Phury & Rhage

Hi Carl, That is GREAT news. The DRO working your HLR decided that VA committed a Duty to Assist error in the processing of your claim. The DRO told you that you needed an exam, but there is an internal document that accompanies an HLR decision where a DTA error is committed. That document will tell the processors exactly what the DRO saw as an error and will often say the specific language/question they want the examiner to answer. About the HLR being closed: each claim has a unique "End Product" (EP) assigned when a claim is initiated in VA's software program (VBMS). The the EP for an HLR is 030. When a DRO completes the decision and identifies a DTA error, that decision is published (to you and your file) and the EP is closed. VBMS automatically creates a new EP for HLRs that identify DTA errors. That EP is an 040 and it will have the label "HLR DTA Error". Here is a link to the M21-5 that describes the process: https://www.knowva.ebenefits.va.gov/system/templates/selfservice/va_ssnew/help/customer/locale/en-US/portal/554400000001018/content/554400000141004/M21-5, Chapter 5 - Higher Level Review Procedures#5 . Please don't quote me, but you could ask your VSO a very specific question and the answer will help you prepare properly. The new EP will have a VA Form 20-0999 associated with it. It will give specific details about what the DRO thought was done wrong previously. Ask the VSO to give you a copy of it. They might not want to....but as far as I know, they are allowed to... Holler if you need help Phury

I got out on March 2, 1986 in Ft. Richardson, AK, and I was handed my original medical records. I was a Personnel Management Specialist at the time and worked at Post level. It is entirely possible that it was Department of the Army policy (bad, bad policy, lol) at the time to give out the originals. I don't remember being told to do anything with them either. I'm pretty sure I still have them in a storage container somewhere. The bulk of my service after the Army (with a 5+ year break in service) was with the Air Guard and most of those records were available for VA claims. If you were hospitalized, there is a good chance that those records were sent to NPRC after 10 years. VA has to put in separate requests for events that occurred over multiple years, so try to identify when any treatment occurred. M21-1, III.ii.2.C.1.a. When Clinical Records Are Retired. If you were issued a physical profile (temp/perm duty restrictions for a particular condition) for any medical condition, a copy of that might be in your personnel file. I wasn't given my original personnel file and I really hope you weren't either. You can obtain a copy of those records from NPRC as well. Good luck to you, Phury

Sorry to do this piecemeal - it's been a very long day I read some of your earlier postings and you said you received notification that your PTSD would remain 50% but that your claim was deferred for an examination. Without seeing your notification/rating decision, that sounds like you were give a partial decision. The PTSD was confirmed and continued at the current evaluation and they intend to get an exam to determine the current severity of your cancer residuals and ask the examiner to explain how they impact your functioning; particularly your ability to function in a work or work-like environment. I can tell you that your active claim would have been continued beyond the decision they issued and an exam request should have been submitted. There are a couple things you need to do. FIRST, you need to ask your VSO to check/verify that you have an active End Product (EP) in the system. It does happen that pending claims get closed out erroneously, but this is can be fixed. Once you determine that you have an active EP pending, you need to submit a VA Form 21-4138 Statement in Support of Claim. You need to clearly state that you believe that your claim for unemployability is waiting for an exam of your cancer residuals. Also, state that you haven't been contacted for an appointment (I assume you haven't). Also tell them that you want to be schedule for an appointment ASAP. If you can easily attend an appointment at a VA medical center, you should state on the 4138 that you ONLY want to be seen there. Their scheduling is typically more flexible. It's your choice, but I would always "suggest" that Vets attend exams at VAMCs. I've seen too many issues with outside examiner appointments fouled up - particularly since the Pandemic hit. Then, gather every bit of medical evidence (particularly private) that shows the current severity of your cancer residuals. If you have a private doctor, you can even have them fill out a Disability Benefits Questionnaire (DBQ) for you. It's important that your evidence clearly shows how your symptoms affect your ability to function in a work environment. If you find out there are any problems with your claim (accidently closed, etc) you can send me a direct message and I will try to give you more specific help. Good luck, Phury

This is Phury again. I mentioned the Public Contact Team because the folks who work there are experience VA employees. As far as I know, they can tell you if there is any pending development on your claim. They know what they are looking for when they look at your claim in VBMS. I'm not certain that all VSOs know the ins and outs as well as the VA employees. Phury

VBMS is the software used by the VA to manage Veteran claims. If your VSO (organization) has an office at the regional office building, they usually have VBMS access. If you live near a regional office, you can set up an appointment with the Public Contact Team at the regional office - some don't have walk-in hours yet because of COVID. Specifically, you need to ask the VSO to look at the active claim and see if there are any "tracked items" pending. These are used to track pending development. For instance, IU claims require that forms are sent to previous employers. You should have been sent a development letter requesting that you fill out the top portion with the employer information of the VA Form 21-4192. I'm putting in a link to the M21-1 Manual that describes the required development for IU claims. If you have questions, I might be able to answer them. I can't look up your claim though - illegal for me to do that. https://www.knowva.ebenefits.va.gov/system/templates/selfservice/va_ssnew/help/customer/locale/en-US/portal/554400000001018/content/554400000177475/M21-1,-Part-VIII,-Subpart-iv,-Chapter-3,-Section-B---Individual-Unemployability-(IU)-Claims-Development Phury

Hello, I can't really tell from your post, but it looks to me like you might have post-traumatic arthritis - assuming the arthritis is due to an injury. The reason I mention it is that the rating criteria you are quoting above is from "degenerative arthritis, other than post-traumatic". The 2 types of arthritis have different rating criteria. All kinds of folks in the medical community use the 2 names interchangeably, but VA applies specific meanings to the terms. The diagnostic code for degenerative arthritis is 5003. The diagnostic code for post-traumatic arthritis is 5010. I'm putting a link in here for the relevant CFR even though I know you probably have it. It's for the folks who might not know it: https://www.law.cornell.edu/cfr/text/38/4.71a 38 CFR § 4.71a - Schedule of ratings - musculoskeletal system. I hope your appointment went well! Phury

Hello, This is not a conclusive answer, but GENERALLY, a 10% rating for hypertension was probably evaluated based on "Diastolic pressure predominantly 100 or more, or; systolic pressure predominantly 160 or more, or; minimum evaluation for an individual with a history of diastolic pressure predominantly 100 or more who requires continuous medication for control" which is the criteria in 38 CFR § 4.104 Schedule of ratings - cardiovascular system under diagnostic code 7101 Hypertensive vascular disease (hypertension and isolated systolic hypertension)." Your decision should have said what you needed to show in order to get the next higher evaluation. They are required to rate on the predominate reading. Keep in mind, the readings in your record my not show all the data you want. Make sure any ER documentation is in your record for EVERY visit. Unless you go to the doctor on a regular basis more often than the "5 to 6" times you pass kidney stones (with an ER visit), then your predominate reading would be the ones from the ER. Super important to make sure the record captures all of the info that you want the VA to consider when rating.... Good luck to you! Phury

Good morning, If you are still in the appeal period (sounds like you are) then you could file a Board appeal on VA Form 10182 DECISION REVIEW REQUEST: BOARD APPEAL (NOTICE OF DISAGREEMENT). I would pick option 10B and include the memo as additional evidence. You can also write a statement that you don't believe the VA adjudicated your claim using the applicable caselaw and that they didn't address your theory of service-connection. They are required to give a direct decision on your theory whether they believe it is applicable to your situation or not. For instance, if you claimed your left shoulder condition was caused by burn pit exposure in the Gulf War, the VA would have to address (in its decision) each of the 3 elements required for service connection even though there doesn't appear to be a logical link between the condition and the exposure. It doesn't mean that you'll trigger the Duty to Assist since (absent some really good evidence submitted by you) the claim is "inherently incredible" under M21-1, I.i.1.A.4.c. Claims That Are Inherently Incredible or Lack Merit. Just because something is a long shot doesn't mean it isn't valuable. I doubt there have been a bunch of claims that were properly adjudicated and that included the Bridge theory since that decision. Your claim could help force the proper and regular application of that caselaw. Good luck to you, Phury

Good morning, Department of Defense has an extensive list of all locations (still regularly updated) where they concede that herbicide exposure could have occurred in the US. I'm attaching the 2019 DoD list, but I don't believe that is the most current one. I do know that Vets have had herbicide exposure conceded based on this DoD listing and confirmed service in the location. I'm not sure of the details and whether/how you had to show proximity to the herbicides, but I know that Vets have been service-connected for presumptive conditions based on that stateside exposure. I'm attaching a BVA decision grant that conceded stateside exposure (just so you know it happens). Good luck to you! Phury dod_herbicides_outside_vietnam.pdf 1108696 stateside exposure.pdf

This is Phury again. I have seen a bit of chatter under other threads that BVA decisions aren't precedents and decisionmakers (at all levels) don't need to consider them. I want to make it clear that I'm not saying the BVA decision is necessary (I would still upload it with any claim application), but the VA has in its possession a VA-obtained, uncontested expert opinion on the connection between this cancer and AO exposure. It's the expert opinion that will provide the best evidence - just like the OP figured out. If nothing else, the CAVC (if it gets there) has a clear way to require the BVA to explain how any other evidence outweighs an opinion the VA got from its own expert. I just wanted to save a little debate time.... Phury

Good morning, I found the opinion you appear to be citing from and I'm linking it below so others can take a look at it too. My first suggestion is that you contact the VFW in Cleveland, OH, and ask if they recognize the case. It may be that representation by a VSO before the BVA is handled/arranged by the organization at a national (versus state) level, but the local organization could tell you who to contact next. For sure, the parties and their representation had copies of the documents. There are other ways to request copies of documents and my second suggestion is that you contact BVA with the docket number and a FOIA-type request. I think your quicker route is through VFW though. You don't say where your claim is in the process. Do you have a recent decision (are you in the appeal period) on service connection for the Pleomorphic Adenoma? If so, you can appeal directly to the Board on VA Form 10182 DECISION REVIEW REQUEST: BOARD APPEAL (NOTICE OF DISAGREEMENT). You could select option 10B and write below in 11A that it is the SC of pleomorphic adenoma due to AO. In the SAME area, tell the Board that you want the expert opinion cited in docket number 10-33 060 with decision date 4/24/2013 attached to your file as additional evidence. If you aren't in an appeal period (no recent decision), you can submit a Supplemental Claim on VA Form 20-0995. In Box 13A, you would list SC for Pleomorphic Adenoma. Make sure you fill in 13B if you have the date, otherwise put unknown (not required but helpful). In Box 15A, list the "VA expert advisory opinion contained in Citation number: 1313626 with a Decision date of 04/24/2013 and Docket number 10-33 060". You can literally copy and paste what is in the previous sentence. Make sure you sign and date in 17A and 17B. When/if they deny the Supplemental Claim, you will then have a recent decision that you can appeal to the Board using the method listed in my 2nd paragraph. All of these forms are available online at https://www.va.gov/find-forms/ . Good luck and I'll keep my eyes open for anything pertinent. Phury 1313626.pdf

The software system is set up to automatically make the calculations mentioned by @pacmanx1. That said it calculates based on the "inputs" it receives - classic GIGO (garbage in, garbage out). The devil is in the details for all claims. You should figure out (ask for help here, VSO, etc.) what you were entitled to (monthly, overall, but also each compensation-producing factor) and then do the math yourself. You can always request a manual audit if you discover any discrepancies. Congrats and good luck! Rhage

Hi Carlos, They are 2 different different things. Are you getting pension now? A&A would be considered an increase. I haven't had much to do with the pension side of the house. With disability compensation, A&A is an increased rate beyond the compensation associated with a particular rating. Have you applied for or been awarded A&A? Good luck, Phury

Hello! I didn't see this response so I'm putting it in here: III.ii.6.A.2.f. Deciding Line of Duty Status for Claims Based on ADT or IADT. You will find this at "Know VA" - Google that. If you have any questions about that, I'll try to answer. Also, if you were in Title 32 status and made an L&I claim, that will argue against service connection. You can only make one (valid) claim related to the injury based on your status at the time of the injury. If you have an LOD and were discharged from the ANG related to that injury, you should have been processed through the Disability Evaluation System. If that didn't happen, you have more than one problem here.... Good luck, Phury https://www.knowva.ebenefits.va.gov/system/templates/selfservice/va_ssnew/help/customer/locale/en-US/portal/554400000001018/content/554400000014143/M21-1-Part-III-Subpart-ii-Chapter-6-Section-A-Establishing-Veteran-Status?query=veteran status#2f

I agree @Buck52. Don't hurt yourself or your families. Give what you can afford and are motivated to give. This is a rough time for lots of folks. I am fortunate to have a great job (VA) and my hours have INCREASED during the pandemic. In my (limited) experience, the number of VA compensation claims are exploding right now. There's never been a bigger need (IMO) for this website to help Veterans/families with their claims.

1) Is your wrist service-connected? If it is, consider getting your own evaluation done. My understanding is that some VA medical centers offer "DBQ clinics". Get another doctor to fill one out. Conflicting medical evidence is a solid basis for appeal. If it's not service-connected, STILL get another evaluation of the severity of your condition. Severity is separate from the medical opinion about nexus. Try to make sure that any separate evaluation you get is in your record before the rating decision is issued. 2) Examiners refusing to do something associated with the exam is unacceptable. If they do that, document it on a VA Form 21-4138 and submit it BEFORE the examiner even submits the report to VA. You can also call the contract vendor (QTC, VES, etc) and complain that the doctor refused to examine something. Also, most DBQs are available publicly. Get a copy and look at what they are supposed to be measuring/commenting on for that exam. They can't refuse to do something that's on that DBQ (of course they can, but that's your basis for appeal). 3) Unless your issue is on appeal and the exam was directed by a reviewer (rater or DRO), your exam is supposed to include EVERYTHING on that DBQ. ROs don't order specialized exams that look at only SOME things on the DBQ. 4) Same as #1, but you can also tell the examiner that you'd like them to note what you said in their report. Then YOU make a note of it. 5) "Rating Officer"s don't order exams except in very defined circumstances - as part of an appeal/review; or if the exam is deficient and they want it clarified or if there is conflicting evidence and they want a new examiner to reconcile the evidence. Initially, exams are ordered by a VSR on the pre-development team and they are very generic requests. We aren't usually personalizing an examination request (I've worked Pre-D) unless there is a reason i.e. verify a Veteran's stressor for PTSD, confirm a particular type of exposure. 6) It's possible that the guidance attached in this thread says something about not deviating, but if the condition is related to the one we ordered an exam for, the examiner is REQUIRED to address it even if it means using additional DBQs to do so. For instance, an exam for diabetes mellitus could also reveal diabetic neuropathy. Those conditions would require 2 separate DBQs. If we ordered the exam for diabetes and the examiner diagnoses diabetic neuropathy, they are required to do both DBQs. Our contract vendors know how to bill VA for extra DBQs when the examiner says they are necessary. It's possible that doctors aren't real clear on that process - I don't know. Be your own advocate. If you think the examiner is ignoring what you say, make your own record (or get a doctor to make one) and send it to VA ASAP. The new appeals process can really work with that evidence. Get it in your record. Good luck, Phury

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Hi all, The 4138 that came with your RAMP decision is no longer valid to appeal those decisions. I believe the final date those were accepted was April 26, 2019. That said, I regularly see those claims opened and then cancelled, because a) not everyone knows the rules, and b) the rules have changed since the implementation of AMA. Your 10182 is the valid form to use to appeal to the BVA for a RAMP decision - or any decision issued on or after February 19, 2019. You can send the 4138 in if you want, but it should be (hopefully will be) ignored. Good luck with your review! Phury

That's gotta be a typo. They probably mean "leave" without pay - also called LWOP. The Veteran takes time off due to migraines and has used all of her sick leave. It appears she's had people donate some of their sick leave, plus she's having to take LWOP. I don't know about anyone else, but it sounds to me as if she's describing federal government pay/leave. I'm a federal employee and I've been in that exact position. I took leave for my disabilities and, when I ran out of leave, I took LWOP. I didn't ask for anyone to donate, but that was an option. Phury

I'm not being snide or anything - I'm just pointing out. "Exposure" isn't a valid claim. Anyone making a claim to the VA needs to understand that they are making a claim for a disability. No disability; no claim. I have actually seen claims where the Veteran says he/she was exposed to "burn pits" or asbestos or Agent Orange, but they aren't claiming a disability. It seems obvious to people who've had a bunch of experience with VA claims, but newbies need to know (if they don't already) that your VA disability compensation claim has to be a claim for a disability. I left out the pertinent part: if your experience/exposure has resulted in you suffering symptoms, that is what you claim to the VA. If you suffer a mental health condition/symptoms as a result of either assault, you make the claim as described by @Buck52. I'm sorry for your experience and good luck to you. Phury

Hi Penguin, So I'm not an expert, but if it were me? I would withdraw the legacy appeal and submit the Supplemental Claim as I explained in my earlier post. I didn't make recommendations earlier, but you are specifically asking for one Here's why I would do that: I work RAMP (there are still some out there) and AMA claims primarily. But I regularly come across legacy appeals. The thing is, even if they are ready to rate and there is nothing left to do but assign it to a rater, I see them sitting there where the last suspense date is OLD and it hasn't been assigned to someone to complete it. The system (NWQ) knows when the suspense dates are and assigns the workload accordingly. The 1st thing I do when I open a claim is check the suspense date and what item is due - response to a letter, attempt to get STRs, etc. I don't know this to be true, but I suspect these legacy appeals are sitting out there unassigned because there are too many appeals and not enough claim processors/raters (sounds obvious, right?). I don't get the same sense with the new AMA appeals (we aren't supposed to call them that - they're "reviews", lol). I'm not working claims where the suspense date has passed. As for the bad exam, if you can swing it (make it happen!), you should get a private exam. There are tons of posts in here devoted to just what you need to do regarding a private exam. That's not my area of expertise, but I've done that with my personal claims. Read up on it - just like you were taking a serious test on the subject. If you think you messed up the 1st time, prepare well for the next one.... Good luck, Phury

I'm not jumping in to the fray, but I will say that I've had all of the experiences described: I'm retired USAF; 100% SC; my husband (retired ANG) and I own our house right out the back of Davis Monthan AFB; we are living (different state - new job) 2 hours away from the Commissary/Exchange (it's only about 40 miles but we have some of the worst traffic in the nation); and we have lived in the middle of nowhere (North Dakota) where groceries were 50 miles one way and no Commissary in sight. Davis Monthan has closed multiple buildings/services (Shoppette, etc.) in the last 5 years. Smokey Point has closed it's Shoppette but left the gas pumps open. NAS Everett turned its Shoppette into vending machines with gas pumps. My point is - they are closing them because they hemorrhage money. In every part of government, there are initiatives/efforts to privatize. In part, that's so that the activities are run leaner - like they would be in a free market. But part of the problem is that they need a broader customer base to increase revenue and provide some financial stability and viability. That's about the REALS; not the FEELS. At the end of the day, everything costs and we/they have to decide how to pay. By the way, here is an excerpt from the Davis Monthan housing website: 14. Who is eligible to live in privatized housing?

Hi! So, a couple of things. You can qualify for SMC S, which is the Homebound rate, if you have a single disability rated at 100% and another disability or combination of disabilities that total at least 60%. You don't need anything else and your employability is immaterial. You can work full-time and still qualify for SMC S if you have 100% (single disability) and at least 60% (single or combined disabilities). However, employability can be a factor in SMC S. The only way it's a factor is if you are rated unemployable on a single disability. That unemployability rating based on a single disability counts as your 100% single disability. Then, you still have to have a total of 60% separately from that unemployability rating. If you do that (I've done that) then you will lose the unemployability rating and the SMC S if you end up with gainful employment. Another note: VA will not process an unemployability claim from someone who is a natural 100%. It's a waste of time and other resources. Phury

Yes and no - it's complicated. If you had a rating decision issued between February 19, 2018 and February 18, 2019, you have/had a one-year period to appeal the decision. To do that, you submit a 21-0958 NOD. You are in the legacy appeal system because your appeal doesn't qualify for review under AMA. HOWEVER. There are some big exceptions to this rule. 1) If you participated in the RAMP program and received a RAMP decision prior to Feb 19, 2019, then your appeal is SUPPOSED to be put in under AMA and requires the use of the AMA forms - if you are initiating appeal after Feb 19, 2019. The original appeal form for RAMP decisions was on a 21-4138 and was called a "RAMP Selection" form. We are still processing those that didn't get handled when they should have. 2) You want to ADD evidence to your claim. Then you file a Supplemental claim on a 20-0995, regardless of when you received your decision - keeping in mind what I said earlier about having to withdraw your legacy appeal if you are in one. If I didn't make it clear earlier, you can leave your issues in the legacy appeals process if you want. You can withdraw some or all of them so you can submit a Supplemental claim. If you submit a Supplemental, though, you have to remember that they require new and relevant evidence. Obviously, legacy appeals (initiated with an NOD) didn't require evidence. Something to keep in mind: after Feb 19, 2019, you CAN'T use the NOD form unless your rating decision fell in the one-year appeal period prior to Feb 19, 2019. Rating decisions issued before the one-year appeal period - so, prior to February 19, 2018 - can only be reviewed as a Supplemental claim (not including CUEs, but I'm not addressing them here). For rating decisions issued after Feb 19, 2019, review HAS to be initiated using one of the AMA forms - doesn't matter if you were in RAMP or not. I should point out that the one-year appeal period for decisions issued prior to February 19, 2019 is closing everyday. For example, if your rating decision was issued on March 1, 2018, you had until March 1, 2019 to submit an NOD on that decision. If you want that decision reviewed today AFTER your one-year appeal period has passed, you have to submit a Supplemental claim and evidence. If your decision was issued on September 30, 2018, you have until September 30, 2019 to submit your NOD (0958) for that decision. NODs will not be accepted for rating decisions that are no longer in the one-year appeal period. Theoretically, VA won't accept anymore 0958/NOD that are submitted on February 19, 2020 or later because none of the rating decisions will still be in a qualifying one-year appeal period. I'm sorry it's confusing If you have a question with specific dates, I'll be happy to answer it... Phury

The legacy appeal - 1 or more conditions appealed on the NOD - is 1 claim. However, withdrawing an appeal is a separate animal. Here's some manual quotes: and My understanding (I'm not an expert!) is that we (claimants/Veterans) have always been able to withdraw an appeal. It makes sense to me. If I appeal 5 issues in a rating decision and I (later) figure out that the VA had a valid reason for denying/effective date/evaluation, then I can choose to withdraw my appeal. It also makes sense that I might only want to do that for a single issue on a multiple issue appeal. However, choosing to withdraw an appeal might not have anything to do with acknowledging that the VA had adequate reason for whatever decision they made. You/we can decide that we need to add more evidence to the claim. Again, my understanding is that an appeal is based on a closed record. If you have NEW evidence that you want considered, you need to "supplement" the record. You can do that by filing a Supplemental claim. If you file for review (appeal) under AMA, the same thing is going to apply. You will have the choice to withdraw some or all of your appealed issues. I'm not sure why you would do that, but it's an option. Phury