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Phury & Rhage

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Everything posted by Phury & Rhage

  1. 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
  2. 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
  3. 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
  4. 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
  5. 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
  6. 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
  7. 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
  8. 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
  9. 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
  10. 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
  11. 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
  12. 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
  13. 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
  14. 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
  15. I am so happy that you finally prevailed, but I'm so sorry that it took so long for no good reason. I have never had a claim against VHA so I don't have any personal knowledge of its claim process. It is my opinion (as one of the 1st people hired with my job title at a new DROC and over 3 years as a claims processor there) that giving Vets an early and direct route to BVA has been a HUGE success for Veterans. The primary reason for my opinion is that Vets seem to get more favorable decisions on their claims once that claim gets to CAVC. To get to CAVC, you have to get through the BVA. I have worked many BVA remands that were remanded from CAVC back to BVA and then back to VA to actually do the remand work. CAVC gets it wrong sometimes too (in my opinion) but your chances of getting a favorable decision move up to at least 50% based on my experiences (my perspective and opinion ONLY). Hopefully, this trend will hold true so that Vets can skip the early, long torture so many have experienced that has drug on for years in many cases. Again, I am so happy for your well-deserved win! Phury
  16. Congratulations! I'm so sorry this happened this way. 1st let me say for those who are following this (any Vietnam Vets), if you have confirmed herbicide exposure***, you shouldn't be at an exam for active prostate cancer. Period. Never, never, never. Active prostate cancer is a temporary 100% evaluation. As long as the cancer is active, it's a temp 100%. Active cancer Vets are NOT supposed to go to exams for the cancer. VA needs a confirmed diagnosis by biopsy and any statement by a treatment provider saying you currently have active cancer and those items should be submitted with your claim unless you are being treated at a VA medical center and then you note that on the application. It's not likely to happen to you again (sending up positive thoughts), but if you or anyone your know with confirmed exposure develops an herbicide presumptive cancer, submit your claim ASAP. If you want to know what language to use, I will be happy to help out. Call the White House line and tell them you have active cancer from herbicide exposure and you need your money and rating done QUICKLY. I've worked those White House taskings. They are no joke and have very strict response timelines. Here are some important Manual provisions and CFR references about this: The diagnostic code(DC) for prostate cancer is 7528. There is only ONE evaluation for prostate cancer - 100% (that's why VA doesn't need an exam - there is no question what the evaluation will be so current severity is already determined). It's a temp 100 because there is an exam required 6 months after "treatment" stops. The exam will evaluate any residuals of the cancer and its treatment (bladder, ED, scars, etc) as described in the note above. The Manual describes prostate cancer in relationship to temp 100% as "indefinite". VA doesn't know when your treatment will end when they 1st grant service connection for your prostate cancer. ***confirmed herbicide exposure means you've already received a service connection grant for some issue based on herbicide exposure. If you know you were there, but you are filing your first herbicide-related claim, the process takes a little longer usually because the claim has to be referred to a Centralized Processing Team. Those folks only work herbicide claims and they produce the memo that goes in your eFolder that states you have confirmed exposure to herbicides. You only have to go through that part of the process once. I will talk about your SMS S in a separate post under this thread. Great job getting this done and I'm so happy for you! Phury
  17. Hi USNDW, Frustratingly, this is not always true. Although, SNRA can be rated at 100%, the criteria for that evaluation is pretty steep, "With constitutional manifestations associated with active joint involvement, totally incapacitating." Totally incapacitating is a really high standard. If you look down at the notes for DC 5002, there are a couple that might pertain to rating your claim: https://www.ecfr.gov/current/title-38/chapter-I/part-4#4.71a I can't show you a picture of it, but the DBQ for that condition has a specific question that says, "Is the Veteran's arthritis manifested by constitutional manifestations associated with active joint involvement which are totally incapacitating?" If the examiner doesn't check that box, you can't be rated at 100%. There are specific questions (1 each) for every one of the evaluations above. Whichever one the examiner checks is the one that will determine your rating... There are other concepts in play in a rating like this. Decisionmakers are required to "maximize" the Veteran's benefit. For instance, if the examiner checked the box for the 20% or 40% criteria statements (examiners don't know the actual evaluations associated with those statements unless they look in the CFR and why would they do that), the decisionmaker could (using note 2) rate each of the affected joints individually, if doing so would give the Veteran a higher total evaluation than doing it using the 20% or 40%. The rating narrative SHOULD contain an explanation for how they arrived at the numbers they used, but they may have left it out or it may not be written well enough that a Veteran can understand it. And the thing is, if you didn't know which box the examiner checked, you might be tempted to think the rater/decisionmaker low-balled you. Not every evaluation is clearly based on a list of statements/descriptions and the examiner picks one, which determines the actual evaluation number. There is often room for judgement, but there is regularly objective criteria that determines which evaluation you are assigned. IMO, a big part of the problem is that Vets can't see behind the curtain - no idea how to address that. Another big part of the problem is that the canned language associated with a rating isn't necessarily describing the decision well and if the decisionmaker doesn't add to it with (well written, easy-to-understand) free text, the Veteran has no idea/the wrong idea about how the rating was determined. I also am not sure how to "fix" that. Decisionmakers are trained to add verbiage, but there isn't standard verbiage that applies in every situation. Every claim is very individual, so it makes sense not to only rely on canned explanations. But that leaves a lot of room for POOR explanations... Another issue that isn't well explained is that the underlying condition (SNRA) is service connected in the grant but you don't necessarily see the evidence (proof) of it in the same way claims processors do. That's confusing, so let me explain. Every rating decision has 2 main components - the narrative and the codesheet. Vets only get sent the narrative and it's the document attached to the decision notification letter you receive. The codesheet has all of the diagnostic codes and other information that succinctly represents the claim. It doesn't have all the language/explanations that the narrative does. The Manual does talk specifically about the codesheet requirements, but unless you (the Vet) saw it, that Manual section might not make a lot of sense. I'm putting in a link to the section that talks about combining diagnostic codes to evaluate the residuals of a disease: https://www.knowva.ebenefits.va.gov/system/templates/selfservice/va_ssnew/help/customer/locale/en-US/portal/554400000001018/content/554400000180525/M21-1-Part-V-Subpart-iv-Chapter-1-Section-C-Coded-Conclusion#2 Here is a screenshot: Notice the example. That almost exactly follows what happened in your claim (the way you described it). Obviously, rheumatoid arthritis is a chronic disease and our coding in the system reflects that it is the primary diagnostic code, and the actual diagnostic code that was rated (ankylosis of the wrist in this example) comes 2nd. A couple useful things to know: the diagnostic codes are forever linked in your rating. So if your condition degrades and you meet a higher criteria in an increase claim, your diagnostic code and rating criteria would still use the criteria under DC 5002 if you ended up meeting that impairment criteria. The codes are linked together, but you aren't locked in to separate evaluations on each joint. Which codes and criteria used are going to depend on what the examiner checks off on the DBQ in exams on future claims. Not sure if this helps, Phury
  18. Hi Richard, I'm doing my responses in little chunks to keep them shorter, but this issue is straightforward even if nobody likes the answer: Noncompensable complications of diabetes have to be combined into 1 rated issue. M21-1 V.iii.11.2.b. Evaluating Complications of Diabetes Mellitus "Noncompensable complications are considered part of the diabetic process under 38 CFR 4.119, DC 7913." Currently, ED can only receive a 0% (noncompensable) evaluation under the VASRD as you no doubt are aware. Yes, you were entitled to SMC K for loss of use of a creative organ...and they messed that up. I'm glad they fixed it! In practical terms, the issue gets edited in the system to say, service connection for Diabetes II with erectile dysfunction is granted...yada yada. If the evaluation criteria undergoes a positive change, you can always ask them to update your rating - make sure you do that within a year of the law change though (to get the earliest effective date). Phury
  19. H Air1, The short answer is yes. However, prostate cancer is not on the list of conditions that can be presumptively service connected for Camp Lejeune water contamination. That doesn't mean it can't get service connection on a facts found, direct basis. Here is a link to a lawyer website that has actively represented folks with this situation/condition: https://cck-law.com/blog/board-improperly-denied-service-connection-for-prostate-cancer-based-on-Camp-Lejeune-Contaminated-Water-Exposure/ but I'm just linking it as a place to do research. I don't have an opinion on their representation abilities... There may already be other threads addressing this specific question, so you should also look around... Good luck to you, Phury
  20. Hi Richard1954, I get where you are coming from so I thought I'd give you a little more information about that letter. When I first started (in 2018), we were trained to send an exam notification letter when we ordered an exam. VBMS has a particular (and not super user-friendly) ability to generate letters, but the letter formats are pretty limited. If the Manual had a requirement to send that letter, I couldn't find evidence of it now. The Manual underwent a major reorganization last year and it's a complicated process to view the previous versions, where it used to be an easy thing to do. Anyway, with most letters (but not all) created in VBMS, the processor can add extra text to the letter. That function is really picky so required extra language may not always make it into the letter. In the case of exam letters, I confess that it would never occur to me to include the specific issue(s) the exam request(s) concern. If you claimed 8 issues and I ordered exams for 5 of them, I might send you a letter, but I wouldn't list each condition I ordered an exam for. If you get that letter, you can wait for the contract examiner to send you appointment notification (they don't always coordinate appointments; sometimes they just make them and notify you - primary reason I don't care for them). If the appointment is with the VAMC, you can ask which issue is being addressed in the exam(s), when they call to schedule the appointment with you. There are 2 options in VBMS for sending an exam request notification letter. One of the options says that the notification should let the Vet know you've request an exam from "QTC" (a particular contract vendor). The actual verbiage in the letter doesn't say which contract vendor (VES, QTC, etc.) the request went to. The reason I mention this is a VSR selecting that letter might not do so if they aren't aware that the label isn't accurate. Also, it appears that the notification letter is no longer required (if it ever was - again with the problems trying to look up previous versions of the Manual). You could absolutely use your voice(s) to get that specific requirement added back into the Manual. Good luck to you, Phury
  21. Hi Richard1954, I'm not sure if you are aware, but you are allowed to tell VA that you prefer to have exams at the VAMC. The ideal way to do that is on/with your application form. For example, "increased evaluation for lumbar spine condition - please schedule my exam at the closest VAMC." There may be issues with requesting the exam though. VA uses your zip code and software spits out the 10 closest treatment facilities. However, VAMCs regularly don't have personnel/staffing for certain exams. If you want them done by VA examiners, you need to make it clear that you'll travel to the closest VAMC that can perform the exam - they're gonna pay you mileage and (depending on distance) lodging. Here is the Manual citation addressing that: M21-1 IV.i.2.A.2.b. ERRA Tool. There are arguments for and against using VA versus contract examiners. Personally, I prefer VA, but I have a good relationship with my PCM and I think I could get her to fill out a DBQ if I needed that....... Good luck, Phury
  22. Hi VeteranNadine, Have you been contacted for your increase exams? At a minimum, those should have been requested. If you have not attended an increase exam(s), then the first thing you should do is call your VSO/1-800-827-1000 and find out if the exams have been requested. If you call, you can have the call center enter documentation that you haven't been contacted regarding the increase exams and you would like them scheduled ASAP. It is also a good idea to follow up that communication by submitting a VA Form 21-4138 Statement in Support of Claim that reiterates what your concerns are and indicates your willingness to take exams. You can upload or fax that form. Depending on where you are, there could be logistical problems in scheduling your exams so it's possible that the delay is due to problems with scheduling. If you get any updates/have any specific questions, please post here. Good luck, Phury
  23. If you are still following this thread, I have an explanation for you. The reason your right ear was not service connected is because it didn't have hearing loss for VA purposes. There is potentially good news. Let me explain. Even though you may have symptoms in your right ear, VA uses an objective tool to obtain measurements of your hearing acuity/ability. VA does not consider that hearing is lost until those measurements reach a minimum threshold. This doesn't mean that you won't ever be service-connected for your right ear. It just means that the hearing loss in that ear has to degrade to a specific point before VA considers it to be "hearing loss". That you are service-connected for your left ear based on noise trauma means that if the hearing in your right ear degrades, it will almost certainly be service-connected. As you have seen, VA awards a 0% for hearing loss based on measurements up to a particular level. They can't service connect your right ear until the hearing loss reaches the minimum threshold for a 0% rating. It seems screwy, but it makes sense that VA wouldn't service connect people until they have symptoms that reach a minimum threshold. It's similar to hazardous exposures. If you claim service connection for an exposure (AO, burn pits, etc), VA can't service connect until you have a condition linked to that exposure and the condition symptoms (sometimes just the diagnosis) meet a minimum threshold. Otherwise, VA would be service connecting for "potential" issues rather than current disabilities. I'm sure we can agree that your right ear hearing will probably degrade as time passes. But if it didn't degrade, then VA couldn't very well service connect something that doesn't officially meet the definition of a disability. If you need help figuring out how VA determines hearing disabilities, hit me up. In the meantime, here is a link to the section in regulations that govern hearing loss for VA purposes: https://www.law.cornell.edu/cfr/text/38/4.85 Good luck to you!
  24. True that @broncovet. Also, if you have appointed a national organization (like American Legion, VFW, etc.), your work can be handled by anyone in that organization. You may have a long established relationship with a single person in the organization, but you are allowed to go to anyone. This could be important if your local rep doesn't have VBMS access, but you can make a trip to the RO (regional office) where the reps likely DO have access...your call. Phury
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