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Everything posted by broncovet

  1. Sorry, we have no idea how long it will take VA to call you.
  2. There is such a thing as an "inferred" claim for TDIU. Did you inform the VA you are "not working" due to sc conditions? To be eligible for tdiu you have to demonstrate you are "unable to work" due to sc conditions. Check your records, and if you told the VA this, then you can appeal TDIU. However, va is not expected to go on a fishing expidition for benefits. Appeal if you feel lowballed, but if you never applied for tdiu, why should you be suprised when they did not adjuticate it.
  3. TDIU isnt "to get you through a rough year". Its presumed that you wont be able to return to SGE (working), that is, that its permanent. A tdiu rating is sufficent for many things that require a "total and permanent" disability.
  4. Im not quite understanding your question. The VA processes claims in THIS order: 1. First comes service connection or lack therof. They proceed "no" further if you lack SC. 2. Next, once SC is established (step 1) is the disability percentage. 3. Only after the first 2 are established, will the VA consider an effective date. So, if you appealed the effective date, you would have already had SC and had a disabity percentage established. Had you disputed the disability percentage, you would have need to appeal THAT in whichever decision established the disability percetage. Had you not appealed the disability percentage timely, its too late, as it needs to be disputed within a year. The way you explained it was that you got an earlier effective date, then you appealed the disability percentage. That is backwards.
  5. broncovet

    Should I file a CUE?

    Well what I see here presents a big problem for you. Here is why: Read 38 CFR 3.156 which says, in pertinet part: Here is why this is so problematic for you. You posted, in your "evidence" section of the denial that the VA stated: "DTA letter sent August 19, 2007 which advised you to submit evidence......No response received to date. " end of decision quote. Here is the deal: If the VA asks you for evidence, and you dont provide them the same, they have a good reason to deny you. This is not CUE on VA''s part, but they will say this is YOUR fault for not supplying the required evidence. Its a mistake, when VA asks for evidence, to ignnore that letter. You could write them and say, "I dont have any more evidence..you have it all". That may suffice. But, a non response when VA requires evidence basically means you are "abandoning" your claim. You will have to get past that, and Im not sure how. Additionally, they said something to the effect that your disability (arthritis) did not rise to the compensable level. (earlier). To refute that, you need EVIDENCE (medical) and compare it with the criteria for rating arthritis, where the doc said you had ______symptom, and that symptom is in the criteria for a 10 percent rating or higher. Berta may not agree, but I see it that your non response to their request for evidence constitutes an abandonment of the claim for the applicable period. Remember, Cue is all about effective dates. Otherwise, you just simply file a new claim and dont worry about the effective date. The main purpose of your cue, as I understand it, is to get retro backpay from when you first applied. Now, I am not saying there are NOT other ways for you to earn an eed, but it appears to me that VA has an "out" in granting you 38 cfr 3.156 backpay because you didnt comply with their evidence request in 2007.
  6. It depends on if you need money or not. If you have all the money you will ever need, then file em one at a time..or dont bother filing them at all. However, if you need money, understand this: The later claims will have a later effective date, and, thus less retro. File em together. My suggestion is you look carefully at your claims. If the condition is asymptomatic (no symptoms), consider not filing it at all. If service connected, it would likely be at zero percent. It is true, however, that it may get worse later, and, in that case go ahead. The courts have ruled Tdiu is not a "stand alone" claim, but rather, part of a claim for increase. You cant be "unable to work due to SC disabilities" if you are not service connected. Focus on claims that limit your ability to work.
  7. broncovet

    Should I file a CUE?

    Thank you Berta. Well, yes, I will dispute what you say, (if I think you are incorrect) the trouble is your answers are so researched and well thought out, and you have such great expertise, its hard to find mistakes..and those that I do find are usually MY mistakes. So, if you want me to correct you, please stop being right all the time and give me a chance!!! LOL. You have a passion for Veterans law that is, well I do understand your reasons why...and I appreciate it. Its because of your promise to your late husband..which you kept. Its so refreshing when people keep their promises..there are so many who do not. Normally the way I keep promises is not to make them!!! Or, if I have to make a promise, I try to under promise and over deliver. You certainly over delivered in your promise to your husband!! Years ago, I met a guy who made all kinds of promises. You see, nobody beleived him unless he said "I promise" or "I guarantee you . ...." At a minimum, I try to promise sparingly..if you get too many promises stacked up, sometimes you cant keep them all. I do understand "a little" about widows. Why? Because I married one. Widows are definately not the same, but sometimes they do have a lot in common.
  8. There are "2" CFR's for temp ratings: 38 cfr 4.29 and 38 cfr 4.30 4.29 is for hospital only 4.30 is for "convalescent", such as a surgury, and a recovery period. Im not sure, but I think only 4.29 would apply to PTSD, and not 4.30.
  9. Has anyone gotten a service dog? I bumped into a lady the other day who trains service dogs for Vets or children near me. They have some rather strict rules to get a dog, and it appears I dont meet that criteria. This particular organazation requires RECENT (Iraq or Afghanastan) COMBAT experience. Since Im an old Vet, Vietnam ERA, that means Im not eligible for that service dog program. However, I know there are others. I know Tbird got a service dog, but Im not sure how/why. Service dogs are expensive..I think somewhere around 10,000 plus, but probably worth it. I think I could benefit with a service dog. I could get a dog, but I have no idea how to train it, so I need one already trained. Any ideas???
  10. broncovet

    Should I file a CUE?

    Berta an I had a rather detailed explanation of CUE, along with the regulations, here: Its my opinion, if you are considering a CUE, that you read the post I cited, above, and make sure you understand the rules for CUE thoroughly, like Berta does. If you dont understand the rules for CUE, you are unlikely to win, just like you are unlikely to win Wimbledon, if you dont understand the rules of tennis thoroughly. I made the mistake of filing a CUE about 10 years ago, and I really did not understand CUE at that time. I was not alone. My attorney is reluctant to file a CUE, and will not do so, unless its the only way. Filing an appeal or reopening due to 38 cfr 3.156 is much easier than a cue, reminding you that you retain the benefit of the doubt, but NOT with cue. Let me explain. Lets say an attorney reviews your file, and he spots a CUE, for sure.
  11. broncovet

    Should I file a CUE?

    Berta is our CUE expert, and I know better than to dispute her advice. She has had good luck filing Cues to claims that still can be appealed. However, unless you have some degree of expertise in VA law, I suggest you appeal, when you can, file Cue when you have passed the one year appeal period. My reasons are simple: Cue is the "highest" standard of review in Veterans law. Much lower is an appeal. Even if you could "jump over the tall CUE bar", why chance it. The are several things making CUE harder for you than an ordinary, timely appeal. First, you lose the benefit of the doubt. That is a big deal. In Cue that is replaced with undebatable. Next, Cue has to be "pled with specificifty" where you normally have to cite the regulation(s), the VA violated. Now, if you are very familiar with the 38 cfr's, like Berta is, thats not too high of a bar to jump over. But, if you are NOT, well that is not so easy. Lastly, you have one more hurdle to jump over. You have to prove the error was "outcome determinative." Its not enough to identify an error..you have to show that error resulted in fewer benefits. If you had already been awarded benefits, then the outcome determinative part is easier. An example of that is you get awarded benefits for arthritis in 2019, and you file cue saying that you should have been awarded the same in 2008, when you first applied. This fixes the outcome determinate part..VA does not dispute you are SC..the only question is when. However, when you are not service connected NOW, you need to address WHY. If you were not sc in 2011, and you are still not sc now, chances are good you need one or more of the caluza elements: diagnosis, in service event or aggravation, and nexus. Dr. Bash can provide a diagnosis, and he can provide a nexus, but only if you have an in service event or aggravation documented. Of course, I dont know why/if you dont have an "in service event" documented. Chances are good, there are some service records or yours that are floating around, that VA did not have earlier. This screams obtaining these records, and then reopen due to 38 cfr 3.156c. It sounds like, however, you have tried to reopen. You need to address this. If you submitted new evidence BUT there is still no "in service event or aggravation", then they wont likely reopen it. "Material" evidence means that this evidence has a reasnonable chance of substantiating your claim. When the rubber meets the road, you have to document "what event" in service let you your arthritis. Did you have a fracture? A sprain is less likely to lead to arthritis. Arthritis is often considered a "degenerative" disease, that is, an old persons disease. Everyone that gets arthritis is not necessarily service connected just because they served in service. Let me give you a fairly real world example: In boot camp, they often make troops carry incredibly heavy loads. These back packs sometimes weigh more than 100, sometimes even more than 150 pounds. Carrying that much weight, especially repeatedly over time, can stress the joints to the max and lead to arthritis. Because the military has figured this out, I think the back packs are much lighter than they used to be. Another example is your MOS. For troops who "jump out of airplanes" regurarly, its pretty much a given that, when you jump out of a plane its very hard on your joints, such as your knees. If a vet can document they made jumps, its pretty easy to get a doc to provide a nexus, that your jumps in service "at least as likely as not" caused your knees degenerative arthritis. For me, I fractured my leg in service, and have documentation of same. Still, Im NOT service connected for my arthiritis that led to a total knee replacement. The caluza element I lack is a nexus. Yes, Dr. Bash could likely review my records and opine that my fracture "at least as likely as not" caused my arthritis, which led to a total knee replacement when the joint went "bone on bone" after time. Since Im 100 percent, I have not aggressively persued the arthritis mostly because it probably wont mean any additional compensation for me, so why bother?
  12. You an appeal it, if you like. However, read the criteria for 100 percent. It says "Total Occupational and social impairment". Have you applied for tdiu? Did your doctor say you were unable to maintain SGE due to sc conditions???
  13. One example, from the Federal Register: In part, this appears to give VA employees working ramp claims the opportunity to "CUE". THIS suggests that, if the claimant enters RAMP opts for the Supplemental Claim Lane (with new relevant evidence), he would NOT be eligible to CUE his claim. Instead, if the Veteran alleges CUE, he should opt for the higher level review. If this is implemented, its important Vets understand this!!!!!
  14. Berta, I think THESE are the new regulations, or at least the closest thing I can find on RAMP: https://www.federalregister.gov/documents/2018/08/10/2018-15754/va-claims-and-appeals-modernization
  15. As far as testimony of your coworker, that is a bit "iffy". Assuming you are service connected using the Caluza elements, its possible your coworker could help document symptoms. Example: You are service connected for PTSD at 30 percent. Your coworker noticed you got in a fight with your boss and you wound up getting fired. Your coworker is competent to testify he saw you and your boss in a fight resulting in your firing. Generally, tho, that can also come from your doctor, if you report the incident to the doctor and he documents it in your file, so you may not even need a coworkers testimony. It could help tho, if there was an issue with your credibility. When the baord makes a decision, they often make a determination if the Vets testimony is credible. For example, if you lied about other stuff, the board could decide your testimony is not credible. Also, the board has your medical record, and they can compare your testimony with that of your medical evidence. These should be consistent with each other. If you tell the VA you got shot in Vietnam, and there is no medical evidence in your file of a GSW, your testimony is suspicious. That can be explained. For example, Alex Graham was shot in Viet nam. He was flown to a hospital that apparenly didnt keep medical records. He was eventually able to document his service in vietnam, but it isnt always that easy to prove something, when you lose, or VA shreds your records.
  16. Lay evidence works for some things, not so good for others. You have to consider competency. YOur military buddy is not competent to diagnose PTSD. THAT has to be done by a doctor. But your buddy can testify he was there and saw your stressor, for example. Maybe he was there when he saw a mutual friend killed, for example. He could testify that he witnessed this in service event or stressor. Keep the Caluza elements in mind: diagnosis, stressor in service, and nexus. Your buddies can not diagnose you, nor can they provide a nexus. But, they are competent to report what they saw in service, which can be your stressor. It works fairly well to document a stressor, but is useless to provide medical evidence.
  17. "Pain" is a symptom, not a diagnosis. If you feel lowballed, then file a NOD and appeal your rating. Deluca vs Brown says that the VA has to consider pain in your rating. https://www.sharedfedtraining.org/TRAIN Courses/DMA/dma_GulfWar/lesson01/01_014.htm and https://www.knowva.ebenefits.va.gov/system/templates/selfservice/va_ssnew/help/customer/locale/en-US/portal/554400000001018/content/554400000070971/DeLuca-v.-Brown,-Sep-22,-1995,-8-Vet.App.-202-(1995) You may get a higher rating by appealing, arguing you meet the Deluca criteria, if you read this and think you qualify.
  18. Well, yes. I noticed there are a lot of benefits for "active duty", and less for 100 percent Vets. However, sometimes the opposite is true, tho. For example, we dont have to pay taxes (federal income tax) on our disabiiity payments, while active duty have to pay federal income tax. This is a big deal, a very big deal. Also, we can collect Social Security disability, while active duty can not. However, I agree with you. For example, how many "active duty" troops are homeless, while many Vets are homeless. There should not be any such thing as a homeless Vet. Most "homeless Vets" are homeless for TWO reasons: 1. The are waiting for VA compensation, which can take decades of appeals. Or, it may never come. 2. The are on drugs or alcohol. Or, of course, both of these. Addictions are a whole seperate problem. But, some years ago a well known professor advised vA to "just pay" the Veteran claimants who apply (and not make them wait for VA's long claim process). She reasoned that "most of the claimants EVENTUALLY win their benefits anyway, and would not need to be homeless in the interim. She pointed out IRS pays tax refunds in a few days or weeks, and then later on determines if the tax form was way off and they dont deserve the refund. (The IRS does check their math..that isnt too hard and takes a computer seconds to do.) . Of course, if there is a problem with your tax return, the IRS comes after you..and they know where to find you!!! Vets compensation could also be paid right away, and virtually elimante homeless Vets waiting on benefits. I say her plan has another benfit: Veteran suicide. Severe economic problems, such as not being able to feed your family, getting evicted etc. are a big contributor to Veteran suicide. It should not be so. There is no doubt in my mind that there are Vet suicides because of VA's inefficeincy...we just dont know how many. I had a home and a family when I first applied for benefits. VA made sure I didnt have either by the time I got the money. Its really hard to get a woman to stick around when you are broke and homeless. And, its really hard to keep your home, if you have no income and the VA takes 4 years to start your compensation, like they did for me.
  19. broncovet

    I'm 100%PT my wife is being medically retired from Army

    Paul, your kids should get Ch. 35 benefits, which means education stipend, "provided that" they meet the applicable requirements, such as they have to use that within 10 years of your rating. And, they wont allow them to sign up for classes, not show up, and then keep paying them. They have to have "progress toward their degree". No, tho, your adult kids dont get health insurance. When your kids go to college, under ch 35, you no longer get the "college age" dependent benefit. Its either Ch. 35 OR college age, but not both.
  20. Wait for the envelope, and you will know for sure.
  21. I agree with KBH. In the civilian pharmacies, they often will let you pick up a prescription if you can give the birthdate and address of who the prescription is prescribed FOR.
  22. Of course, I have not read your records. However, a nexus statement is one of the 3 required Caluza elements for service connection. The VA does not order a c and p exam for every condition. Its a judgement call from them as to whether a c and p exam is warranted. Of course, there are at least 2 possibilities as to why you did not get a c and p exam. 1. You already have everything documented, so a c and p exam is not needed. 2. A VA decision maker decided that a c and p exam would "not" result in you being awarded benefits. An examplewould be if you did not have an "in service event" documented
  23. Fast letter 10-02 requires the board to "pay you the backpay" on the awarded benefits expiditiously, and not delay it until the remanded or deferred items are completed. Therefore, congratulations! You should be getting back pay in 2 to 6 months. (The RO's are way behind the BVA and its taking longer. Of course, all delays seem to ONLY affect Vets..there is "no such thing" as VA empoyee checks being delayed).
  24. This may help Vets with claims pending at the CAVC to understand "how long it will take"..at the CAVC https://www.uscourts.cavc.gov/court_process.php Included are appeals to the CAVC, as well as EAJA fees.
  25. Attorney Chris Attig sent me this. It will be interesting to see how this works. This Veteran tried 5 times to get his C and p exam...nothing. Finally, a writ of mandumus eventually got the job done. Of course this is over about 10 years. https://www.attigsteel.com/legal-updates/duty-to-assist-expert-cp-opinion/

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