broncovet

Well, yes. Read your C and P exam. What does it say is the origin of your MD? Does it say it was inherited? If it does not Say something similar to "Veterans MD is at least as likely as not due to ....suffered in military service" You need a Nexus. No, not the one you get at a Toyota dealer. If you dont have a Nexus...get one. There are choices: 1. C and P exam 2. Another VA doc. 3. IME/IMO exam. ONe of these needs to prove a nexus. File a NOD citing your nexus as criteria. If you have N and M evidence, you can try a Motion for Reconsideration. Otherwise, IMHO file a NOD and request DRO review.

Try going to the CAVC decisions page, then search for RO decisions in conflict. I dont know if there is a precedent, but just because there isnt, does not necessarily mean you wont be the first. Other Vets will appreciate you "blazing the trail" for them. I know I do. As CC says, "never give UP".

If the scars did not get worse (and you might need an IMO/IME for that) then the RO decision conflict with each other. If the decisions are in conflict, and it appears they are, then that would have to be CUE, IMHO. But, you will be "blazing new ground". Just because something has never happened in the past, does not mean it cant happen in the future. There ARE ONE time events. Acutally, I think that RO decisions have conflicted with themselves at other times, but, maybe, no one ever appealed them establishing a legal "precedent". Dont be afraid to be a trail blazer!! Maybe your claim will be in a future YEARS VBM stating that, to the effect, it is CUE when RO decisions contradict themselves!!

It is only necessary that the Veteran have SI ONE time in order to complete the deed. Some Veterans who have committed suicide didnt not give red flags or warnings. Yea, sure, some people attempt suicide 8 times and never succeed. But others, out of the blue, with no apparent warning, take their own life. The VA does not know which type of person you are and needs to take your SI seriously. This is not about benefits...its a life and death matter, and Veterans are killing themselves in record numbers and the VA thinking SI is a joke is not helping!!!!!!!!!!!! And, on another issue...TDIU. My goodness. If you were an owner manager of a resteraunt, would you want to hire a Veteran who had SI? Oh, my goodness. I would want that Veteran to seek out the mental health care he needed...and uncompromising and completely resolve this issue fully before I hired him and put my other employees at risk. Remember...you as a Veteran are not required to lie to an employer to get a job...."Gee I am a Vn Vet..but no I have never had SI. " The VA cant require you to lie about your PTSD to get a JOB!!!!!

Ok. I have some issues here with your decision. One is that it conflicts with itself. It admitted that you had "fleeting suicidal ideations" but then it later said you did not have SI/HI. This is important. They are not taking your SI seriously!!!! It is a big NO NO for the VA to not do this!!! Veterans have killed themselves!!! THey have to take ANY suicidal ideations, even fleeting ones, seriously. SI are exclusively in the 70% and 100% criteria and NOT in the "lower categories". I would argue that they are saying your life is not important! IT is important!!! I am ticked about this!!!

I will give it a try. If I understand what you posted (its harder for me..I am from a different generation where we use capital letters and periods to make complete sentences and I dont "get" the new "textwriting"), the RO evaluated you basically differently for the same scar. I am making an assumption here, that the scar did not "get worse"..please correct me if that is wrong. You would need to file a CUE motion for an EED, since it appears you have passed the one year "normal" appeal period. First of all, you need to carefully review your entire C file looking for errors that rise to the CUE level. They have to be "outcome determanitive"...it does not work if they forgot to dot an I, or even if they forgot to send you VCAA notices...these errors are not grounds for CUE, so save yourself the trouble and dont file on that basis. The errors have to be "undebatable" BUT (and this is a big but)...the VA still has to sympathetically develop your claim to its optimum and it is CUe error if they dont. Other things that are NOT CUE: The regulations also provide examples of legal arguments that cannot qualify as CUE, namely, a medical diagnosis relied upon in a previous BVA denial was incorrect in light of a medical diagnosis rendered after the BVA denial,70 a failure to fulfill the duty to assist,71 and a disagreement as to how the facts were weighed or evaluated by the BVA.72 Furthermore, a change in the interpretation of a statute or regulation occurring after the BVA decision under attack cannot constitute CUE.73 But here is what CAN be CUE: The Federal Circuit has held that it may be CUE for the VA to fail to �give a sympathetic reading to the veteran�s filings by �determining all potential claims raised by the evidence, applying all relevant laws and regulations.�� A must give a sympathetic reading to a veteran�s filings.81 The CAVC held that whether the veteran�s filings merited an earlier effective date was a factual question and remanded for readjudication.82 As such, the Federal Circuit confirmed that it may be CUE for the VA to fail to liberally construe filings. Notably, in a precedent opinion of the General Counsel of the VA, the General Counsel agrees that this error can potentially qualify as CUE, but states that in order to grant a CUE claim of this type, the VA must conclude that (1) it is obvious or undebatable that, when prior filings are construed in the claimant�s favor, the pleadings constitute an earlier claim for a benefit that was subsequently awarded by the VA; and (2) the VA�s failure to recognize that claim manifestly affected the subsequent award of benefits.83 This policy appears to be at odds with the Federal Circuit decision on the matter, which did not indicate that it must be �obvious or undebatable� that prior filings, when liberally construed, show that a claim for benefits was previously filed. Indeed, the Federal Circuit held that �the veteran is not required to show . . . that the �evidence undebatably established that an informal claim for secondary service connection was filed prior to 1994�� and that any ��ambiguity� . . . in [the veteran�s] earlier pleadings should be resolved in favor of the veteran.�84 Accordingly, even though it is a CUE claim, all that the VA must determine in order to satisfy the first question is that when prior filings are liberally construed in the claimant�s favor, the pleadings constitute an earlier claim for a benefit that was subsequently awarded. The CAVC and Federal Circuit have held that it is CUE to fail to apply applicable regulations. In Olson, Ternus v. Brown,85 and Sorakubo v. Principi,86 the CAVC held that final BVA decisions reducing disability ratings contained CUE because the VA failed to follow the regulations that govern whether an existing disability rating should be reduced, namely, 38 C.F.R. �� 3.343 and 3.344.87 IMHO, you can argue that the VA used a defective C and P exam (but you are going to have to specify what is wrong with it...why did the VA rate you at zero percent with it? Your two best chances at CUE, are 1. The VA failed to sympathetically read your claim and develop it to its optimum. and 2. IT is CUE error for the VA to contradict itself. YOur scar cant be rated at zero percent and also at 30 percent if it did not get worse. JMHO.

Fosk The attachment "worked" but it did not give relevant information..it looked like you got awarded compensation, but we mostly need the "reasons and bases" for decision, and I did not see that page on your attachment. I am fairly certain you only get compensated for symptoms of your worst mental health disorder..in other words if you have PTSD and MDD, then you will only be compensated for one...the worst one. "Pyramiding" prevents you from being compensated for the same symptoms on two different disorders.

Fosk I agree with the others. You have been given good advice. I would add that, whether or not you get a hearing or use a VSO, you can, as I did, type up your own supplement to the I9. I simply noted on the I9 form "see attached Veterans supplement to the I9". Then, in my supplement, I hit them with both barrels, from every direction. I told MY side of the story, including where I thought the VA was wrong, and why, and in my own words. Dont forget I told them why I thought I was entitlted to the benefit sought on appeal. I did not use the "whiney" version...you know, oh, I have been sick for 8 years and my family and dog cant make ends meet...blah blah. Instead, I stated my case: The audiologist opined, "The Veterans hearing loss is at least as likely as not due to noise exposure in military service"...so how does a rating specialist know that it has been too long since my military service..and deny my claim? Are we to take the rating specialists opinion over the 8 years of schooling that my audiologist had? PS...I won my claim and the BVA cited the audiologist opinion. Of course, now it has taken me 7 years to get the RO to implement the BVA decision..and thats another story. Bottom Line: Hang in there, and tell your side of the story with the I9. This is your turn to be your own lawyer, and ask for help if you need it.

Berta I will add this. I suggest you take into account 2 legal principals that I think the VA will argue against you. 1. Rule of "harmless error" vs prejudicial error. The Va sometimes will admit to their errors we point out but says they are harmless and dont affect the outcome. We have to carefully watch "who" has the burden of proof to demonstrate that the error was outcome determantive. In CUE, the error has to be outcome determinative, it is not enough that the VA did not comply with VCAA notice requirements, because those errors are supposedly not outcome determanitive. 2. Chevron dereference. In the 1984 landmark case, this was established. While I am not a lawyer, my interpretation of "Chevron deference" is kind of like the "soverign immunity" of the king of old times. Once the king says it, everyone else is wrong and must comply with the king. If Congress makes its "intent" clear, but the legislation, then case law or whatever is not going to overturn congress intent. Mostly, we have congress intents on our side...benefits are to favor the Veteran..throughout legislation. We need to nail them on that...make em explain why in your case "favor the Veteran" does not apply.

Chuck No, I dont know how many claims they are doing each month, but statistics show the backlog is growing, so they are doing less than the ones they get in.

Like you, It looks like that I will have a good possibility of a "staged" rating, tho I am trying to avoid it...I would much rather get 100% retro than 40% retro. It sounds like you are trying to avoid staged ratings also. I will be arguing against staged ratings (I also am considering not even bringup up "staged ratings" heck, they may not even consider them and I certainly dont want to give the VA an idea on how to award me less!) , in part at least because I am appealing the effective date of the 100% disability...I did not appeal the 40% rating decision. Still, I know the VA will likely argue that I did not deserve 100% retro all the way back to 2002, but only 40% back to that point, based on "facts found". The BVA only has jurisdition over the issues that The Veteran gives to the BVA. (The VA can not appeal the Veterans claim to the BVA...only the Veteran can appeal a RO decision) So, I will consider arguing that, since I have not appealed the 40% rating..that is not the issue and cant be considered by the VA...they can only consider changing decisions to which I give them authority to change by filing a NOD. Since I did not NOD the 40% decision...that stands as final...but the only effective date I am appealing is the effective date for 100% benefits. I do not know if they will find my arguement "persuasive" or not, of course. Weeks vs West seems to say I wont prevail: http://www.ll.george...ons/99-7137.pdf However, Hart seems to indicate that Staged ratings only apply to an initial disability and (are not for appeals) in this case: http://38uscode.com/...9/Hart-2424.pdf stating, in part: The Secretary argues that the 2005 Board decision's failure to consider staged ratings for Mr. Hart's increased-rating claim was reasonable given the extant law. Secretary's Response at 8. Indeed, we acknowledged in Hart that, previously, staged ratings had been associated with the assignment of initial disability ratings. See 21 Vet.App. at 509 ("It is well established that, at the time of an initial rating, separate ratings can be assigned for separate periods of time based on the facts found–a practice known as staged ratings."); Fenderson v. West, 12 Vet.App. 119, 126 (1999) (noting that staged ratings are assigned at time initial disability rating is assigned I do think it may hinge on "prejudicial error" or lack of it. Bottom LIne: I think there are not clear cut court rulings on this, at least that I have studied so far. Since there are different interpretations, I am thinking of arguing that this can put the Veterans claim in equipose...that is, the Veteran gets the benefit of the doubt.

Papa I dont think you are dilusional. Google Voice, for example, does a pretty good job linking voice and text. You can have someone leave you a voice message, and read that message in text, and Google voice is not the only software that does that, either. A software called "dragon" is another one that can change voice into text. While Carlie is right that IRIS is an email/software program used by the VA, it is still possible that emails or text is converted to voice...and it is possible to "call" someone on email, as I have done exactly that. Of course, they would have to be available to answer the phone while you "call" them on email. Technoligies are merging rapidly...computer, television, phone, email...are blending into one. Right now, I am typing this email on my Televeision set, not on a conventional computer. When you "called" IRIS, you, or perhaps one of your kids, may have been in one of the text to speech software programs, and you may not have even known that program was even opened. I have a "close caption" phone...when you call me, your words come over in voice, and I can read them on the screen also.

Well, Delta, believe me you add a lot of skills here at hadit...well appreciated skills, I might add. I am "going after" my dependents eed benefits, altho I had already appealed, now I have precedence to cite. I am "virtually certain" that I will eventually get dependents retro, in no small thanks to your post! I do not think this cited case applies JUST to DIC/accrued benefits, but to any Veteran denied dependents benefits. But that is JMHO. However, if you need help citing a case/link, I can probably help. Here is how I do it, though there are other ways: 1. Go to the web page you wish to cite, in another window (open up your browser a second time). 2. Click in the address page of the desired link you want to post. 3. Press down and hold "CTRL and C" at the same time, after the link is "highlighted" in the address bar. 4. Navigate back to hadit to the post you want to cite. Click the left mouse to get ther curser. Then hit "Ctrl" and "V" at the same time. These are the basic instructions for cut and paste...you cut and paste the actual website into your post at hadit. To reiterate, you First Highlight what you want to cut and paste. Next you "copy it" to an area inside your computer that you cant see with "Ctrl and C". Then you move to the area of which you want to paste it, clicking, then pasting with "Ctrl V". In summary, Microsoft says to use cut and paste you First have to tell it what stuff you want to cut and paste by highlighting it. Then you copy it. Then you have to tell the computer WHERE you want it pasted by pointing your cursor, and finally paste it. Hope this helps you..you sure helped me.

I agree. While I am not sure how/why the VA gets away with manipulating the numbers, I can speculate that its 783,000 PLUS appeals, making it over one million, but dont take that one to the bank. I do know that my 2004, 2008, and 2009 appeals are just now getting to the BVA. Sometimes I think their idea of lowering the backlog is to go from 700,000 Veterans waiting 6 months for an initial decision and 300,000 waiting 4 years for an appeal decision to go to 600,000 waiting 6 months for a decision and 500,000 waiting 6 years for appeals. That is, they approve more claims and double the number of appeals.

Thanks, Pete and Delta! This is "news I can Use". I actually received a call from the VARO in Cleveland on this very issue. They said that they require the VEteran send in dependents information A SECOND TIME because many Vets get divorced, etc..., so they denied me an eed for dependents benefits, because I did not resubmit it a second time. I had no idea that I had to submit dependents information twice. Their theory was, that since it takes so long (for Cleveland) to award claims, many times the Veteran is divorced in the interim. IN Cleveland, they AUTOMATICALLY rate you as single, even if you reported you were married with kids...then you have to "correct" it by sending your dependents info again. This is one reason Cleveland compensates its Veterans one of the lowest in the nation. Im not making it up. : http://blog.cleveland.com/openers/2008/04/tracey_boulian_hank_vasil_of.html

This is shocking. Great post, Pete, and thank you for it. I am hoping the VA is forced to tell the truth from now on. Veterans need to know about this, and the VA needs to be held accountable.

Your only two options are N and M evidence and CUE. It sounds like you are going to need to find something wrong with their decision that rises to the CUE level. First, you should post the "Reasons and bases" they gave with your decision to see if those are valid. Next, see if they sent you proper notices to appeal...you are entiltled to be informed of your appeal rights when you get an unfavorable decision. You can also look at the C and P exam itself to determine if it was adequate. If the exam was defective, then you may have a basis of Cue. Some issues for defective C and P exams: The doctor needs to be qualified...and list his or her qualifications. If he has not been trained in your specific condition, then that C and P exam is probably defective. The door to a defective exam may be left open if the doc doing the C and P did not have access to your full records, either. The Cue standards have been posted, and I will not do so again, but you should certainly review them, along with your records and maybe a sympathetic and knowledgeable VSO, too. Sometimes the courts opinion of CUE and ours are different, but do remember the Va has to sympathetically develop your claim to its optimum before deciding on its merits...but no, errors in VCAA notice is not CUE. These errors have to be undebatable, based on the laws at the time, and they cant be a difference of opinion in rating percentages...but they can be a legal technality where the VA failed to follow their own regulations, BUT that technicality has to be outcome determanitive. Missing evidence may also open the door to CUE. The VA is required to tell you if there is missing evidence. Sometimes, the VA considers the evidence "missing" to be negative. That is not correct. I use the lottery ticket explanation. If you can not find an unscratched lottery ticket, this is not the same as if you scratched the lottery ticket and it is a loser. This "missing lottery ticket" needs to be found, and the VA often wants to call that "negative" evidence, which it is not.

My wife, who is a nurse says a "marked psycological over-lay" is bs and you should ask that doc what it means. That is, are you diagnosed with a mental disorder or not, and if so, is it/ is it not related to military service. And, what is your GAF score and symptoms. Of course, it is not good that the doc is telling everyone you were uncooperative at the exam and so he wont opine whether or not you are TDIU. The bottom line: You are likely to need to "refute" this docs statements to get benefits. There are 3 choices for you to do this: 1. Go to that doc and get him to correct it. 2. Go to another VA doc and hopefully find a more Veteran friendly doc who will offer a better opinion for you. 3. Get an IMO or IME from a private doc.

The Supreme Court showed they are "a friend of the Veteran" with this decision! For example, ......." in light of “the canon that provisions for benefits to members of the Armed Services are to be construed in the beneficiaries’ favor,” King v. St. Vincent’s Hospital," and " Congress’ longstanding solicitude for veterans, United States v. Oregon, 366 U. S. 643, 647, is plainly reflected in the VJRA and in subsequent laws that place a thumb on the scale in the veteran’s favor in the course of administrative and judicial review of VA decisions.

IMHO the VA wants you to work on your benefits about 40 hours a week, just like a job. There is rarely a week goes by when I dont have to complete and send in some sort of document to the VA, check on benefits, work on records, more training, etc.

1.While I agree on the 6 months to a year, I would add that is WITHOUT appeals, which are required in most cases. It will take MUCH longer if you are denied the first time. 2. You are notified by mail, and this is one reason it is very important to keep the VA updated as to your current address. 3. I think "mypay" is a military software system for military pay and the VA does not use that to my knowledge. Instead, you will want to set up a checking account at a bank and give the VA that information so that they may electronically deposit checks, including "retro" payments, to your account. You wont see the deposit "upcoming", but you can be 99% sure, once benefits start, that it will be deposited by the first of the month, and the previous day if the first falls on a Saturday, Sunday, or holiday. 4. I would wait until you get a RO decision, which will be a while. 5. Yes. Right now you need to get your ducks in a row. Make sure you have applied for all applicable conditions. It will hurt your effecitve date if you miss one or more. Second, you need to gather and review your medical records, as most claims are won or lost based on what the doc says in the records. And, right now, whenever you mail something to the VA, send it certified return receipt requested and keep a copy since they are famous for losing your records that could mean tens of thousands of dollars in retro payments. 6. Yes. He should keep copies of private physicain reports also. Get you a file cabinet if you dont have one. I recommend you scan them in, store them electronically, and then make a backup such as burning a CD/DVD of those records and keep paper copies. Those records are like Gold and many, many a Veteran has would up losing benefits because records were lost. Store them at least two places in case of flood, fire, or they are just plain lost. I store mine both electronically and in paper, and back them up with a CDrom. When I did research for my bachelors degree, I backed it up 3 times. TWO of those failed, and I would not have gotten my bachelors degree had the third backup not had my work on it. The importance of backing up your records can not be over emphasized...your doctors office could have a fire, or your doctor could quit practice or move. Dont depend on that for your financial future...VA benefits are a VERY big deal, and, for many, mean the difference between being homeless or not.

About 10 years ago, I was reading something from disabled individuals asking the question "should you disclose (your disability) or not?"...in reference to the job interview. The consensus was to do what ever you feel comfortable with. In other words, if you want to tell people you are disabled, then go ahead. Use the handicapped license plate, heck even wear a t shirt, if you like. On the other hand, if you would rather not disclose, then by all means the discussions you have with your doctor(s) as well as your disability payments, or lack of them, or other personal finances are very private and you need not discuss them. As for myself, I have "changed". In other words I used to wear my hearing aids "proudly" and let people know. Now, I dont let anyone know UNLESS I think they have a need to know. Back to the job thing. People with disabilities have an unemployment rate in the 50-90% range. It is extremely difficult to get a job if you have a significant disability. Also, dont count on the government, or EEO to help you. I have been turned down for dozens of jobs that I was qualifed for, even at the VA, with a college degree, and even as a disabled Vet, over the years. They often hired non degreed people who are not Veterans, and then did not consider me when I did have a degree and was a Veteran.

Berta Thank you for posting this. In a similar way, I was a patient at Dayton VAMC ( Dental) and I am among the 535 (that is a minimum number, as I will point out) Veterans who may have gotten infected from an elderly dentist that kept working on patients in spite of him being 82 years old and having dementia. http://www.veteranstoday.com/2011/02/26/dayton-vamc-dentist-under-investigation-named/ The VA is contacting ONLY patients seen by this doctor, however, it would seem to me if this doc has poor infection control practices, he could contaminate equipment used by other dentists for other patients also. For that reason, I do not think the infection possibility is limited to 535 patients, but could be numbered in the thousands. Of course, I dont have a way of "proving" this, and it is only a theory...but if he (potentially) contaminated PATIENTS, then it follows he also probably contaminated EQUIPMENT that other dentists may have used on other patients. In other words, he could have easily put dirty equipment where clean equipment is stored, to be used by the next dentist. I have not been tested yet...I am kind of afraid to find out. JMHO.

It has been my experience the VAMC does not "apply for benefits", or even an increase, but would refer them to a VSO, probably one in the same building.