Phury & Rhage

The short answer is that it depends. In order for VA to pay the attorney fee to the attorney, several requirements have to be met. The 1st is that there is a valid "direct pay" fee agreement. Keep in mind that fee agreements filed with the VA don't have any bearing on whether a client owes an attorney money. That is a separate issue between client and attorney. The only time that issue comes into play for VA is they have to determine if an attorney (current or former) performed work on a granted issue. That evaluation is done on every award produced where there is a valid direct-pay agreement. If there isn't a direct pay agreement, it doesn't mean the attorney won't get paid, he just won't get the money directly from VA out of your retro compensation and VA doesn't assess whether the attorney worked on the claim. When VA does an assessment on attorney fee issues, they issue an Attorney Fee decision. They will spell out what conclusions they reached and what actions they are proposing to take. For instance, if there is a valid direct pay agreement of 20%, retro of $100,000, and the attorney worked on the granted issue, then the attorney fee decision would say that the attorney is entitled to $20,000 minus an administrative fee from the retro money. HOWEVER, that decision comes with due process. VA holds those attorney fees for 65 days before they can be released to the attorney. During that time, the Veteran can appeal to the BVA (only the BVA hears contested claims and attorney fees are considered contested claims) to say they disagree with the decision to pay fees/the amount/etc. In that case, the fees aren't released until the appeal is resolved by BVA. If you revoke your attorney POA, whether they are eligible for future fees depends on the specific fee agreement you signed and whether the attorney waives their fees. I've seen both types. Any future awards are assessed to see if the current or former attorney did work on the granted issue and whether they waived any attorney fees associated with the granted issue. Good luck, Phury

I'm just chiming in, but there are some obvious benefits to having a mental health diagnosis that ISN'T PTSD. In order for PTSD to be service-connected, you have to have a stressor. In a lot of cases, there are problems with verifying stressors. There are some big exceptions to that. If you were in any combat/exposed to enemy combatants, VA concedes that exposure as a stressor. Then the hurdle becomes getting the examiner to link your current diagnosis to the conceded stressor. If there are records of other stressors that could underlie a PTSD diagnosis (childhood/anything else when you weren't in the service) then it can be difficult to get the examiner to say that it was your service stressor that is responsible. It can be easier to service-connect other mental health diagnoses because they can be linked to service without being the result of a specific stressor. A common service-connection is for depression/other MH condition due to the effects of your other SC conditions. Secondary connection is also easier for Veterans to obtain because it only requires a link to a current SC condition rather than trying to dig through service records for support. This is also where your private opinion can carry a lot of weight. VA examiners don't have a lock on determining whether your MH condition is related to your other SC conditions. Private examiners are on a level playing field there. If nothing else, having a private examiner link your MH condition to your SC conditions sets up a good appellate record. Good luck to you, Phury

I am a supporter of this site and I'm grateful it will continue. I work for the agency and have specialized in multiple roles in the claim process. I am not an expert, but I do have extensive research skills in this subject matter and I specialize in the nuts and bolts described in the Manuals and the CFRs. I would be happy to contribute periodic content, if desired. I am also open to suggestions about possible contributions. I am 100% disabled Vet for over 20 years and any contributions I make will be in that context - not as an agency employee. Best, Phury

Hi there, There is something I am seeing more and more in decisions - usually in claims/appeals for increase. The decision maker says that there is evidence of improvement in the condition, but it is not considered sustained improvement. Be careful when you see that. If the next exam can be said to show improvement, that is the basis for a proposal. If you get that statement in a decision, I don't think it is too early to go for a private exam. My opinion only. Good luck, Phury

Hi there, It looks like most of the requirements for SMC (S) have been covered, but I wanted to stress a couple things. The "total disability" for SMC (S) has to be based on a "single" disability. Where IU is the basis for the total disability portion, it has to be based on a single disability: Also, the additional 60% in combined evaluations under SMC (S) has to meet specific requirements: I actually saw that recently in a decision that didn't award SMC (S). I questioned the decision maker and he said it was because some of the disability evaluations that made up the additional 60% were based on a single anatomical segment and the combined evaluations DIDN'T total to 60% when the evaluations were combined by anatomical segment. Good luck to you, Phury

Hi Sign, So I might not have been clear enough before. With conceded AO exposure, you are entitled to presumptive service-connection (SC) for your diabetes. When you get the diabetes exam, they should also link the peripheral neuropathy (PN) and ED to diabetes - they are acknowledged complications. You can get SC for ED through other means, but the examiner will almost always give a positive opinion when it's linked to diabetes. It's a known side-effect. The reason you were denied before is probably because Blue Water Navy Vets weren't considered "Vietnam" Veterans for the purpose of AO exposure at that time. The only way they could SC those conditions at the time of your denial was if they manifested within a year of discharge. As long as you have a diagnosis of diabetes; PN and ED, you should get SC'd for them and the effective date will probably be earlier as well. I'll put in a reference later that covers it.... Good luck, Phury

That's great news!

Hi Cue, I'm sorry you are having a rough time of it. You are correct that there are 2 types of SMC S: housebound-in-fact and statutory housebound. I'm putting in a screenshot of the M21 reference that addresses it: As for what someone mentioned earlier about TDIU being used as the single 100% evaluation for statutory housebound - that's a true fact. I'm a schedular 100 now, but I was awarded TDIU before I made it to a schedular 100. I was (still am) getting statutory housebound (SMC S) and it is because of the TDIU that I have a "single" 100% evaluation. Separately, my highest individual evaluation is 60%. I'm going to put in the Manual reference that covers this: Notice the "Exception". Keep in mind, the IU must be granted based on ONE disability for TDIU to count as the "single disability" rated at 100% for statutory housebound purposes. Personal story: I appealed my TDIU effective date and won in 2012. At the time, I had no idea about SMC S. My TDIU was back dated to July 2001. I carefully did all the math (how much they already gave me; what I should have been getting) and figured it was a little over $40K. When the retro was deposited, it was over $93K!!! My decision narrative didn't explain the math. It wasn't until I went to work for the VA as a claims processor (6 years later) that I found out about SMC S, lol. If you look at the next to the last bullet above, that's what happened to me. Bradley v. Peake allowed them to backdate SMC S to a date prior to the court decision. Good times. As for housebound-in-fact, I will put in the Manual reference for it, but I don't have any real experience processing those although I expect that to change shortly... Although I haven't processed any, it appears to me that you have to have a single 100% disability that is part of the reason for being housebound. Also, the housebound state has to be permanent. So if there if the 100% single disability could or is expected to get better, they won't award housebound-in-fact. Hopefully the facts are on your side. Anyway, I hope it gets better soon! Phury

Hey there, You are right, they probably won't give you a copy of the exam until the claim is closed, but you can still SEE it. If you can get an appointment (or walk in) to the Regional Office - Public Contact Team, you can ask them to give you a copy. Some folks are going to say no to you, but they shouldn't have a problem if you say something like, "I don't need a copy of my claim folder, but I'm really trying to understand the reasoning for my last evaluation. Can I just get a copy of that exam?" It's worth a try. If that doesn't work, you can always ask/find a VSO with access to VBMS and have them download a copy. I don't use a VSO, but I appointed one at the office I worked at (a few years ago) so that I could go down to their office and say, "can you give me a copy of......" It totally worked for me I'm not allowed to look at my own stuff either (or anyone whose claim I'm not working), but I know (roughly) what's in there and what to ask for. I hope it works! Phury

Did VA concede your exposure to herbicides when you filed the diabetes claim in 2017? The only valid reason for denying diabetes is that they didn't have/couldn't find the evidence to concede your exposure in Vietnam - or if examiner said you didn't actually have diabetes when you went for the exam. Are you a Blue Water Navy Veteran? By the way, when you get something from VA that says you "may be entitled" and recommends you file a claim - that is called a solicitation. Except for individual unemployability (IU-different rules), VA is never supposed to "solicit to deny". The decisionmaker that reviewed your file believes there is enough evidence to grant service connection for the diabetes and peripheral neuropathy. They aren't allowed to solicit a claim (except IU) if there isn't enough evidence to grant. Depending on your answers about my questions above, I can give you my take/recommendation... Phury

I agree that it sounds like his cancer would be considered active, but the simplest thing to do is take the Kidney DBQ to the doctor (attached below) and have him fill it out. Presumptive conditions don't require medical opinions. If the Veteran meets the requirements for presumption (Camp Lejeune service between August 1, 1953 and December 31, 1987 for at least 30 days and diagnosis of a listed presumptive condition under 3.309(f)), service connection is warranted and will be granted. Technically, the DBQ isn't necessary either - just current medical documentation of the cancer status and acceptable diagnostic proof, but the DBQ has a bunch of the questions/answers that will allow the decisionmaker to grant the claim quickly. This is from 38 CFR 3.307(a)(7) I'm attaching the current DBQ from VA's public website. I hope this gets handled quickly! All the best, Phury kidney.pdf

Hi again, Is your dad service connected for any other Camp Lejeune condition? I only ask because then we know that exposure is conceded. That will speed things up. If he hasn't been service connected for anything related to Camp Lejeune, it'll take slightly longer. If you have a copy of his DD 214, check to see if it shows his Camp Lejeune service: particularly in the box about last duty station or place released from. It's often in the remarks box as well. Regardless, they have a copy of his personnel records if he's been service connected for anything related to Agent Orange and those records should easily confirm that he was stationed at Camp Lejeune for at least 30 days (an important number). What you should submit is a VA Form 21-526EZ and you can do that online if he has an account set up or through his VSO if he has appointed one. You should make sure there is a VA Form 21-4138 from your dad saying that he had service at Camp Lejeune (the dates too if he has them) and that he has renal cancer which is a presumptive condition under 38 CFR 3.309(f). He should state (if it is true) that he has active cancer and he has had one kidney surgically removed. If he has active cancer, his statement and the 526 should request a temporary 100% and include a request for SMC S. Make sure you get a statement from his doctor that says his cancer is active (if it is) and also get any biopsy results that show the cancer diagnosis. Include all of those items with the 526 when it is submitted. If his DD 214 shows Camp Lejeune service, make sure you highlight that and include it - even though they have it. By the way, Fully Developed Claims don't actually receive special processing anymore (long, boring topic). However, it doesn't hurt anything to select that box. The primary thing to remember is that it will massively speed up the process if you include all the documentation when you file the application. Another thing to know, if the doctor provides a statement about a current diagnosis of active renal cancer - there is NO EXAM. The only evaluation available for active cancer is a temporary 100%. I've posted about this in another thread recently if you want to do a search. If you get stuck or have any questions, please reach out. Good luck, Phury

Hi, I don't have time to give a complete answer at this moment, but, at a minimum, removal of a kidney gets a 30% rating (if service connected obviously). However, active cancer gets a temp 100% when service connected. I'm still at work but I'll write more later... Phury

He's not wrong officially. If it were me, I'd call the White House line. I would light the fire. If you were my dad, I'd call for you (you are too young to be my dad) Phury

Hi, I did a Google search and found a website for a group called Swords to Plowshares. The have been working with Vets for 45 years and they have a PDF with detailed instructions on how to upgrade/fix discharges under DADT. I know that's not what you asked, but it may be relevant. As for filing a claim, Vets aren't expected to nail down the reasons for their mental health conditions. That's why there are VA medical exams and opinions. In my personal opinion, it's certainly plausible that a Vet discharged under DADT had stressful experiences leading up to the actual discharge. If it were me or one of my loved ones, I would encourage the Vet to reach out to folks (like the group above) who may have specific knowledge and advice for Vets in this situation. Good luck to you, Phury