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broncovet

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broncovet last won the day on October 26

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  1. I agree with asdf. Read the decision letter carefully, especially the reasons for the decision. When you appeal, try to refute the reasons for denial. For example, if the VARO decision states your claim was denied because there was no evidence you had claimed condition. Then, cite Dr. X's exam dated mm-dd-yy, where Dr. Z stated your diagnosis. Evidence wins claims
  2. Here is the way your retro is calcualted: Figure your new comp rate EACH MONTH. This varies with the year, your dependents, and your percentage rate EACH MONTH. EACH MONTH subtract what you already received in the past for that month. As much as we would like to, you cant multiply the number of months times your new pay. (But you can get an estimate, but it will be off because compensation goes up each year (except for 3 years when cola was zero). YOU GET THE OLD RATE, each year, which changes, not the new 2021 rate. Its rather tedious to calculate your retro, frankly. I used a spreadsheet to figure mine. (Microsoft Excel), which made it much faster. Or, use the retro calculator (best): There are several retro calculators, online, here is one: https://cck-law.com/va-disability-retro-calculator/ The calculators "build in" the old rates and stuff. But I figure mine anyway.
  3. You posted: ...... Then you seem suprised that I spoke of the CAVC remand. You also posted: It sounds like you are interpreting "set aside" to mean "granted". No. The judge would use the term "granted" if granted. But they used "set aside and remanded" instead. "Set aside and remanded" means, well, what it says it means. It does not mean effective dates are granted. It means, instead, that your (applicable) claims are remanded. The "set aside" portion has to do with finality. A claim becomes "final" if the Veteran does not appeal within the applicable time period, and the "set aside" means that the claim continues (set aside) and does NOT become final UNTIL the Board re adjuticates the claim per the remand order.
  4. You posted: No. A remand can result in at least 2 different results: 1. Additional benefits CAN (but not must) be granted. OR 2. No additional benefits are granted as a result of the remand. This includes effective dates. A remand to the Board, from the CAVC, even involving effective dates, does not mean more retro. It means it goes back to the board "to determine if" an earlier effective date is warranted. The board is required to grant an earlier effective date, OR deny same AND give a reasons and bases for their determination. A remand is not the same as an award or grant. A remand gives the board discretion on what to do. The board must "address" the remand, but that does not mean grant an eed. The board decides, and is given that authority by the court. If you dispute the board's remand implementation, you can appeal it to the CAVC if desired. Lawyers often appeal to the CAVC if the board did not give an adequate "reasons and bases" for decision. Its pretty much automatic remand from cavc if the board does NOT give a reasons and bases for what they decided. Welcome to the hamster wheel of remands, I finally got off the hamster wheel about 2 years ago. How did I get off the hamster wheel? Simple. I got a Voc rehab assessment (IMO) that was favorable. My attorney advised same, I complied and won. You see, while this wont likely be mentioned, the courts are bound to res judicata: Generally, res judicata is the principle that a cause of action may not be relitigated once it has been judged on the merits. "Finality" is the term which refers to when a court renders a final judgment on the merits. Res judicata is also frequently referred to as "claim preclusion," and the two are used interchangeably throughout this article. Breaking Down the Concept Claim preclusion can be best understood by breaking it down into two sub-categories: Bar - a losing plaintiff cannot re-sue a winning defendant on the same cause of action example: Plaintiff P sues Defendant D on Cause of Action C, but P loses. P may not try for better luck by initiating a new lawsuit against D on C. Merger - a winning plaintiff cannot re-sue a losing defendant on the same cause of action example: Plaintiff P successfully sues Defendant D on Cause of Action C. P may not again sue D on C to try to recover more damages. What "res judicata means" to you, is that you can essentially tell the judge "they did not know about THIS evidence when they judged it the last time". Then submit a favorable IMO. Otherwise, a claimant could simply keep applying until finally a very Veteran friendly judge got it and awarded. This clogs up the courts. Thus, the reason for res judicata.
  5. Your retro is based on the VA's determination of the effective date. Your effective date is the later of the facts found (date the doc said you were tdiu) and the date you first applied. There are, however, multiple exceptions to the general effective date rule. Some examples of exceptions to general effective date rules (not a complete list): 1. If you got out of the military and applied within a year. 2. If this is a claim for increase (CAVC ruled that a claim for tdiu is a claim for increase), you can get it backdated up to a year. 3. Informal claims. Prior to about 2017, you need not use the applicable form. Indeed, if you told your doctor you were unemployed and were seeking benefits, this could qualify as an "informal claim for increase", based on the older rules. Your doc would have had to written this down, an oral claim wont qualify. 4. If you qualify as a Nehmer Vet, there are special rules. These are not all the exceptions. To really determine your effective date (and thus retro) would involve reviewing your file, finding the date you first applied for tdiu. (To include informal claims for tdiu). It would also require review of your medical records to see the effective date your doc said you were disabled. Since we have not reviewed your file, we cant tell you the effective date. A lawyer can do this, once you get your decision, if you dispute the effective date.
  6. There are actually at least "2" ways to get to TDIU. The first is the one broken soldier mentioned, sometimes called "schedular" tdiu. Also known as 38 CFR 4.16 a, which is the most common. Sometimes overlooked, however, by Veterans, Vet advocates, and VA employees, is extraschedular IU, aka 38 CFR 4.16 b, which reads: Interestingly, several years ago, I brought this up to a former rating specialist, who is a moderator at another Veterans website. He indicated, "there was pretty much no chance of getting tdiu under 4.16b". I did not listen to him, and was awarded 4.16b (extra schedular tdiu) in 2017, after a 15 year battle with VA. Im so glad I did not listen to the "expert" who put me down, as I could not possibly know as much as a (former) DRO, who knew all the ins and outs. Well, no I did not know all the ins and outs, but I did know how to read, and 4.16 b clearly says "ALL" Veterans, and not those who managed to finagle the VARO into 4.16b consideration. Of course, the VARO said, "ok, go ahead and submit a 4.16b, and see where it gets you". The short answer was "denied", but the BOARD was required to interpret 4.16b "AS WRITTEN ABOVE", and not the classic VARO rater who basically said, if you dont meet the percentage requirements, you are out of luck. Period.
  7. VA's terrible IT system is a honey pot for corrupt politicians to give money to friends wanting money for campaigns. They spend billions of dollars on IT systems..multiple times..and the result is the same: Failure. They award the contracts to their friends who then hire the cheapest doggne guys they can find and keep the huge difference.
  8. I appreciate Broken soldiers' input. He pretty much said the same thing I did..in a different way: Even worse is VA's absolute refusal to communicate with Veterans, via email or the phone. It makes things worse. Lots of times if we could simply talk to them many problems could be solved. Its a mutual trust issue...VA does not trust what Vets say, and most experienced Vet advocates know that not all employees can be trusted.
  9. Great question. I have an answer, tho it is not likely the answer you want to hear. Here is your answer:
  10. Here is the deal. In order to determine etiology (whether your condition is related to service), the doc renders an opinion. He was not there, so he can not establish a fact, but he can make an educated guess as to the likeliness of whether or not your condition is related to military service. This is called a nexus. There are actually 3: 1. Independent Medical exam. This is the doc recording the facts of what he sees. Your temperature, your blood pressure, lab results such as cholesterol levels, are not opinions, they are facts measured by a doctor. 2. Independent medical opinion. An IMO need not examine the patient. Instead, he reads the other doctors medical exams (the patients history), listens to the patient, and renders an opinion. You see the patient IS competent to tell the doc things like: (example) "Yea, I fell out of a tree and broke my arm in service". So, if the doc sees an xray of your arm, with a fracture consistent with falling out of a tree (x) years ago, he can render his opinion that its at least as likely as not your (event in service) fall out of a tree, caused your fracture which led to your current diagnosis of arthritis. The doctor makes a "statement" in your medical records that he thinks its likely your tree fall caused your arthritis. His statement is an opinion, but its based on other doctors statements and diagnosis. A previous doctor, such as a military doc, makes a statment such as: "I viewed the Xray, and it shows a fracture of the right posterior humerous about 1 cm from the elbow. " 3. Independent medical evaluation. This is a combination of the two above. The doctor examines you, does tests he feel are appropriate such as blood pressure, cholesterol, etc. He then reads your history. He also speaks to you, establishes your age, medical history etc. For example, he may ask you if you have asthma. (Some things are not included in medical records, so they simply ask you). The doctor will likely ask you other questions, such as do you have a history of alcohol or substance abuse. Based on your medical history, doctors statements, your statements, what he observed on your medical tests as well as previous medical tests, and his vast medical experience, he makes an evalution of what he thinks is your medical history, and often makes a prediction of the outcome, such as you are likely to have arthritis in your arm due to the previous fracture. All 3 of these, above have medical statements. I will explain it this way. A medical statement is like a motor. You cant drive the motor, but your car is rather useless without one. The motor is one part of many to your complete car.
  11. My wife is a nurse. She usually took care of 5 to 8 patients on any given day. Often, "patients" are impatient patients. I saw a classic example of this on tv the other day. A man was in ER to remove a splinter from his finger. He waited 3 hours or so, and got impatient and went to complain..at that time a patient came through who had a 2 by 4 THROUGH his entire body. All of the sudden he realized..hmmm, maybe I can wait another hour and not complain. You are seeking SMC effective dates. However, when I filed a writ, I had zero benefits and was losing my home. Like it or not, you are gonna have to wait your turn. The ER does cases not based on when you got there, but in the degree of medical emergency. In virtually all cases, a splinter is low priority. Im not saying yours is low priority, but Im saying you have to wait your turn. With VA benefits, "it always" takes longer than you think it should. That is often true with just about everything..from going to the grocery store, to a resteraunt, etc.
  12. I agree this letter is confusing. It pretty much says there was a DTA error, and we will have a do over later when we get more help. I have read hundreds or thousands of decisions and this one reminds me of what I used to tell my kids to respond to the teacher when they ask a question: In short, your decision says "nothing". My opinion: File a NOD, and send it to the BVA. "In the meantime" go ahead and file an SCL, pretty much a duplicate claim except with any new evidence. You want to protect your effective dates at all costs. VA has something called an abandonded claim. You dont have to write VA and say, "IM abandonding that claim". Oh, no! But, if you do not file a NOD to a decision, that decision, even a "nothing burger" decision, becomes final. You dont want a nothing burger decision to become final. Its pretty much a "deemed denial". In other words, you applied for benefits, the VA did not award, and, even tho they did not really deny you, if you do nothing, this could be perceived by VA as you abandoning your claim, and losing your effective date. Remember, VA does all kinds of tricks to hornswaggle us out of benefits. Its what they do. Like yourself, they pretty much sent me a "nothing burger" decision, once also. I applied for benefits they denied hearing loss. I appealed and won at the BVA. So, the VARO says, "Ok, we are giving service connection for hearing loss, here is your zero percent rating." This hornswaggle trick, basically caused delays that cost me my home. (I lost my home to foreclosure because I had to appeal twice to 2 nothing burger decisions. And, I could not keep up the payments on the home on zero percent.). I eventually got my benefits, with retro, 17 years later, but only after a many rounds long drawn out fight. VA rarely "awards" benefits, they require you to fight for them. A friend of mine says, "the FAA is not happy until you are not happy." The VA has adopted this model.
  13. As always, you are gonna need the Caluza elements of Current diagnosis, in service event, and doc opinion those are related. This said, a "back injury" is a grey area. Sort of like a GSW. It may be fatal, or it could be so slight it barely caused a scar. Remember, the VA does not compensate us for those injuries, such as back pain that resolves itself and causes no symptoms in the future. VA comp is about "the degree of loss of earnings capacity" due to an in service injury. If your back injuries resolve themselves and cause no further issues, then you wont be compensated for an injury with 0 symptoms in the future. It seems a bit premature to apply for VA benefits while still in service, however, there is a BDD plan to get benefits on exit. Remember, there is a huge advantage to apply for VA benefits within a year of exit from service. My advice is consistent with GB Army's: Keep a copy of your records and then apply if/when your back flares up again. What was the "in service event" which caused your back injury? Is it documented? You should be thinking about how to document that "in service event", because VA will if you dont.
  14. Great post, PWRslim. In as much as we may WANT to help a Veteran, you can lead a horse to water, but you cant make him drink. I have a family member who finally applied, got 70 percent, but refuses to apply for PTSD/TBI which he undoubtedly has. (He has a purple heart from a bomb going off and taking sharpnel in his head and feet). His reasoning is that "the government could take his guns away" if he gets rated for PTSD/TBI. This isnt true. Its a logic error, actually. It goes something like this: I have 3 rocks, all of which are round. Therefore all rocks are round. The government will protect its citizens from people who are "a risk to others or themselves" but not necessarily those who have been diagnosed with PTSD or TBI. Not all people diagnosed with PTSD or TBI are crazed people ready to take a gun to Chucky Cheese. And, not everyone who does take a weapon to Chucky Cheese and starts shooting has PTSD or TBI. Case in point: Columbine school shooting. Neither of these boys were in the military nor did they have TBI. But they were bullied by their class mates, and wanted revenge. Revenge is never a good thing, except in the movies, played by hollywood actors.
  15. Congrats on your win. Persistence often wins, while giving up early rarely wins.
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