Ask Your VA Claims Questions | Read Current Posts
Read VA Disability Claims Articles
Search | View All Forums | Donate | Blogs | New Users | Rules
Jay Johnson
-
Posts
563 -
Joined
-
Last visited
Content Type
Profiles
Forums
Events
VA Disability and Benefits Information
VA Benefits News
Store
Posts posted by Jay Johnson
-
-
Jay-- I was referring to claims that have been upheld by the BVA. The R.O cannot call a CUE on the BVA.
A CUE can be given at the R.O. level I have won 2 at the local level.
Great to hear...I have heard very conflicting information on this topic and I believe the VA is being vague on the CUE topic on purpose. Guess that's what hadits all about, getting the truth out:-) Thanks for posting.
-
CUE CLAIMS_ Are sent to the BVA if they have been subsumed.
That is if the BVA upheld The R.O. decision.
I'm not trying to be standoffish, but where is the proof of that? I haven't seen anything posted to hadit yet that implies that a CUE can only be filed when a claim has already been denied by the BVA. The only thing in the reg about it is that the claim must be final, which, by VA definition, simply means an RO decision has taken affect. I'm not saying you, or anyone else, is wrong on this matter, but it does seem that some are jumping to conclusions based on some really so-so evidence.
P.S. - I believe carlie posted the regs for a "finally adjudicated claim" and a "final decision"....to my knowledge CUE does not call for a "finally adjudicated claim", it emrely calls for a final decision (IE - you can't file CUE on an RO proposal).
-
The amount of time is really up to the individual rater and you really can't take it as a positive or negative sign. As far as being awarded P&T - It really depends on your condition and the C&P in 2007...the rater also plays a big role as there really isn't any concrete regs that say the RO must give P&T or not. The regs do state that a chronic condition that does not improve over a given period of time should be considered for P&T, but much of that is left often to speculation by the rater. I would definitely put in for P&T on your next C&P, as you may have a good chance at getting it.
-
Agreed, even if they do have it, it doesn't hurt to have two copies plus you can highlight favorable portions if you send your copy (yes they skim a LOT). Also, get another IMO from a civilian psychiatrist. Offer to pay in cash for a full psych evaluation and you'll likely get an appointment MUCH faster (psychs love cash customers). Coach the IMO to best reflect what is needed to prove your claim (IE - hot button words like unemployable, severe, chronic, etc).
In my opinion, there is no such thing as too much information.
-
I'm hearing something completely different from my contact in the seattle RO.....he instructed me to send the CUE to him and we would take it directly the the "coach of reviews". He said the CUE is a seperate issue from an appeal and can be appealed to the BVA along with any claims you have in at the time. Again, I haven't heard anything back yet from either my DRO or the CUE(s), but I'll keep everyone posted.
-
You should keep your 80% regardless, but you can take two different routes to increase your rating. 1) you can continue to appeal the current rating and hope to get a 100% scheduler from the BVA, or 2) You can accept the 80% and file a new claim for increase due to TDIU. I may be reading your case wrong, but it seems that you did not file for TDIU on the claim you are currently appealing, which means you'll need to prove you're 100% scheduler to the BVA (which may be difficult). If this is the case, I would do some research on exactly what your disorder is and what the criteria for a 100% rating would be (IE - match up your evidence to the evdience needed for a 100% scheduler for your disorder).
P.S. - The RO/BVA can award TDIU without you asking for it based on the medical evidence, but I wouldn't hold my breath for them to be so kind:-)
-
I would get the qualifications of your VA C&P doctor and compare them to the qualifications of your civilian pyschologist....my guess is the "higher of two evaluations" rule would apply as the civilian is, probably, more qualified. Also, was the civilian doctor a treating doctor? (IE -did you see this psych on a ergular basis?).
My advice is to get another civilian examination to back up the first one....with two seperate evaluations by qualified doctors the RO will be hard pressed to low-ball you (I'm sure they will, but you'll have solid ground for appeal).
-
§ 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.
The second two regulations seem to suggest that one CAN file CUE during the appeals process as a VARO decision is considered "final", but the first regulation seems to back up what berta and others have said. They couldn't be being vague on purpose could they? (not like the VA we all know and love:-)
P.S. - I looked back over some of the reasons for filing CUE posted here and via the internet and they always say you can only CUE a decision which is "final and binding", not "finally adjudicated"......the more I read into the regs, the more I feel one can CUE during the appeals process.
-
I'm just a newbie but from what I understand you have shown that the diagnostic coding is in error and because it pertains to the regulations and not a weighing of the evidence it is CUE.
I think Cue can be filed any time, but if you have time for a NOD you would probably want to send that and use CUE later if you need to. Allso they will concider the new evidence with Nod but I don't think they can concider knew evidence with CUE.
We'll see if I've learned anything when the people who know answer. lol
Time
Apparently, you can file a CUE along with a NOD/DRO/BVA. They are two completely seperate issues, handled by two completely different type of raters. Also, you can appeal both the CUE AND your regular appeal as two seperate issues to the BVA.
-
Carrie- this is good and I would not only refer to the diagnostic codes and medical criteria and the regs you mentioned- right in the NOD but also I would also attach copies of them and also describe the medical evidence you are sending and why this is important to your claim.
Tell the VA you fully intend to continue to appeal any benefits that remain not granted and make sure you get either a Priority tracking slip or send it Certified to them.
When a claimant is within period to file a NOD they do not have basis for a CUE claim.
They have not received a final decision.
Like I've said before, I'm not 100% certain, but I have been told by several people within the claims portion of the seattle RO that you can, indeed, file CUE while in your appeals process. Finality of a decision merely means that an RO has made a final binding decision on your claim. A CUE is not an appeal, it is a complaint about the failure to properly follow the regualtions in hand when the decision on a claim was made. I currently have both an appeal in for a hearing with a DRO officer AND 2 seperate CUEs in to the "coach" of review team 2.
This doesn't mean I believe I am 100% correct on this matter, but nothing posted to this forum would suggest I'm wrong. Although berta and others have posted things saying the decision must be final, there has been nothing posted as to what exactly "final" means and no one has posted anything saying that all appeals must be exauhsted, nor have they posted anything that says that your claim must have been through the BVA or court of appeals in order to file CUE.
Simply put, CUE is just an argument based solely on regulation violations of your case and has nothing to do with the merits of your claim...that is for the appeals process.
-
I did get Chapter 35, Insurance and ChampVA! The only thing I did not ask is how often, if ever, I am to be seen for check-ups. ;)
Well, there shouldn't be any scheduled C&Ps for you in the future....the reason I say to ask is that my wife was found to be P&T (for the second time) by the Seattle RO, yet they have her scheduled for a C&P exam in about 18mnths. Of course, I have CUE'd/NOD'd the decision as it is obviously against the regs, but it's better to fight it now while you still have the right to appeal then deal with it 2 yrs down the road when you get a letter in the mail telling you to report for a C&P. I'm hoping my wife's case is just gross negligence and not the standard for VAROs across the country, but it can't hurt to give your RO a call and ask if they have any C&P scheduled in the future:-)
-
If what you said was true you are indeed P&T ("dependents' educational assistance"). I would check with the RO and be sure that no future exams have been sceduled. Gratz on the rating...I'm sure you'll have a MUCH more merry Xmas now:-)
-
Thank god.... I'll be sending some thank you emails to obama and the other senators that made this happen.
-
Gratz dave....the success stories give us all hope:-)
-
Jay,
If you haven't already realized it, most opinions, as far as the amount of the award, or the validity of the claim that you will see here are self-centered, as they are at most veterans forums.
You will find the occasional veteran who can look past their own set of circumstances, and draw conclusions and give opinions that look realistically at the whole picture, but they are not in the majority.
That is not to say that they are wrong, after all the foundation of our curent society is self interest - one reason we are in such terrible shape today. When people stop caring about civilized behavior and a sense of fair play, society is already on the slippery slope to decadence and decay. It has happened to every Empire so far, and the USA is well on the way to being the shortest lived Empire in history.
Wally,
Couldn't agree more.
I think congress should clarify the rating's system so it more accurately reflects their own intentions....if VA compensation is only supposed to reflect a veteran's ability to earn wages, then how can a veteran who has lost ALL ability to earn income (IE - 100% scheduler), also be able to work fulltime and earn a good living? IMO, there is a horrible stereotype in this nation between physical and mental disorders, to which physical disorders have a much lower threshold for compensation. Everyone who is 100% should be deemed unemployable under the current regulations, but many physical disabilities are automatically rated at 100% despite the veteran's ability to be gainfully employed.....this isn't to say that missing both hands isn't a horrible thing to live through and definitely doesn't impact one's choice of careers, but under the standard of "how much does it affect gainful employment", this sort of disorder can be completely debilitating or one can lead an almost normal life (yet the VA gives a blanket rating). Also, the VA uses a clear double standard for how treatment affects a physical disability as opposed to a mental one.....if a veteran can manage his or her psychiatric symptoms through medications/therapy, then the VA often lowers said veteran's compensation level; conversely, a veteran who is missing 2 or more appendages yet is able to rehabilitate via prosthetics almost never has their compensation questioned.
This goes to an even bigger stereotype in american society towards "mentally disabled" people in general. First of all, there is no such thing as a mental disorder....it is a PHYSICAL disorder of the brain's ability to properly regulate chemistry that deals with sympathetic and parasympathetic responses (fight or flight). If a person has a bladder control issue due to the brains inability to properly regulate hormones that control bladder function, we don't send said person to s psychologist, do we? We also don't tell the person with the bladder problem that it's a "mental disorder". It is no different in people with PTSD or other "psychiatric disorders"....a person with severe PTSD lacks the ability to control fight or flight responses (actual complex chemical functions of the brain). When someone attempts suicide it is nothing more then the brain's over-reaction to those very responses (the body is attempting to remove itself from the painful situation [ie - fight or flight]).
I, also, don't believe in psychology as a tool to help "cure" people with "mental disorders". A psychologist is nothing more then someone who can help teach you to cope with the disorder and has no more ability to fix a PTSD vet then you or I. IMO, psychiatry is still in the dark ages of medicine, in that they have little knowledge of exactly what is broken or how to go about fixing it. The medications act as a prosthetic and merely mask the underlying disability, but the VA uses the common stereotype that "it's all in their heads" and gives preference to physical disabilities. After all, why is it that americans can't come to believe that the most complex and misunderstood organ in their body can be prone to malfunctions?
With all this said, I would like to see VA compensation reflect pain and suffering, rather then one's ability to work. Veterans cannot sue the military directly for the hell their injuries cause them and, though I may agree with some protection for the military under most circumstances, the veteran's need compensation for their truamatic events. To say that compensating a veteran only for their ability to work is enough is to completely ignore ALL of the secondary affects of said disabilities.....I would venture to guess that 90% of vets end up divorced, in prison or homeless due to their disabilities and their entire lives are turned upside down. What do they get for these secondary problems? It simply isn't enough to say that the government will help you with month to month finances, because those finances won't bring the veteran's lives back to them, nor will it make the daily pain and suffering go away.
-
Jay your dollar for dollar example would deplete benefits for all vets. I know that you were probably addressing PTSD vets but lets say that a veteran is 70 % disabled (physicaly). However, he is a collage grad and finds work at a company that uses his mind. Lets say that he is making a salary of 75,000.00 per year. If your recommendation would call for the complete depletion of his VA benefits. Why should a vet that has the ability to overcome his disability and provide for his family have to give up his disability payments. He is working and providing a good living for his family. He is working along side other non-disabled people doing the same tasks but he has to come up with 70 more percent stamina to do so. No matter how much he is making both of his legs are still missing or he still faces 24x7 pain etc......... Just because he decides that he wants to provide the best he can for his family does not mean he should just suck it up. If the government is allowed to do this to those who have the hardest time of all, PTSD vets, then it would be a snap for them to stop all payment for vets who work and make more that than paid by the VA. I am productive and have an very high paying job. However, it makes me feel great when I get that 30% payment. It lets me know that my government appreciates the things that I did for them at the drop of a hat without even thinking about the sacrifice or future effects on my wife an children. Let us stay away from the dollar for dollar theory especially for those who suffer the most and that would be those of you that have PTSD. Not arguing just my two cents and the knowledge that if the VA was allowed to start any work related program which would allow a dollar for dollar reduction in benefits for those with mental problems those who have straight physical disabilities would not have a prayer.
I can agree with you in principle, but that is NOT what VA benefits are for....congress has stated over and over again that VA compensation is supposed to represent a veteran's potential loss of wages. Personally, I think it should be for pain and suffering as the SS system is meant to address lack of ability to work, but that's not the current reasoning behind veteran's compensation.
Also, most younger vets who are severely disabled due to SC are also medically retied from the military (not all, but most), so these vets can still draw retirement on top of any wages they earn in the civilian world.
P.S. - I said that my plan would only cover those who are 70% IU or 100% scheduler...you're hypothetical would not count under my plan. There are physically disabled vets who are 100% schedular and still make good money...IMO, these individuals are acting against the regulations as they currently stand and either the regulations should be changed or they should not be collecting the 100% payment.
-
Jay,
You imply in your note that you are providing a URL; but there is none.
Since we're on the topic:-)
From Warriner's English Grammar and Composition: "31a. Use a semicolon between independent clauses not joined by and, but, or, nor, yet."
-
First, I agree that this is aimed at the younger vets. They are not going to spend the time and money to make older vets "employable". It is self defeating. Not only that, I'm quite sure that they realize that the older age group will fight very hard to keep what they have had to fight so hard for in the first place.
Next, while incentives sound good and fair on the surface, anyone that has had to go through the process of recieving these beniffits is not likely to risk them on the promise of the government. If the fight to RECIEVE benifitts is this bad, why would I voluntarily set myself up for a fight to keep them? I no longer believe there is a government agency out there to help me. For 14 years I basically have been called a liar. What if I tried a program and made that $1000 a month for a year, and it did not work out? Am I to be called a liar for another 14 years? It's not a matter of comfort. It is a matter of risk management. And the government IS NOT a good risk.
Time
Couple of points (since this is my idea:-):
1) You would be locked into your current rating...be it TDIU or 100% scheduler, so your future benefits will NOT be in question. Without this absolute and concrete guarantee, the plan will not work.
2) You would not HAVE to work, nor would you have to continue working once you started, which leads me to point 3....
3) If you made 1k/mnth in 2005 and the VA reduces your 2006 benefits by said amount, but you were no longer able to work in 2006, there could be a couple steps taken: A) Have an emergency program available to which the veteran could prove work was terminated and the prior years income would be waved. ;) A veteran could elect to have any money recieved from working put into a VA account so that the following year's reduction will be compensated by your own earnings C) If you lose your job you can elect to spread your prior year's income over a longer period (say 5 yrs), so the reduction is less noticeable.
No doubt there would have to be many kinks worked out, but my wife's civilian psychiatrist (during a hospital visit) made a really good point...the psych said that, "The patient has an incentive NOT to improve her quality of life, which makes treatment and prognosis difficult". Though I honestly believe that 99.9% of severaly disabled PTSD vets will not be able to maintain gainful employment, I do believe that having the freedom to seek said employment and the safety that comes with a locked rating would help increase the vet's quality of life, if nothing else. I'm sure you PTSD vets will back me up when I say that you struggle every day with an overwhelming desire to contribute to society and that one of the biggest causes of your depression is the feeling of being a drain on your family, friends and country (justified or not). I also feel that the fear of the VA taking your money away contributes to some of these issues and your lack of willingness to try new things (even if it's something simple like going to the movies or spending a day with family at the beach)....a locked rating would all but erase these fears and give you PTSD folks a sense that you CAN if you want, but you don't have to (essentailly removing that overwhelming sense of fear I know you have).
-
Jay,
You imply in your note that you are providing a URL; but there is none.
Wally,
I was responding to allan's original post and the link he provided...I have that link saved in my favorites and it is usually quite reliable, but was down for most of the day today:-)
-
Take 1000 per month from the vet and let him earn 1000 per month. Do the math 1000 per month minus 7.5 percent ssa another 7.5 percent federal tax ( Total 15 percent. State and locat taxes also apply.) example of 20 percent so the vet is losing 200 dollars. That is ubsurd. ( Next)
At an income of 12K/yr you would not only NOT pay taxes, but you would get earned income credit (up to 5K paid to you from uncle sam for being poor, as your VA check does not count as earned income for tax purposes). Also, those who recieve SSDI would need to fall under the same protections as I'm proposing the VA should follow (IE - not lose your SSDI; rather, subtrat your income from your total disability [sSDI + VA]). Typically you do not pay federal taxes on any income below 20K and up to 36K with dependents, but, if it were an issue, they could allow for specific non-tax status for the first portion of your paycheck that amounts to your disability pay (IE - if you make 3K from VA + SSDI, but make 5K in your job, then you are not taxed on the first 3K of your paycheck).....there are several details that would have to be worked out, but it is definitely doable and helps both the VA and the veteran in the long run.
-
This is the site I use to research regulations and it is typically very reliable, but it seems to be having some issues today.
-
Every psychiatric drug I've ever seen has some warning of loss of libido, which could lead to ED. My guess is that your C&P doctor is as equally unqualified as he is unintelligent.
-
If they want to get veterans off of IU or 100% they will NEED to have some sort of guarantee to the veteran of a minimal monthly income. I have proposed this before on the old baord, but will go over it briefly here:
A veteran that gets rated at the 100% level (scheduler or IU) should be locked into that rate for life (if the condition is of a chronic nature), but if said person should be able to work in the future then he or she should have any monies earned be subtracted from the following year's compensation payments. In other words, if a 100% PTSD vet can makes 2500/mnth from the VA in 2005, but averages $1000/mnth at a part time, low stress job, then that vet should not have to worry about the VA slashing benefits; rather, the VA should then lower the following year's compensation to $1500/mnth.
I believe this takes the stress off of the veteran and allows for veterans to better test their limits. As the system is set up now, if a 100% vet decided to even TRY to work, even if part time, the VA could take that as a material improvement and attempt to lower the veteran's rating. Also, it help assure veterans that they will always recieve a minimum amount of monthly compensation in which to live off of....if a vet in a wheelchair can make $3000/mnth from the VA, but only $1200/mnth in fulltime employment (due to the limitations of the disability), what incentive is there to even attempt to work? Of crouse the vet can still draw a lesser amount of compensation, but the drop from 100% to 70% + limited work income is less then what the vet can make on 100% + SSDI.
This program will also, be a huge help to PTSD vets who often have an overwhelming urge to work, even though they will eventually find that they are unable to sustain employment due to their disability...this will give them the opportunity to test their limits and, perhaps, get better without the fear of the VA cutting benefits (money is the #1 stressor in our country and NO PTSD vet can handle the stress of HAVING to work to live on top of their PTSD issues...this effectively eliminates that presser IMO).
P.S. - I believe this is win/win situation for both the VA and the veteran. It gives a level of stability to veterans that they otherwise wouldn't have, plus gives them the incentive to improve their condition. The VA will, in turn, save money by slashing payments to compensate for veterans who have chosen to go to work (may best guess would be that a large % of vets who are 100%/IU would be working in some fashion if they had this guarantee).
-
More specific please (IE - what disorder, what type of proof, etc).
Unpaid Child Support And The Va..for My Friend
in VA Disability Claims Research
Posted
The X-husband is legally bound to pay that money and not only can they attach his wages/dissability for current payments, but they can also prorate the back child support and force him to pay that as well.
Waht your friend needs to do is find a good attorney and get to work on the case...in the end, she will win.
P.S. - Also, have the new judge look into an increase in pay. $48/week is really low for child support these days. My wife's dad had to pay $800/mnth for his two kids 10 years ago.