broncovet

If Obama has his way, health care fees will increase: http://www.npr.org/templates/story/story.php?storyId=136108877 Well, so much for Obama being pro Veteran...

Jim According to your post, your medical evidence supports entitlement to TDIU back to 2007. However, as Berta has pointed out, the VARO's have a history of denying such things, by doing things such as giving a reasons and basis that TDIU is moot, when it is not, and thus the withdrawal of the OGC opinion. This would mean you would have to appeal again. Welcome to the hamptster wheel. If you started a new post with your question, you are more likely to get more opinions on it, probably many of which would be better than mine. I agree with Berta's "deliberate misinterpration" theory by the VARO. There is simply too much financial incentive for them to do this, as many wont appeal, and even for those who do appeal, the VA wont have to pay the claim for years down the road. The VA has been practicing this for decades, not just with SMC but with everything. The VA is supposed to rate claims strictly on the rating criteria, and not make up stuff as they go along. It is just too easy for the VA to do what has been called "top sheeting", and not read the claim. Ten years later they can then go back and say, "Oh, I guess you are right..you do have evidence to support this". Its a slippery slope, and the VA is paving our road to benefits with an obstacle course that few can negotiate successfully.

It is about "interpretation" of the law, where the VARO interprets the law more strictly than the courts. I call it "the gap". Whenever a Veteran falls into "the gap" he has to fight for his benefis in appeal, sometimes for decades. "The gap" needs to be closed, as it favors younger healthier Veterans, because the old, frail, very poor health Vets often do not survive the many years necessary to appeal. Sometimes there is also "a gap" where the VA interprets the law (in a strict manner, unfavorable to the Veteran), but the courts have not ruled on (the VARO interpretation) yet. Sometimes, several years down the road, a similar appeal does wind its way through the courts and now, there is still another interpretation "gap": Does this new court interpretation apply to Veterans claims already decided? Usually, the answer seems to be "No". The Veteran is expected to appeal his RO decision, in anticipation that the courts will overturn a similar case, or else it becomes final.

This sounds like classic "catch 22": You cant get housbound without medical evidence. Since VA docs dont do housecalls, you cant get the evidence if you are housebound. If you make an appointment and show up, then you are not housebound so it is denied.

Carlie.. Yes, I seemed to remember something about the 2 or 3 year upgrade , also, but I just got done with a hearing test, and the audiologist told me that I was not eligible for new hearing aids until the old ones were 4 years old. I dont know if this is my VAMC policy, or the VA's. Im guessing this could have changed when they raised the copayments about a year ago. In other words they apparently making Vets wait longer to get new hearing aids to save money. They are expensive.

While what WAC says is true, you dont often see 100% awarded for "mild" conditions..it usually has to be severe to warrant a 100% rating, but I agree it does not say that THERE.

Berta I think there is still a rather large gap between how the Regional Offices rate cases and how the BVA/CAVC/Federal courts rule they should be rated, with the RO's consistently rating them lower. This "gap" is evident especially with Bradley vs Peake. The RO's appear to have taken the position that very few Vets will be entitled to SMC S under Bradley. At least ONE of the "gaps" was pointed out by WACvet, who interprets the regulations to mean that the 60% can be added, and need not be "combined". Ken Carpenter stayed away from this issue, wisely so, (from his clients point of view) and used the word "combined" not added. There are other "gaps", too, where the RO's rate lower than the courts, forcing the Veteran to appeal the RO strict interpretations. Another "gap" exists when the Veteran is denied TDIU as being "moot" when he was awarded 100% schedular, when an award of TDIU would NOT be moot if the award made the Veteran entitled to SMC S. Still another "gap" exists when some raters combine a bunch of disabilities and then rate TDIU, when a single 70% would suffice leaving the other disabilities to count toward SMC S in Bradley. Here is the root of the problem: The RO's rate too low, and leave it up to the courts to sort it out. This creates unnecessary delays. The solution is to get the RO's up to speed with the courts. About 70% of the cases reviewed by an appealate body result in the Veteran getting either a remand or an award. This means only 30% of the cases are correctly denied. It also means that Veterans need to appeal..they have a 7 out of 10 chance of being awarded more benefits by appealing. One HUGE problem is that we dont have enough judges at the CAVC level. While congress has approved two more CAVC judges, Pres Obama has not appointed any.

PR I already have hearing aids from the VA. They will only give you new ones every 4 years or so, and I still have more than a year to go on my old hearing aids, which do not have blue tooth. Yes, if your hearing aids are new enough to have bluetooth, then my guess is that if your TV was also blue tooth ready, then you may not need an ALD. For the rest of us, who do not have either blue tooth hearing aids or a blue tooth ready tv, then the ALD is a good alternative. Carlie.. I have not had real good luck with the ALD's at theatres, tho a couple theaters have them.. They are used by many, so the batteries are often dead and they get knocked around enough that the ones I tried had a lot of static and did not help much. If they were in great working condition they would help, providing there was not too much background noise to "drown out" the ALD headphones. At the theaters I tried, they had "cheap" ALD's or they did not maintain them well, so they were of little or no help at all. The device I got from the VA was of good quality...Sennheiser 830-TV Infared devices. The only problem I am having with them is that my TV is HDMI (Hi defination...hooked to a computer to save the cable bill), and Windows wont allow two speakers at once, probably to prevent copying of DVD's or recording TV shows. This means that the sound comes to the headphones, OR to the speakers, but not both at the same time. I would like my wife to be able to watch with me, but that wont work right now, or at least I have not figured out how to make both the headphones (ALD) and speakers to work at the same time.

I have heard good things about the Tiger Team, and dont recommend trying to switch things around once you are there. They are the experience problem solving unit at the VA. Usually this means you have been recommended for the TT by someone at the VA. I have also heard of people who have tried to get their claim with the TT, but I am not so sure a Veteran can successfully recommend himself for TT. This is probably good news for you. You can check your contract, but even if your contract says the lawyer is paid when the RO awards benefits (without an appeal), remember the court has to approve payment to the lawyer. While I have wondered the same thing myself, if you hire a lawyer and the RO (or TT) awards you benefits (without going through appeals) you may not owe the lawyer a dime. You can call him and ask him..if he is well experienced in VA law, he will likely know the answer. There is something called a "Joint Remand" This is when the parties get together and smoke a joint to decide your benefits instead of consuming Vodka like they usually do. lol. No, its when your lawyer and the lawyers representing the VA agree to a remand. Its kinda of a way the VA admits its mistakes without admitting its mistakes, if you know what I mean. Its the VA equivilant of "settling out of court". You know. someone sues someone for a half million dollars. Well, sometimes they say..gee...your case against us is not that good, but it will cost us to defend this anyway, so how about $50,000 and everyone goes away, and no one admits guilt. Sometimes its a good idea to take their offer as appeals can run for decades.

This applies to HOH (Hard of hearing) Vets: I asked for an assisted listening device, as I have not been able to watch tv (without closed capitioning) for about 15 years. The device is incredible. It is 50 times better than hearing aids for hearing on the TV. If you are unfamiliar with these, they plug into your TV, and you put on earphones. The earphones picks up the signal and pumps the music and voice directly into your ears. I can HEAR the TV with this! Its amazing. If you are HOH and still cant hear the tv, with hearing aids, ask your VA audiologist if a ALD will help you. Mine was provided free. It opens up a whole new world.

Probably. But..dont wear the hearing aids when doing loud activity such as vacuaming, or mowing the grass...wear ear plugs instead. Every time. Taking the vitamin supplement, Zinc, can also help, but I recommend Zinc be taken with calcium, magnesium and Vitamin D also. Your body can regulate the delicate calcium/magnesium Zinc balance, but only when it has enough of all 3. You can take Zinc all by itself for a while, but dont take zinc alone for a year, unless your doc recommends it, such as having testing you and determine you are zinc deficient.

I agree. Apply. Then stay alive long enough to enjoy the benefits.

My first impression is, yes, file. The reason is that DDD is a bone disease, while Neuralgia is a disease of the nerves. While these two can, and often are, related, it sounds like your symptoms of neuralgia are separate from your symptoms of DDD. I do, however, agree with Basser that it would be a good idea to read the rating codes to see if they are overlapping, and "pyramiding"

Blake While I have not read any of your evidence, nor any of your decisions, based on what you posted, I will dissent and say that it is likely there is CUE as follows: 1. You need to remember that ONLY ONE formal claim is required. Any other claim "refers" back to your original formal claim, and amounts to an increase. It is simply unnecessary and redundant to make a formal claim for PTSD, another formal claim for hearing loss, another formal claim for TDIU, another formal claim for NSC pension, etc. Just one, and the others can be informal claims. 2. Your proposed informal claim will likely need to meet the Brokowski 3 part test to establish that it is, indeed an informal claim for increase. In a nutshell, you need to establish that your informal claim for TDIU was 1)written 2) demonstrated an intent to apply for benefits and 3) specified the benefit sought. Remember, the Veteran is not required to have the ability to diagnose his own illnesses, nor is he required to know what "TDIU" means. This means the Veteran can specify SYMPTOMS and not necessarily diagnosis...Diagnosis are made by a doctor, not by the Veteran. Further, the VA is required to give a sympathetic reading to the Veterans filings. In other words, the Vet does not have to write down: I wish to apply for Total Disability for Individual Unemployability as my PTSD has rendered it impossible for me to obtain and maintain Substantial Gainful Employment. Instead, if the doctor writes down that the Veteran is currently unemployed and seeking benefits due to his PTSD, this should suffice. Remember, the "gotcha"...you have to not only tell the doc you are unemployed..but you have to show INTENT to apply for benefits. It is not enough to be unemployed. BUT...the VA has to consider the Vet is seeking the max benefit. So, if you applied for benefits and told the doc you had PTSD and were unemployed...that sounds like an informal claim for TDIU to me. 3. I think you likely have the right idea with alleging CUE based on RO failure to consider all the evidence. If the VA does reject your evidence, then they do need to state in the "reasons and bases" why. If they say something like, "While the Veteran told his doctor he was unemployed due to his PTSD, the Veterans disabilities do not meet the minimum for rating for IU", then they may have a point. But, if they simply ignore probative evidence, then you can allege CUE as the VA is required to consider all evidence of record in their decision. The VA has a responsiblity to tell you why you dont meet the requirements for benefits. That is, they have to give you a "reason and basis". They would love to skip this, but they cant. When they do give a "reasons and basis" for the decision, then you can attack those reasons. Bell vs Derwinski points out the VA is assumed to have certain evidence in their possession, even if they do not, so they cant just say, "well we did not know about that". 4. Finally, the VA has a duty to sympathetically read and interpret the Veterans filings BEFORE applying the standard of review. In other words, the VA reads what the Vet wrotes, interprets it, then decides what standard of review..the Cue standard, the benefit of the doubt, etc. This is important because EVEN in cases of CUE, the VA still has to give a liberal interpretation to determine what is the benefit sought. If you have already been awarded IU, then this would mainly apply to its effective date. This is all JMHO, and is all posted to help a Vet, wherever possible.

Congratulations on your win! Not to take away from your deserved win, I would like to see someone "test" this fuzzy math in court, as I am not sure it has been tested. I am not sure congress intended for a Veteran to have disabilities totaling 210 percent and then compensate him at the 90% level because "that is the way the VA has always done it". If I am wrong, and there is a "fuzzy math" regulation, then I will retract my statement, but I know of no regulation that requires the VA to use the "whole man" fuzzy math concept, but instead they get away with this because, in part, no one ever took them to task on this by testing it in court. There was considerable discussion on this board about Bradley Vs Peake, whether this "100 plus 60" was a combined number, or added number. After reading much about it, it is very unclear that there is any regulation at all supporting the VA's method of "combining" disability percentages using the whole man method. While there is no regulation preventing the VA using the "whole man" method that insurance companies invented to reduce payments to beneficiaries, I tend to think the "favor the Veteran" rule should dominate.

VAMC's are far ahead of non VA docs in this regard. You see, every time a Vet goes to the Doc, the Doc can see exactly what meds the Vet is on. This is important, because people do not always remember what pills they are taking when they ask. I think this system that each Vets medications are on the computer is better than the paper records most non Va docs use, because Dr. A does not know what meds Dr. B has prescribed otherwise. Draggin, I think the answer to your question is "Yes"....but with difficulty. There is no doubt meds cause side effects, and many of them are unwanted, and this can lead to secondary service connection. But..expect the VA to fight it. What they are implying here is, "The VA prescribed your medicine to treat your SC condition...so, if the medication caused you problems, then you need to sue the drug maker" Of course, the problem with that is the drug maker publishes side effects...and when the doc prescribes them for you anyway, I think the VA is taking responsibility for the drug. You see, when the VA KNOWs that a med has a side effect, and the doc prescibes it anyway, they are "accepting" responsibility. JMHO. Expect a long fight to get secondary conditions service connected due to side effects of taking a drug prescribed for service connected conditions.

Shinseki's statement, We at VA know that every day is a challenge for our most seriouslyinjured Veterans and their Family Caregivers," said VA Secretary Eric K. Shinseki. "I know many Veterans and their Family Caregivers have been waiting anxiously for this day and I urge them to get their applications in as soon as possible so they can receive the additional support they have earned." Reeks of insincerity and downright lies. He was supposed to have implemented this LAST YEAR, and in a year he cant so much as even get an application online for recipients to apply. He makes it sounds like the VA is moving as fast as possible on this, when, in fact, Shinseki was scolded before congress for taking so long. I would like to see if what happened if they delayed HIS paycheck a year "to work all the snafus" out of it. We need a new Secretary who does not ponder for a year deciding if he will do what congress told him to do, before he does anything. Even when this is implemented, Shinseki wants fewer Vets families to benefit from it that what congress intended.

Feel free to read over what Carlie posted. While it would appear you are covered, remember the VA has 10,000 rules and 20,000 exceptions to the rules, so the bottom line is you wont know FOR CERTAIN until you get a decision letter from the VA. While you can find Vets advocates who want to give you a much rosier picture, there are many Vets who fought the VA longer to get their benefits than was required to win some wars. The VA has hundreds of lawyers on staff, standing "at the ready" waiting to fight the next Veteran tooth and nail in order to be able to pay him at the lowest possible level the VA can get away with. While I wont speculate if they will do that to you or not, they have done precisely that, or worse, with some Vets. I personally met a Vet who showed me a letter that awarded him benefits in 1973, and, as of 2010, the Veteran is still trying to get the VA to compensate him for the same benefit he was awarded in 1973. The VA claims the 1973 letter was "a mistake". I think they must have "forgotten" the "one year and the decision becomes final" rule they use against us soooo so, often. Last I spoke with this Vet, who is quite obviously permanently disabled in his (motorized) wheel chair, his claim was at the BVA in Washington, DC. His award, if granted, would likely be close to, or even exceeding $1 million, that is, if the Veteran does not expire first. Good luck. If you are seeking medical care only, then it may not even take that long...just go to the local VAMC and ask them. Bring your id and discharge papers, (DD214) with you. Its the compensation part that takes so long and it is getting progressively worse.

While Im no expert, based on what I have read it would appear "top sheeting" would imply that the rater did not "dig down" and read your entire evidence, but just glanced at what was on the top sheet and made a decision, probably less favorable to you than if he had read the whole thing. It sounds like its the "new shredding". Rather than shred the evidence, just dont bother to read it, which would accomplish the same thing. Then, the Veteran can take another four years and "fix" it at the BVA level..and, in the mean time the rating specialist gets bonuses and promotions for "production". With the VA policy of "Zero accountablility", this means this scenario would produce favorable results for the rating specialist at the expense of the Veteran. This has been going on for decades...just ask Berta how good they are at reading her evidence. I think this must be what Obama/Shinseki meant by "reducing the backlog" by 2012..or was it 2011...or 2015? Oh, yea..it depends on which year they said it.

There are two schools of thought on how detailed to make your NOD: I tend to favor the one where you use that as an excuse to "argue" your case, presenting evidence as to exactly why you deserve your benefits. I think there is a "medium" length of your NOD, where you get a chance to present all your evidence, but dont "write a book". The courts frown on Veterans submitting more than 25 pages (this does not inculde medical evidence which can be hundreds of pages) ...usually this means the Veteran is "ranting" and telling stories that have no bearing on the outcome. I think an NOD of 1-5 pages is a good length. You should be able to condense what you need to say in less than 5 pages or so, but if it goes 8 or even 10 pages dont fret, if you have read it over thoroughly, checking for redundancy and whether or not it is relevant. One thing that will shorten it, it you dont need to cite the entire regulation, just say something like, "According to CFR 38 4.16, the Veteran is entitled to benefits because (and state why you think this reg applies to your case)" Dont cite the whole regulation..the judge knows how to look it up, if he does not already have it committed to memory. If its not releveant to the outcome of your claim, then I would not include it. Dont go on and on about stories about what the VAMC nurse told you, if she did not put that in your notes. The VA is going to want documentation of everything, so start with the documentation you have, then build your case on that, rather than expect the Va to take your undocumented testimony. You will build credibility by documenting pretty much everything you say. If you say something that conflicts with the documented evidence, then you better have some pretty good reasons why. Something like this would be ok: "While C and P Dr. A stated that the Veteran did not suffer from the disease, Dr. B, and Doctor C, have both diagnosed the Veteran with the disease on a medical exam dated 1-4-02 and 1-2-03 respectively. The other school of thought on NOD's is to just identify the issues, and add evidence "later". I like to do them at the same time, as the VA cant say.."Gee, we did not know about (the medical exams dated 1-4-02 or 1-2-03) ". I then say, "oh yes you did, you see I mentioned them in my NOD dated 11-12-06 ".

Retired You might want to consider moving to Grand Junction, Colorado. I am familiar with the VAMC there, and it is not too overcrowded, as it is a rather small town to have a VAMC. I have met a few of the people who work there. Grand Junction has a rather mild climate for Colorado. It does snow there, but usually only once in a year. It does get rather hot, tho, but it is a dry heat that is bearable. Nearby, it is very beautiful. Grand Mesa, the worlds largest flat top mountain with 200 lakes is only about 40 minutes away. Grand Mesa is also home to the Powderhorn Ski area. I would retire there myself, but, for family reasons can not. Denver VARO, while not exceptional, is at least not "in the bottom 10 or so RO's". The bottom feeders of RO's would include St. Pete, Cleveland, NY, and places like Indy, and Waco are often mentioned in worst RO's. The midwest states pretty much have the worst Regional Offices. New Mexico has a very high percentage of claims approval, as does Maine. California Florida, and Texas warm climate attracts Veteran retireees and are often overcrowded. Northern States are not so crowded..Montana, the Dakotas, etc.

Grent Yes, the DAV needs to drop you when represented by a lawyer. It would be way, way to confusing and not in your best interest to be represented by both. Since you did hire a lawyer, would you want the VA to do something different than the lawyer you are paying for? Its a case of either the DAV OR the lawyer, but never both. It would be like having two ex wives gang up on you.

This is still another example of WAY, WAY too much power given to the VA, and the VA taking away WAY, WAY, to many rights of the Veteran, and way too little accountability for the VA.

Pretty much it means that if you have a disease or condition that only bothers you once in a while, you probably are not going to be compensated for it. In other words if you have "swimmers ear", where you get infections only when you go swimming, but you only go swimming once a year or less, then you are probably not going to be compensated for it. A condition has to be "chronic" to be compensable. You dont get compensated for a cold..it goes away in a week or so and then you probably have no symptoms after that.

We need to join a "Shreddergate Victims Club".