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broncovet last won the day on November 22

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About broncovet

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    E-9 Master Chief Petty Officer

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    There are 2 ways to get TDIU: 1. Schedular 38 cfr 4.16a 2. Extra schedular 38 cfr 4.16b. Number 2, is much more difficult to obtain than number 1. You can read about the schedular requirements, here: This is what Gastone was referring to, that is, an extra schedular (4.16 b) TDIU 4.16 Total disability ratings for compensation based on unemployability of the individual. (a) Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities: Provided That, if there is only one such disability, this disability shall be ratable at 60 percent or more, and that, if there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. For the above purpose of one 60 percent disability, or one 40 percent disability in combination, the following will be considered as one disability: (1) Disabilities of one or both upper extremities, or of one or both lower extremities, including the bilateral factor, if applicable, (2) disabilities resulting from common etiology or a single accident, (3) disabilities affecting a single body system, e.g. orthopedic, digestive, respiratory, cardiovascular-renal, neuropsychiatric, (4) multiple injuries incurred in action, or (5) multiple disabilities incurred as a prisoner of war. It is provided further that the existence or degree of nonservice-connected disabilities or previous unemployability status will be disregarded where the percentages referred to in this paragraph for the service-connected disability or disabilities are met and in the judgment of the rating agency such service-connected disabilities render the veteran unemployable. Marginal employment shall not be considered substantially gainful employment. For purposes of this section, marginal employment generally shall be deemed to exist when a veteran's earned annual income does not exceed the amount established by the U.S. Department of Commerce, Bureau of the Census, as the poverty threshold for one person. Marginal employment may also be held to exist, on a facts found basis (includes but is not limited to employment in a protected environment such as a family business or sheltered workshop), when earned annual income exceeds the poverty threshold. Consideration shall be given in all claims to the nature of the employment and the reason for termination. (Authority: 38 U.S.C. 501) (b) It is the established policy of the Department of Veterans Affairs that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. Therefore, rating boards should submit to the Director, Compensation Service, for extra-schedular consideration all cases of veterans who are unemployable by reason of service-connected disabilities, but who fail to meet the percentage standards set forth in paragraph (a) of this section. The rating board will include a full statement as to the veteran's service-connected disabilities, employment history, educational and vocational attainment and all other factors having a bearing on the issue. [ 40 FR 42535, Sept. 15, 1975, as amended at 54 FR 4281, Jan. 30, 1989; 55 FR 31580, Aug. 3, 1990; 58 FR 39664, July 26, 1993; 61 FR 52700, Oct. 8, 1996; 79 FR 2100, Jan. 13, 2014]
  2. You need to appeal the decision by filing a NOD disputing the effective date, citing the evidence you mentioned. Effective dates are the later of the "date you applied" or "facts found". Apparently the VA "thinks" the first time you were diagnosed is 2017. Check your records to see if this was diagnosed in 2009, that is, if the VA is correct. (I dont know what your records say). However, "even if" you were not diagnosed until 2017, you can still appeal arguing you had the same symptoms since 2009, if that is indeed the case. The 2017 doc "SHOULD" have given a date as to when you were diagnosed, sometimes "by history". Often they dont do that so they use the date of the c and p exam. Think about it, tho. This suggests you applied in 2009 "in anticipation" that, in 2017, you would become incontinent. I doubt that happened. Instead, YOU had the symptoms earlier, just no diagnosis. You have to have a "current" diagnosis, but I dont think you need a 2009 diagnosis, just symptoms. Diagnosis change, sometimes. Again, check your records, and base your appeal on: 1. The evidence. 2. The symptoms. 3. Point out you meet the Caluza elements: a) CURRENT diagnosis b) in service event or aggravation (unless its secondary to another SC condiition) and c) nexus or medical link between a and b. I would allege that you HAVe a current diagnosis, and that your symptoms began in 2009, if indeed, you can cite evidence to same. Its not all that unusual that it sometimes takes docs a while to diagnose a condition...all while you are having symptoms...this is why it says "CURRENT" diagnosis. My guess is you will prevail on your appeal, provided that you do a good job citing the applicable evidence and resubmitting evidence if necessary. If you resubmit evidence under 38 cfr 3.156 it should give you an eed. You can/should consider an attorney, especially since this is a lot at stake.
  3. And, as mentioned before, "EVIDENCE" wins claims, not the Veterans opinion that he deserves more benefits. For that reason, I try to stay away from "my opinion" and, instead, cite what the doctor or regulation(s) state. The VA does not care what you think, the VA (should eventually) grant or deny your claim, based upon the evidence or lack therof. I recommend you always do this in the correct order: Get all your Caluza elements, first, for service connection. Then, the symptoms will determine your rating, once service connected. You would be suprised at how many get this out of order, or even forget all about the Caluza elements of current diagnosis, in service event or aggravation, and nexus. If you dont know what these mean, look it up or ask.
  4. I agree with Berta, but will add I think she means "RE opening" due to new and material evidence, 38 cfr 3.156 (B) or (c). If you are outside of the appeal period(s), then 3.156 (B) wont give you an earlier effective date either, as your claim becomes "no longer pending" once you have exhausted all your appeals, or missed an opportuntity to appeal them timely. 3.156 C (new service records) should give you an effective date no matter when you submit new service records. If its NOT new service records, and "any" new, material evidence, then 3.156 b wont get you an earlier effective date, you might as well file a new claim IF you are out of the appeal periods.
  5. Proving TBI

    You misinterpreted what I posted. You may or may not have had an "old" TBI diagnosis. A "diagnosis" is a determination made by a doctor. Chances are good there were no doctors around when you hit your head in the car accident!!! So, the doctor may diagnose you, later. Rather than guess at what your diagnosis is, GET YOUR CFILE and read it. See what the doc wrote down. However, regardless of whether or not your doctor, at the time you got injured, made a diagnosis of TBI is irrelevant. But it is relevant that a doctor NOW says: "You have TBI" or "You are diagnosed with TBI".
  6. Proving TBI

    The 3 Caluza elements is how all claims are proven. Or, the VA will deny you if you lack one or more Caluza elements. Sometimes, Vets go appealing their claims, sometimes for years, for example, missing a nexus. Dont go there. It will cause you years of frustration, and wont be a good result. If you are missing either a "current diagnosis" or a nexus, then a IMO can supply same. However, a doctor can not "supply" you with an "in service event". This either happened in service or it did not, and if you lack an "in service event or aggravation" then hiring a doctor for his or her opinion wont help that. To verify an "in service event" you will need some documentation of your "in service event", that is, your auto accident. While you are checking on your records, make sure the doc did not say something like, "willfull misconduct". "Willful misconduct" is a deal breaker. For example if your auto accident was caused by your excessive alcohol consumption, then you are gonna have problems. (If it was caused by someone elses' drinking, well that is not your fault") Willfull misconduct is a determination made by a doctor AT the time of the accident. I had an accident in service and my doctor specifically stated it was NOT due to my willful misconduct. If a doctor stated it was due to your willful misconduct, then you are gonna have a hard time getting it service connected.
  7. Proving TBI

    Yes, there is a "current diagnosis" of TBI, and I have no idea if you have this or not. Check your records to see if you do, or ask your doctor(s). I do see your point, that TBI could be made at that time, but, depending upon "when" this event happened, they may or may not have referred to this event as a TBI at that time. This does not mean a doctor can not examine you and say..."gee, your symptoms are consistent with TBI..did you get a knock in the head?" " Oh, yea, I had a car accident in service where I hit my head." The doctor can then run applicable tests, MRI, brain scan etc, etc, and determine if you have TBI. Incidently, many/most NFL players have TBI, BUT they may/may not have diagnosed "TBI" then...the symptoms may have showed up later, sometimes much later, and the doc may say, "Gee those blows must have caused your TBI." Im not an expert in TBI, and a doctor familiar with that will have to diagnose you. TBI may be confused with other stuff/depression/PTSD etc. In other words, new technologies may change your diagnosis. This is why you need a current diagnosis, and you should check your records and see what if any diagnosis you have. Your doc may/may not tell you what your diagnosis is. But it should say so in your records.
  8. Proving TBI

    You "prove" your claim using the basics: The 3 Caluza elements are exactly like it says: 1. CURRENT DIAGNOSIS. You dont need an "in service diagnosis". You need "current" diagnosis. 2. In service "event" or aggravation. 3. Nexus, or a doctor saying your "in service event" (auto accident) is "at least as likely as not" related to your "current diagnoisis" (of TBI). Look in your records and see if all this is documented. Dont leave it to chance, get a copy of your records, read it and see if it has these 3 Caluza elements.
  9. Ok, but before I start, you have to answer some questions: Did you receive a "proposal to reduce" your rating? If not, this reduction should be void. The VA has to follow procedures, but will get away with it, unless you "call em out" on that. Did you dispute the proposed reduction? The rules for a reduction may not apply if its a wash, however, you can still appeal and argue that its not moot as you could be or are eligible for SMC S, without this reduction.
  10. Maybe this will help. Use this formula: For EACH month figure out your "new disability pay" and subtract what you have already received. Remember this: Your payment will begin the first of the month Following your effective date. So, for example, with "disability 1" with an effective date of 9/16/05, your first payment wont begin until Oct. 1, 2005. You have to use the pay scale from 2005, not the one from 2017, which is significantly less. You also have to combine the ratings using VA math, which is not your mother's arithmetic. Im sorry, but it would take me probably a couple of hours to calculate that, as the rates change, with Cola, each year. If you follow all the rules above, you should be able to do it yourself. To reiterate: 1. Use the "old" rates, not the 2017 comp rates. This means you have to change it each year. 2. Dont start it until the NEXT month after your effective date. 3. You have to combine, not add the ratings. 4. Subtract any monies you have already received in the past.
  11. The general rule for effective dates is the later of the claim date (the date VA received your claim) or the "facts found", with several exceptions. By "facts found" they mean the date the doctor says you were disabled. Some doctors do a diagnosis "by history", that is, if you have already been diagnosed by another doc, your doctor may not have to do that again. You shot yourself in the foot by not applying within a year of service, as that would give you an effective date the day after you exited from service. This is a rare example of a time where you can get an effective date EARLIER than the date you applied.
  12. Sounds good. I would add that you meet the Howell criteria for SMC S. Importantly, read the decision and refute, where possible their decision. For example: "While the VARO decsion dated 12-02-16 denied SMC S and stated as a reason s and bases, "xxxx reason", it failed to consider Howell vs Shinseki, where congress addressed this issue: (Then Cite Howell criteria where the VEteran need only "not leave the home for work" to get SMC S, as opposed to not being able to leave the home at all.) Howell criteria is here: https://asknod.org/2014/08/25/cavc-howell-v-nicholson-what-smc-s-really-says/
  13. WH email

    I like it. Vets need a way to correct errors other than 5 years to the Board of Veterans Appeals.
  14. And how does one go about helping others on hadit?  I do not know all of the CFC's and V.A. regulations.  Willing to learn though.

  15. Remember this: The procedure for an appeal to the BVA is: 1. You file a NOD. 2. The RO may grant (via a DRO review or dRO hearing), or else you get a SOC. 3. You must file an I9 within 60 days of the SOC. 4. Sometime (much later) the VARO "certifies" your claim and sends it to BVA. 5. Your VSO gets it, and prepares a brief for you. 6. Your case is then sent to the board for docketing. 7 After docketing, your case will be decided in docket number order with exceptions for hardship cases.