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About rsm-esq

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    E-3 Seaman

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    Washington, DC
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    Appellate lawyer helping Veterans win VA benefits

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  1. I agree with the elders' advice above - there is an awesome group of experienced vets here! Has your condition had an impact on your ability to be employed or maintain a job? If so, in terms of obtaining a 100% rating, a you may want to also consider raising the issue of total disability due to individual unemployability (TDIU). TDIU is essentially an alternate method to obtaining a 100% rating: it's a determination by the VA that the claimant should be considered "totally disabled" (100%) due to their inability to secure or maintain substantially gainful employment. All the best...
  2. Hello. Submitting evidence after the 90-day letter and the claim's transfer to the BVA docket is a bit of a gray area. In theory, there is a good chance that if evidence is submitted directly to the BVA with a written request that it be considered in connection with the claim appeal, that the reviewing judge will in fact review it. It would probably help to write an explanation (as you did above) letting the judge know where the newly submitted evidence supports your claim and some background to the claim appeal. Hope this helps!
  3. Hi, I wouldn't mind taking a look but you seem to have over-redacted a bit! Redacting the name and file number is enough--if the claimed condition and medical reasoning is also blacked out it becomes impossible to comment. Could you please re-send by redacting only the personal info?
  4. I see this time and again, but unfortunately the VA adjudicators don't necessarily give recent articles and medical journals the same probative value as a VA medical opinion. Their reasoning usually goes along the lines of, "an article can say all day long that drinking contaminated water may cause cancer, but that doesn't mean that your cancer was caused by drinking contaminated water at Ft. So-and-So while you were serving." Reasonable doubt under sec 3.102 plays no role in that determination, unfortunately. If a Veteran believes that disabling condition X was caused in service, the BEST supporting evidence is a professional medical opinion that states specifically that the Veteran (not the general population)'s condition was caused in service and therefore should be determined to be service-connected.
  5. Compensability is determined by the VA after you file a claim. As the elders state above, in order for the VA to pay for your medical condition, they must first determine that your disability is "service-connected," meaning that you -- the claimant -- must prove that your claimed disability was incurred in, or aggravated by, your military service. The best way to do so is to provide the VA with as much evidence as possible connecting your specific medical condition to your time in service. In addition to your service records, have a medical doctor (or even better, a VA medical examiner) provide an opinion clearly stating that in their professional medical opinion, it is more likely than not that your disability was caused by or is otherwise connected to your service.
  6. If it says 'granted,' I'm cautiously optimistic that you'll get exactly the benefits for which you filed the claim. Every approved VA disability comp claim should address three components: service connection; effective date; and rating percentage. And if any of these components is incorrect in the BVA decision, you should consider appealing to the Court of Appeals for Veterans Claims. All the best...
  7. The effective date of a claim is the date VA receives that claim, or within one year of military discharge if applicable, whichever is later. The problem with filing a new claim is that you'll lose the earlier effective date for that same disabling medical condition. In other words, if you apply for a claim in 2015, it's denied in 2017, and then you decide to reapply for the same medical condition as a new claim in 2019, and assuming it's approved, the earliest effective date you'll get is 2019. You would lose out on at least 4 years of retroactive payments simply because of giving up on one claim and starting fresh as a new claim.
  8. Obtaining service connection, even at 0% rating, is actually a pretty big deal! Every approved claim has three prongs that can be granted in full or appealed: service connection for a particular disability; effective date; and rating percentage. Having won service connection, you can now focus on getting a higher percentage and/or earlier effective date as appropriate for that claim. Typically, without additional supporting medical evidence/opinion, you can expect the same result (denial). So I'd suggest review the VA's reasoning: if you feel it's wrong, or if they misinterpreted a service record, or concluded contrary to a medical opinion, let them know in writing by disagreement or appeal along with evidence to back up your argument. All the best!
  9. Hi there, Your Statement of Case document should have a section titled "Reasons and Bases," which will help point you in the right direction. Every VA decision is required to adequately explain why they didn't grant a Veteran's claim, and this is essential to figure out how best to approach your appeal moving forward. Posting that SOC section (with your personal info blacked out) here would help get input from the resident experts here. Also, the SOC letter would have included appeal/review options depending on whether your claim is in the legacy or RAMP/modernized track (it's usually the last section of the mailed documents). There are different review options and timeframes for each; feel free to post that here as well so we can compare options against the VA's reasons and bases for their decision.
  10. Hi Wendy, A couple points: 1. You have 1 year from the date of a decision letter to appeal, or the claim is closed. It’s unconscionable that VSOs told you to avoid NODs or appeals. 2. You can file a new claim but the effective date assigned will be based be the new claim, even though the medical condition can potentially date back to your time in service. 3. Service connection requires evidence of three things: current diagnosis, incurrence or aggravation in service, and a nexus statement from a physician. The biggest issue is typically that VA doesn’t connect the dots for you. Your claim paperwork should clearly highlight the evidence and make the argument for best results. 4. Denials, unfortunately, happen to way more than half of all VA disability claims. It’s terrible, but please don’t lose heart. You’ll find on this forum plenty of help from experienced vets who have gone up against the VA and won. I’m an attorney—feel free to reach out if you want to discuss offline.
  11. Remember the old saying, you can drag a horse to water, but you can’t make him drink it? The same holds true for the VA claims process. All supporting evidence can be in the Veteran’s service record, but until you highlight it and present it as a valid argument in support of the specific medical condition you are trying to get service connected, the result will probably be negative. It’s unfortunate, but that’s how the process is set up. The legal elements to obtain service connection requires the Veteran to prove 1) current disability, 2) in service event or aggravation, AND 3) nexus. So make it easier for the judge by giving them evidence of 1, 2, and 3.
  12. This is terrible... sorry you had to go through all of this just to get your records.
  13. Hello, It is inspiring to see your dedication to your husband's cause, and equally frustrating to see veterans in a seemingly endless circle of claim-denial-appeal-denial-appeal... I applaud your determination. BVA hearings are an opportunity to highlight supporting evidence for the claimed disability (ie medical exams, favorable physician opinions, nexus statements). The focus should be to convince the judge that service connection/higher rating/earlier effective date is justified because there is medical evidence to support it. Focus on the evidence, the end decision is up to the Board. All the best.
  14. CUE generally has very little chance of success. It is an extremely technical, procedural tool that is rarely successful--usually because it isn't applied correctly. Every claim denial includes instructions from the VA about what to do if you disagree with the decision. Review those options and select the appropriate response based on whether you have additional EVIDENCE to support your claim.
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