71M10

Greetings all: Haven't been on for almost a year. A lot has been going on and large doses of nuerotin are not conducive for effective analysis of VA-ola and remembering all the different facts and nuances necessary to argue with the bureaucrats. my 2008 NOD went to BVA last year and had my hearing last October(in DC represented myself). Decision made January 2015 a continued denial on EED for hypertension (SB talking with a lawyer next week...I know, tick tock) and a remand for SC for Kyphoscoliosis under 6842. They sent it to AMC so it will be a while. Bit irritated that the ALJ didn't grant outright. I still can't see how they cannot connect, since I have a medical diagnosis of kyphoscoliosis from a VA doctor in the Thoracic spine and my last rating decision for my T spine clearly stated my SC condition causes a kyphotic and Scoliotic curvature of the T spine and my hypertension decision clearly states my right ventricle (along with both atriums and left ventricle) are enlarged. For those that are curious, a BVA search with restrictive lung disease, kyphoscoliosis, hypertension and lets not forget Detroit should find it for you. Still scratching my head on why the ALJ talked about CUE (never argued it) Frustrated that even the ALJ doesn't recognize a verbal declaration was made at the physical in 88(on 2 statements in support of claim and two separate hearings) in conjunction with the written request for EKG, chest xray, and stress test note I put on the exam form. They continue to beat the must specify the benefit requested like a dead horse and don't want to discuss or recognize the form explicitly told me not to list a diagnosis. This is what happens when you are dissuaded by a SGT at the Transition separation point from listing a heart condition on your VA form because you don't have a diagnosis(telling you it would be fraud) and then following VA instructions on a form when you try to ask about it at your C&P physical. May have to let this one go, unless I can get a lawyer to pick up the ball and run with it(one said no and one is looking at it right now). Best regards,

The three different paths you have described make sense, the decision on what path to take will be determined by the actual medical statements in the record. Do you have affirmative nexus statements (from physicians) for the direct (2nd path) and secondary (third path)? I ask this because we often times see connections and because it is common sense think the VA will connect the dots. Your primary care physician saying something is possible doesn't do much for you. I don't think you will loose at the BVA but I suspect you will get a remand unless there is some medical opinion that beats down the negatives and reinforces the positives and provides the why where other opinions did not address it.

FIRE THE VSO. There is NO reconsideration process at the RO level, it is a re-open with new and material evidence. From your time line information it is to late to NOD (decision became final 1 year after the decision date unless you already filed a NOD). Before you consider CUE, you need to know what evidence is in the file, request a complete copy of the c-file (to include all digital records) or request records added since your last copy request was fulfilled. If your RO is relatively close you could also ask for an appointment to review your file. You would probably only have CUE if the PFT results were in the file.

So you must have someone almost constantly helping you, you drive yourself to therapy with a constant pain level on 9-10? Don't accuse others of gaming or lying when you have some obvious inconsistancies of your own! Your telling Navy wife that she should send it all in and not set on it, she has sent it all in. If you actually read what she said, you would understand she was not sitting on IMO's but had doctors lined up to do them, IF the VA doctors started playing fast and loose with the facts. Would you recommend a person with a TBI (and in this instance I believe it is causing cognative problems) trust the VA to "do the right thing" and not have someone advocate for them? Again, NavyWife, thank you for being dedicated, vigilant and proactive for your husband.

RUREADY, Do you really want to have this conversation? If you are TRULY are in 9-10 level PAIN ALL THE TIME you wouldn't be able to type a coherant message. Sure looks like we have someone exagerating. If you are in 9-10 level pain all the time you wouldn't even be able to eat effectively. Before you cast stones at others, you better take a good look at yourself, 9-10 level pain constantly, but can compose e-mails and communicate effectivey, sure looks like a fraud to me! Its people that exagerate their pain levels that really screw over vets who honestly try to assess their levels. Because when those tools calmly say in their doctors appointment my pain level is 9-10 and they have regular diction, resperation and a steady level heart beat, it causes providers to assume all vets are lying. You also seem to think they give CPAPs out like candy, Here is a clue, you only get a CPAP assigned based on OBJECTIVE medical evidence. Reported pain levels that is a SUBJECTIVE data point. I suspect there are more people lying about pain levels than CPAPs assigned without objective medical evidence. It is people lying about pain levels that caused me to have to sit down at a pain clinic with a VA psychologist who's obvious mission was to determine if I was lying and trying to get opiods. I nipped that in but really quick when I pointed out to the idiot that i was allergic to opiods, did he have any more questions??? He backed right off an moved on. My time wasted, because of people LYING about their pain levels.

A quote like "Make sure he does not shower, were Cologne or do his hair, if he has any, LOL!" sure looks like an attempt to game except for the LOL, which would appear to replace the eye wink in face to face communication. As for having a plan, having a plan isn't gaming the system. Knowing what you are going to do if the VA trys to cheat you is just smart! I personally wouldn't suggest the written note of symptoms and such, but I also realize since I do not, I will forget to discuss things at the doctors appointments. Having to write it down could be used as a peice of evidence to suggest an inability to manage ones affairs. I think I am going to start journaling my medical observations/measurements and just turn them over, an argument can be made that the journaling is the best way for a provider/clinician to see observable patterns without "submitting a statement". As long as a person is turning in an honest journal that is consistantly recorded I think it is an honest middle ground. Clearly that is not a viable strategy for this go-around for you! I commend you for your advocacy on behalf of your husband! It looks like a good plan.

I don't see how this messes up your claim for IU, since the doctor clearly indicates you are unable to work and goes on to describe why. Granted this C&P won't support P&T but I guess I am not seeing an ovious reduction here, but I have not closely looked at the rating criteria for Migraines.

Every little bit of information helps! Good thing the Secretary is doing everything he can to break the backlog! I think you will be glad that your appeal was filled well before the tidal wave of appeals from FDC and Provisional claims hit the BVA.

Thanks for the confirming information (I thought it would be a letter from BVA). Received the letter from RO yesterday!

Yes, you have attached the rules on reopening with new and material evidence(some of them referencing the BVA not RO level). The one reference to "reconsider" is a directed action (nothing you can request) in the instance that additional service records are received. I am not saying that asking for a reconsideration is going to stop your claim in its tracks. It will generally be worked as a re-open with new and material evidence. The point I am trying to make is, when you ask for something the VA doesn't have to give you(or cant). you grant the VA discretion to decide what it is that you asked for or want them to do. I prefer to not risk it. I will state again, why are "trained" VSO's using this term at the regional level? It is an indicator that there training isn't very complete.

Greetings all: My 2008 decision that went through DRO, generated a SOC, and timely filed Form 9 in 2009, has finally left Detroit Rock City and is on its way to the BVA! This is my first trip to the BVA, will I get a seperate letter with docket number from the Board or will that come in a second letter from my RO? Looks like it is time to organize the 4.5 years of correspondence into indexed information. I have asked for a hearing in DC. So a future road trip is on the agneda and I may even go eat some of that Maryland Crab at Jims Hideway in Odenton (if it is still standing). My son will do most of the driving and plans on visiting the Smithsonian Air and Space museum while im discussing my case. Best regards,

I will say it again, THERE IS NO RECONSIDERATION REQUEST AT THE REGIONAL OFFICE LEVEL. If you ask for a reconsideration of a regional office decision you are technically asking for a process that is not supported in law or regulation. Typically when people have asked for a reconsideration (that they have no legal basis for access to), the regional offices have worked them as a request to reopen with new and material evidence(which is not a reconsideration). When a Service Officer tells you he is filing a reconsideration request at the regional office, this tells you he really doesn't understand the process and if they are trained to do it, it tells you the quality of training that organization is providing to its service officers. Why would you advise someone to ask for something they cannot receive and hope that the VA processes it as a request to reopen with new and material evidence. Why take the chance? As for the power of the Secretary, Ultimately the secretary and his/her designates have the discretion to grant SC on any and all evidence and circumstances, and assign any rating on any extra schedular basis. However, they choose to not use those authorities to mitigate or clear the crippling backlog. Instead they have introduced new half-assed procedures they promise will expedite a veterans claims (no guaranteed processing time) and all a veteran has to do is waive some of their rights. Meanwhile they have essentially stopped working appeals (with any meaningful workforce). The FDC and Provisional ratings will ultimately exponentially inflate the appeals backlogs and we have just moved the backlog to a different part of the system. Bottom line --- Veterans still get sub-par service but the secretary smiles and says we fixed the backlog!

What does deportations have to do with granting mass amnesty that there is not a legal basis for, while the VA Secretary refuses to use the entire authority of his office to fix the backlog? This thread is getting to political and I am partially to blame for that, but I took the bait on "we are considered welfare recipients by uber-Conservatives that continue salivating to cut the VA budget" which is a straw man argument. Brokensoldier were going to have to agree to disagree on this. Best regards,

I said it before and I will say it again, an AD campaign needs to be established, not to raise money like Wounded Warrior Project but to get the majority of citizens to demand change. Example: Voice over, Pictures of combat and wounded soldiers "SSG Shick fought the Taliban in Afganistan for 2 years 5 months before an IED took his leg and an eye, He waited for the VA to process his appeal for 4.5 years, on December 24th XXXX, he couldn't wait any longer. He lost his leg, his house, his eye and couldn't even feed his family. He blew his brains out with a pistol, at least now his family will get welfare! You sent him, I sent him, we sent him. FIX the VA its a matter of life and death! people need to see the uncomfortable facts, AS A NATION WE HAVE AN OBLIGATION THAT IS NOT BEING MET! Until everyone feels a sense of shame nothing will change.

All Veterans benefits need to be recognized as an irrefutable OBLIGATION of the United States Government, I consider that a higher level than entitlement. So long as we are considered welfare recepients by ANY group we will continue to be treated with less than the full respect deserved. It can be argued that the VA is not understaffed and overworked. MANAGEMENT(administrative branch) has not adapted to the current realities and the Board of Directors (congress) hasn't updated the long range plan. Why is it the current administration can demand BP pay damadge claims during the gulf oil spill on less evidence within 90 days(that they had no legal basis to require or demand that), but will not direct the Secretary to take extraordinary measures to clear the primary claims and appeals backlogs. How is it the current administration can grant blanket amnesty to illegals (which they do not have legal justification for), but will not make quick common sense approvals for veterans claims, which they do have the legal authority to do? The VA secretary with the stroke of a pen could fix this with no needed change to law, but he won't. Read the statute, his discretion is immense. As for your DAV representation, just how are they getting a "reconsideration" at the RO level? There is no reconsideration at the RO level, it is ultimately a request to re-open with new evidence on a claim that is not final. As for when will it show up on ebenefits? that will happen when it happens, they are under no statutory requirement to list stuff in eBenefits. Best regards,

Berta, You indicated you think it starts at the RO not the doctors office. I will disagree further, it starts at the SECRETARY, who they choose to head up the VBA and VHA. The attitude is established at the top and rolls down hill! If the Head of VHA was outraged at the errors and incompetancy they would start cleaning house, but they don't. Clearly, the average base level medical provider in the VHA is carfeul to minimize supportive statements about how disabled the veteran is. It is obvious they view their job as a service provider to you (working within generalized policies of the organization) and not an advocate for you and your health that requires the system to provide competant care! These base level providers are often bare MD's or MBBS's with no certification in general practice and spotty on what they do know. I have taken to calling my PCP "doctor google" since he often is using google as the knowlege base to recomend treatment and understand my problems. Often I have already read some of the same pages from Merck, and Clevland Clinic that he is during my appointment. I often read the treatment notes and then have to request a correction of what is in them. VBA. How can they continue to issue decisions that do not explicitly state what VASRD code they are using for the rating? How can not providing the actual code they are using ever comport/comply with the VCAA? Claims are not given a unique identifier, this allows them to play games about what they say you appealed vs what they have listed appealed. This problem comes up when you have multiple claim actions that get merged into one. Not providing a copy of the C&P exam to the veteran as soon as it is released. How is it non-adversarial to develop evidence and not share it with all parties? Why do they do things like tell you in your award letter that you have a bone disorder that is 0% disabling. In my case they knew I had arthritis and spondylosis and a medical history of thoracic strain, but they used "bone disorder" and I submit that calling it a bone disorder instead of ARTHRITIS, caused the 22 year old veteran to kind of nod his head and say OK. Wheras, if you tell a 22 year old they have Arthritis, the reaction is this is an old persons disease and they want to know more. When they want to know more, they would force additional exams and xrays that would have shown arthritis in the adjacent segments, which would REQUIRE a compensable rating. By doing this the VA saved about 200 bucks a month for 20 years. How can the VA say an appeal is waiting on a 646 form when the veteran has NEVER been represented by a service org? Why is the Veterans Benefits Adminsitration office not proactively addressing violations of law by Regional Offices? Yes we should all support and request that congress approve the Management Accountability ACT, it is a start! but lets go one step further, we need a LAW that unequivically states any employee of the VA who breaks federal law, MUST be processed in the justice system - no administrative punishments. If convicted, they will be sentenced like any other criminal and their employment terminated. For those convicted of a felony they will loose all retirement benefits and be excluded form employment with any other federal agency or contractor. Furthermore it must be codified in federal law that any Veterans Adminstration employee who knowingly mis represents a material fact, destroys, alters, removes or purposefully misfiles evidence related to veteranas claim is guilty of a federal felony and subject to a seven year sentance and will pay restitution to any and all veterans who were denyed benefits due to their crime. The restitution will be seven times the value of the witheld/denied benefits and will not be subject to discharge under any state or federal bankruptcy proceeding! I still chafe at the fact the VA is allowed to use the presumption of Administrative Regularity, The VA faces no deadlines, regularly violates law and policy which is documented in extensive BVA decisions (which are not precidental). They are continually allowed to play fast and lose with the rules and face no accountablility for errors, ommissions, or out right deceptions that are heaped upon veterans daily!

The question hinges on did your military service worsen an existing disability? So from April 1991 up to the stroke in 2000 what objective verifiable continuing problems did you have with your heart? Has any medical professional indicated that your service made the hole in your heart worse? All pregnancies are a strain on a womens heart! Running PT is a strain on a persons heart. Do they indicate in your service medical records you had Abnormal Strain? We put Holter monitors on people every day and never subject them to another test, you would only do follow up testing if the Holter monitor showed an abnormality. Check your SMR's what did the report on the Holter testing state? My sister had a stroke at 32, no heart issue simply a side effect of birth control, two jobs and a graduate program. You will probably only be able to qualify for service connection on the actual increase/worsening of your presumably undetected congenital heart deformity during service. Since the stroke happened 9 years later unless you have a trail of medical records indicating a continuing problem that was clearly excaburated during your service this will be difficult. If you are or were a smoker or used birth control or received estrogen therapy for anything be prepared for the VA to focus as these issues being the percipitating event for the clot. Best regards,

Yes you can file for Secondary connection for sleep apnea due to back pain/altered biomechanics. That said, you should have a medical opinion that states your OSA was caused by your back condition or makes it worse. If you do not have a physician on record that your SC condition caused the Sleep apnea or makes it worse I don't see much point in filing until you have a medical nexus. The bigger question here is do you think that your back condition caused your sleep apnea or makes it worse? Welcome aboard!

I agree that notice is often lacking! I am a bit proactive, in ebenefits you can see scheduled appoinments and appointment requests. I log in every couple of days, check to make sure they havent scheduled something and look to see if they are asking someone to schedule something. I am not saying the information is 100% accurate in eBenefits, but it is useful, something changes you know something is happening, weather it be shifiting a file from one desk to another, or deciding something, it all causes a change like a ripple on a pond!

Been there done that! They will talk with you and try to provide information, but very quickly the I cannot determine the answer from the notes in the computer system will come up. You might get lucky and have someone from back in cubicle land come up and try to help, but my experience has been you wont get much more or better information than the 1 800 dial and idiot number. I have only done this twice. I did get a signed letter from my VARO after much insistance that stated they would use the date of mailing and not the date of typing on my 3/26/2013 decision(already in the rules but I wanted it documented) which still had not been mailed by mid April 2013. They promptly then tried to use the 3/26 date to close out the appeal on May 27th for no I-9, but they signed for the I-9 the first week of May 2013. Will start working up my WRIT next month. along with the letter and the screenshots of them closing it out on e-bennies and have the multiple IRIS messages that change the status and story of whats going on I think I will finally get some action out of them. But as ASKNOD has observed between the filling and the required response from the VA on a writ a lot seems to happen in a short amount of time?

I suspect somewhere in here we will see definative proof of the "records only C&P" that the VBA/VA codified about 2 years ago. They slipped one of those into my last DRO decision (it pushed me to 100% schedular). I don't think a records only C&P is necessarilly bad(depending on situation), but it has potential for great missuse by the VBA! Best regards,

I was direct SC 22 years post service. My Sleep doctor pulmonologist cited my in service weight, necksize, onset of hypertension, bad EKG, and chest xray where a b reader opined that my right atrium looked enlarged. Medical evidence wins claims! This doctor read my records and pointed out the objective medical evidence in my records that backed up his opinion of a chronic condition that started in-service, but not awarded until years later. Unfortunately, many who have served in the harshest conditions, have the poorest quality of documented medical care or have the most missing records. There are many standard things that every member of the military do or are exposed to that will contribute to sleep apnea. It would be very interesting to see if there is a statistically significant difference of OSA incidence in military verses, non-military populations. I suspect the VA already understands this and that is behind the rumblings of changes regarding OSA in the future. Best regards,

Gastone, You are correct, no where in the regs is it ever suggested that a request for an IC would replace or remove a request for a formal conference, but Detroit VARO sure felt like they could make that claim! "As for the VA employees (raters and DRO's) not following 38 CFR 3 regs on adjudication of appeals, I can't believe they would set themselves up for a CUE." You wouldn't think a VARO would tell a congressman in writing that a claimant is not allowed to request an informal conference, but they did! You wouldn't think a VARO would put in writing that you cannot have service connection for Sleep Apnea and Kyphoscoliosis at the same time because that would be pyramiding, but they have! Pyramiding deals only with the rating not SC, within the rules on pyramiding it explicitly recognizes the allowability of multiple SC disabilities within the same body system! You wouldn't think a VARO would give you a letter stating that they will use the mailing date(not typing date) on a SOC for the form 9 due date and then use the typing date to generate a final decision action. Additionally, you wouldn't think a VARO whould close an appeal (for timing out) when they have signed for a valid fully executed form 9 received by certified mail, but they have! Detroit sat on a 100% rating for agent orange related cancer, for 24 months(4-5 years ago). This was filed by my neighbor, cancer diagnosis of a listed AO cancer, under treatment by Ann Arbor VAMC, with a terminal prognosis. He filed with his DD214 (honorable Discharge) listing his 2 tours in Vietnam. He only received his award after and within weeks of the change in law/rules allowing a family member to continue(stand in place on) the claim upon the death of a claimant. He died about 8 months after the award. No one on this earth is going to convince me that they were not holding this rating, hoping he would die before award. During the same time frame, my filing for a compensation increase on my back which hadn't been looked at since my initial 0% rating in 1988 was done in 9 months. DRO's are kinda like clowns, some are the lovable Clement, or the energetic Bozo, some are like the Insane Clown posse, and a select few are like John Wayne Gacy. All I am trying to communicate is just be carful about what clown you go in a room with, when there is no official record of the conversation except theirs!

As for "no one always wears their mask" call me no one then! If I am not on the machine - I don't sleep its that simple. Only twice in the last eight years have I not used it, a power failure and an equipment failure. I store my battery and converter in the house now not in our storage locker! As for advantage or disadvantage of holding the rating and death. I doubt sleep apnea will ever be listed as the cause of death, it would be recorded as respiratory failure or Heart attack/ect with sleep apnea as a contributory factor. If you already have SC and ratings for your heart and lungs, I wouldn't stress about it, unless it would push you into an S rating which I think you indicated you already were at.

You would think listing the Diagnostic code they are rating you under would be required under VCAA, how is a veteran able to review their decision or know what particular evidence of disability (for rating purpose) they need to provide if they don't know the diagnostic code that VA is using (or proposing to use) to rate them?