Jay Johnson

The wife was 100% P&T with A&A and, when we moved cross-country, the new RO reopened her file, ordered a C&P and proposed a reduction......my complete story was just posted in the "success stories" thread, so I'll spare you the details, but I can say, with certainty, that this is becoming a common game in the VA in regards to P&T and most people working for the VA actually believe that you CAN schedule future exams when P&T (which is NOT true). The DRO, in my wife's case, spoke to her directly and said the the VA CANNOT schedule futre exams when someone is P&T under ANY circumstance. The only time a P&T person can be reevaluated is if the RO recieves "new and material" evidence that shows an improvement. In my opinion, this seems to be becoming a big issue among the various RO's and someone should bring it up with our elected officials formally.

I believe a GOOD civilian psychiatrist goes a LONG way to helping these types of cases. Try to find a psych. that specializes in anxiety disorders (specifically PTSD if possible) and make sure said doctor is proficient in dealing with government red tape (some doctors have extensive knowledge with either VA cases, SS cases and/or other legal issues surrounding severe psychiatric disroders). With that said, you should still pursue the C&P and gather all the info you can. Personal accounts such as daily logs can also help (or letters from friends/relatives that cite the severity of your problems). P.S. - When finding a civilian psych. try to pay out of pocket if at all possible...not only will you get an appointment MUCH faster, but you'll also be able to pick the best doctor and that doctor will b more willing to put in the extra effort into your claim (they LOVE cash clients). I pay for my wief's psych out of pocket because he is one of the few that specializes in PTSD in this area...he is expensive, but he is also willing to work with us and we typically only schedule appointments for every 2-3 months (which means about 60/mnth worth of costs out of our pocket).

Sorry I've been away for so long, but the holidays were rough for the wife and the VA was, well, the VA. Anywho, I'm not sure if anyone remembers my wife's case, but I'll try to sum it up and how, exactly, we won the case (for the most part): About 2 yrs ago my wife was bumped up from 100% for PTSD to 100% P&T with A&A from the philadelphia RO...upon moving to the west coast, the seattle RO got ahold of her case and tried reducing her first to 70% IU, then to 100% with housebound and claimed she was again P&T, yet scheduled a future exam. We, of course, sent in our NOD AND I sent in a CUE about taking away the A&A without cause (they said she never deserved it in the 1st place which is against the regs) and we sent one in about scheduling an exam despite being P&T. Well, we got the typical run-around from our contacts in the seattle RO and had the same old delays for a DRO review (we even had a senator working for us...like that does anything). One day I decided to have the wife call our contact there (frank) who "use" to be the vice-director of the RO, but he had been temporarily promoted to director because the old director left....oddly enough, frank was very receptive to my wife and said he would look into the case. Two days later the DRO called my wife and asked her what, exactly, she wanted from the NOD (of course she broke down on the phone call pretty bad)...he proceeded to say that they COULD NOT schedule a future exam with P&T and that he would clear that up, but he showed reservations about awarding her the A&A again. So, the wife basically told the DRO that she didn't care about the A&A so long as she didn't have to deal with them again (which she shouldn't given she was P&T to start with). The DRO made the decision that day and we got notice by mail within 2 days saying "NO FUTURE EXAMS and 100% P&T with housebound". In the end, it came down to "who" we knew and having that person look into our case...before the acting director stepped in the DRO wasn't even supposed to get to our case until may, at the earliest, instead, we got a decision in our favor within 2 months of filing the NOD. On one hand, I'm extremely relieved that we're done with these people (we use a civilian psych so we will never set foot near a VA facility EVER again)...on the other hand, I feel terrible for everyone else who doesn't have the contacts I made in the seattle RO (which was more dumb luck then anything). Our case was blatant and bordering on criminally obvious and we still would likely not have won at the DRO level had the director not stepped in:-( Anyway, it's good to be back...I'm not sure how much time I can devote, but I hope everyone is doing well and that some of you have some success stories since my last visit:-)

Thank you SO much for the information Carrie......Holiday season is VERY tough on my wife, so I will probably wait until march or so before I attempt to set anything up (or even run it by her for the matter), but I definitely plan on taking advantage of this if possible. One more question - Who, exactly, is the contact within the VA that deals with this program? (or, at least, what is his/her official title?) Thank again, Jay

I'll let some of the others here answer the physical questions as they are far more knowledgable. In general, though, you need to keep in mind that a VA rating is based on your level of impairment to "work" and you may need to gather more evidence to that effect. Basically, more occupational evidence would likely help your case the most (IE - if you can show that you are severely limited in the work you can do by your disabilities). It sounds like you have done some good research for a NOD, but be careful about a SO filing the NOD for you. Make sure they put in the same level of detail and thought as you have in your letter to them. P.S. - I know you marines like to play it "tough" whenever you can:-) but sometimes you have to swallow some pride in order to best represent your claim.....

My wife has had increasing issues with gross motor functions as well as problems articulating her words. Apparently, this is a form of "psycho-motor retardation" caused by PTSD. The more anxious she becomes the worse her motor functions are impaired. I brought this up with her civilian psychiatrist this week and he said it is not likely due to the meds she is on (up'd her meds for the third straight time FYI).... he also said that there really isn't much he can do to fix the problem because any drugs that would increase her mental sharpness would negate the effects of the drugs for her PTSD (plus this time of year is very bad for her and he doesn't want to introduce new drugs). Anywho, just posting 'cause a few of you sound like you may have similar issues.....

That's always been the case...republicans cut taxes (mostly for the rich) then increase fees on everything that middle class america uses. In the end, as has been proven with bush, the average american has a worse debt to income ratio under republican control. The only real problem is that the idiots that vote for them only hear "cut taxes" and "no new taxes" and are too stupid to realize they just had to file bankruptcy because they can no longer aford their house /sigh.

>>>>Additional Benefits A total disability rating based on IU can result in eligibility for additional benefits for a veteran’s dependents and survivors. Educational benefits for the veteran’s spouse and eligible children are available under the Survivors’ and Dependents’ Educational Assistance Program (title 38, United States Code, Chapter 35). The Civilian Health and Medical Program of the Department of Veterans Affairs (CHAMPVA) provides reimbursement to eligible dependents for most medical expenses, provided that they are not also eligible for health care benefits provided by the Department of Defense. To be eligible for both of these benefits, the veteran’s IU determination must be considered permanent. Permanency for eligibility to Chapter 35 and CHAMPVA requires that there not be a future examination scheduled.<<<<<< Very interesting...I'll be sending this nice little quote over to the RO for my CUE and appeal on a future exam scheduled despite my wife being P&T.

Are you able to request a hearing with the DRO, or are you past that point? The RO can give you an endless run-around, but if you show up to the hearing and present your case in a factual way with hard evidence, you may be able to get things overturned at the RO level....the DRO can't play dumb (IE - claim they didn't "see" the evidence) if you present it to them in person.

They won't use any GAF for compensation if you cannot prove that the military aggrivated your mental issue. I'm guessing it is VERY difficult to get the military to admit they increased the severity of your mental condition even with a "stressor" let alone witout one. As pete said, I would focus on proving a stressor in the military and showing a nexus between service and you mental conidtion...I wish you luck, but it sounds like you have a tough uphill battle:-(

The way it was explained to me by my contact in the seattle RO was that a CUE and an appeal are two seperate issues that can be raised seperate of one-another. A cue, as you know, is only an argument over the rule of law; whereas, an appeal is an argument over adjudication. Essentially, you are appealing two seperate issues when you have both a CUE and an appeal in at the same time...one has nothing to do with the other. In my wife's case, I am arguing, in the DRO, the fact that they did not cite new evdience to lower her SMC and ignored the evidence from her recent hospital stay AND a note from her doctor saying that she was still a threat to herself and in need of A&A as a result (her old lvl of SMC). The CUE is about the same thing but from a different perspective......I am CUEing the lowered SMC based on 3.104 & 3.105 (finality and revision of decisions) as the seattle RO did not cite any reason for taking her A&A away other then they disagreed with Philadelphia's decision to give it in the first place (the decision said that a veteran MUST be bedridden in order to get A&A and that she did not qualify because she was not "bedridden"). I also CUE'd the future examination date of 2007 under 3.327, as her condition was deemed permanent AND she was found to be housebound which "requires" a permanent status. Though the appeal and CUE are on the same topics, they are different in their approach and, as it was explained to me, they will be handled by different departments (CUE goes directly to the "coach" and the appeal goes through normal channels). I will keep everyone here informed of the status of her claim....if it is indeed true that one can CUE AND appeal it would give veterans a two-pronged attack.

Where, exactly, does the regulation state that one cannot be in the appeals process when filing a CUE? I have two CUEs in at the moment along with a request for a DRO review (at the advice of a friend of mine on the coach team ...whatever that means). I know CUE calls for a final decision, but a final decision, by VA standards, is simply any decision by the RO that has taken effect (IE - past the 60 day point). P.S. - I dug up the old post here about finality...here are the regs we discussed in that thread - § 3.160 Status of claims. (d) Finally adjudicated claim. An application, formal or informal, which has been allowed or disallowed by the agency of original jurisdiction, the action having become final by the expiration of 1 year after the date of notice of an award or disallowance, or by denial on appellate review, whichever is the earlier. (See §§20.1103 and 20.1104 of this chapter.) § 3.104 Finality of decisions. (a) A decision of a duly constituted rating agency or other agency of original jurisdiction shall be final and binding on all field offices of the Department of Veterans Affairs as to conclusions based on the evidence on file at the time VA issues written notification in accordance with 38 U.S.C. 5104. A final and binding agency decision shall not be subject to revision on the same factual basis except by duly constituted appellate authorities or except as provided in §3.105 and §3.2600 of this part. § 3.105 Revision of decisions. (a) Error. Previous determinations which are final and binding, including decisions of service connection, degree of disability, age, marriage, relationship, service, dependency, line of duty, and other issues, will be accepted as correct in the absence of clear and unmistakable error. Where evidence establishes such error, the prior decision will be reversed or amended. For the purpose of authorizing benefits, the rating or other adjudicative decision which constitutes a reversal of a prior decision on the grounds of clear and unmistakable error has the same effect as if the corrected decision had been made on the date of the reversed decision. Except as provided in paragraphs (d) and (e) of this section, where an award is reduced or discontinued because of administrative error or error in judgment, the provisions of §3.500((2) will apply. Unless the language behind CUE specifically calls for a "finally adjudicated claim" then I can't see where CUE can only be filed when a claim has exhausted ALL appeals....I'm curious about this because, like I said, I was told by the RO that I could indeed file CUE while appealing and that I could appeal both decisions seperately to the BVA if need be. The way it was explained to me was that they are two seperate issues with two seperate appeals paths <shrug>.

Sounds like a short term memory problem in my opinion...I have a civilian friend who is on SS due to short term memory issues as a result of a diabetic coma.

The language of the regulation implies that the military must conceed that the condition was PTSD. If I remember your case correctly the military did just that, but the VA changed the disorder after the fact. You may have a reason for a CUE if that is the case, but it would depend on several factors surrounding your diagnosis, discharge and when the VA got involved.....

Time, What you are referring to is the AFQT portion (subset) of the ASVAB; furthermore, the idea of "g" is a concept from a widely discredited book by Herrnstein and Murray entitled "the bell curve". They used the AFQT to come to conclusions about differences in IQ between different races and economic backgrounds, but the overwhelming majority of the field of psychiatry believes that "the bell curve" simply measured gaps in achievement and not IQ. Basically, the ASVAB, and it's subsection AFQT, is nothing more then a measurement of achievement and has no clinical basis in intelligence. What "the bell curve" did wrong is it used standardized tests as a means evaluating "general intelligence" (g). Standard tests do NOT measure IQ in any way. In fact, one of the most brilliant mathematicians in our history could barely read or write...he was a peasant from india that a college professor "discovered" as having a profound ability at math. This indian ended up scoring higher on an IQ test then einstein, but would have scored a zero on a standardized test (ASVAB, SAT, etc). The writers of the bell curve went on to say that blacks were, essentially, a less intelligent race based on lower scores on standardized tests, but they failed to take into account socio-economic background. You see, a poor black kid from the south scores, on average, 20 points lower on "the bell curve" then do middle class black kids from the north. The same can be said for asian kids...asian kids score, on average, 5 points higher then whites (as per the "g" quotient listed by herrnstein and murray), but a closer look shows that "the bell curve" only tested american asians that came from rather well-off backgrounds...when you apply the "g" quotient to asians in china, korea, japan, etc from lower economic backgrounds they score as low as the poor black kids do. In my opinion, the "g" factor is racist nonsense used to promote a white agenda and white power. P.S. - I did a paper on the "bell curve" in my college sociology class:-) (hence the emotion) P.P.S. - I found an article about the ASVAB and IQ with an excerpt from a DoD official on the topic - >>>Richard Danzig, Principal Deputy Assistant Secretary of Defense for Manpower, Reserve Affairs, and Logistics spoke before a congressional committee. "The testing specialists note that we ought not to confuse these aptitude tests with intelligence tests as such" Danzig said. "Naturally there is some correlation between the two types of tests but to speak of somebody as being in category IV or category V is not per se to make a judgment about his intelligence. ... In fact, we don't want to test IQ which is traditionally the aptitude of school children to perform well in school. We want to test their ability to learn to perform military jobs. That is somewhat related to intelligence, not alone intelligence however. I want to avoid that implication" (Congressional Record, U. S. Senate, 1980, p. 1298)<<<

I agree with terry, more raters aren't going to fix the problem. Take SS for instance.....their approvals are usually quite quick (for better or for worse) and they do not bog down the process with endless regulations and red tape. It can be difficult to get SS at first, but once you've proven you're need for aid they only care if you're working or not and, generally, take your word for the level of disability. The VA, on the other hand, treats every exam like an inquiry to prove SC, level of disability, ability to work, etc., which grinds the system to a halt. In my opinion, the regulations need to be changed to better protect established claims....if someone has a disorder that is not likely to get better then C&P and the adjudication process is needless. It should be enough for the veteran to say he/she still believes that the old rating is still valid, rather then treating each reexamination as a new claim. I bet most of the claims before the VA today are for existing conditions....does anyone have access to records which show how many claims are newly opened and how many are "reexaminations"? I would be interested to see......

PTSD, in theory, can cause all sorts of physical symptoms, but proving these symptoms are a result of PTSD is EXTREMELY difficult. Before the wife was medically retired she had several blood tests over the course of a year or so....these blood tests (CBCs) showed all sorts of irregular results like high white blood cells, extremely low iron, abnormal platelets, etc and each result was different with each test. She started these tests because she was blacking out and having extreme chest pains and hyperventilating. She also had recurring UTIs (urinary tract infections) and had problems eating/sleeping. It wasn't until a year later when she started to express signs of PTSD and started to see an AF psychologist that we began to connect the dots.......turns out she was having subconscious panic attacks and severe stress that was causing her body to shut down. The problem is that there is NO concrete data on this and the doctors can only speculate......I'm sure I could never get the VA to link it (though once she admitted her problems and got drugs for PTSD the blood work normalized and the panic attacks subsided).

Namvet is probably correct...my guess is that you are 80% combined schedular and not 80% PTSD (it's 70% and 100%, nothing inbetween). It seems to me that you are still in the process of NOD'n your PTSD claim, which gives the RO more latitude to order C&Ps and it sounds like they have indeed targeted you for a potential reduction (yes, I do believe RO's single people out if they can smell blood in the water). To be honest, you are fairly safe in that you are TDIU and P&T. My advice would simply be to establish a GOOD civilian psychiatrist with excellent credentials and use this psych for primary, recurring treatment. Continue what you are doing and keep excellent records...I believe you are safe as long as you don't start working or something:-) P.S. - What are the reasons behind them denying an earlier SC date and what is your proof that you deserve said date? (I ask because I am wondering if a CUE may be in order, but you would have to show some sort of regulation violation and not merely a difference of opinion)

By no means do I advocate NOT going to a scheduled C&P exam, but I believe, quite strongly, that one should use a civilian treating doctor and "attempt" to use the treating doctor's exam in lieu of a C&P. The reason most civilian reports are not accepted is because you need a doctor who is willing to do a thorough report in the VA's language. *If* the VA will not accept the civilian report then report to your C&P as ordered and use the civilian report for reasonable doubt should the VA choose the C&P over the treating doctor's examination. Again, I am saying that one should use a civilian doctor rather then a VA one and submit said doctor's thorough evaluation a month or so before a scheduled C&P exam.....if the RO will not accept the report then go to the C&P as scheduled, but fight it all the way.

Why are you telling me this? I didn't say anything about refusing a C&P exam.......I said one should use a civilian examination in lieu of a C&P exam. I went on to say that "even if they don't accept the civilian examination you will have a better grounds to argue against any pending C&P outcome. " The regs are quite clear and you can give an IMO in place of a C&P (doesn't mean they MUST accept it though). Here's the regulation: 3.326 Examinations. For purposes of this section, the term examination includes periods of hospital observation when required by VA. (a) Where there is a claim for disability compensation or pension but medical evidence accompanying the claim is not adequate for rating purposes, a Department of Veterans Affairs examination will be authorized. This paragraph applies to original and reopened claims as well as claims for increase submitted by a veteran, surviving spouse, parent, or child. Individuals for whom an examination has been scheduled are required to report for the examination. (b) Provided that it is otherwise adequate for rating purposes, any hospital report, or any examination report, from any government or private institution may be accepted for rating a claim without further examination. However, monetary benefits to a former prisoner of war will not be denied unless the claimant has been offered a complete physical examination conducted at a Department of Veterans Affairs hospital or outpatient clinic. P.S. - Honestly, what's with everyone beating on me?

I am a big supporter of civilian treatment. You can always submit a civilian examination instead of going to a C&P and even if they don't accept the civilian examination you will have a better grounds to argue against any pending C&P outcome. My wife uses one of the best pscyhiatrists in the country (has several world-wide awards and specializes in PTSD and anxiety disorders).....RO will have a very tough time refuting her treating doctor's report over a psychologist/NP report from a 30 minute C&P:-) Sure it costs us $200 every two months, but I consider it an investment.

Tests, like the asvab, are not a sign of one's IQ; rather, they are nothing more then one's ability to memorize facts (IE - knowledge). From a neurological standpoint they are going to want to test your IQ and unless you've had IQ tests prior to the military it will be hard to prove that it has dropped. You can probably get by with a historical review of all your tests going back to grade school *IF* you can prove you were average to above average then, but are now sharply below average in IQ....it sounds like you may be able to make that case given your history in the military, but you cannot use a given test or tests to determine your cognitive ability in general. Good luck.

Good news berta and it couldn't have come at a better time:-) (well it could have been approved in the first place rather then a CUE, but you know what I mean:-)

Thanks jim.....This isn't really the time of year to push my buttons:-) The wife has seasonal depression linked to issuse that occured right before and after christmas while in the military. What is normally really bad is ten times worse during this time of year and I'm doing everything I can to keep her out of a mental hospital during christmas. If my responses seem a bit blunt, then please keep this in mind...I know it's not an excuse though <shrug>.

Berta, Thank you. That was a mature, civil way of correcting someone's post. If you want to provide "constructive criticism" then you address what was said that is wrong, give reasons why it is wrong and move on. A reply like "well you were partially right in that not all illnesses in the military are service connected, but chronic diseases such as cancer are typically service connected regardless of military nexus......here's the regulation that cites some of the diseases that fall into this category.......". This is how you constructively criticize someone. P.S. - I have no problem being corrected, but I do take issue when an individual sends me PM(s) stating 1) stop responding in political forum...2) no, really, stop responding to roger in the political forum...3) You need to watch what you say in the vet's forums....then goes on to tell me how I am not giving good advice in several back to back responses to me in two different threads. There's a line and YOU crossed it. (oh yeah, you also corrected one of my posts for grammar) P.P.S. - Calling me immature, yet again, isn't helping the situation.