broncovet

Buck. I was not trying to be critical of your response! In fact, I appreciate your responses. Fat is apparently waiting for his claim to be decided at the BVA. I would humbly suggest he wait for the outcome to decide if he wants to file a CUE, reminding him that BVA decisions are also appealable. In fact, some lawyers want a BVA denial letter before they agree to represent you. You can send the BVA denial to the attorney and he can usually pick it apart and tell you what is wrong with it. As an example, NVLSP required I send them my BVA denial before they would consider representing me. There it was. An inadequate "Reasons and bases" was in black and white. This means NVLSP is "virtually guarnteed" a remand, and EAJA fees. By picking their cases like this, they can keep their "win/loss" ratio above 90%. While I agree, Fat, the wait is often excrutiatingly painful its so long, we really have no choice but to wait. However, if you need to occupy your time, then you can create "hypothetical" BVA decisions and decide what to do in each hypothetical instance, such as filing a CUE for the effective date. I would rather go fishing, myself. The CAVC adopts a "case or controversy" approach, and they do not adjuticate "hypothetical" situations. Example: You file a Writ of Mandamus, compelling the RO to implement an old Board decision. The VA says, "Gee, we did not implement that..lets keep the judge off our case, and quickly send the Veteran an implementing decision". Boom. The VA then asks the judge to dismiss the case, as there no longer is a controversy..the BVA decision has been implemented. The judge wont "go ahead and decide the case on its merits anyway", but instead disposes of the case by dismissing it as moot. No controversey=no case.

Does anyone else think this is crazy that Congress needs to force the VA to be "Vet friendly" in its interpretation of the regulations? The VA can squander 6 billion per year, at least, but then wants Vets to get to the doctor "by the way the crow flies" so they can avoid "Veterans choice". Is THIS the "pro claimant", ex-parte, non adversarial VA the regulations talk about?

You are hinging this all around "ONE" doctor's opinion. The obvious answer is to get another doctor's opinion because doctor's vary widely in their opinions. If you dispute this doc's opinion, you have every right to a second opinion. You can either try another VA doc's opinion, or an IME/IMO. Your story reminds me of the average built man who went to the doctor. After the exam, the doc responded that the man was obese and needed to lose weight. "I want a second opinion" said the patient. "Very well." the Doc responded, "You are not only fat, but you are ugly, too. So, there is your "second" opinion" The point is we dont have to accept an unfavorable doctor's opinion. The Veteran's "benefit of the doubt" would mean a second doctor's favorable opinion would decide the outcome in your favor, reminding you that your old doc did not opine against you, he simply declined an opinion at all on the matter.

PR and I agree that you are entitled to SMC S (housebound) based on what you posted.

I will add that I disagree with your attorney interpretation. The "100%" must be a single 100 percent, but the "60 percent" can be disability or disabilities.: GET YOU A DIFFERENT ATTORNEY..this one is costing you money. M21-1MR, Part IV, Subpart ii, Chapter 2, Section H says it this way: 46. Entitlement to Housebound Benefits Introduction This topic contains information about entitlement to Housebound benefits, including statutory entitlement to Housebound benefits determining whether the Veteran is permanently housebound in fact, and protected evaluations. Change Date September 8, 2009 a. Statutory Entitlement to Housebound Benefits The Housebound benefit is payable under 38 U.S.C. 1114(s) (38 CFR 3.350(i)) to a Veteran who has a single, SC disability rated as totally disabling, and has an additional SC disability, or combination of disabilities, independently ratable as 60 percent or more disabling, or is permanently housebound due to SC disability. If the Veteran is entitled to Housebound benefits by statute (without demonstrating need, under 38 U.S.C. 1114(s)), the additional disability(ies), rated 60 percent or more disabling, must be separate and distinct from the single disability, rated totally disabling, and involve separate anatomical segments or body systems. Notes: The principles regarding avoidance of pyramiding contained in 38 CFR 4.14 are applicable. Within these limits, the fact that the single disability, rated totally disabling, and additional disabilility(ies), independently ratable as 60 percent or more disabling, share a common etiology, does not preclude entitlement. Ratings of 100 percent under 38 CFR 4.28, 38 CFR 4.29, and 38 CFR 4.30 of the rating schedule may be used as a basis for entitlement. Per Bradley v. Peake, 22 Vet.App. 280 (2008), an individual unemployability rating that is based on a single disability also satisfies the requirement for a total rating under 38 U.S.C. 1114(s). Continued on next page

I put your numbers in a VA disability calculator, and it came out to 58% which rounds up to 60 percent, here: http://www.vvaarizona.org/combined_disability.php Thus, you should get "statuatory" SMC S (Housebound). I suggest you apply, even tho it should have been inferred. Many Vets get hornswaggled out of their SMC. Go for it, and appeal the effective date if you dont like the effective date.

Please understand that CUE is a "standard of review". Dont think of it as "error", but as a standard of review. You see, when you file a traditional appeal (and win), this means the original decision had "error" also. So both traditional appeals and CUE have "error". What seperates them is the "standard of review": Standard of review for traditional BVA appeal: 1. Veteran gets "benefit of the doubt". (BOD) He does not have to prove "preponderance of evidence". 2. If laws change, the Veteran gets "the more favorable" of the 2 laws. 3. Veteran must file NOD within 12 months of decision. (for RO decisions) Standard of review for CUE: 1. NO BOD. 2. Error must be "undebateable" which is even higher than preponderance of evidence. 3. Error MUST be "outcome determinative". "Harmless" error means Cue is denied. 4. Error must involve regualtions "at the time of decision" so a new liberalizing law wont help you. 5. Veteran may file CUE at any time.

The Monday Morning Workload reports (for May 25, 2015) dont bode well for Houston or Waco. For example 44 percent of claims and 65.7 percent of appeals are over 125 days. Waco has 38 percent of claims and 59.3 percent of appeals over 125 days. These are nearly "bottom of the barrel" down there with Cleveland, who has 82% of their appeals over 125 days. For comparison Buffalo RO has 30 percent of their appeals over 125 days. Source: (VA website, Monday Morning reports) http://benefits.va.gov/REPORTS/detailed_claims_data.asp Texas and Cleveland are the "roach motel" of appeals...once your claim goes into Texas or Cleveland, it does not leave alive, but instead "swirls around" in cyberspace until you die.

ArmyVet 1. With sleep apnea, there are 3 issues. The first is "Is it service connected"? Then, there is the issue of percentage. If you are service connected for OSA AND your are on a CPAP, its 50 percent. Finally, there is the issue of effective date. Right now, you are looking for the 2 above, then you can work on the effective date if you dont like the effective date the of the decision. 2. It sounds like you are appealing sleep apnea, and adding new claims. You can move forward on both at the same time. 3. Yes, the appeal is lengthy. If you elect a DRO review, this could happen in as soon as 1 year to 18 months. Mostly tho, my 2008 BVA Appeal was decided in August 2012 (4 years later), and I am still trying to get VA to implement the 2012 Board decision. Expect your appeal to take 5-10 years and you probably wont be disappointed. Yea, I know that is crazy, but it is what it is. 4. There are advantages to VA and advantages of private care. Personally, I would take private care, if available. However, I dont have a choice unless I pay out of pocket..I have to go to VA. Its somewhat rare where private care is better than VA care, but stranger things have happened. 5. You dont need to worry about reevaluations at this time. Let the VA worry about that. Generally, after you have been rated 5 years or more, your condition is considered "stabalized". After the 5 year period, you can consider requesting "permanent and total"..which means your kids will be eligible for DEA Chapter 35 benefits, and there are many more benefits for a 100 percent permanent and total Vet. I would have to disagree about the Veterans Service Officer, and here is why (tho I do think they can be a help if you are a "new" claimant unfamiliar with VA): In your service officer (DAV, VFW, etc) charter, they agree to "cooperate with VA", And are paid by VA. Whenever you use your opponents lawyer, and your opponent is paying him, who do you think he is "representing", VA or you? If you guessed VA, you probably understand you owe loyalty to the guy who signs your checks. As long as you remember your service officer represents VA and not you, then feel free to have one. Dont be suprised, tho, if you find out they are representing VA's interests, and not yours.

Yes, you can file a NOD at that time (within a year of the RO decision), disputing the effective date. Whether you will win or not, largely depends on you, and your evidence. You need to: 1. File the NOD timely. 2. Identify an error in the decision, and communicate that error effectively in your NOD/evidence in support of NOD, supplying compelling evidence to back it up. 3. Comply with the rest of VA's regulations, such as filing the I9. 4. Not give up.

As some of the pro's know, we can sometimes find out that a decision has been made on our claim, before the decision arrives, on ebenefits. There are several places to look for this. One is the AB8 letter, especially if you are seeking 100 percent. Another is the payments. If you were at 20 percent and noticed a payment of retro or $3068 dollars, then you were likely increased. I did notice something a bit strange, tho, just yesterday. I was trying to figure out if we would get paid Friday or Monday, since Monday is the first. Nothing showed on ebenefits, but, I looking on my account and there it was. I got paid before it showed up on ebenefits. I thought it had to be on ebenefits before we could get paid, but that was wrong.

Pete has a good point. If they sent you a formal claim for IU, and you did not return it filled out, then dont expect VA to pay your retro. However, I do think if you file an informal claim, you have a year to follow up with the formal claim, and still preserve your effective date of the informal claim. However, Im not sure I completely agree with Pete that you dont need to file a nod OR a cue, that is, unless you can email Allison and get her to give you your benefits without a CUE or NOD. IMHO you will never be sorry you filed a NOD in the one year appeal period. Never. I have never heard of a Veteran say, "Gee I only wish I had NOT filed that NOD in 2004". Its always the other way around, "Gee, why did I not file a Nod to that 2004 decsion?" Timely filing your Nod does not preclude you filing a CUE later, since there is no time limit to file a CUE. Also, you can still email Allison Hickey, and she could agree with you and direct your RO to give you your benefits regardless of whether you previously filed a NOD or a CUE. In my limited experience emailing Allison, she makes "o" decisions, but forwards your email to the RO director, and tells him to check this out and make some sort of a determination. The RO director will likely assign your case to a RSVR, or maybe DRO. One thing emailing Allison will do: The VA wont be able to "forget about" you anymore, and put your claim in a vast pile of "not sure what to do with this" pile, which amounts to a "permanent hold" until something happens.

Navy Its all going to boil down to evidence. Do you have a doc statement who provided you a nexus, that is, that your teeth are secondary to your eating disorder? If so, you should get SC for your teeth, upon appeal. I do agree with Pete, tho. Remember the VA treats us like we are spoiled children, so sometimes we need to fulfill the part they expect of us. Like a child, if Mom says no, then ask Dad. If both of them say no, ask Grandma. So, go to your prime care and ask him for a dental referral. Somewhere, there are rules about under what circumstances VA will pay for private health care, and my guess that means dental also. I seem to recall that you can use private care in an emergency, but you have to tell VA right away, and give them a chance to transfer to a VA facility if one is available. Did you ask the people at your local VAMC to pay for it? Reminding you of the "spoiled child" theory, if that person says no, go to his supervisor, and if that person says no, go to the directors office. I recommend you work "up the chain of command", like we did in service. That is the first place to start. Several years ago, we had a board member post the rules in regard to fee services. If they have denied your payment for your dental work through fee services, then you can appeal it like any other denial.

Yes, there are alternatives. The herb, saw palmetto, is the most often used. So are pumpkin seeds. There are several companies which make blends of herbs for the prostate: Solaray, Solgar, Nature Made. You can also buy saw palmetto and pumpkin seeds at your health food store, or even, sometimes, your grocery store. Beets are good for inflammation, (but not just the prostate), too: http://articles.mercola.com/sites/articles/archive/2014/01/25/beets-health-benefits.aspx The spice, tumeric, is also a great anti inflamatory (especially for arthritis) : http://www.webmd.com/vitamins-supplements/ingredientmono-662-turmeric.aspx?activeingredientid=662&activeingredientname=turmeric There is even a prostate tea, if you like tea, made from several different herbs.

Coastie There are several reasons, why Vet's "push" above 100%. One was mentioned by rental guy. Another is SMC. 100% is not the highest compensation Veterans can get. There are multiple, multiple levels of SMC above and beyond 100 percent. Just SMC S and SMC K, alone, amounts to about 447 per month, in addition to the 100 percent rate. Then, there is A and A, and a whole host of other SMC's. Permanent and total is another reason. Your kids get eligibility to Chapter 35 ONLY with P and T.

Jeff It sounds like you are being considered for P and T. Eligibility for "Chapter 35 DEA" means you are P and T. It sounds like good news, especially if you have kids that would like to go to school under Ch. 35. There are also other benefits to being "P and T".

If your decision was August 2014, you have one year to appeal the effective date. Since you are in the 1 year appeal period, you should take the "easy way out" and timely file a NOD disputing the effective date of your IU, and give your specific reasons why. Filing a Cue would raise the bar for you and make it a higher hurdle for you to clear. This is just 1 vets opinion. You should be preparing your NOD, and citing all the evidence why you think you deserve an EED, reminding you the effective date will be the later of the date you applied, or the date the doc said you were unemployable due to SC conditions. It matters little when you lost your job, what matters is when the doc said you are unemployable due to SC conditions. Here is one example why. You get fired from your job, in August 2011, not because you were unemployable, but because your company laid off all its workers due to budget cuts. Later, in 2013, you go to the doc and he says you are unemployable due to sc conditions effective immediately. Your effective date will be 2013, when you saw the doc because that is the date the doc said you are unemployable.

Why do you think you deserve SMC? Do you mean SMC S? Are you "100 plus 60"? We have to know more to answer your question. Or, you can just read what Ask nod posted, and see for yourself.

I certainly agree about Asknod and his website on SMC. However, also on A/N's website is this gem: https://asknod.wordpress.com/2014/08/25/cavc-howell-v-nicholson-what-smc-s-really-says/ If you are 100 percent you should read this. Howell vs Nicholson changes everything. Here is why: You see, the VA had a nasty habit of scheduling Veterans seeking HOUSEBOUND for a C and P exam. If they showed up, this means they were not housebound, and it was denied. Howell changed all that, as follows: Because the meaning of the term “substantially confined” is ambiguous and there is no regulatory interpretation, “the Court must determine the meaning” of the term “and the Board’s obligation” thereunder. Thompson v. Brown, 8 Vet.App. 169, 175 (1995); see also Jackson and Cropper, both supra. The Secretary submits that the clear implication of this term is that the requirement that one be “substantially confined” is met when the claimant is restricted to his house except for medical treatment purposes. The Secretary, citing to Senate Report No. 1745 (June 27, 1960), notes that in passing section 1114(s) Congress intended to provide additional compensation for veterans who were unable to overcome their particular disabilities and leave the house in order to earn an income as opposed to an inability to leave the house at all.

1. Timely file your NOD. You decrease your chance of winning by waiting a year as you eliminate the Benefit of the Doubt whenever you file a CUE. Berta has had good results by asking the VA to Cue themselves with a bad decision, but I think she will agree if that fails, get your NOD in timely. Dont wait until its too late. 2. Send correspondce to VA (including the NOD) certified mail return receipt requested and keep copies of all this. Its not enough you file a NOD, you have to be able to Prove you timely filed the NOD as VA has a habit of tossing these and then shrugging their shoulders when you ask the status of your appeal and saying, "We dont know anything about your NOD." 3. Order a copy of your C file, and review the evidence the VA says they have. Its not enough that it happened and you went to the doc, it must make its way into your cfile for documentation. Dont trust your memory, chances are you may remember what the doc told you, but he may or may not have put that statement into your records. The VA has a presumption of regularity and decision after decsion states, "The record does not contain any evidence of xxx" in its reasons and bases for denial. This means you could not or did not prove your claim with documentation that found its way to your cfile. I put this as number 3 but it should always be done first, UNLESS you wait 11 months to do this, and then you must prioritize getting your NOD in timely. There are few exceptions that VA will "toll" your 1 year appeal period. 4. Dont withdraw your claim. 5. Dont "abandon" your claim. If you or your representative does not bring up an issue upon appeal, its considered abandonded. 6. Dont miss a C and P exam, at least, without calling to reschedule. When you go to the exam, tell the doctor how you feel on your worst day, not necessarily how you feel on the day of the exam. Get a copy of your C and P exam as soon as its available and read it. If its unfavorable, such as it says something like, "the Veteran's xxx conditon is less likely that not related to military service", then consider an IMO/IME as you have to have a medical nexus for service connection. You must have 3 things for service connection, and you should focus on these: A. Current Diagnosis. No benefits will be paid absent a medical diagnosis. B. In Service event or aggravation. C. Nexus, or doctors opinion that A and B are "at least as likely as not" related. No Nexus= no benefits. 7. Know the regulations applicable to your case, and the criteria the VA uses to rate your conditions. Study case law from similar CAVC precedential cases, and see how your's is similar and how its different. Focus your appeal on rebutting the reasons and bases for denial, and demonstrating how you meet the applicable criteria. BVA decisions often state the "criteria for SC for xx condition has been met". If you meet the criteria they have to give it to you, by defination. 8. Pay attention to your representative, and communicate well with him, even tho this, in itself, is often difficult. Ask them to send copies of stuff they send. Some Veterans have found they do better representing themself, but first time claimants rarely know even where to begin. 9. Avoid "venting" or ranting to your RSVR in your 21-4138 or other VA correspondence. This includes doctors exams. Never lie, and never exaggerate your symptoms. I will go one further, suggesting that you not make statements which are unsupported. I often use VA's own words to support my position! Anything you write or say can and will be held against you. I often suggest you not insult the decision maker with conclusarory statements. He or she is the decision maker, we are not. A conclusory statement, especially that is unsubstantiated, hurts your credibility. Instead of saying, "I have proof of service connection", state something very specific like: "Va Doctor Papadakis, on an exam dated June 17, 2006 opined that the Veterans PTSD was at least as likely as not due to xx event in military service", established a valid nexus that the VARO has not refuted. The VA examiner, Dr. VA Kissbut, was less probative as Dr. Kissbut had no experience in diagnosing PTSD, and did not indicate he read the Veterans medical records. Further, Dr. Kissbut offered no reasoning behind his negative opinion and his lack of experience in treatment of PTSD makes Dr. Papadakis favorable statement more probative. Given the admission of Dr. Kissbut's lack of experience or training treating PTSD, his unfavorable statements should be rejected by the board, and the "benefit of the doubt" should be given to the Veteran. 10 Persist. Persistance works when other things dont. Never give up.

A change in diagnosis wont increase your rating. While a "current diagnosis" is required for service connection, we are not compensated based on a diagnosis, but rather on symptoms. If you have a diagnosis of xxxxx, but it has no symptoms, you wont get paid. Zip. Zilch, nada. WE are compensated for the "average loss of earning capacity", and if you have no symptoms, then you have not lost any earning capacity. An exception to this is when the VA diagnosis "personality disorder". This is hoodwink for "we are not paying you for a bad personality". You have to have one of the other mental health problems, such as MDD, Bipolar, PTSD, etc., as a personality disorder is not a compensable mental health disorder.

The date you last worked is irrelevant. Remember, the effective date is the later of the date you applied or the date the doc said you were unemployable due to SC condiitons. Its possible, or even likely, for you to lose your job, then not apply for IU for a few months. Right now, you need not concern yourself with Cue. If you dispute the effective date, then file a NOD within a year. The cue standard of review is much higher than a simple NOD, and you dont want to make it harder for yourself than necessary. With Cue, the Veteran is no longer entilted to "benefit of the doubt", so keep that BOD if you can. YOu send a letter to VA to get your Cfile requesting it. Yes, you need it, for sure, if you are appealing the effective date. The cfile is supposed to be all the evidence in your file, medical and otherwise. Everything. VA loves documentation, and that documentation is always assumed correct, absent a rebuttal. You need to know exactly what it says, or you are driving at night without lights, and you are bound to collide with something.

I agree with Buck, but add: I would ask "why is it important to you to be P and T"? Your reason will affect my advice. You see, this decision in your hands becomes final after a year. If you need to appeal it, you should do so in that year period. Does the letter say your dependents have eligibilty for Ch. 35? Did you get retro compensation consistent with 80 percent or 100 percent? What does ebeneifts say, especially in your AB8 letter. If all these things indicate 100 percent p and T, then dont worry about what the computer says..it may even be changed soon, or you and the VSO looked at it wrong. It wont be the first time VA's computers were wrong, yours may have not been updated as to the date of reexam. For right now, take a wait and see attitude, to see if its updated later. If the problem does not get fixed in a couple weeks, then consider filing a nod based on a conflict between the RO decision and the computer. You could also email ms. Hickey on this problem, but wait a couple weeks to see if it resolves itself first.

Ask the VA for a copy of the 1999 denial letter. After you get it, then see if your denial contains a page which explains your appealate rights. Check to see if your address is correct or if the VA had an "old address". You need to rebut VA's "Presumption of Regularity" in your appeal. The VA is given a hall pass, and it is assumed they did everything they said, absent your rebuttal to the contrary. If the VA can not come up with a copy of the 1999 denial, then its gonna be difficult for them. Your appeal time (one year) is tolled until AFTER you get your notice you have a right to appeal. Get a copy of your cfile, if you have not already done so. You definately have a fight on your hands. The VA is hoping you give up. If you have copies (either through your VSO or not) that you sent, especially certified mail return receipt requested, it will help. Since you are service connected at 20 percent, are you trying to get an earlier date on the 20 percent, or are you tryiing for an increase, or both? You can consider a CUE at some point, but if your decision is within the past year, right now you want to file a NOD, dispting the effective date, the disability percentage, or the denial of other conditions, or all 3 of these. You want to go to Chris Attig's website, and put in your NOD the wording he cites which disputes the C and P examiners qualifications. The examiner is assumed to be compent, absent a rebuttal on your part. So, make it easier for your attorney, later, when he appeal this to the CAVC, by including in your NOD the wording Chris Attig states disputing the credentials of the C and P exam, if its an unfavorable exam. If the exam is fully favorable, then you dont want to dispute his credentials.

Your effective date will be the later of the date you applied, or the facts found, which is the date the doc said you are unemployable due to SC condiitions. Have you ordered your Cfile? You have to see what is written there, and what the doc says. Dont trust your memory, you may not remember what the doc wrote, or, your evidence may not even be in your cfile.