Jay Johnson

I forget exactly why (either it was PTSD in general or 100% cases), but one of those two required a second rater to sign off on, which other cases do not. At least I seem to vaguely remember something to that affect...anyone know anything about that or am I way off (it's been awhile)? :-)

Have your private doctor write up a medical history with a current diagnosis and future prognosis in great detail. With that, it should be an open and shut case. Also, request to use your civilian doctor as your C&P instead of the one they assigned, or, at least, get them to assign a different MD because this one is obviously using bias in his/her decision making process. Also, I think you have grounds for a CUE here based on what you've said. The VA cannot simply send your C-file to any random doctor to reevaluate it without new and material evidence (3.156). Also, under 3.105 it clearly states that, "(:P Difference of opinion. Whenever an adjudicative agency is of the opinion that a revision or an amendment of a previous decision is warranted, a difference of opinion being involved rather than a clear and unmistakable error, the proposed revision will be recommended to Central Office. However, a decision may be revised under §3.2600 without being recommended to Central Office.". I had the same issues with my wife's case in which one RO tried to supersede another RO without ANY new evidence to the contrary. I feel this is a tactic by the VA to get you into a C&P in order to take a "legal" look into a particular case.....by giving some lame excuse (in your case a "review), they get you into a C&P before your C&P date and once you take that C&P you have provided them with "new and material evidence" in which they can now justifiably alter your claim. But, based on solely that MD's "review" they cannot lower your compensation...it stands in stark contrast to the regs I listed (and several others). Hang in there; you'll be fine.

When writing a CUE you want to be VERY specific and stick to a single violation of a regulation. Once a topic is CUEd it cannot be revisited, so keep your arguments narrow. When I did my CUEs I did two of them separately because they were two separate issues dealing with two separate regulations. In your case, you have issues with how your case was handled in general (the congenital thing is terribly odd), which is more of an evidence question. The other is one of finality of your case from 1973 in which you were not properly notified of the ROs decision and, therefore, not afforded your appellate rights. I'm not sure you can CUE directly to the BVA, but the BVA's finding that their was "no evidence that the veteran was made aware of the october 1973 decision" is a very strong case for reopening your case from that date. To me, those are two separate issues. One is that no reasonable mind could NOT have found a service connection based on the evidence on hand and the fact that you were, essentially, discharged for that very medical condition and have several records to prove it. The other is a matter of not being properly alerted to the ROs findings and, thus, not afforded due process to challenge the findings. Either is a good case for a CUE, but I think the latter, with the BVAs opinion on the matter, is the stronger of the two.

Vike, I'm not quite sure where you're getting the "chronic" thing from. My understanding of 4.9 is that it deals with "congenital" issues, which have nothing to do with the duration of the disorder (could be acute with flaring or chronic). Congenital is a condition you are born with by definition; nothing more. In order for this rater to establish a finding under 4.9 he/she would have to first establish that the veteran was born with this condition AND that the military did not make it worse. Although there are certain congenital back issues (spinal bifida comes to mind), I find it very hard to believe that he was born with the type of injury he has described in what he's written thus far. Also, I find it harder to believe that military service would have no negative impact on ANY spinal injury, be it congenital or otherwise. As for chronic - I've seen veterans get compensation for cancers that are anything but chronic and the military certainly doesn't cause or agitate cancer....it's a purely genetic thing with ths possibility of some outside antigens. Hurry, What, exactly, is your back diagnosis again? Also, did the rater cite ANY information as to how he/she came to a conclusion that you were born with this disorder?

I would say sooner than later (provided they don't want more info), but it's the VA so you could hear something today, or it may be 3 mnths /shrug.

As I tell just about everyone - get some IMOs and go from there. If you get enough evidence to make your case for an increase then go for it, otherwise it may just be another headache. However, in your case, you are fairly low on the totem pole (so to speak), so there's not much else to do but go up. In this case, you may want to just go with the typical C&P deal and see what you can get.

As bad as it sounds, I've heard this type of thing before. When asking for more, the VA sometimes not only denies the request for an increase, but questions your current level of disability as a way of saying, "shut up or we'll make things worse". All I can say is that you should try to reconsider, but if you do so be sure to be very precise in your words and cite only legal precedent (IE - the rater said XXX, but the reg clearly shows that it's YYY).

He's got a good basis for a couple of CUEs, but it all depends on who had what and when. Although the VA is supposed to do everything it can to assist your claim, one cannot cite failure to assist as a reason for CUE. So, if the info was not available to the rater, at the time, you'll have a very uphill battle (still always worth a shot though...don't ever let anyone tell you that you shouldn't file a claim, CUE, appeal, etc). Also, what did your discharge papers say, exactly? If you're medically discharged from the military how can that NOT be a service connection? This idea that the military needs to make your problem worse or cause your problem is moot if the problem occurred while on duty (regardless if the military caused it or not). People get compensation for arthritis, cancer, etc. all of which are clearly not "caused" by the military. By the way, being that we have PM'd one-another a couple of times, I can say that your claim from the BVA is your strongest CUE possibility. With the BVA saying that they do not believe you were informed after the 1973 decision (thus, not given the right to appeal), it should be a solid case for reopening the case from the 1973 date. However, even if you do get the case reopened, it won't help if you can't prove, without a doubt, that you should have been awarded the SC at that time with that evidence. Just proving the VA wrong is not justification for a CUE; one must also show that they would stand to gain something by the mistake and simply reopening the case is not enough. Basically, you have the evidence for a solid case, in my opinion, but the factors are intertwined and reliant upon what, exactly, that rater, in 1973, had in front of him/her at the time of the decision.

The findings were posted in another thread and were quite favorable for vets with PTSD. Every time the VA goes on a witch hunt for PTSD they get burned....one wonders when they'll learn to cut their loses whilst they're ahead:-)

Few things: 1) Find a "good" civilian psychiatrist and get a detailed diagnosis. Most people with PTSD have other diagnosable problems such as massive depression, generalized anxiety disorder, obsessive compulsive disorder, bipolar, etc (my wife has all those and some). The SSD folks grant disability for bipolar all the time, so it's a favorable finding and it is commonly linked to PTSD (high and lows = bipolar type 1). So, find a psychiatrist that specializes in anxiety disorders and ask him/her to evaluate you in extensive detail (I would also suggest using the civilian psych full time over ANY VA psych.....we pay for ours out of pocket). 2) As has been said, the SS people tend to go with the VA decisions, so the TDIU thing will be quite helpful. Get that to them ASAP. 3) I wouldn't go overboard on the 40 GAF thing. Although a 40 GAF is "supposed" to mean that you have severe occupational issues, it's not all that low for VA standards. Heck, they tried to lower my wife from 100% to 70% based on a admitting GAF of 10 and a current GAF of 15, which is darn near legal basis for permanent committal to an institution based on GAF criteria. My guess is that the civilian psych will give you a more favorable GAF. 4) Speaking of GAF - check your medical file and your recent paperwork from the VA hospital. The VA is "supposed" to use your admitting GAF and NOT your discharge GAF as a basis for evaluation because they are "supposed" to be evaluating you at a low point and not your best point (IE - after a lengthy hospital stay with 24 hr care and a heavy dose of meds to likely include the overkill of haldol). The VA did this to my wife in order to justify that lower rating...she was admitted with a 10 GAF, but was discharged with a 42 (and the current, as mentioned, of 15, which they ignored). So, see what that admitting GAF was and use it rather than any C&P or discharge GAF. If you follow those things and present your case well you stand a good chance at SSD (and, perhaps, have more ammo for your next C&P). P.S. - I'm not quite sure whether or not the SS folks use a schedule table like the VA, but I know the VA focuses very intently on those set rating's criteria. Everyone decision we've gotten from them cites the rating's criteria met, line for line. So you may want to take a look at that to properly word your case also (and to help your IMO word his/her's)

There's different levels of IMOs also. If you just randomly go to a civilian for the sole purpose of an evaluation, you're going to have a tough time with the VA; especially if that eval is to determine service connection. However, if you routinely see a civilian doctor and you're merely doing a C&P review, the VA tends to look very favorably on that because a primary doctor is far more qualified to give an opinion than a C&P doctor who's seen you once for 30 minutes or so. But, as has been said, you need to work with that doctor to properly format your review. The funny part is that a typical C&P exam is anything but thorough and they tend to have very little information, which is highly opinionated, rather than medically driven (what can a doctor learn in a 30 min C&P exam really?). Perhaps I'm a bit skewed on this, though, because my wife's disability is mental and, therefore, highly subjective. I guess a more concrete, physical disability would be more accurately diagnosed in a single C&P.

This most certainly could be a CUE claim, as the VA may have violated both reg 3.102 and 3.104, but that depends, in part, on whether or not you furnished them with "new and material evidence", which would allow them to reopen and review the case (the VA cannot reopen a case based on old information unless it determines CUE on itself, even though they do all the time). Even if you did prompt the review with new medical evidence, you may still have a CUE claim with reasonable doubt (3.102), but that is a very grey area to be in. Basically, if all of your prior information says you are 50% and all of your new information says you are worse than before, one doctor's opinion cannot meet the reasonable doubt criteria. However, if, as berta says, they made a scheduling error in the first place (IE - your disorder did not warrant a 50%), then you have a very uphill battle and no CUE would apply. But, I'm doubting this is the case, though it's possible. To me, this is another great reason why vets should NEVER use VA health care. I don't care what they say about the medical part being separate from the compensation part, once you add new medical evidence to your Cfile, they can review you whenever they see fit. If you go to a civilian they are not privy to that "new and material evidence".

That's ridiculous. Mail-in scripts are meant for drugs that are long term and have little likelihood of changning, not meds that need to be re-up'd every month.

They do the same thing through tricare now. In fact, many insurance companies are trying to switch to mailed meds in order to cut out the middle man (walgreens, etc). Health care in this country is an archaic mess and, for the life of me, I can't figure out how half the country is happy with it /sigh.

I'm not sure you want to present that IMO. I'm no expert on this, but does the VA consider al zheimers to be a SC disability? I have a background in medicine and al zheimer related dementia is a purely genetic disease (at least all the evidence points to that at this time). Again, I'm not sure, but if it's not a service connectable disability, couldn't it give them reason not to award the claim based on a disease outside of the scope of your disability? Or is there precedence for this sort of thing?

I have another post around here that clears this up a bit. What I know is this - I have talked directly to team 1 and team 2 in the Seattle RO and both have said that one can file CUE at ANY point regardless of your claim status as long as the RO has made a final decision (IE - your initial decision; not a finally adjudicated one). The mistake some people make is in that terminology. A claim can be "final" without being "finally adjudicated" (IE - all appeals exhausted) and a CUE only states that a decision needs to be "final". I even posted the regs dealing with "final" and "finally adjudicated" along with the CUE debate, but many here still say it cannot be done (despite doing it myself). In my wife's case, the CUE was never won, nor lost, because I made a call to the director of the RO and he called the review guy who, in turn, called my wife that day and "fixed" the situation (which NEVER happens mind you). In this phone call to her he basically agreed with everything in my 2 CUEs and apologized for the RO's mishandling of her case. So, her CUEs were never fully looked into, but they were accepted and they were set to be reviewed SEPARATELY from her appeal. It was made quite clear that the CUE and the appeal were two totally separate issues; the appeal was an issues of medical opinion and the CUE was a violation of VA regulation. Neither had anything to do with the other and they are reviewed by different people. I'm still unfamiliar with the jargon I was given....all I know is that team 1 made the initial decision on her claim and team 2 was the one reviewing the appeal (separate groups in separate offices). The CUE was being reviewed by someone totally different outside of team 1 & 2. If that makes sense to you than great:-) But just getting through to those people was a bloody miracle on my end (and what ultimately won the case mind you).

The biggest problem with the VA is discretion. Honestly, I wish someone would do a study in which the EXACT same case was presented to EVERY RO in the country (without their knowledge and with a different SS# to cover) just to see how many different ratings the fake veteran would get. I bet you would see everything from a very high rating to no service connection at all or a 0% rating. This is where the system is terribly flawed. It is compounded by interdepartmental loyalties in which the appeal teams tend to side with the initial review teams more often than not. So, when a decision is oddly low, it ends up being confirmed and the process can take years to fix. Personally, I think they need more standardization, more training and the ROs need to have some sort of penalty when they clearly violate regulations (which they do often). Without these things, the cases end up being a crap shoot depending on your local, the reviewers training/mood at the time and your VA doctor's discretion (and you have to know some of them are under pressure not to rubber stamp every claim). It's a bureaucratic nightmare in my opinion.

If the RO is setting you up with a C&P AFTER making a decision to lower you than they are not very sure of their rating in my opinion. They did the same thing to my wife when they tried to lower her....they basically sent us a letter saying she had been lowered, but asked for a C&P at the same time, which is odd. In VA terms, it is more difficult on them to argue a claim down, so starting you off on a lower level gives them the upper ground. Basically, in order to lower a claim the VA is "supposed" to have new, material evidence that outweighs prior evidence and a mere review (short of CUE) does not meet that standard, but they do it anyway. Were you seeing a regular doctor for your skin problem during this entire period? The "right documentation" would be any and all information about your disbaility that is as recent as possible. Also, find out what this C&P doctor's credentials are....does he specialize in skin disorders? Is he an MD, PA, NP, etc? What is your primary doctor's credentials? Is he a specialist? If not, can you see one ASAP? The VA does this stuff all the time.. they see a case that looks iffy and they get some doctor to go over the medical records as a basis for lowering the case (without even seeing the veteran). This can work if the vet has not been seeing a regular doctor and has no recent medical evidence to back up a claim, but if you have recent medical opinions this doctor's opinion will mean very little. So, don't panic or anything and get as much medical evidence as you can and see where it goes. You may even want to consider a CUE at this point because lowering based on a single doctor's review of your case seems like a violation of the regs (unless that doctor could prove CUE himself).

Was the contrary opinion(s) done around the time of the C&P exam? If so, the totallity of the medical evidence should clearly be in your favor and you could appeal on that grounds and, perhaps, CUE it at the same time for reasonable doubt not being used. However, if the C&P was new information and all the RO had to go on (IE - they didn't have any recent IMOs), then you would have to take only the appeals route while adding as much contrary evidence as you can. In the end, you should win, provided you get the right documentation....the VA can't dismiss more qualified doctor's based on less qualified opinions (they do, but they'll lose in the end if you present your case properly).

Believe what you want, but I've seen hundreds of cases reduced for completely inexplicable reasons. Whether or not it's just RO's being ignorant to regulations or intentional I really don't know; but the VA does it and does it often. Just as the VA will push one claim through quite easily while the exact same type of claim with the exact same type of evidence is denied or low-balled. To me, it's much like the IRS....most of the time your taxes are hassle free, but every once in awhile they pull your file and make your life a living hell, except in the VA's case they do so in the hopes that the veteran will not be knowledgeable enough to properly fight the claim (which many aren't). My wife's claim of 100% PTSD with A&A AND P&T was reduced for no other reason then us switching regions (east coast to west coast). It took a year, a few CUEs and many calls to the director in order to "fix" it to the way it was...to top it off her 100% with A& and P&T was decided just 5 months before moving, so don't give me the "new evidence" stuff. The file was reviewed when it was shipped, they saw an opportunity to low-ball it and did so....had I not fought on her behalf she would be at 70% right now. But, believe as you will..... - Jason

In short, yes; file a claim for PTSD regardless of how you file it (separate or ammended). As for pain - do as berta said and go for TDIU, but pain is a tricky beast. Even in the civilian world, pain is very difficult to rate in terms of SS. The best thing you can do is keep those IMOs coming that say you are unable to work and you are severely limited in the motions you can carry out. As for filing your PTSD claim - get all the info you can first. Go to someone who specializes in anxiety disorders (psychiatrist, NOT psychologist) and read through the global assessment of functioning and the criteria for mental disorders in order to properly word your condition. With mental disorders it's all about the wording used and the GAF given by the doctors....if you get a bad GAF (IE - low) you can still get a low rating based on poor wording and vice-versa. The reason so many vets get low-balled on PTSD is that their pride gets in the way of their true feelings and they end up down-playing their symptoms. G'luck, Jason

The VA randomly reduces people despite not having the proper regs to back it up. Honestly, I feel it's simply a cat and mouse game to see if the veteran will fight for the money; if not they win. In your case, it does not sound as if the VA doc's opinion met the "New and material evidence" requirement needed to reopen or readjudicate a claim. In other words, a single doc cannot simply review your file and lead to a reduction. However, that doc could have reviewed the file and reopened the case citing a prior mistake, but it would take more than that single opinion to overturn the totallity of what appears to be a fairly significant medical file on your part. So, either you've gotten better or you haven't; if not, then no one doctor can overturn the opinions of several others unless said doctor has far more knowledge of the disease (specialist) and the prior doctors didn't. Basically, a claim is like a civil law suite.....you have to prove your side is more right then theirs and they cannot find in favor of 10% of the documentation over the advice of the other 90%. This is where reasonable doubt comes into play. G'luck, Jason

This post is kind of vague to reply to. You'll need to say what your disability(s) is and what % you got if you want any real ideas on your case. In general, the VA reviews your case every 2-5 years (normally closer to 2), but, again, it depends on your condition. If your condition worsens you can always submit new information for an increase.

It does and I'm sure berta just missed that part of your last post. P.S. - If your hep was already rated at 60%+ and you just received 100% for your renal issues then you "should" qualify for housebound under the "100% + 60%" rule....it would only add about $250/mnth, but every little bit helps and that $250 would be a large sum over your 3 yrs retro:-)

A poll of whom? Your friends and social circle? I'm sure that will give a well-rounded perspective on the situation...I guess the FBI and others are wrong and your opinions are right...wow, how I've gone wrong.