the veteran meets the criteria of SMC-S and it does not state anything about the veteran filing a claim or new claim for SMC benefits. It states that the VA have a duty to maximize the veteran’s benefits. So, if the veteran meets the criteria, why have the veteran file an additional claim?
The best thing about Buie v Shinseki is that it states that, if after such assessment, VA determines that the claimant/veteran is entitled to special monthly compensation, the effective date of the award of special monthly compensation will be the effective date assigned for the award of benefits for the final disability that forms the relevant combination of disabilities. That is Buie v Shinseki, 24 Vet, App. 242, 250-251 (2010) amended (Apr. 21, 2011).
Thanks, pacmanx1 & all. I was personally denied A&A after a 31+yr appeal, because I can bathe myself, brush my teeth, etc., even though I caused a cooking fire that cost me my house in 2014 and can no longer cook, for safety reasons. I did win the "S" award for HB. I plan on filing a CUE on the A&A soon. I've been to the CAVC x2 and the BVA at least 5+ times. For HB, the VA often quotes the CFR about it being permanent and you are basically stuck at home, but I believe the court has interpreted it differently. Thanks again. I used to keep up w/all the regs but stopped when Hadit changed so much, and I was unable to keep up with the changes. During my time here previously, I was able to meet w/Tbird & her nephew, Berta, the late Carley(sp), Wings and one other person from SC, who has passed now, whose name is failing me at this moment. All great people!!
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pacmanx1 - I didn't say you were wrong, nor did I intend to. I merely stated that I disagreed with some of the post. It took me 31yrs to get my "S" award (I won), even though the evidence, that was finally accepted as proof, was there in the original claim. A BVA lawyer finally agreed on my many claim trips to the BVA. The VA often quotes the CFR's but those are very misleading and is why they do it. Delay, deny, and round and round it goes. I should note here also, that I believe is still true. Anytime the VA diagnoses something new it is considered a claim. The problem lies in that claims and medical services are separate. In the future I can refrain from posting, if you or anyone else prefers. Regards, Flip
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You should be eligible unless there is a requirement that you be P&T, which I don't recall whether there is or not.
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Is it possible for you to post your SC disabilties, w/the percentages and the starting dates they were awarded to? It is possible that they should have awarded you an SMC-S award, as Bronco mentioned, back when they awarded the 100% rating. Which could be an open claim or maybe a CUE.
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Any decision the VA makes can be appealed. Therefore, there could be a CUE claim.
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Quote5 hours ago, pacmanx1 said:
Yes, you will have to apply for additional claims, if you want additional benefits. Provided that you meet the criteria below there are additional benefits.
Total plus 60 percent, or housebound; 38 U.S.C. 1114(s). The special monthly compensation provided by 38 U.S.C. 1114(s) is payable where the veteran has a single service-connected disability rated as 100 percent and,
(1) Has additional service-connected disability or disabilities independently ratable at 60 percent, separate and distinct from the 100 percent service-connected disability and involving different anatomical segments or bodily systems, or
(2) Is permanently housebound by reason of service-connected disability or disabilities. This requirement is met when the veteran is substantially confined as a direct result of service-connected disabilities to his or her dwelling and the immediate premises or, if institutionalized, to the ward or clinical areas, and it is reasonably certain that the disability or disabilities and resultant confinement will continue throughout his or her lifetime.
eCFR :: 38 CFR 3.350 -- Special monthly compensation ratings.
So, the bottom line is you will need a single 100% or single TDIU plus and additional separate 60% to get SMC-S. Outside of that, you can review the regulation and see if you qualify for any other SMC.
At the present time you only have a TDIU rating that is not a single rating, it is a combined rating in which you would not qualify. Your overall rating is 80% but the VA pays you at the combined 100% TDIU rating which is totally different than a Total rating plus 60%
I'm sorry to disagree with you but one can receive TDIU & SMC-S, by "in fact" being HB or needing A&A. HB doesn't mean you can't leave your house and A&A can be need help w/meds, cooking, cleaning, etc. I knew people who were receiving it. My suggestion is to apply for it and any other benefits/ratings you can. Your new career is your claim(s). If you don't apply, don't expect the VA to provide for you. Remember all correspondence with VA should be written, not phoning.
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Question on knee replacement surgery infection . . .
in VA Caregiver Benefits
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bronco - Thx, I was thinking more along the line of something like an 1151 claim or a malpractice claim against the MD, etc. The problem is that he had a shared bathroom w/the room next store (3 vets in it, w/same infection) and his door was supposed to be locked or blocked so he couldn't use it but wasn't. Just feeling things out. If nothing else, he should now be able to get his knee SC'd.