broncovet

Im gonna let Asknod opine on advanced levels of SMC..I already made one blooper on that one. However, I have done considerable study on effective dates, and will do my best to help there. I have to say there is some "grey" area there. You see, SMC is inferred, and you dont have to apply for it. However, the effective date regs say your effective date will be the LATER of the date of claim or "facts found". The question is what is the effective date when its inferred? I would have to intuitively think the effective day would then be the "facts found", since the date your date of claim would not apply to SMC as its inferred. That issue probably warrants some case study. Just knowing VA, they always seem to try to dream up a less favorable effective date than I ever thought possible.

For your own health, you should probably get a second opinion as to the etiology of weight gain/loss. If you have to pay for it, privately, well, I would do it. You can not put a price on your health. In my town I would recommend a homeopathic physician. In my town there is a physician that combines natural medicine, such as herbal treatments, with traditional medicine, and tries to get the best of both worlds.

Ok, herein lies the problem with working at 100% PTSD: If you look at the criteria for 100%, you will see that it says the Veteran has problems in ALL areas: Social, Work, family, relationships, etc. Also, if you look carefully at the regulations for reductions, you will see that the VA can reduce you if you show actual improvement "under ordinary conditions of life", which, has been defined as "working." In other words, if you are able to get by with your disability but you are not working, then some improvement would not justify a reduction, especially if your "improvement" came from not working. For example, say you have degenerative arthritis, and staying off your knees keeps you from having a flare up, and keeps the pain level low. But, if you went to work, the stress to the knees of constantly standing or walking would "flare up" your knees and create an intolerable pain level. So, your reduction in pain level is not "under ordinary conditions of life". I agree with the others that 100% P and T for mental health conditions normally precludes working. From the employer's stanpoint: Would you really want a 100% PTSD Vet working for you that had suicidal/homicideal ideations, that was in the military and trained in weapons? If you disclosed to your employer that you were 100% PTSD, then, its true he may have some kind of job you could do where you were not around people (so as not to be a threat), AND, he agreed to give you time off whenever you needed it for therapy. Those jobs are very rare, and, its not fair (IMHO) to your employer to not disclose that you are 100% PTSD. I do think the VA allows this in some circumstances, such as a family type business where your family provides a job for you, knowing well your limitations. A famous example I can think of is Sy Robertson, on Duck Dynasty. Nobody would doubt this guy is crazy. But, they keep him on, because, he can make duck calls, and, because his brother founded the company and he is not leaving his own blood out in the cold. He is very entertaining, but produces not very much work. More than one person has said the bizarre Sy Robertson is the guy who makes this show. Without Sy's crazyness, this show would be so boring no one would watch more than a couple episodes. I would speculate that, if, indeed Sy was 100 percent PTSD crazy, the VA would say that his family business warrants an exception, because the other Robertsons go above and beyond what an "average person" would do in putting up with Sy's craziness, and he would be truly unemployable outside the limited family business. Sy is paid by the family, pretty much, not for the work he does, but as a donation to him for how he helped the family business get started in the past. Sure Willie yells at him to get to work, but Sy pretty much ignores Willie and goes his own way. Still, his craziness is why the show is making big bucks, and I would quit watching if Sy left.

I have looked up and posted on VSO charter's before. Feel free to do it yourself and find out what I found out: In VSO charters, they pledge to cooperate with VA. Regardless of what VA tells us, VA is our adversary, that is, our opponent. They have a "vested interest" in ensuring that we receive a low a benefit as possible, at the latest effective date. The reason for this, at the end of the physical year, the VA execs can then say..."ok, we had money left over from Veterans benefits..how shall we divide up the exec bonuses?" As long as you fully understand your VSO is sworn to represent your opponent in law, you will do ok. The good part of this is that some VSO's dont know the charter and are actually there to help Veterans. Usually, tho, the big VSO bosses (who earn about 300k plus per year) usually straighten them out if they are too Veteran friendly. Asknod and I have found this out the hard way. I am fairly certain that we both applied for benefits, and both of us were denied. Then, we appealed. The appeal was granted and the RO implemented this and gave us a big fat 0 percent for our trouble. (This is the way mine happened, for sure..Asknod's was similar, but he speaks well for himself). Both our VSO's told us...heck, dont appeal the 0 percent..they could take away what you have and you would be left with nothing. Huhhhh? Gee, I thought 0 percent was nothing! "Oh, no," the VSO replied. "You got your foot in the door and you can ask for an increase."

I think its a good idea to search all 3: Federal, CAVC, and BVA. I agree with Berta and Pete to also use BVA, however, whenever I can I cite NOT the BVA case, but instead the case BVA cites which is precedential. You can also cite BVA decisions, but I prefer to cite precedential cases, whenever possible and only if I find nothing would I cite BVA.

Here is the deal. What the doc says is "facts found" , UNLESS you can prove otherwise. To rebut the docs C and P exam, you need another doc to opine differntly, that is, an IMO/IME or another VA doc who gives a more favorable opinion. In other words your words wont fix a bad c and p exam. Only another docs words can do that. Since you have apparently read the exam and its defective, you need to file a nod and challenge the exam, using the words in blue. Or, you can get an IME/IMO, and submit it as "new and material evidence" under section 38 cfr 3.156 in some circumstances.

These are some good questions, and, unless you want to delay your claim 4 years with an appeal, I suggest you get the answers to them. First, order your c file, if you have not already. Most Vets assume the VA has all the paperwork they sent. If you believe that, then write it down and put it under your pillow and the tooth fairy will leave you a quarter. All this said, ebenefits is notoriously unreliable, and, it is possible your claim is "on track" and they have all your records as well as all your claims. So, the next thing I recommend is to send an IRIS email, and inquire as to why ebenefits does not list your 2 increases you filed on xxx date. Or, inquire as to what is the status of the 2 claims for increase you filed on xx date. It would not hurt to file an "intent to file" form, and include all of them, as that form is now required.

You have to have ALL 3 things for service connection, if any 1 of these is shakey, then your claim will fail: 1 An in service event or aggravation. 2. A current diagnosis of PTSD. 3. A link, or nexus, betwee the 1 and 2. You need to get your cfile, and see what it says. Does a doc say you have been diagnosed and are under treatement for PTSD? Dont "assume" the VA clinic will send you the VA the records, they may not even have them, or, you may not have been seen by a doc at the clinic, only some type of counselor who can not make PTSD diagnosis. You may also need to see if your record includes reporting of the stressor, that is, the Sexual Assault. To appeal the decision, you file a notice of disagreement and I recommend you give your reasons why. If your records are missing or incomplete, then you may need to try to locate them, or, you may even have a copy.

You have the right idea. If you have not already, get copies of those exams and see what they wrote down. It is not necessarily the same as what they tell you. After you review the exams, you will know better what way to go. I do think if, indeed, you have 2 out of 3 docs state that you are "unable to maintain substantial gainful employment" due to SC condition(s), you should be able to get IU. However, its not always that easy. First, it seems peculiar to me that you would have 3 c and p exams for the same thing. Next, the VA may attack the credibility of one or more of the examiners. For example, did they all read your file and say so in their opinion? Secondly, did the examiner give reasons as to why their opinion? Third, how long had you sought treatment for each of these, or were they all "one time visits". (A doc who has seen you for years demonstrates he knows your medical history much better than someone who just met you) . Lastly, you may be able to attack a poor C and P exam, by using this wording (in blue) if you have to file a NOD:

My advice is to follow the advice of Chris Attig, on the wording of your NOD: Include the portion in blue in your NOD. If you dont have a copy of your cfile and your C and P exam, get one. Check and see if the C and P examiner actually wrote that the date of the exam was the date that your increase actually occurred, or if your rater overlooked the real effective date the doc stated. If, indeed, the C and P exam is defective, then you will need to attack it. If the C and P exam is correct and your rater misread it, then you need not attack the exam.

I think I am finally getting the "2" A&A's. I apologize to hadit members, including ASK NOD, if I misled anyone. I did not do it on purpose, I assure you. The first A and A, as Asknod pointed out, is SMC L, the "higher rate" of housebound, SMC S. The "Second" A and A, is a Caregiver benefit, paid to the caregiver. VA does not call this A and A, probably for good reason, even tho the Caregiver provides a similar, if not identical, service to the Veteran as in the SMC L benefit. However, this "Caregiver benefit" would be good for the VET, since the Caregiver benefit would mean that at least part of his caregiver care would be paid by VA, not by the Veteran, assuming the Vet and the Caregiver qualifies under VA rules. The way I read the regulations is that both the Caregiver and the Aand A benefits can be paid regardless of Service connection or not. If you are on NSC Pension OR Compensation, you can get both the A and A and Caregiver benefit if you meet VA's eligibility criteria for both benefits.

The "second" A &A benefit to which I was referring is paid to the caregiver, and is referenced HERE: http://www.caregiver.va.gov/support/support_benefits.asp As I remembered, unfortunately, this benefit apparently applies to Veterans after 2001.

I agree with Berta, but would add that, in your NOD (after you get the decision), you should include the portion in blue in your NOD, per Chris Attig: (The blue portion contains wording which challenges the medical examiner's credentials). Remember, the medical examiner is presumed to be competent absent a rebuttal by the Veteran. So, if you appeal and say nothing about the examiner competency in your NOD, your attorney can not bring that issue up at the CAVC.

Yes, Im sure you are correct about the A and A, but are there not "2" A and A's? The first one you mentioned, gets paid to the Vet, and the second one to the caregiver, which, I understand can be paid to a family member. The second A and A, is probably done by VA to save money. Think about it. You have a caregiver come in for 8 hours a day, 5 days a week (most often less than that) to do things like change bandages, sometimes bathing, etc, if/when assistance is required. Well what about the rest of the time? Often a family member needs to be there to help 24/7, sometimes to feed, sometimes to help them walk (to prevent falling) etc. I think this may be the second A and A, often paid to a family member, not to the Vet. I seem to recall some legislation on this, but it seems like this is ONLY for Iraq era Vets and not Vietnam Vets. That is kinda crazy as the older Nam Vets are probably more likely to need A and A rather than younger, often healthier, Iraq Vets.

The Court of Veterans claims has at least 3 "types" of cases, depending upon the number of judges. 1. Single judge 2. Panel of judges 3 En Banc All the judges. Only the panel and EN banc are "precedential" and no BVA cases are precedential. Here is what this means. If your case is similar to one of the precedential cases, then the court is bound to rule in a similar way, if they think your case is similar. However, if the CAVC is "single judge", or any BVA decision, the CAVC can pretty much disregard those cases, as they do not set a precedent. In your case, its best to cite precedential cases. However, some of the single judge and BVA cases may cite a precedential case in their reasoning, that you can use. This does not mean non precedential cases are wrong, it just means that the judge may or may not agree with another judge, but, if its a precedential case, he pretty much has to have a very compelling reason as to why this case is different than one his peers already decided earlier. A very good investment is the "Veterans Benefit Manual" which lists precedential cases and their effects on certain areas of Veterans law. Pretty much all of the opinions offered in the VBM are based upon previous precedential cases, except where other wise noted. Some will be based on opinions posted by general counsel, some on case law, and some on VA "fast letters" which are statements of VA policies binding on VA. All Federal Circuit cases are precedential, as are all US Supreme Court cases. Many times, the Courts look to define the "intent of congress" who passed the laws. As one Supreme court justice explained, if "the intent of congress" can be determined, that is the end of the matter and that is the way it will happen, pretty much every time, unless the US Supreme court rules congress intent as unconstituional.

"Tests" are a tool the doc uses. They are not doing a good job if they dont use the tools, just like a carpenter would not be much good without his tools. "Tests" are a diagnostic tool. Sometimes, they want to "rule out" things. You have indicated Suicidal ideations, and he is taking that seriously. He may want to know, for sure, if you are trying to hide some sort of drug addiction, that these tests may reveal. Or, they may reveal things like iron deficiencies, selenium deficiency, or, as you pointed out Low T. There are many other things the tests reveal, so be glad your doc ordered them. Yes, I understand not trusting the doc, and not trusting VA. You are preaching to the choir, here. Still, remember, you dont want to be put in a group with, say, "all white people" because Charles Manson was white, so you must be a serial murderer also. So, give your doc the benefit of the doubt and let him treat you..until you know he is out trying to get you. Then change docs, if that happens. Worry never robs tommorrow of its sorrow, only today of its happiness.

Well, yes, I agree. Can you imagine having your application denied because you did not fill out the right form, such as you put it on a 21-4138 instead of the new "intent to file"? This is not a "claimant friendly" non adversarial climate. Vets advocates used to say you could apply for benefits (informal claim) on a napkin. In one way, I can also see "the other side" of this. You see, if you go to the doc, under certain circumstances, this can be an "informal claim for increase". The water gets muddy here, very quickly, because VA says you have to show "intent to file for benefits" because the VA assumes when you go to the doc you are seeking TREATMENT, not benefits. So, you have to do something to "show intent to file for benefits". And, what better way to show intent than to fill out the form? Here are a few problems with this: First, this assumes the Veteran seeking benefits knows ALL the rules of VA, and mostly they do not, except in rare cases. When Vets seek benefits, they are hurting..often financialy..many are homeless..some are very very sick, mentally or physically. Should we turn these Vets down because they dont even know what a "VSO" or an "intent to file" means? Or, what if the VSO did not keep up with the rules and failed to file an "intent to file"? Isnt the requirement to file a completed 21-526 enough paperwork burden for the claimaint, without an "intent to file" additional burden? Further, most Vets dont get benefits unless they file an I-9. Why? because most Vets are turned down on the first go (less than 50 percent are awarded on the first go, Ask nod says its closer to 85% denial rate). So, lets add up the required forms: 1. 21-526 2. Intent to file 3. Notice of Disagreement (mandantory within a year of decision) 4. Election of DRO or BVA (Im sure a lot of sick Vets know what those mean..yea right) 5. I9 (within 60 days of receipt of SOC. ) 6. Unless the Vet wants to wait much longer, he also needs to file a "Waiver of RO consideration" Now, remember, all these forms are necessary, as well as the applicable time limits for about 85% of FIRST TIME CLAIMANTS. But wait, there is more! If the Veteran dies in this multi year process, then his widow must know she must file: 1. A "substitituion of claimant" AND 2 All of the above. The VA claims process is far, far to complex and needs to be simplified, not made more complex with still another form that, essentially means: "A Form where I intend to file 5 more forms"...that is what the intent to file is. These are all required to get benefits. But Wait! There is more! 1. Evidence. The Veteran must provide "evidence of a current diagnosis", a verified event in service, and a nexus. 2. He has the burden to find his SMR's. 3. He must supply his dd 214. 4. He must supply a release of information to release medical records so VA can verify everything. 5. He must keep copies of everything and resubmit it if VA: a) loses it b) shreds it c) puts it in another Veterans file; d) or, even if VA fraudulently alters the Vets evidence to pay a lower benefit, the Veteran must prove it with an original. Notice: There are no time limits for VA, the Veteran is burdened with time limit contstraints, but, "because every claim is different", the Va can take 20 or more years to process the Veterans claim, and, the VA does not even pay interest when that happens.

Buck My wife is on Champva. IMHO you probably dont need a "supplement", because Champva insurance could be the best insurance I have seen. Its a very low deductable, very low copay. My wife is also on Medicare, but I dont know that that matters much. Its my opinion that my wife's Champva is MUCH better than the "insurance" I have which is just VA. Why? Because my wife can/does go to private docs OR she can go to the VA with me. She goes to VA mostly if she needs a prescription as that will be free, but it would not with champva. You could get a champva supplement if you like, but my experience is that it is not necessary (especially on medicare). My wife pays her own medical bills, so I can not give you the exact number, but I am almost certain we pay less than $200 per year for her entire care, and prescriptions. My guess is that a supplement, even if it paid EVERY cent of that, would cost more than $200 per year. It does not make sense to me paying $300 or more per year to get $200 per year worth of insurance. Years ago, I was an insurance agent. It really is true there are some people obsessed with insurance who have more than needed. At least one customer said she was "insurance poor". While agents love these kinds of customers, if they did not need any more insurance, I told them so. You see, insurance is specifically designed for you "NOT" to make a profit on it. In other words, if you had 5 auto insurance policies on a car that was worth $10,000, how much do you think you would get if you totaled that car? $50,000? No. You would still get $10,000 minus the deductable. That's it. It does not help you to have additional unnecessary insurance. Now, if you do have lots of assets, then you should "cover" those, by increasing your liablility limits. If you had $500,000 worth of homes, cars, bank accounts etc, then you should probably have $500,000 liability on your autos because if, you did get into an accident, you need to protect your assets. Its not about how much your car is worth..its because, if you broke someones neck, you could easily be sued for 500,000 or more.

This is mostly for Berta. Berta posted: This is my opinion on the new Secretary ,as a civilian (widow of 2 disabled vets and mother of a veteran) so it might not mean anything to you veterans. And that's OK. About 2 years ago, a very old war Veteran, (I think he said he was 90) came to my home, where my father in law, a WW2 Vet was living, or, I should say dying, at the time. (He was in hospice). He presented a medal to my FIL (I think it was the National Defense medal, that he never got for some reason) for his service. Apparently he had the authority to present medals, especially to Veterans in Hospice care. And now, to Berta. Berta, I, too, am a disabled Veteran. I have a son who served in the war in Iraq, who has about 6 medals (but he does not know which ones they are, which is a typical, humble Vet). We have 3 generations of Veterans in my family (altho my FIL is now deceased). If you would accept this honor, I would offer you "honorary Veteran" for the years of service you gave Veterans. For the service and honor you gave your late husband, your other family members, and especially hadit members and guests. Yea, we do value your opinion, Berta. You have studied and mastered VA law, and can/do answer questions related to Veterans and widows benefits for Veterans who very much appreciate your advice as I do. Thank you Berta, for your service....for your husband's service, and yours.

Buck52: I think its a good idea the doc ask you if you are there for an increase on several levels: First, he needs to be certain he is seeing the right person. So, if you say, "No, I thought you were gonna put a cast on my leg", then someone needs to find out if there is someone with a similar or even exactly the same name with a different issue. Its also comforting to know that the doc is a c and p exam for "increase". There are exams to try to reduce you, and I certainly want to know if the VA is doing just that, or if I am there for an increase. One reason for this is the rules are completely different for an exam to reduce than for an increase. 1. If you are there for an increase, you want to explain how your symptoms got worse. 2. However, if you are there for a reduction C and P exam, you need only show your conditions did not "actually improve" since your last RO decision which rated or continued your rating.

Thanks, Asknod for your help explaining this SMC. To answer jefmils most recent (how and when) question, SMC is supposed to be "inferred" so no application should be necessary. However, I do not reccommend you count on the VA going through your records and saying, "Gee, we better increase this Vet's SMC as it looks like he deserves a higher level". You may wait a long long time for that to happen. Instead, if you think you are eligible for a higher level of SMC, send in a request for increase, and it may not hurt to use the new "intent to file". Your effective date of the increase, if VA does award a higher level of SMC, would still likely be the later of the date you file or the date the doc said you had the increase. If in doubt, apply. It sounds like you are likely eligible for "Aid and attendance", if you are not already getting that. Someone can chime in, but I think there are 2 "Aid and attendance's" 1. An additional rate of SMC paid to you, above and beyond "housebound". 2. I think you can, in some circumstances, get VA to pay your provider of A and A for you. And, I think this can even be a relative who cares for you, since you may well need assistance with the "wants of nature" at hours when your A and A caregiver has gone home. I seem to recall the later A and A is ONLY for Iraq era Vets, somehow Vietnam Vets dont get this one. The "How", is you file an intent to file. The "When" (for you) is whenever you think an increase is warranted. The "When" (for VA) is whenever they get around to it, and, if you dont like the effective date, appeal it. The VA likely wants to break Vets claims into "pieces", since this allows them to delay you more. For example, you get denied service connection, so you appeal. The BVA awards, and the RO implements this at 0%. Next, you appeal the percentage. So, BVA says you get a higher percentage, and you get awarded benefits. However, the VA decides to save money and award them with an effective date 5 years after you applied. So, you appeal the effective date. See how they delay you? That is 3 appeals where one should do. But you are not done yet. Now you can jump on the SMC hamster wheel AGAIN, pretty much like the above, so they can ring you around the rosie for 3 times there, also. With an average BVA appeal taking about 4 years, this means the VA can hold off paying you for 4 years times 6 appeals or 24 years. Asknods took about 20 years, but he is not done yet, I dont think. Mine has taken a "mere" 13 years, so I am still a newbie, and can look forward to another 8 years or more of appeals. I would like to see VA executives paid on the "Veterans benefit" time frame, and see how they like that. If there pay is short 100 bucks, then they will expect that to be corrected in 2 weeks for next payday...all while making Vets wait 20 years for their money.

There is no pass or "advance on the docket" simply because you are appealing the effective date. If anything, the "new" Vets, (claimants) who are fighting for their benefits, will be done ahead of yours, because you are already getting a regular check, while the new claimants are not. Its pretty tough to claim "financial hardship" if you are already getting 3000 per month from VA, with an advance on the docket. Keep remembering this: VA wants you to give up on your claim, and this includes fighting for the effective date. They want you to be afraid of a reduction, (so you dont file for an increase at all) they want you to become so weak and tired, you can not appeal. Or, they want you to die and have your widow not know or forget about it. An "abandoned claim" is the easiest of all for VA to deny. They ask you for more paperwork, you dont send it, case denied. Its easy. Expect "effective date claims" to take longer than regular claims because "advance on the dockets" will leap frog ahead of you.

I think the new NOD forms are to lure Vets into filing a Nod for no good reason, so the DRO can say, "Yep, the Veteran filed a NOD, but I agree with the original decision maker this should be denied". And why would your DRO not do that if you do not give him reasons? Its like this. You apply for benefits. The rater denies you, calling you a liar. He says you dont deserve your benefits, that YOU thought you deserved because blah, blah blah. Now, the ball is in your court. Its your turn to hit the ball back! You bounce it right back, and say, "The rater has it all wrong. I told the truth. See, here is a docs report showing the rater had it wrong. He either did not read this report, or shredded it. Its here in black and white that I deserve my benefits"

I humbly suggest filing under 38 CFR 3.156 a or c. You do not have to prove "undebateable" error under 3.156. Remember, Veterans get the "benefit of the doubt" in all cases EXCEPT CUE. You need merely show this is "new" evidence that the Va did not have earlier, and that it is probative (material) to your outcome. So you should reopen with "new and material evidence". The evidence you suggest was obviously not considered, probably because the VA shredded it. There are soo many more victims of shreddergate than people imagine, and most of them dont even know it. This is very obvious to me that you are another shreddergate victim.

Its pretty hard for the VA to reduce, but I would not worry about it because worry never robs tommorrow of its sorrow, only today of its happiness. If you get a proposed reduction, you can deal with it then. In the interim: Get the C and P exam report. Did the Doc actually say your mieneres is not SC? He may have said that, but its what is in his report that counts. If, indeed, your doc put in his report that meineres is not SC, then why does VA compensate Vets for it? He sounded like he was talking generally, not specific to you. Another doc apparently opined otherwise and conflicting reports should favor the Vet. If you have a private doc opinion in your favor, thats even stronger as you would then have 2 out of 3 docs said it was SC.