Alex

My advice to anyone who has 100% or TDIU is to take the money and run. Minor disabilities rarely will add anything to check and are tough to add up to the additional 60% necessary for SMC. A far more worthwhile project is to get your 100% declared permanent by some medical evidence that it isn’t likely to improve during your lifetime. This will get your property tax waived in most jurisdictions, which is money that is probably more naluable than SMC. Alex

Berta -- Re your: "In the old Veterans BBS of the 1990s we had a member -a former BVA lawyer- who always said that 99% of claims can succeed. That seems impossible to me in those days- but not impossible now. EVidence is the only thing that matters." That was then, and this is now. I am finding I am getting less BVA grants that I had before, and, since the character of my caseload hasn’t changed, I can only assume RO’s and BVA are getting tougher and better fom a VA standpoint – an impression shared by my colleagues here. Alex

You can get an earlier effective date on TDIU if the vet tells VA at the time that he is unemployed. Under Roberson, this constitutes an informal claim for TDIU, which will act as the effective date if this benefit is ultimately awarded. Reconsideration is generally a waste of a veteran's time. Alex

Following are the diagnostic codes for rating the spine: With or without symptoms such as pain (whther or not it radiates), stiffness, or aching in the area of the spine affected by residuals of injury or disease Unfavorable ankylosis of the entire spine 100% Unfavorable ankylosis of the entire thoracolumbar spine 50% Unfavorable ankylosis of the entire cervical spine; or, 40% forward flexion of the thoracolumbar spine 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine Forward flexion of the cervical spine 15 degrees or less; 30% or, favorable ankylosis of the entire cervical spine Forward flexion of the thoracolumbar spine greater than 20% 30 degrees but not greater than 60 degrees; or, forward flexion of the cervical spine greater than 15 degrees but not greater than 30 degrees; or, the combined range of motion of the thoracolumbar spine not greater than 120 degrees; or, the combined range of motion of the cervical spine not greater than 170 degrees; or, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis Forward flexion of the thoracolumbar spine greater than 10% 60 degrees but not greater than 85 degrees; or, forward flexion of the cervical spine greater than 30 degrees but not greater than 40 degrees; or, combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees; or, combined range of motion of the cervical spine greater than 170 degrees but not greater than 335 degrees; or, muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or, vertebral body fracture with loss of 50 percent or more of the height Note (1): Evaluate any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, separately, under an appropriate diagnostic code. Note (2): (See also Plate V.) For VA compensation purposes, normal forward flexion of the cervical spine is zero to 45 degrees, extension is zero to 45 degrees, left and right lateral flexion are zero to 45 degrees, and left and right lateral rotation are zero to 80 degrees. Normal forward flexion of the thoracolumbar spine is zero to 90 degrees, extension is zero to 30 degrees, left and right lateral flexion are zero to 30 degrees, and left and right lateral rotation are zero to 30 degrees. The combined range of motion refers to the sum of the range of forward flexion, extension, left and right lateral flexion, and left and right rotation. The normal combined range of motion of the cervical spine is 340 degrees and of the thoracolumbar spine is 240 degrees.The normal ranges of motion for each component of spinal motion provided in this note are the maximum that can be used for calculation of the combined range of motion. Note (3): In exceptional cases, an examiner may state that because of age, body habitus, neurologic disease, or other factors not the result of disease or injury of the spine, the range of motion of the spine in a particular individual should be considered normal for that individual, even though it does not conform to the normal range of motion stated in Note (2). Provided that the examiner supplies an explanation, the examiner's assessment that the range of motion is normal for that individual will be accepted. Note (4): Round each range of motion measurement to the nearest five degrees. Note (5): For VA compensation purposes, unfavorable ankylosis is a condition in which the entire cervical spine, the entire thoracolumbar spine, or the entire spine is fixed in flexion or extension, and the ankylosis results in one or more of the following: difficulty walking because of a limited line of vision; restricted opening of the mouth and chewing; breathing limited to diaphragmatic respiration; gastrointestinal symptoms due to pressure of the costal margin on the abdomen; dyspnea or dysphagia; atlantoaxial or cervical subluxation or dislocation; or neurologic symptoms due to nerve root stretching. Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis. Note (6): Separately evaluate disability of the thoracolumbar and cervical spine segments, except when there is unfavorable ankylosis of both segments, which will be rated as a single disability. 5235 Vertebral fracture or dislocation 5236 Sacroiliac injury and weakness 5237 Lumbosacral or cervical strain Ir looks from your description that the VA's 40% rating is not necesarily wrong, but make sure the examination report contains comments on your fatiguability, etc. in accordance with the DeLuca case. Alex

No: Payment for service-connected disabilities continues for life. Alex

Tom -- I hope you told/will tell how your disability interfered with you water-skiing skills. Alex

Paul -- There really no telling when you will have a DRO review. It all depends on the backlog for such review, and, to some extent, the sort of DRO review the RO uses. In some cases, the DRO conducts hearings as a hearings officer and, in others, sits down with you for an amiable chat, and, in still others, issues a SSOC on all claims awaiting review. Alex

Rich -- That language will be belpful in gettinbg an originql grant or a rating increase for ptsd. Alex

Jerry -- Anticipate that VA is going to challenge those photographs on the basis that they don’t show you were there and did not get them from a buddy who was. Also anticipate that, unless you had an infantry MOS there, VA will send the file to the military historians to attempt to verify these incidents. So be sure to have your ducks in a row. Alex

Whether an unadjudicated claim is subsumed by a RO/BVA decision and must be attacked on the hasis or CUE, or whether it is nonfinal and remaains pending until there is an explicit finding on it, in which case it is appealable, is a source of mucho concconfusion. There is a lot riding on this when there is an indquate medical examination, which is appealable when an ongoing claim continues unadjudicatd by which cannot be attacked on CUE because it involves a duty to assist. Someone told ne last week that the cuort harmonized )or tied to harmpmnize)Deshotel and Andrews in a came out this week, but I haven't had time to read it. Guys in the private bar have been at the supposed conflict for more than a year. Alex

VA is right on this, friend. They just won a case before the veterans court on the very same issue. If you get 100%, my advice is always, "Take the money and run," Alex

Rich -- What about stressor evidence, which you will need before VA will grant service connection for PTSD? If you were a veteran who served in combat, they will accept your account of stressors; but, if you are not, they will send the matter for resarch by the hisorians as to the occurence of the stressful occurence. Most claims fail at this verification stage. Not to rain on your parade, but tis is just the way it is. Alex

Charlese -- Only medcal evidence cam say what is connected to the service, eiter directly or secondarily or by aggavation and give some information about possible ratings by listig signs and systems. There is a condition known as polyarthitis where the disease attacks multiple joints simultaneously. See if this is involved. Alex

Berta -- What a lot of vets fail to do is to follow up on FOIA requests is to appeal the RO's failure to respond to the General Counsel. Then you will have someone in authorty to bug them. As for medical records, just gp the Release of Information office to get your own or any vet to get his. They copy them with no questions asked. Alex

As to how to get an attorney to pursue your claim, go to www.NOVA.com/ NOVA is the trade asspcoation for lawyers practicing veteterans law. Since some of the people there practice only before the court, ask anyone you call his or her experiences practicing before the agency. The best lawyers around practice both before the court and VA. As to what the system will look like after full implementation of the new rules, it seems that most 100% and TDIU claims will be hand;ed by a very small number of attorneys, while most claims under 50% will continue to be handled by VSO's Alex

"My question is: since none of his s/c conditions are listed as "immediate cause" of death, although the seizures were no doubt related to the treatment of his liver problems....can any of the "other" s/c conditions listed as "contributing to death, but not resulting in underlying cause" can these be used for the increased benefit for Burial Benefits, ie the $2,000 vs the normal $600????" A death can be service connected if service-connected disabilities caused or contributed to death. 38 CFR 3.312 ("the death of a veteran will be considered as having been due to a service-connected disability when the evidence establishes that such disability was either the principal or a contributory cause of death. The issue involved will be determined by exercise of sound judgment, without recourse to speculation, after a careful analysis has been made of all the facts and circumstances surrounding the death of the veteran, including, particularly, autopsy reports." Alex

To get IU, you need medica; evidence that you cannot get or hold a job due to your S/C disabilities. I don't know what kind of job you can hold with your hearing gone, but he audioogist should be able to make this statment with a little bit of explanation. He shold complete the form for IU and list where he has been turned down due to impaired hearing. Alex

For tax relief, check directly with the local tax department. Most jurisdictions around where I live -- DC, MD and VA -- require 100% *and* T & P. Alex

Berta -- Don't let me how to run your life, but I do have to question the judgment of keeping your VSO on just so you can sue him, even at the risk of losing your VA claim. Tke it from a cAreer litigator: litigatiom is hell. Check out your eligibility for a lawyer. Joe Moore at joe@veteranlaw.com, who has an all-vet practice, can tell you. Alex

Berta -- And in every case I have seen, VA notifies the veteran and his service rep that it is going to seek an IMO (I think this is either in the regs or M21/M21R)and, when it comes back, gives them 60 days to comment on it. Alex

Berta -- Keep in mind that the VA does not have to list in a SOC/SSOC all evidence it uses as the basis of its decision. Under Schaefraft, it must base its decisions on the enitire r Usually, however, you can get them in trouble with the BVA if they don't at least try to discredit it, or the BVA will do it for themselves. Alex

Berta -- Two points: 1. If you think your VSO is doing you dirty, why not just then get another one? 2. There is something about DIC-related claims that tiy *can* use a lawyer even if you are on an original claim or outside the one-year period from BVA action. Make it three: Whenever the RO goes outside for an medical opinion (which they can do so at will), they do not have to send all your fie -- just the portions they consider relevant. A lot of times you can ding them on not sending out medical evidence in your favor. Other tmes, you can discredit them if they use an OBGYN to provide opinion or an orthopedic claim (and, yes, I have seen this happen). Alex

Holli -- Fact of the matter is my suspicion is that *all* handicap placards have to be examinedf for fakeness. They are not easy to fake, but can be freely transferred from person to person. I saw a carload of kids pull into a handicap spot on the Mall with such a sticker, pile out annd commnce playing power frisbee -- and me without my baseball bat in my car. My point is, if you are handicpped, get a plate. Alex

The time it takes for DRO hearings vary from office to office, depending of number of DRO's, caseload, etc. Count on a year to 18 months as a minimum. I have mixed feelings about the DRO process: they take up a lot of time and just tend to follow the rating decision. But is it another venue for making you pitch, especially if you have a bad C&P exam that the BVA will take its time before remanding it. And, as a veteran's advocate, I never pass up a chance to press my arguments before a new audience. Alex