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Everything posted by broncovet

  1. Use the form the decision says. This is not a great time to try to reinvent the wheel and use a different form than the one requested. While The VA does not always comply with their own regulations, they expect "you" to do so.
  2. 38 CFR 3.156 C says: 38 CFR § 3.156 - New evidence. CFR prev | next § 3.156 New evidence. New evidence is evidence not previously part of the actual record before agency adjudicators. (a)New and material evidence. For claims to reopen decided prior to the effective date provided in § 19.2(a), the following standards apply. A claimant may reopen a finally adjudicated legacy claim by submitting new and material evidence. New evidence is evidence not previously part of the actual record before agency adjudicators. Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating theclaim. (Authority: 38 U.S.C. 501, 5103A(f), 5108) (b)Pending legacy claims not under the modernized review system.New and material evidence received prior to the expiration of the appeal period, or prior to the appellate decision if a timely appeal has been filed (including evidence received prior to an appellate decision and referred to the agency of original jurisdiction by the Board of Veterans Appeals without consideration in that decision in accordance with the provisions of § 20.1304(b)(1) of this chapter), will be considered as having been filed in connection with the claim which was pending at the beginning of the appeal period. (Authority: 38 U.S.C. 501) (c)Service department records. (1) Notwithstanding any other section in this part, at any time after VA issues a decision on a claim, if VA receives or associates with the claims file relevant official service department records that existed and had not been associated with the claims file when VA first decided the claim, VA will reconsider the claim, notwithstanding paragraph (a) of this section. Such records include, but are not limited to: (i) Service records that are related to a claimed in-service event, injury, or disease, regardless of whether such records mention the veteran by name, as long as the other requirements of paragraph (c) of this section are met; (ii) Additional service records forwarded by the Department of Defense or the service department to VA any time after VA's original request for service records; and (iii) Declassified records that could not have been obtained because the records were classified when VA decided the claim. (2)Paragraph (c)(1) of this section does not apply to records that VA could not have obtained when it decided the claim because the records did not exist when VA decided the claim, or because the claimant failed to provide sufficient information for VA to identify and obtain the records from the respective service department, the Joint Services Records Research Center, or from any other official source. (3) An award made based all or in part on the records identified by paragraph (c)(1) of this section is effective on the date entitlement arose or the date VA received the previously decidedclaim, whichever is later, or such other date as may be authorized by the provisions of this part applicable to the previously decided claim. (4) A retroactive evaluation of disability resulting from disease or injury subsequently service connected on the basis of the new evidence from the service department must be supported adequately by medical evidence. Where such records clearly support the assignment of a specific rating over a part or the entire period of time involved, a retroactive evaluation will be assigned accordingly, except as it may be affected by the filing date of the original claim. (Authority: 38 U.S.C. 501(a)) (d)New and relevant evidence. On or after the effective date provided in § 19.2(a), a claimant may file a supplemental claim as prescribed in § 3.2501. If new and relevant evidence, as defined in § 3.2501(a)(1), is presented or secured with respect to the supplemental claim, the agency of original jurisdiction will readjudicate the claim taking into consideration all of the evidence of record.
  3. We dont know what rating, if any, the VA will give you. Mostly your rating is dependent upon these 2 things: 1. Whether or not its service conncected which means if you meet all 3 Caluza elements or not. 2. Your symptoms, and how they measure up to the criteria. Since I dont know if you have all Caluza elements, and dont know your symptoms, I can not opine.
  4. "10 year old denials" can not be appealed except for CUE. However, you can resubmit new and relevant evidence via 38 cfr 3.156 to reopen a claim. The effective date will be determined by 38 cfr 3.156 c. That is, if the new evidence is "new service records" you should get the earlier date.
  5. If you are seeking SC for a perilymphatic fistula secondary to your SC condition, you will need a doctors opinion that the two are related. If you already have this evidence, then simply submit the claim. If you dont have this evidence, you can still submit the claim but it wont be approved until you have this evidence which can be provided by a VA doctor (if the doc elects to do so) or by an Independent medical examiner (private doc).
  6. You will have to wait for the envelope to know the effective date, ebenefits isnt reliable.
  7. The Board can select the opinion of one examiner over another, but must give a reasons and bases as to "why" examiner "B" opinion was more probative than examiner A. For example, the Board can conclude that examiner B's opinion was more probative because examiner B knew you for 10 years, while examiner A knew you for an hour, and examiner A did not review your entire medical history.
  8. The VA "gets away" with this kind of stuff because: 1. The Veteran does not timely appeal and/or: 2. The VA has no accountability for their actions. I agree that hiring a lawyer is worth serious consideration. When I consider hiring a lawyer I look at these important factors: 1. Can I represent myself? Do I have the expertise, the endurance, the determination, and good enough health to see the claim to a favorable outcome? 2. If I make a mistake on any of the forms or deadlines, can I afford to wait 4 or 5 more years to start over? 3. Is the attorney likely to get a faster or more favorable decision than I am on my own? Attorney's win (award or remand) 90 percent on average of the time they represent Vets. Pro Se VEts/VSO represesented Veterans win a much lower percent of the time. Therefore, if you have a high skill level, are in good health, and are patient and determined, you may be able to win it yourself. However, if you lack skills, good health, organization, resources necessary to devote to the project (time and money) , then you are better off retaining an attorney. For example, you might need an IMO. Can you afford to pay for an IMO and then wait for your retro check? If not, you may be better off retaining an attorney who has the resources to do this.
  9. Your effective date is the later of the "facts found" (this means the date the doc said you became disabled), or the date of claim, with some exceptions. The only time I suggest filing a "higher level review" request, is WHEN YOU ARE CERTAIN VA HAS ALL YOUR EVIDENCE. Otherwise, opt for the alternative, supplemental claim lane. Mostly we dont know what evidence the VA has. Even if we got a copy of our claims file last week, we dont know what "new" evidence just arrived. Your evidence can be checked in real time with a VBMS review. Vets dont have this access, only attorneys and accredited representivives have access to the Veterans VBMS file, and only then if the representative jumps through the Va hoops to obtain access. I concur that it appears you have sufficient evidence as of your c and p exam, however, I dont know if Va has that c and p exam in their possession. Do you know if your VSO has VBMS access?? Did your representative review your file to ensure all the evidence was there? Otherwise, you should always opt for supplemental claim lane and not HLR. If you got your information from ebenefits or Va.gov, then you may or may not have accurate information. Your decision letter from Va should be accurate, tho.
  10. It means that at least some piece of evidence is pending, so a decision can not be rendered until its received. You dont know what that evidence is. It could be: 1. A CV of the examiner to demonstrate his compentency. 2. A statement by the examiner to clarify an opinion that was unclear. 3. Evidence pertaining to other Caluza elements. 4. Evidence in reference to your discharge, your eligibility, or pretty much any other evidence the VA considers probative that is missing or unclear.
  11. In my recent IMO, the practioner enclosed his CV (cirriculum Vitae). You need to establish that this doctor is "competent" to render a valid medical nexus opinion by virtue of his (medical) experience and medical training. Interestingly, when VA sends you to a c and p exam, the examiner is "presumed competent", absent your challenge to his competency. However, when you submit an IMO, you have to demonstate the competency of the examiner..its not presumed.
  12. Tatto this on your arm if necessary: This said, it does confuse VA when you have BOTH an appeal, and a new claim on the same issue: The issue is either "under appeal" or pending adjutication at the VARO. The board only has jurisdiction of a claim issue that has been denied by the VARO. If it has not been denied, then you cant file a nod. As to whether or not your temp 100 percent is "the same issue" as your appeal, I wont offer an opinion as I dont know. As a practical matter, its my opinion you wont get temporary 100 percent on an issue which is NOT SC. Therefore, you need to get it SC before you can expect Temporary total compensation for its surgery. You indicated, however, you had applied for an INCREASE, suggesting the knee was already SC. I dont see a conflict between filing for an increase and simultaneously filing for a temp total 100 percent due to a surgery recovery. I would guess these would be unrelated, you could be awarded one, and denied the other. Apparently the employee you spoke with offered a conflicting opinion to mine. I would not withdraw any appeals or claims. Let the claim decision makers sort this out, not a telephone representative who is not a decision maker. However, if you were dealing with an attorney who represents the VA Secretary, then HE should have the authority to "bind" the VA, unless a judge makes a different judgement call. If an attorney for the BVA calls you and offers, for example, "if you drop issue a, we will award issue b", then you can decide. I would get that attorney's name. Then, I would send an email to the effect: "I have considered your verbal offer of an award for issue "A" if I dropped issue "B" and do accept the offer. Please accept this communication as my withdrawal of issue B. Its about documentation. Put it in writing, or it did not happen.
  13. If your decision was within a year, then adding your spouse should result in back pay for dependents. If you dont add your spouse/kids within a year, you miss out on backpay.
  14. Congratulations! Yes, it takes time. Best you can do is wait for the decision letter, if you disagree with the effective dates, then file a nod.
  15. You got it almost right. Number 3 is, instead, that the error was "outcome determinative". (If the VA misspelled a word, that is an error, but that would unlikely affect the outcome, so its not cue, for example). My advice: Get a copy of your cfile and file a nod on the decision if its within a year. IF, indeed, its documented in service you did have headaches in service, or you had an "in service event" to cause headaches, then submit that as new and relevant evidence under 38 CFR 3.156 C or 3.156 b. File the nod prior to one year after the decision in all cases. Elect "supplemental claim lane" and NOT higher level review. It would appear that either: VA did not read your evidence. (That would not be the first time), or The VA (for what did not have that evidence). I dont recommend "cue". Its better to file it as 3.156, you need not meet the cue standard of review, and retain the benefit of the doubt with 3.156. If you dont have an "in service event" for your headaches documented, you need one. (In service event or aggravation is one of the required 3 caluza elements).
  16. My advice: File a nod disputing the denial of OSA, and do so within a year. Next, get an IMO with an opinion that your OSA is "at least as likely as not" due to SC depression/other SC causes. Also, make sure its documented that your CPAP is "medically necessary". IN your NOD do NOT elect a "higher level review", but instead opt for "supplemental claim lane" which allows new evidence. If you do the HLR, you can not submit new and relevant evidence, and its a virtual certainty that your claim will be denied again, absent a favorable nexus statement. If you are not working, and unable to work due to sc conditions, also file for tdiu.
  17. Maybe. If you file for benefits, and its denied, file later for the same condition and it gets awarded, this, in itself suggests VA made an error in denial in 2014. However, just because this suggests SC, it does not necessarily mean you should get retro to 2014..your condition could have worsened between 2014 and today, so a Fenderson rating is possible. THis is a staged rating, where you have x percent from 2014- 201x, then 10 percent thereafter. This may apply to you, its where a Vet was denied, then awarded later: https://www.attigsteel.com/cases/clear-and-unmistakeable-error-cue/ To know if yours is CUE, it would be necessary to see the reasons and bases for denial of the original decision. Did the second decision suggest you submitted new and material evidence under 38 cfr 3.156?
  18. The VA does not owe you 2 decisions: one for primary and another for secondary. Instead, they are required to maximize your benefits and award what you qualify for. ...either presumptive, primary, secondary, etc. Thus, if you met the criteria for either primary, secondary, or presumptive SC, you should get a favorable decision awarding benefits. So, if you think VA overlooked (secondary or presumptive ) SC, then you should file a nod. However, its true its cue if the VA failed to consider you for, secondary conditions, if you met the criteria.
  19. Further, we dont know if you sent a FDC, ITF, etc. It used to vary with VARO's but now there is a national work que, so it could be processed by any RO. I wish I had a better answer, lots of time your VSO will BS you into saying it will be 90 days, or something unrealistic like that. I dont like to be the bearer of bad news, but its not my idea, I promise. About 80-85% of first time claimants are denied. Not a high percentage are overturned at HLR or SCL. Frankly, most (more than half, at my guess, VA does not publish these numbers) people who win benefits, win them at the BVA. The BVA chairmans report publishes the averages, but I have no idea if you are at the BVA or not. (It sounds like you are not). You can also check MMWR . (monday morning workload reports) to see how long its taking. The problem is, of course, VA cant be trusted they fudge numbers more often than a candy store. The entire RAMP thing was, in part as a result of VA fudging delay numbers, claim times, etc. The VA had "2" wait lists. One was the wait list they reported to the media, then there was the real one.
  20. Well, no. It does not mean a lot. It can easily go back to gathering evidence, or it can push forward to decision. Is this the ramp you opted into in July? Everyone wants to know how long it will take, and, tho that is a good question, it does not have a good answer: It takes exactly how long VA wants it to take and not a second earlier. This said, VA had a goal of 125 days for Ramp, but they may or may not meet that with your claim. They did "not" meet the 125 days with my Ramp elected decision. I opted in last August, and it was not complete until Feb 11. Yours could be faster or slower. Again, it depends on whether you opted for HLR or SCL. HLR is faster (supposedly), but SCL allows resubmission of evidence. We dont know when/if you resubmitted new evidence, but it would likely be around 125 days after you sent new evidence, if applicable.
  21. Ok. Did you opt for "Supplemental Claim Lane"? Higher level review does not allow "new and relevant evidence" under 38 cfr 3.156. If you opted for direct Board review, and skipped HLR or SCL, then its gonna take a while. HLR or SCL are done at the VARO, Board decisions take much longer.
  22. If you are talking about a "Regional Office" Ramp (HLR or SCL), those were mostly completed by Feb. 19. Now, if you had already received a SOC, and went to the BVA, and it says, "closed", you should be okay. However, VA has "closed" claims that were not adjutciated, especially RAMP (now called AMA). Ebenefits "updates when it updates" and, like other stuff at VA there is no time frame. They do it when they want, and not a second before.
  23. Excellent question. Do you have a copy of your cfile, so you know exactly what information and evidence VA has? Often we "think" VA has 1,2,3, evidence, and we often find out its missing number 2. And we find that out too late. This is why we suggest being proactive, finding out exactly what evidence they do have. You can try looking on ebenefits and see if evidence is missing. Of course, you also have to watch your letters, and make sure you attend (potential) c and p exams, if required. It helps some to know the Caluza elements, and, if you are service connected already for the disorder(s), then you can look up the criteria and compare it with what is documented in your file. Hope this helps.
  24. Before you go calculating disability percentages and estimating payments, I suggest you make sure you get all 3 Caluza elements documetned: 1. Current diagnosis 2 Documentation of in service event(s). 3. Nexus or doc opinion that your (diagnosis) is at least as likely as not related to service. Lets say you have all this, and I have no idea. Then, you will be rated on symptoms of each disorder.
  25. Like yourself, I recently got a cavc remand. I expect my BVA decision, per court orders, to be in the next six months, probably less. They have to prioritize cavc remands. It means the VA messed up.
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