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allan
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Posts posted by allan
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I get nausiated with vertigo. They prescribed meclizene and it helps some.
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It took 4 yrs with a DRO for me.
NOD is quicker from my experience. You can choose appeal if the NOD doesn't work out also.
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Burned vets to be eligible for adaptive grants
Army times, Page A16, Oct 18, 2010 edition
WHAT’S UP: Disabled veterans with severe service connected burns will become eligible for automobile and adaptive equipment grants from the Veterans Affairs Department under an expansion of benefits approved by Congress, and the biggest grants will increase from the current $11,000 to a maximum of $18,900. The assistance has been limited to those with the loss — or loss of use — of one or both arms, legs or hands, or who have severe vision problems, defined as visual acuity of 20/200 or less and a field of peripheral vision of 20 degrees or less.
WHAT’S NEXT: The addition of severe burns and the increase in the grant are part of the Veterans Benefits Act of 2010, but do not take effect until next Oct. 1. Delayed effective dates reduce the cost of the legislation and also give VA more time to plan for the changes.
"Keep on, Keepin' on"
Dan Cedusky, Champaign IL "Colonel Dan"
See my web site at:
http://www.angelfire.com/il2/VeteranIssues/
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Washington , Health
ALERT Respiratory problems, neurological conditions and heart disease on rise since 2001
Army times, Page A-12, Oct 18, 2010 edition
By Kelly Kennedy
kellykennedy@militarytimes.com
Rising suicide rates, musculoskeletal injuries, traumatic brain injuries and post-traumatic stress disorder are the signature medical maladies of this war, and military officials have worked hard to tame them.
But unknown and unseen is a large cache of data showing rising rates of many other illnesses and injuries that thus far have eluded public scrutiny.
A Military Times analysis of military health data from 2001 through 2009 shows: ■ The rate of respiratory issues rose by 32 percent.
■ Cardiovascular disease rates jumped 30 percent.
■ Complications related to pregnancies and births were up 47 percent.
■ Neurological conditions, such as multiple sclerosis and Parkinson’s disease, shot up nearly 200 percent.
Army Col. Bob DeFraites, director of the Armed Forces Health Surveillance Center, which gathers the data on morbidity — the rate of incidence of various health problems — said his agency publishes the rates for well over 100 illnesses and injuries for use by government policymakers.
But the reports do not track trends over multiple years. Instead, each one shows only current-year figures.
"I really haven’t had the opportunity to look at 10-year trends," DeFraites said.
His focus is on what is happening right now on the battlefield, DeFraites said. Short-term trends spotted by AFHSC researchers prompt follow-on reports, such as one this year that looked at mental health and sleep.
Military Times compiled 10 years of data to identify longerterm trends. The resulting figures surprised researchers.
"These numbers are dramatic," said Norman Edelman, chief medical officer for the American Lung Association. "This is a huge problem."
Edelman called the rise in respiratory problems "alarming," and cited increased use of smoking tobacco as one possible cause. "But I would think there are other things going on, and I worry about all the toxic materials they are exposed to in the air," he said.
Those would include dust and sand, smoke from burn pits, diesel fumes, chemicals from factories, a sulfur mine fire, a nuclear plant near Baghdad and intentional sabotage through chemicals by Saddam Hussein’s army.
Several studies have shown that heart disease and respiratory issues can be caused by smoke from burning wood, as well as by the dioxins produced by burning plastic. Most military bases in the war zones exposed service members to large open-air burn pits, used to dispose of all manner of trash.
A soldier is coated in dust as she prepares to leave Forward Operating Base Yousefia, Iraq, on a supply mission in this 2007 photo. Respiratory illnesses have spiked among service members since the beginnings of the wars in Iraq and Afghanistan.
Studies done early in the wars showed that some troops were also exposed to contaminated drinking and shower water.
Gastrointestinal infections have been linked to immune system disorders, such as rheumatoid arthritis.
Neurological problems, such as epilepsy and headaches, have been tied to traumatic brain injuries, which are common among troops injured by roadside bombs; and combat stress has been linked in long-term studies to illnesses ranging from heart disease to immune-system issues to skin problems to depression.
Experts who reviewed the data say pinpointing exact causes is difficult without further research into all the associated factors, such as stress, which is "a huge issue in a combat zone," said Garry Augustine, national service director for Disabled American Veterans.
But one specific area that DAV is focused on is respiratory problems among troops. DAV has led a charge to ban open-air burn pits in Iraq and Afghanistan, which have been linked to such problems. For several years, a huge burn pit at Joint Base Balad, Iraq, for example, consumed 240 tons of trash a day.
Troops were also exposed to a sulfur fire in Mosul, Iraq; bags of a carcinogen in Qarmat Ali, Iraq; and smoke from cement and other factories in Iraq and Afghanistan.
Narmin Othman, Iraq’s environment minister, said in January that high levels of dioxins have been found in areas where oil pipelines have been bombed, according to Britain’s The Guardian newspaper.
Birth defects and cancer rates are rising among Iraqis, Othman told the paper. And a study released in January by Iraq’s environment, health and science ministries found more than 40 sites across the country contaminated with radiation and dioxin, The Guardian said.
Iraqis have also raised concerns about the Tuwaitha nuclear facility outside Baghdad. According to a report in the Bulletin of Atomic Scientists, civilians looted yellowcake in 2003 and then dumped it out of barrels at the site, as well as in nearby villages and waterways, so they could reuse the barrels to store food.
The report was written by Brenda Rodgers, an assistant professor of biology at Texas Tech University who went to Iraq to train scientists about radiation safety. She wrote that the site had also been bombed repeatedly.
Data limitations
Edelman and Augustine said the true significance of the data cannot be known without separating deployed and nondeployed service members.
The morbidity reports do not include cases diagnosed in the war zones unless the troops were seen again for the same issues after returning home. Warzone data is not maintained centrally, but it is likely that if such numbers were available, they would boost the rates for many illnesses and injuries.
DeFraites said his team looks closely at particular data if asked to do so by defense officials.
In recent years, he said, some types of injuries, such as back problems, have "led the pack," but he added that researchers need to ask whether those injuries are "just the cost of doing business" as service members jump in and out of trucks wearing heavy gear, or whether there is something specific that could be done to minimize such injuries.
"Behind every one of those categories, there’s a whole world of questions that could be asked," DeFraites said.
But retired Air Force Lt. Col. Darrin Curtis believes some of those questions are obvious.
In a memo dated Dec. 20, 2006, Curtis, former bioenvironmental flight commander for Joint Base Balad, wrote of the burn pit: "In my professional opinion, there is an acute health hazard for individuals. There is also the possibility for chronic health hazards associated with the smoke." But even Curtis — whose memo outlining the carcinogens, neurotoxins and chemicals known to cause respiratory and other problems caused an outcry against the burn pits — was surprised by the new statistics.
"I think the numbers bring the issue to a point where there needs to be some serious reviews by people outside the Defense Department," he said.
In the U.S., most people develop emphysema from long-term smoking, but asthma, air pollutants, genetics and respiratory infections also lead to chronic obstructive pulmonary disorder, according to the Centers for Disease Control and Prevention.
Lower respiratory infections consist of pneumonia and bronchial pneumonia, while upper respiratory infections include colds. Emphysema, a form of COPD, comes from smoking.
The surveillance reports show that the rate of COPD per 10,000 people increased 122 percent from 2001 to 2009. The rate of chronic sinusitis increased by 244 percent. And the rate of lower respiratory infections increased by 50 percent. The CDC reports the number of people aged 25 to 54 with mild or moderate COPD in the civilian population has declined over the past 25 years. But in the military, it has more than doubled in fewer than 10 years.
Anna Johnson, an epidemiologist at the University of North Carolina who studies veteran populations, was also surprised when she saw heart disease rates — especially for congenital heart disease, which increased by 120 percent from 2001 to 2009.
That could be because military doctors are using better methods to detect the disorders. But Johnson said that probably would not entirely explain the increase.
Obesity is usually the top predictor for heart disease, according to the American Heart Association, but obesity has declined as a health risk for military members since 2001.
That points to environmental factors, Johnson said. Exposure to biological warfare agents has been linked to heart disease deaths in some studies, she said. And soldiers exposed to sarin gas during Operation Desert Storm had an increased risk for brain cancer.
For Curtis, who performed environmental sampling in Iraq and tried unsuccessfully to bring the potential hazards of the open-air burn pits to the attention of higher levels, the morbidity data is bittersweet vindication.
"The proof is in the pudding," he said. "All the environmental sampling in the world is a secondary standard to … the primary standard: Are people getting sick?"
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My DRO review took four yrs of needless delay.
You can file a NOD and have it go through normal VARO review instead of going through a DRO.
I believe after you file for Reconsideration or Notice of Disagreement, (NOD) than the process that follows is, review of previous rating.
There is a time line to file for Reconsideration or Notice of Disagreement. I would check very closely through the CFR's, USC's and M-Manuals concerning the legal filing of, "Review of Rating". If you file for the wrong thing and your time runs out to file for a NOD, you may end up SOL.
Other than the process the VA raters do after you file a written NOD, I've never heard of "Review of Rating" in the codes.
However, Reconsideration or Notice of Disagreement is there.
(b) Unless the claimant has requested review under this section with his or her Notice of Disagreement, VA will, upon receipt of the Notice of Disagreement, notify the claimant in writing of his or her right to a review under this section. To obtain such a review, the claimant must request it not later than 60 days after the date VA mails the notice. This 60-day time limit may not be extended. If the claimant fails to request review under this section not later than 60 days after the date VA mails the notice, VA will proceed with the traditional appellate process by issuing a Statement of the Case.
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If he has enough earned credits over the last 5 yrs worked than he should file for SSDI. He can call Social security and get an earnings record printout to find out if he qualifies.
Social Security Info
http://www.socialsecurity.gov/
http://www.socialsecuritydisabilityclaims.org/
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9. US Army Commanders Alarmed By Rash Of Suicides At Fort Hood. The New York Times (9/30, A23, McKinley, 1.01M) reports, “Four veterans of the conflicts in Iraq and Afghanistan died this week from what appeared to be self-inflicted gunshot wounds at Fort Hood in central Texas, raising the toll of soldiers who died here at their own hands to a record level and alarming Army commanders.” The “largest base in the United States, Fort Hood and the surrounding communities have suffered high rates of crime, domestic violence, suicide and various mental illnesses as wave after wave of soldiers have been deployed abroad over nine years of continual warfare, often serving more than one tour.” The Times notes that “advocates for soldiers who have suffered mental breakdowns said” Army suicide-prevention programs are not effective.
Analysis Suggests Vets’ Mental Health Problems Are Growing. The Fayetteville (NC) Observer (9/30, Calhoun, 56K) reports that after it “spent months examining the handling of mental health issues created by nine years of war,” its “reporting shows that the Army, Fort Bragg, the veterans health system and the civilian community are doing more than ever before to address the problems that soldiers and their families face. But the problem is growing; more soldiers are suffering” from post-traumatic stress-disorder (PTSD). According to the Observer, “evidence suggests that addressing PTSD in a military community requires a broad approach that includes” a “stronger commitment from the military to fight the stigma attached to seeking mental health treatment.”
Illinois VA, Marion VAMC Expanding Mental Health Services. The WSIL-TV Carterville, IL (9/30, Stensland) website, which also takes note of the recent Fort Hood suicides, reports, “The Illinois Department of Veterans” Affairs has created three” programs – “Vet Healthcare, Illinois Warrior Assistance Program (IWAP), and Reintegration Seminars” – that specifically target “troops who show signs of combat stress.” Hospitals run by the US VA are “also expanding their mental health services. The Marion VA Medical Center is building an addition to its mental health center” and has “stepped up the amount of help veterans can get at VA field offices across the region.”
Dorn VA Hospital Hosts Suicide Awareness Program. The WLTX-TV Columbia, SC (9/29, Sharp, Eleazer) website noted that on Tuesday, the “Dorn Veterans Administration Hospital hosted a program to bring awareness” to the problem of suicide among US veterans. Meanwhile, veteran Gary Anderson is “volunteering with the hospital to make ‘bottles of hope’, small containers filled with a solution to blow bubbles. The bottles will be sent to military personnel serving in Iraq to let them know someone cares here at home.”
Gates Cautions About Growing Disconnect Between Military And Country As A Whole. The AP (9/30, Flaherty) reports that in a Wednesday speech at Duke University, “Defense Secretary Robert Gates said…that most Americans have grown too detached from the wars in Iraq and Afghanistan and see military service as ‘something for other people to do.’” The Secretary “said this disconnect has imposed a heavy burden on a small segment of society and wildly driven up the costs of maintaining an all-volunteer force.”
AFP (9/30, De Luce) notes that Gates “said most Americans were untouched by the fighting in Iraq and Afghanistan and few had relatives or friends in the armed forces, as less than one percent of the population was serving in uniform.” AFP adds that “although Gates lauded the all-volunteer force, launched in the 1970s, as a ‘remarkable success,’ he said there was a potential gap emerging between the military and civilian society.”
The New York Times (9/30, A28, Bumiller, 1.01M) reports, “Gates said that although veterans from Iraq and Afghanistan were embraced when they came home, ‘for most Americans the wars remain an abstraction – a distant and unpleasant series of news items that do not affect them personally.’” Gates “called for the return of R.O.T.C. to elite campuses across the country…and for the academically gifted to consider military service.”
http://www.veteranstoday.com/2010/09/30/top-10-veterans-stories-in-today%e2%80%99s-news-68/
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EDWIN CROSBY: Board for Correction of Military Records Failing Veterans
September 29, 2010 posted by Gordon Duff
BCMR’S SERIOUSLY FAILING THEIR MANDATE TO VETERANS
DD214 SECRET CODES
In fact, attached to this story are four (4) questions which can be submitted to anyone of the BCMR’S. Just change the name from Army to Navy, or to USAF. Send said questions to your U.S. Senator or Congressman at their State office, use CERTIFIED MAIL, no green return receipt needed, do not sent to Washington Offices. Request that the 4 questions be answered as veterans believe the BCMR’S are NOT following Congressional Mandate or Legal Precedent, and you yourself may have to use the BCMR’S and you want a FAIR playing field.
You should get a form letter back from your Senator/Congressman saying they received your request and will forward for answers. If you do not hear anything within 3 weeks, call and ask what happened. This is a GREAT OUTRAGE that when asking for Justice at BCMR’S, veterans are further stabbed in the back by those wearing a military uniform of the U.S. Stand up and be counted veterans !
FOUR QUESTIONS TO BE ANSWERED BY ARMY BOARD FOR CORRECTION OF MILITARY RECORDS
QUESTION ONE:
How many cases have come before your ARMY BCMR since 1986 in which a veteran had a " false & stigmatizing coded number ", known as a SPN, SDN, SPD code, and said veteran was advised by LEGAL PRECEDENT, CASEY v. U.S. 8 Fed Cl.Ct. (1985) that he or she was entitled to a " DUE PROCESS OF LAW HEARING UPON DISCHARGE ".
QUESTION TWO:
Upon determining the veteran was given a false & stigmatizing coded number, how was the veteran " redressed or compensated " for the injustice, which is a requirement of the law governing BCMR’S i.e. Give examples of how payment was forthcoming.
QUESTION THREE:
When a BCMR discovers that SPOLIATION has taken place, and a party who destroys a document with knowledge that it is RELEVANT to litigation is likely to have been threatened by the document, and that party is one of the military branches, how does SPOLIATION effect a veterans claim. Do lawyers in the litigation office notify Justice Department Officials of the crime committed ?
QUESTION FOUR:
Once a BCMR has determined a veteran has a STIGMA discharge, and the BCMR’S must CORRECT the INJUSTICE, what guidelines are you following to locate ALL places the coded reason for discharge has been disseminated to. Please provide copy of those guidelines.
EDWIN H. CROSBY III
http://www.veteranstoday.com/2010/09/29/edwin-crosby-bcmrs-failing-veterans/
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From: VAEmail (Veterans Affairs) [
Sent: Thursday, September 30, 2010 8:30 AM
To: VETAFF-
Subject: COMPREHENSIVE VETERANS' BENEFITS BILL PASSES CONGRESS
FOR IMMEDIATE RELEASE Contact: Kawika Riley (Veterans’ Affairs)
September 30, 2010 (202) 224-9126
COMPREHENSIVE VETERANS’ BENEFITS BILL PASSES CONGRESS
WASHINGTON, D.C. – U.S. Senator Daniel K. Akaka (D-Hawaii), Chairman of the Veterans’ Affairs Committee, praised his colleagues for supporting a comprehensive veterans’ benefits package now headed to the White House for President Obama’s consideration. If signed into law, this bill will expand insurance options for disabled veterans, upgrade compensation benefits and employment protections, authorize VA construction projects, and allow VA to keep using private physicians to quickly and accurately provide veterans with disability evaluations.
“I commend my colleagues for supporting this bill to upgrade the benefits that veterans have earned through their honorable service. I look forward to President Obama signing this important measure into law,” said Akaka, a key sponsor of this legislation.
The Veterans’ Benefits Act of 2010 (H.R. 3219, as amended), includes the following:
· Raises an automobile assistance benefit for disabled veterans from $11,000 to $18,900.
· Authorizes federal grants to provide job training, counseling, placement, and childcare services to homeless women veterans and homeless veterans with children.
· Substantially increases the maximum levels of supplemental insurance for totally disabled veterans, as well as Veterans’ Group Life Insurance and Veterans’ Mortgage Life Insurance.
· Provides retroactive Servicemembers’ Group Life Insurance benefits for troops who were traumatically injured between October 7, 2001 and November 30, 2005, regardless of where their injury occurred.
· Clarifies that the Uniformed Service Employment and Reemployment Rights Act prohibits wage discrimination against members of the Armed Forces.
H.R. 3219 passed the House late last night, after clearing the Senate on Tuesday, September 28. The bill now goes to President Obama for his consideration. A detailed summary of the Veterans’ Benefits Act of 2010 is available here: LINK
The full text of the bill, as amended by the Senate, is available here: LINK
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"Keep on, Keepin' on"
Dan Cedusky, Champaign IL "Colonel Dan"
See my web site at:
http://www.angelfire.com/il2/VeteranIssues/
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The Housed passed it 29 Sept..last night.. see bill info at:
http://thomas.loc.go...emp/~c111JZF49w
Veterans' Benefits Act of 2010 (Engrossed Amendment Senate - EAS)[H.R.3219.EAS][PDF]
Look up any bill at: http://thomas.loc.gov/
Senate passes compromise vets bill
http://www.armytimes...enefits-092810/
By Rick Maze - Staff writer, Posted : Wednesday Sep 29, 2010 17:46:43 EDT
With just days before Congress takes a six-week break for the November elections, the House and Senate veterans' affairs committees have reached agreement on an omnibus bill making improvements in employment, job protection, housing, insurance and other benefits.
The Senate passed the bill, HR 3219, by voice vote late Tuesday. The House is expected to approve it in the next few days.
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"Don't cha feel we get enough?????????? I have plenty. Could I spend more - sure! We have shelter, food, water, a vehicle, family, friends, Hadit, etc. What more do we need??? Some of you are sounding to me like some of these CEO's wanting more and more. "
Philip,
For some reason I'm getting the impression vets are getting far more than we should according to you. If it were up to you, how much should 100% veterans monthly benefit amount be rolled back to? Say maybe $500 pr month maximum? Or maybe cut out SSDI and VA benefits? Or stop VA, SSDI and military retirement?
How much of your benefits would you be willing to give up since you live so high off the hog?
The reason some vets ask for COLA increases is they don't receive what you get. And maybe the cost of that hot water tank, food, car repairs and the cost of paying for school supplies for their children while being disabled, just pushed them over the edge. The majority of disabled vets are not 100%. Many are struggling.
Shouldn’t it matter to those who have, that there are those who don’t? Is it all about I got mine, so you shouldn’t be concerned about getting more for your family?
Gas is such a small part of what we consume. I can see every day items in the stores increase almost weekly. The cost of food, medicine, home repairs, etc all increase and none of it is counted.
Many, many of our disabled veterans, disabled and senior citizens need and look to that $20 monthly COLA to get them another few meals when they get a blow out and have to spend $75 bucks for a new tire they really can't afford.
A few bucks for those in our society that have earned it and need it the most shouldn't be made to feel like they don't deserve the right to ask for it.
Vets that are completely disabled fight for yrs just to receive 30%. Then spend yrs more at CAVC fighting to get TDIU or their 100%.
Yes you may be very well off, that doesn't mean the rest of us are.
Sounding like CEO's wanting more and more?
Oh please. How can you compare the poverty level of the majority of disabled veterans to CEO’s that get multimillion dollar bonuses for ruining corporations?
We use the VA for health care. How many of those CEO’s do you think would use VA for their health care?
Whether we get COLA’s or not and whether some think we deserve it or not, many are financially in need of it during these tough economic times we are having.
If your 100%, get SSDI, Military retirement, own everything, invested in gold, have a couple of extra pensions, children are grown up or you don't have any and everything is perfect in your life than yes I guess YOU wouldn't need the COLA.
If you just got back from Iraq, are 100%, lost your home and your wife/husband left you with 4 kids to raise while you were gone. Than maybe you might not be as well off.
My point is simply because you can live one way, doesn't mean everyones life is the same.
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Sorry Carlie,
I thought I remembered reading that there was not to be any discussion of COLA's.
If thats not so, than Im mistaken. Not looking for an argument with you.
If my reply was considered "continuance of dribble bashing the VA by you, that wasn't my intent.
It really doesn't matter. Theres not likely to be any COLA. The CPI are figures the bean counters like Simpson play with all day long to their advantage. You can bet it's not to our benefit.
My personal opinion is Veterans should recieve an automatic anual increase in their benefit amount regardless of the CPI. Just my opinion and I know the VA can't do anything about it.
"If you put your military personel in harms way, than when they become injuried you need to pay."
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From: Vietnam Veterans of America,
Sent: Thursday, September 23, 2010 5:01 AM
To: Dan Cedusky
Subject: Watch the Senate Veterans Affairs Committee hearing on the VA Secretary final ruling to add three new presumptive conditions to aid Veterans exposed to Agent Orange
<P align=center> Watch the Senate Veterans Affairs Committee hearing on the VA Secretary final ruling to add three new presumptive conditions to aid Veterans exposed to Agent Orange
WATCH LIVE
Dan, the Senate Committee on Veterans' Affairs will hold an Oversight Hearing on VA Disability Compensation Presumptive Disability Decision-Making today. The committee will hear testimony from witness regarding the final decision by the Secretary of Veterans Affairs adding three new presumptive illnesses, Parkinson’s Disease, Hairy Cell and other types of chronic, b-cell leukemia, and Ischemic Heart Disease as presumptive-service connected conditions relating to Agent Orange and other toxic exposures.
Follow the link and watch the Senate Committee on Veterans Affairs hearing live today.
http://veterans.senate.gov/hearings.cfm?action=release.display&release_id=a57f0b14-d9af-43e8-b9c5-8ff1e85a5fe2'>http://veterans.senate.gov/hearings.cfm?action=release.display&release_id=a57f0b14-d9af-43e8-b9c5-8ff1e85a5fe2
If the link does not direct you to the video please go to http://veterans.senate.gov/
When: September 23, 2010
Time: 9:30 a.m.
WITNESS LIST
PANEL I
The Honorable Eric K. Shinseki, Secretary of Veterans Affairs
PANEL II
The Honorable Anthony J. Principi, Former Secretary of Veterans Affairs
Jonathan M. Samet, MD, MS, Chair, Committee on Evaluation of the Presumptive Disability Decision-Making Process for Veterans, Institute of Medicine of the National Academies.
Diane Bild, MD, Associate Director, Prevention and Population Sciences Program, National Heart, Lung, and Blood Institute, National Institutes of Health.
Linda Birnbaum, PhD, DABT, ATS, Director, National Institute of Environmental Health Sciences, National Institutes of Health, and Director, National Toxicology Program, Department of Health and Human Services
"Keep on, Keepin' on"
Dan Cedusky, Champaign IL "Colonel Dan"
See my web site at:
http://www.angelfire.com/il2/VeteranIssues/
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Go to this web site, sign in and make a comment..
http://www.newsobserver.com/2010/09/20/692898/agent-orange-spending-concerns.html
See my comment:
coloneldan wrote on September, 21 11:12 AM:
Serving in the Military is very dangerous to your health, not even counting the bullets and bombs. Almost every military base that has been closed is on the EPA superfund cleanup list. Military members are exposed to all kinds of toxic chemicals on a daily basis..and congress, including Member Senator Burr ignores those facts. He has no problem spending money on equipment and contractors, especially if they are from his district or from his campaign fund contributors, or pays for his junkets. BUT he can't seem to find the money for the troops. Oh I know..he proclaims loudly at every campaign stop and speech how he supports the troops..well that is BS. Veterans come home, get sick and die, and we find out years later what toxic chemicals they were exposed to, or we fight the VA for years, lose our familys, our health, our homes, while Sen Burr joins Nero in fidling while Rome burns. Vote him out.
Agent Orange spending also concerns GOP lawmaker
RALEIGH, N.C. The leading Republican on the Senate Veterans' Affairs Committee said Monday that he also has concerns about a proposal that would spend billions of dollars on disability compensation for Vietnam veterans who get heart disease.
North Carolina Sen. Richard Burr added his voice to leading Democrats on the committee who have reservations about the spending and plan to discuss the issue at a Capitol Hill hearing this week. Because of concerns about the defoliant Agent Orange, the Department of Veterans Affairs wants to allow tens of thousands of Vietnam veterans to get compensation for heart disease, a common ailment for older adults.
Burr said he shares some of the same concerns raised by Virginia Sen. Jim Webb, a Vietnam combat veteran.
"We'd like to make sure that, one, the science has a causal link, and two, that the defined population is an appropriate one," Burr said in an interview, his first public comments on the topic.
Congress set up a system two decades ago so that the VA could automatically grant benefits to veterans who served in Vietnam during a 13-year period and later got one of the ailments linked to Agent Orange. Compensation has been approved for a series of ailments with strong indications of an association to the defoliant, including Hodgkin's disease, soft-tissue cancers and non-Hodgkin's lymphoma.
But that list is also growing to include common ailments for which decades of research has found only the possibility of a link, including diabetes, prostate cancer and lung cancer. The Associated Press reported last month that some 270,000 Vietnam veterans - more than one-quarter of the 1 million receiving disability checks - are getting compensation for diabetes. It is now the most frequently compensated disability for Vietnam veterans, ahead of post-traumatic stress and hearing loss.
The VA's latest proposal, which will go into effect at the end of October unless Congress acts to block it, adds heart disease along with Parkinson's disease and certain types of leukemia. The agency estimates that it could cost up to $67 billion in the next decade.
The spending has also drawn scrutiny from the Republican co-chairman of President Barack Obama's deficit commission, former Wyoming Sen. Alan Simpson.
Veterans advocates have said that it would be unreasonable for veterans to have to prove on a case-by-case basis that their illness came from Agent Orange. Burr said the catchall phrasing that allows a veteran to get benefits for serving just one day in Vietnam may be overly broad.
"At some point we will have to look at the definition of exposure," he said.
"Keep on, Keepin' on"
Dan Cedusky, Champaign IL "Colonel Dan"
See my web site at:
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It was my impression any discussion concerning COLA's on this board has been strictly forbidden.
If it's open again, Veterans COLA's are based on Social Security increases which are frozen. Its obvious Alan Simson's views on having Veterans pay for our economic problems will likely continue until we end these wars.
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TEXAS VET: MEDICAL ADVANCES: UNDERSTANDING TRAUMATIC BRAIN INJURIES (TBIs)
September 14, 2010 posted by Gordon Duff
Actual TBI Medivac
MEDICAL ADVANCES: UNDERSTANDING TRAUMATIC BRAIN INJURIES (TBIs)
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Agent Orange - VA Denial of Sarcoidosis Letter
VA Doctors and Sarcoidosis
As most of you know I have long suggested that dioxins and all the herbicides we were exposed including massive insecticide spraying is creating more immune system issues than the IOM or our truthful government wants to admit. Disturbance in B and T cell homeostasis cannot be just associated with cancers. Biologically to me in the little research I have done for over 12 years now would be not only illogical but medically impossible. Kind of like only Spina Bifida in paternal exposures. I sure would like someone to try and explain that to me as it seems impossible for a toxic chemical that can create neural tube birth defects can be that singularly specific. But that is later.
Toxic immune system disturbances capable of creating immune system systemic issues in about every organ or body system of about 75 different immune system disorders. While maybe not ICD coded because of government interference the fact remains the constant inflammatory or reduction in immune system efficiency or both is relevant to not only death but a plethora of disability immune system issues. Depending on what the chemicals were and genetics.
Lets face it in everything medically there is always genetics and genetic pathways. Even the VA cannot deny that fact; while they try. Otherwise there would be no need for every medical application/information at every doctors office in the nation to have the questions on immediate family and cancers or other issues such as heart disease. Now that does not mean that every offspring is going to develop from genetics but it does indicate the non-measurable risk factor. Ironic even when we do have measurable increased risk factors VA and IOM still deny the impacts. Practicing medicine agrees with and is interested in the slightest increased risk factors yet VA and IOM have no consideration of the increased statistics because of money - not facts. Also leaving our treating doctors in a dark room like a mushroom in what I call "the government created information void." You know the rest of the saying regarding the spreading of a certain substance and the dark corner.
Now this discussion is more legal and how the VA doctors and VA Law Judges can manipulate the real facts and not stating the obvious.
Read the disapproval letter at: http://www.2ndbattalion94thartillery.com/Chas/VAsarcoidosismedopinion.pdf
Now the doctor was almost correct.
He was almost correct in stating facts that there is no convincing statistical evidence to herbicides, including Agent Orange. Yes, the etiology of Sarcoidosis is unknown. Yes, it can involve one or multiple organs.
However, I think I would rather believe the research done by John Hopkins and the Mayo Clinic versus a VA company doctors statements being submitted to a defendant company Law Judge. No comfort here in real constitutional justice. Even the fact of having a government defendant Law Judge making decisions against plaintiffs for government damages and death should give everyone some concern.
We already know that VA says to their doctors do not discuss Agent Orange or diagnosis with “this” and “not that” because it is cheaper.
Remember when the very naïve VA doctor who thought truth meant something as in "intellectual freedom" called me and said I was correct in my assessments after he did the three biopsies on one of my Marines. He was going to write an article for some neurological publications as to what I had suggested and what he verified by testing including the dioxin level found.
Remember what I told him?
His career at VA would be over since they are not interested in truth and facts and even if he went into private practice I am not sure how far the long arm of VA retribution extends.
Now yes the etiology of Sarcoidosis is unknown but what we do know from some of the finest research organizations in the world is the following:
CausesThe exact etiology of sarcoidosis has not been clearly defined. Genetic as well as environmental factors are thought to play a role in the disease process. Sarcoidosis is thought to result from exposure of a genetically susceptible host to specific environmental agents that the immune system is unable to clear effectively.*
(gee how about a toxic chemical that only reduces itself once in the body every seven to eleven years.)
Environmental influence
Numerous geographically localized outbreaks have been reported and suggest the possibility of an infectious agent or shared environmental exposure as the causative agents. Infectious organisms, such as mycobacteria, can induce granulomatous inflammation. Many organisms have been linked to sarcoidosis, including Mycoplasma species; Borrelia burgdorferi; Propionibacterium acnes; fungi, such as Histoplasma and Cryptococcus species; viruses, such as Epstein-Barr virus, cytomegalovirus, herpes simplex virus, hepatitis C virus,8 and rubella; and numerous other organisms.
Noninfectious agents, such as aluminum, zirconium, talc, pine tree pollen, and clay, have also been implicated.
Genetic factors
Familial clustering of cases has been reported. Monozygotic twins are 2-4 times as likely to have the disease as dizygotic twins.9
Certain HLA associations have been demonstrated; the most common allele found in sarcoidosis is HLA-B8. Other associated alleles include HLA-A1 and HLA-DR3.
Two genes that are commonly found in female whites were found to be associated with EN in a study of sarcoidosis patients: a variant in the promoter of TNF and a variant in intron 1 of lymphotoxin-alpha, an adjacent gene.10
Causes
Doctors don't know the exact cause of sarcoidosis. Some people appear to have a genetic predisposition for developing the disease, which may be triggered by exposure to specific bacteria, viruses, dust or chemicals. Researchers are still trying to pinpoint the genes and trigger substances that may be associated with sarcoidosis.
Normally, your immune system helps protect your body from foreign substances and invading microorganisms, such as bacteria and viruses. But in sarcoidosis, some immune cells clump together to form lumps called granulomas. As granulomas build up in an organ, the function of that organ worsens.
We observed positive associations between sarcoidosis and specific occupations (e.g., agricultural employment, odds ratio [OR] 1.46, confidence interval [CI] 1.13–1.89),exposures (e.g., insecticides at work, OR 1.52, CI 1.14–2.04,and work environments with mold/mildew exposures [environmentswith possible exposures to microbial bioaerosols], OR 1.61,CI 1.13–2.31). A history of ever smoking cigarettes wasless frequent among cases than control subjects (OR 0.62, CI0.50–0.77). In multivariable modeling, we observed elevatedORs for work in areas with musty odors (OR 1.62, CI 1.24–2.11)and with occupational exposure to insecticides (OR 1.61, CI1.13–2.28), and a decreased OR related to ever smokingcigarettes (OR 0.65, CI 0.51–0.82). The study did notidentify a single, predominant cause of sarcoidosis. We identifiedseveral exposures associated with sarcoidosis risk, including insecticides, agricultural employment, and microbial bioaerosols.Key Words: environment etiology granuloma occupation risk factors sarcoidosis
The etiology of the systemic granulomatous disease sarcoidosis remains obscure (1). Few comprehensive investigations of cause have been conducted, although the prevailing view suggests that sarcoidosis occurs as the consequence of exposure to one or more environmental agents interacting with genetic factors (2–5). Studies of the immunopathogenesis of sarcoidosis have shown the accumulation of oligoclonal T cells at sites of granuloma formation, suggesting an antigen-specific cell-mediated immune response (6, 7). Skin tests using either Kveim-Siltzbach spleen extract or lung extract from patients with sarcoidosis suggest a specific immune response (8, 9). Clinical and pathologic features of sarcoidosis resemble other antigen-induced granulomatous disorders, including chronic beryllium disease (10) and other metal-induced granulomatoses (11), hypersensitivity pneumonitis due to inhaled organic and inorganic antigens (12), and fungal and mycobacterial antigen-induced granulomatous lung disease.
Previous investigators have suggested that environmental exposures to microbial agents may prove causative because of their infectious and/or antigenic properties (13–21). Environments that serve as reservoirs and that can both amplify and disseminate bioaerosols of bacteria, their antigens and endotoxins, as well as fungi and mycotoxins have been linked to epidemics of environmental granulomatous disease (12, 19). Epidemiologic studies documenting temporal/spatial clustering of sarcoidosis cases (22–29), and familial aggregation of this disease (30–34), raise the possibility of shared environmental exposure or of a transmissible agent. Published data suggest that a number of occupations and environmental exposures might be associated with sarcoidosis (2, 5, 27, 35–37), including employment as firefighters (38, 39), health care professionals (35, 40, 41), work in the U.S. military (42, 43), work in the lumber industry (44, 45), and coastal or rural residence (28, 29, 43–48). A recent study of African-American patients with sarcoidosis and their siblings suggests that environmental and occupational factors contribute to disease risk (5).
We report our assessment of environmental and occupational factors associated with sarcoidosis in a U.S. multicenter epidemiologicstudy of 706 clinically diagnosed and histologically confirmedincident patients with sarcoidosis and matched control subjects.
We tested a priori hypotheses that environmental and occupational exposures are associated with the risk of sarcoidosis. This case control design was viewed also as a means of generating new etiologic hypotheses.
Some of the results of these studies have been previously reported in the form of abstracts (49, 50).
________
Now in my humble opinion a more honest assessment would have been by this VA doctor crowing about his treating experience:
_______________________________________
The Veteran……was established.
The etiology of sarcoidosis is unknown……disorder.
However, the newest studies of the etiology of sarcoidosis have come to light as associated to environmental and occupational exposures. These assessments pointed out that is particularly compelling in increased odds ratios for agricultural employment and insecticides. Agricultural employment by default would suggest the use of herbicides. No specific herbicide or insecticide was found particularly more involved than another.
With the Veterans known and decreed by law that he was exposed to many environmental herbicides including Agent Orange with many forms of toxic chemicals inclusive and at least two different forms of insecticides and having no genetic family history of sarcoidosis “it is at least a likely as not” his Military Service in service to this nation during wartime contributed to his developed immune system dysfunction in the form of sarcoidosis.
__________________________
But then if the good VA doctor actually told the facts he would “at least as likely as not” be out on his ear, punished by the good folks at VA benefits and maybe even this VA so-called law judge. Lawless would be a better description and title.
This is a single sample of what our Veterans and Widows have been facing in not so truthful stated facts by VA doctors to VA Judges. In fact, I would suggest that medical and law standard practices are and have been broken daily. Either that or their powers of logic are minimal or their ignorance of facts is only surpassed by their overwhelming arrogance and self-importance.
Have a great day and vote all these congressional bums out in 2010. Unlike Senators Webb/Akaka maybe they will make the VA and its illegal processes accountable. If not...then vote them out the next cycle. Don't let these ESD's make a career out of short changing the best citizens this nation has ever had.
Kelley http://www.2ndbattalion94thartillery.com/Chas/sarcoidosis.htm
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[Why would she report 2007 income for 2010, when it was already reported. If, she is referring to the refund, heaven help us if we ever get that low in this country. ]
Yes, i believe she is refering to recieving 2007 tax return in 2010.
She had already reported the earned income, but you need to report, "all" income to include income tax returns for pension benefits.
VA Pension is the same as welfare when it comes to counting all income. Failure to report it may result in federal charges of fraud to obtain benefits.
Do they get that low down? Why yes they do. Read the form: (if you received any NEW source of income or any ONE-TIME income)
Improved Pension Eligibility Verification Report (Veteran with Children)
http://www.access.gp...r29ap09.148.pdf
Veterans who have questions need to contact their patient advocate or VAMC Eligbility review dept.
Health care renewal forms are due in October. Those who haven't filled out their 1010EZR need to do so now and send them in.
1010ezr page 1
http://www.access.gp...r29ap09.149.pdf
1010ezr page 2
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Part III, Subpart iv, Chapter 5. Evaluating Evidence and Making a Decision
Subject: Evaluating Evidence and Making a Decision
http://www.warms.vba...v/ch05/ch05.doc
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Form to waive VAMC jurisdiction to review evidence or argument and have the BVA review it instead.
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DATE: 7-24-92
CITATION: VAOPGCPREC 16-92
Vet. Aff. Op. Gen. Couns. Prec. 16-92 <BR style="mso-special-character: line-break"><BR style="mso-special-character: line-break">
TEXT:
Subj: Authority of the Board of Veterans' Appeals to Address Matters Not Considered by the Agency of Original Jurisdiction
QUESTIONS PRESENTED:
a. Is it permissible for the Board of Veterans' Appeals (BVA) to consider evidence which has not been considered by the agency of original jurisdiction (AOJ)?
b. Is it permissible for BVA to consider issues which have not been considered by the AOJ?
c. Is it permissible for BVA to consider argument or subissues concerning a claim, or statutes, regulations, or Court of Veterans Appeals (COVA) analyses, which have not been considered by the AOJ?
d. If BVA determines that the statement of the case furnished to an appellant does not meet the requirements of 38 U.S.C. § 7105(d) (formerly s 4005(d)), must BVA remand the appeal to the AOJ to cure the deficiency in the statement of the case?
COMMENTS:
1. To a substantial degree, the questions presented are governed by statutory and regulatory provisions relating to appellate practice and procedure. Further, General Counsel opinions issued shortly after your request for opinion was made shed considerable light on the issues raised.
2. Existing statutes and regulations prescribe the circumstances under which BVA may consider evidence which has not been considered by the AOJ. BVA regulations at 38 C.F.R. § 20.800 permit the submission of additional evidence by an appellant after initiation of an appeal. See also 38 C.F.R. § 20.709 (submission of additional evidence after a BVA hearing). Section 19.37(b) of title 38, Code of Federal Regulations, specifies that evidence received by the AOJ after the transfer of records to BVA for appellate consideration will be forwarded to BVA if it has a bearing on the appellate issue or issues. Under that regulation, BVA then determines what action is required with respect to the additional evidence. Section 20.1304© of title 38, Code of Federal Regulations, requires BVA to refer pertinent evidence accepted by BVA following certification of an appeal or forwarded to BVA pursuant to 38 C.F.R. § 19.37(b) to the AOJ for
review and preparation of a supplemental statement of the case unless review by the AOJ is waived by the appellant or BVA determines that the benefit to which the evidence relates may be allowed on appeal without referral of the evidence to the AOJ. This regulation further provides that any waiver must be in writing or, if made during the course of a hearing on appeal, formally entered on the record orally at the time of the hearing.
3. Pursuant to statutes and regulations, certain classes of evidence, i.e., independent medical opinions, 38 U.S.C. § 7109 (formerly § 4009) and 38 C.F.R. § 20.901(d), and opinions of the Chief Medical Director, the General Counsel, and the Armed Forces Institute of Pathology, 38 C.F.R. § 20.901(a), (b), and ©, may be considered by BVA without reference to the AOJ. However, pursuant to 38 U.S.C. § 7109© (with regard to independent medical opinions) and 38 C.F.R. § 20.903, BVA is required to notify an appellant and the appellant's representative when such an opinion is requested and, when the opinion is received, to provide a copy of the opinion to the appellant's representative,
or to the appellant if there is no representative, and provide a period of 60 days for response.
4. Consideration of the question of whether remand is necessary to consider arguments, issues, subissues, statutes, regulations, or COVA analyses not considered by the AOJ requires a review of the statutory and regulatory scheme for processing claims for veterans' benefits by the Department of Veterans Affairs (VA). For purposes of this discussion, we use the term "issue" to refer to a particular claim of entitlement, e.g., service connection for a particular disability, and the term "subissue" to refer to the elements which make up the determination of that issue, e.g., whether service connection may be established on a particular basis.
5. The Chief Medical Director, the Chief Benefits Director, and Director of the National Cemetery System have generally been granted authority to act on all matters assigned to their respective offices. 38 U.S.C. § 512(a); 38 C.F.R. § 2.6(a)(1), (b)(1), and (f)(1). The Secretary has also specifically delegated to the Chief Benefits Director and supervisory or adjudicative personnel within the Veterans Benefits Administration authority to make findings and decisions on claims for monetary benefits. 38 C.F.R. § 3.100(a). Procedures for obtaining appellate review of adjudicative determinations made by AOJ's have been
established. 38 U.S.C. § 7105(a); 38 C.F.R. §§ 20.200- 20.202. Section 20.3(a) of title 38, Code of Federal Regulations, defines the AOJ as the VA regional office, medical center, clinic, cemetery, or other VA facility which made the initial
determination on a claim or, if records have been permanently transferred to another VA facility, its successor. Thus, the responsibility for making initial findings and decisions on claims for veterans' benefits lies with the AOJ.
6. In contrast, BVA functions as an appellate body. Section 7104(a) (formerly section 4004(a)) of title 38, United States Code, provides that all questions under laws that affect the provision of benefits by the Secretary of Veterans Affairs to
veterans or their dependents or survivors shall be subject to one review on appeal to the Secretary and assigns to BVA authority to make final decisions on behalf of the Secretary on such appeals. See also 38 U.S.C. § 511 (a) (formerly § 211(a)) and 38 C.F.R. § 20.101(a). Section 19.4 of title 38, Code of Federal Regulations, defines the principal functions of the Board as making determinations of appellate jurisdiction, considering all applications on appeals properly before it, conducting hearings on appeals, evaluating the evidence of record, and entering decisions in writing on questions presented on appeal.
7. Governing statutes and regulations do not contemplate that BVA will make final determinations on claims or issues which the AOJ has never had an opportunity to address. Section 7105(d)(1)© of title 38, United States Code, requires that a statement of the case include the AOJ's decision on each issue
involved in a claim. See also 38 C.F.R. § 19.29©. BVA regulations, at 38 C.F.R. § 19.35, state that a certification of appeal submitted to the Board by an AOJ cannot serve to deprive the Board of jurisdiction over an issue. However, a claimant's notice of disagreement must identify the specific determinations
with which the claimant disagrees. 38 C.F.R. § 20.201; see also 38 C.F.R. § 19.26 (regarding clarification of the issues being appealed). Furthermore, a substantive appeal completed by a claimant must specifically identify the issues being appealed. 38 C.F.R. § 20.202. This statutory and regulatory scheme treats the Board as strictly an appellate body which exercises jurisdiction only over issues properly brought before it under established appellate procedures. The only exception to this scheme is 38 C.F.R. § 19.13, which provides that the BVA Chairman or Vice Chairman may approve the assumption of appellate
jurisdiction of an adjudicative determination which has not become final in order to grant a benefit.
8. We note that 38 U.S.C. § 7104(d)(1) requires that a BVA decision include a written statement of findings and conclusions "on all material issues of fact and law presented on the record." However, this provision has been interpreted by the Department in implementing regulations at 38 C.F.R. § 19.7(b) as being subject to an exception for issues remanded to the AOJ for further development. Further, section 19.7(b) calls for the Board to set forth in its decision the specific issue or issues under appellate consideration. This suggests that, if an issue is
raised on the record for the first time before the Board, the proper course, consistent with the governing statutes and regulations, is for the Board to remand the issue to the AOJ for further development.
9. The above conclusions are consistent with relevant COVA decisions. In Bentley v. Derwinski, 1 Vet.App. 28 (1990), appeal dismissed for failure to prosecute, No. 91-7020 (Fed. Cir. Feb. 22, 1991), the appellant sought review in COVA of, among other issues, his entitlement to service connection for coronary artery disease, as a result of a statement in BVA's decision that his coronary artery disease had not been established as being service-connected. COVA observed that nothing in the record prior to the BVA statement indicated that the issue of service connection for this disability had ever been raised or considered or that the appellant had been given an opportunity to be heard on it. 1 Vet.App. at 31, COVA further stated that:
Under 38 U.S.C. § 4005(d)(1) (1988) now § 7105(d)(1) , a Statement of the Case (SOC) is required to discuss fully each issue. Here, however, the SOC, dated June 19, 1989, was totally silent on the issue of coronary artery disease. Thus, it appears from this record that the issue of any entitlement that the veteran might have for coronary artery disease was not properly before the BVA for decision. Therefore, the BVA decision does not constitute any binding resolution of this issue ....
Id. at 31-32. Thus, COVA recognized that BVA should not reach a decision on an issue not properly before it.
10. In Harris v. Derwinski, 1 Vet.App. 180 (1991), and Hoyer v. Derwinski, 1 Vet.App. 208 (1991), cited in the request for opinion, COVA dismissed as premature appeals from BVA decisions which addressed only those issues which had been considered by the AOJ. In each case, COVA held that BVA's decision on the claim which had been appealed was not a final order subject to appeal to COVA because that claim was "inextricably intertwined" with another claim which was undecided and pending before VA. Harris, 1 Vet.App. at 183. Hover, 1 Vet.App. at 210. We do not read either of these cases as requiring that BVA itself decide the pending claims. Instead, these cases state only that until such issues are ultimately decided, BVA's decision on the issue which was appealed is not final.
11. Finally, in Payne v. Derwinski, 1 Vet.App. 85, 87 (1990), COVA overturned a BVA decision on the basis that BVA had refused to acknowledge and act upon the appellant's assertion, included in his substantive appeal, that he had a right-knee disability which was caused by his service-connected left-knee disability,
and that his overall disability had increased as a result. COVA vacated BVA's decision and remanded the case back to the BVA "for a determination by it (or the agency of original jurisdiction) which takes into account the condition of the right knee." Id. This case merely indicates that if an issue is adequately raised
by a claimant in bringing a case before the Board, the Board must resolve that issue or, if necessary, remand it for further development.
12. Turning to the question of subissues, arguments, statutes, etc. not considered by the AOJ, although VA statutes and regulations establish BVA as an appellate body, nonetheless, when an appeal is certified to BVA, the Board is required to conduct a de novo review of the AOJ's decision. Boyer v. Derwinski, 1 Vet. App. 531, 534 (1991); O.G.C. Prec. 6-92 (interpreting 38 U.S.C. § 104(a)). In making its decisions, BVA is bound by VA regulations, instructions of the Secretary, and precedent opinions of the General Counsel, per 38 U.S.C. § 7104 ©, and by final COVA decisions, see Tobler v. Derwinski, 2 Vet.App. 8, 14 (1991), appeal docketed, No. 92-7020 (Fed. Cir. March 13, 1992). O.G.C. Precs. 5-92 and 6-92, as well as pertinent COVA decisions, suggest that BVA may consider arguments, subissues, statutes, regulations, or COVA analyses which have not been considered by the AOJ, if the claimant will not be prejudiced by its actions.
13. In O.G.C. Prec. 6-92, we stated that in a case in which the appellant or the appellant's representative raises the applicability of a law which was not considered by the AOJ, the appellant is not prejudiced by the omission of such law from the statement of the case. In such situations, there is no need to remand the appeal to the AOJ to cure a deficiency in the statement of the case. Since the appellant had argued the law, BVA may consider its applicability to the facts presented on appeal. The same reasoning would apply regardless of whether the argument asserted was of a legal or factual nature.
14. In Douglas v. Derwinski, 2 Vet.App. 103 (1992), vacated in part, (Vet. App.), an appeal was before BVA on the issue of a veteran's entitlement to service connection for basal-cell carcinoma. Although the only basis for service connection previously asserted by the veteran was exposure to ionizing radiation in service, the veteran's representative raised before the Board the possibility that the carcinoma resulted from exposure to sunlight while in service. The Board did not address that assertion in its decision. COVA vacated the Board's decision and remanded the case for consideration of the question of direct service connection for basal cell carcinoma resulting from sun exposure in service. In Smith v. Derwinski, 1 Vet. App. 267 (1991), an appeal from a loan-guaranty waiver decision, the Secretary argued that COVA lacked jurisdiction to
review the threshold question of whether the appellant owed a debt to the Government because BVA only had authority to review the decision as to waiver of the debt. COVA rejected this argument stating that " i n reviewing a benefits decision, the Board must consider the entire record, all of the evidence, and
all of the applicable laws and regulations." Id. at 272. Similarly, in Schaper v. Derwinski, 1 Vet.App. 430, 431 (1991)), where a loan-guaranty debtor challenged the validity of the asserted debt in his notice of disagreement and in his
substantive appeal but the issue was not developed for appellate review, COVA held, alternatively, "that the question of the validity of the asserted debt, when challenged, is an issue that must be determined by the BVA in deciding on a
waiver-of-indebtedness application." In these decisions, COVA apparently treated the validity of the underlying debt as a subissue of the waiver decision and indicated that such subissues must be considered by BVA regardless of whether they were developed by the AOJ.
15. COVA has repeatedly cautioned that BVA may not ignore VA regulations. E.g., Smith v. Derwinski, 2 Vet.App. 137, 140 (1992); Payne, 1 Vet.App. at 87. For example, in Schafrath v.Derwinski, 1 Vet.App. 589 (1991), COVA held that a BVA decision was void ab initio where the Board, in upholding a rating 0reduction based on evidence of the range of motion of an injured elbow, failed to apply the provisions of 38 C.F.R. § 4.40 to determine whether the appellant's compensable rating should be continued based on functional loss of use due to pain. In Smith, 2 Vet.App. at 141, COVA held that BVA erred in failing to apply 38 U.S.C. § 1154 (formerly § 354) and 38 C.F.R. § 3.304(d) in the determination of the appeal. These cases found a responsibility on the part of BVA to apply relevant statutes and regulations without regard to whether they had been considered by the AOJ.
16. Before considering subissues and arguments, or applying statutes, regulations, or COVA analyses which have not been considered by the AOJ, BVA must first determine whether the claimant will be prejudiced by its actions. BVA may make findings favorable to an appellant on subissues or arguments relating to a claim without referring the matter to the AOJ, since such action is not barred by statutes or regulations and does not prejudice the interests of the appellant. Similarly, if a statute, regulation, or COVA analysis which was not considered by the AOJ provides a basis for allowance of the benefit sought on appeal, no statute or regulation bars BVA from granting the benefit sought, without referring the matter to the AOJ. Also, if the appellant has raised an argument or asserted the applicability of a law or COVA analysis, it is unlikely that the appellant could be prejudiced if the Board proceeds to decision on the matter raised. An exception would exist when additional factual development is required to assess the validity of the appellant's assertion.
17. Adverse BVA findings on matters not considered by the AOJ, or the denial of the benefit sought on appeal based on statutes, regulations, or COVA analyses which were not considered by the AOJ, raise an issue concerning whether the appellant's procedural rights to notice, 38 C.F.R. § 3.103(b), to a hearing, 38 C.F.R. § 3.103©, and to submit evidence in support of a claim, 38 C.F.R. § 3.103(d), have been abridged. We note that in O.G.C. Prec. 5-92, after reviewing case law relating to the Social Security program concerning provision of advance notice to claimants of the Social Security Appeals Council's intent to undertake expanded review of an Administrative Law Judge's decision, we
cautioned that BVA should advise appellants of the possibility of a reversal of a finding by the AOJ favorable to the appellant. We also noted that " b y implication, when the Statement and Supplemental Statements of the Case do not define all of the issues being reviewed, additional notice is warranted." (While O.G.C. Prec. 5-92 used the term "issues," the matters under discussion in that opinion fall within the term "subissues" as used in this opinion.)
18. In O.G.C. Prec. 6-92, we stated that, in determining whether to consider matters which have not been addressed in the statement of the case, BVA should consider such factors as whether the appellant has been fully apprised of the applicable laws and regulations and whether the appellant or the appellant's
representative has presented argument relative to such matters. We find the reasoning of O.G.C. Precs. 5-92 and 6-92 regarding the necessity of providing notice to appellants and assuring that the appellant is apprised of the applicable laws equally applicable regardless of whether BVA intends to consider subissues, or to apply statutes, regulations, or COVA analysis,
which were not considered by the AOJ.
19. Whether BVA must remand an appeal to the AOJ to cure a deficiency in the statement of the case relating to the summary of evidence, citation of statutes and regulations, or the summary of the reasons for the AOJ's decision will depend on the circumstances of the individual case. Section 7105(d) of title
38, United States Code, requires that, following the filing of a notice of disagreement, if further review or development does not resolve the matter, the claimant and the claimant's representative will be furnished with a statement of the case. The statement of the case must include a summary of the evidence
which is pertinent to the issue(s) being appealed, citations to pertinent statutes and regulations, a discussion of how those statutes and regulations affect the agency's decision, a decision on each issue, and a summary of the reasons for such decision. Id.; 38 C.F.R. § 19.29. BVA's rules contemplate that appellants
and their representatives will be informed of the issues and applicable statutes and regulations through the statement of the case and, where appropriate, a supplemental statement of the case. 38 C.F.R. §§ 19.29 and 19.31. <BR style="mso-special-character: line-break"><BR style="mso-special-character: line-break">
20. Again, we note that in O.G.C. Prec. 6-92 we stated that the AOJ's failure to consider applicable regulations or to cite a pertinent regulation in the statement of the case does not render the AOJ's decision void. We concluded that if BVA determines that the omission from the statement of the case did not prejudice the claimant or violate VA's statutory duty to assist the claimant, BVA could properly render a decision on the appeal. This view is consistent with 38 U.S.C. § 7261(b) (COVA "shall take due account of the rule of prejudicial error.") and COVA's decision in Thompson v. Derwinski, 1 Vet.App. 251 (1991) (BVA
decision not disturbed where the ultimate outcome of the case was not prejudiced by an error). If BVA determines that the claimant has been prejudiced by a deficiency in the statement of the case, BVA should remand the case to the AOJ, pursuant to 38 C.F.R. § 19.9, specifying the action to be taken. <BR style="mso-special-character: line-break"><BR style="mso-special-character: line-break">
21. Finally, if BVA wishes to avoid remanding matters to the AOJ, it may wish to propose a regulation, similar to 38 C.F.R. § 20.903, which would require BVA to notify an appellant and the appellant's representative of its intention to consider a subissue, statute, regulation, or COVA analysis which was not considered by the AOJ. As in 38 C.F.R. § 20.903, such a regulation should afford the appellant and/or the appellant's representative, if any, a period for response before BVA enters a final decision on the appeal.
HELD:
a. Statutes and VA regulations prescribe the circumstances under which the Board of Veterans' Appeals may consider evidence which has not been considered by the agency of original jurisdiction. Section 20.1304© of title 38, Code of Federal Regulations, generally requires that the Board refer to the agency of original jurisdiction for review evidence received by the Board following certification of an appeal unless such review is waived by the claimant or the benefit claimed may be allowed without referral. Under 38 U.S.C. § 7109 and 38 C.F.R. § 20.901, certain classes of evidence, i.e., independent medical opinions and opinions of the Chief Medical Director, the General Counsel, and the Armed Forces Institute of Pathology, need not be referred to the agency of
original jurisdiction, but the appellant must be given an opportunity to review and respond to such evidence before a decision is rendered.
b. Generally, the Board of Veterans' Appeals, as an appellate body, is not authorized to make final determinations on issues which have not been considered by the agency of original jurisdiction.
c. Although statutes and regulations establish the Board of Veterans' Appeals as an appellate body, nonetheless, when an appeal is certified to the Board, the Board is required to conduct a de novo review of the agency of original jurisdiction's benefit decision. Hence, the Board may consider arguments, subissues, statutes, regulations, or Court of Veterans Appeals analyses which have not been considered by the agency of original jurisdiction, if the claimant will not be prejudiced by its actions.
d. The Board of Veterans' Appeals need not remand an appeal to the agency of original jurisdiction to cure a deficiency in the statement of the case if the Board determines the deficiency was not prejudicial to the interests of the appellant.
VETERANS ADMINISTRATION GENERAL COUNSEL
Vet. Aff. Op. Gen. Couns. Prec. 16-92
<BR style="mso-special-character: line-break"><BR style="mso-special-character: line-break">
Source: http://www.va.gov/ogc/docs/1992/PREC_16-92.doc
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For Pension and health care benefits for less than 50% sc,
the VA is going to want you to report all income for the previous year.
If you just now recieved an income tax return for 2007 in 2010, than that is income for 2010 as far as pension is concerned. You will need to report this for your 2011 Pension income report.
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That fixed the problem TBird.
Thanks........................Allan
Tinnitus
in Veterans Compensation & Pension Exams
Posted
"I do have recurrent tinnitus it comes and goes"
If your tinnitus is not chronic and constant, the claim will be denied. You might want to check but I believe it may also need to be of moderate degree in order to qualify.
Allan