broncovet

Very well, Carlie. Wings posted it here"

ES I will step out on a limb and make a prediction. A GAF of 51 means you have some severe issues. I think you should, or will eventually get to 70% on your PTSD with that low of GAF. With 70%, and other things, you should have no trouble qualifying for TDIU if you are not working. However, my predicition is that the VA will lowball you at 50, 30, or even 10%, just because "thats what they do". The love to put Vets on the Hampster wheel taking 10 years or more to get benefits, which should take about 4 months. Since you have been in the system a while, it is even possible for you to get TDIU on this round, however, I think a lowball is more likely.

Go ahead and apply for it, even tho it is supposed to be inferred. The VA often "looks the other way" when they are supposed to be looking out for Veterans interests.

The way I interpret Bradley vs Peake, Yes, you should get SMC S. Your posts suggest you meet the criteria of "100 plus 60", because TDIU=100 and you have another, independently ratable condition at 60%. You will have to ask (er, fight tooth and nail for it), tho. Also ask for Retro back as far as possible. I dont know if you would be eligible for Retro SMC S back to the date of Bradley vs Peake, or when you met the criteria. But, you dont need to apply for SMC S, it is inferred when you meet the criteria. Read Bradley vs Peake.

The regulations state that the Va has to assume the Veteran is seeking ALL the benefits to which he is entitled, that is the max benefit. Instead, the Va usaully assumes the Vet is seeking the minimum, and often gets away with it. In other words, if you applied for benefits from a back injury, but were also being treated at the VA for depression, the Va is going to assume you dont want to apply for depression, and "overlook" it on purpose. Then if you are awarded benefits for depression, the Va is going to try to hood wink you on the effective date. However, remember the Veteran can apply for benefits, informally, at the VA docs office. Sometimes the VA squiggles and squirms and says that you have to "identify the benefit sought." The following is from a BVA case and may apply" A "claim" is defined in VA regulations as "a formal or informal communication in writing requesting a determination of entitlement, or evidencing a belief in entitlement, to a benefit." 38 C.F.R. § 3.1(p) (2008). An informal claim is "[a]ny communication or action indicating an intent to apply for one or more benefits." It must "identify the benefit sought." 38 C.F.R. § 3.155(a) (2008). VA must look to all communications from a claimant that may be interpreted as applications or claims for benefits, whether formal or informal, and is required to identify and act on informal claims for benefits. Servello v. Derwinski, 3 Vet. App. 196, 198 (1992); see also Hodge v. West, 155 F.3d 1356, 1362 (Fed. Cir. 1998) (holding that VA must fully and sympathetically develop a Veteran's claim to its optimum); Roberson v. West, 251 F.3d 1378, 1384 (Fed. Cir. 2001) (holding that VA must "determine all potential claims raised by the evidence"). Furthermore, if VA fails to forward an application form to the claimant after receipt of an informal claim, then the date of the informal claim must be accepted as the date of claim for purposes of determining an effective date. Servello, 3 Vet. App. at 200. Once the date of claim is established, the Board must determine, based upon the evidence of record, the date that entitlement to the benefit arose, to include, if possible, the date upon which an increase in disability actually occurred. 38 C.F.R. §§ 3.155, 3.400(o)(2) (2008).An exception to that rule applies, however, under circumstances where evidence demonstrates that a factually ascertainable increase in disability occurred within the one-year period preceding the date of receipt of a claim for increased compensation. In that regard, the law provides that the effective date of the award "shall be the earliest date as of which it is ascertainable that an increase in disability had occurred, if application is received within one year from such date, otherwise the date of receipt of the claim." 38 U.S.C.A. § 5110 (b)(2) (West 2002); see also 38 C.F.R. § 3.400(o)(2) (2008).

Congrats, Deacon My success story was somewhat similar to yours. I am very happy to get my benefits, too, but if I did not have to wait 5 years, then I would not have lost my home and family. The wife never got over the stress of loosing our home. Now, I am appealing to try to get benefits back to when I applied, in 2002. I am hoping to be able to get my home, or a similar one, back, if I ever make it through EED appeals before I die. I just dont see why Vets have to become homeless waiting usually 5 years for the Va to process paperwork.

You pretty much need to hang in there. The VA wants you to abandon your claim...this is part of the reason why they make it so frustrating and so complex, to wear you down so you give up. Dont give into them. Get another rep if you need to.

Subman I recommend you do your homework. As my brother used to say, "the 5 P's...Proper Preparation Prevents Poor Performance". If your goal is to move to another area near your sister and get Aid and Attendance for her to care for you, (and have a normal suicide attempt free life), then write it down. Lists the steps on how to "get there". Dont skip steps, and do a thorough job on each one. Example, which you can feel free to use or adapt to your circumstances: 1. Research possible places to live near VA hospitals. Find out how much average rent is in that area, if that is a concern. Google is a great research tool. Just open your browser, and type in google. Then type in something like, "VA hospital locations...Georgia". 2. Make a list of your "top 5"...using YOUR criteria, which may include, say, "close proximity to ski area, or NFL team, for example". 3. Inform your sister of your plans, and ask her which of those 5 she would prefer..if any. 4. Go on hadit, CAVC searches, Veterans Benefit Network, etc., and find out the 5 w's about aid and attendance. Who what how when why.. 5. Dont forget the details..as well as "alternates"..Plan B, C, etc. 6. Remember, to get others help, which you need, you will get more flies with honey than vinegar. 7. Realize there will be roadblocks to your plan, and figure out how to get past them. Persist until you make it happen.

Berta... Again, your post was excellent. I am talking about the one where the law about the burden of proof establishing secondary Service connection. The key date there appears to be Oct. 10, 2006. If you filed your claim before that, you get to apply the less restrictive, less burdensome to claimants law. However, if you applied after that date, then you have the burden of establishing a "baseline". The good news, for me, is that I applied and got awarded my secondary condition before that date.

Yea..Carlie, I hope you are right..that Larry would be "above" such a thing, as caving to the pressure at the VA to shut down watchdog. I kind of thought the same thing about Tammy Duckworth, too, before she sold out to the VA. Still, dont underestimate the "strong arm" tactics employed by the VA. The VA has to be "strong arming" people to get away with half the stuff they get away with, for decades. Larry Scott was particulary "hush hush" about his health issues...almost up until "shutdown". He was also "hush hush" about why he didnt let someone else "take over" watchdog..gee, Carlie, you may even have been a good candidate to do just that. If someone else has good explanations about why watchdog shut down and Vantage started up in about a one month period, I want to hear it. For me, "common sense" would be that there either is, or there is potential for advertising income from the watchdog site, so it should have some value. As an example "youtube" was bought by google for about a a billion dollars. I kinda doubt that watchdog was worth a billion dollars, but I also think it was worth something...Larry put his heart and soul into it...and he had advertisers on the site. I dont often see men give up on a dream like that, unless there is a compelling reason. Yes, poor health can be a compelling reason. But there are others, too. Oh, yes, I could be one of the guys who keeps his mouth shut and every one just kinda wonders..what happened to watchdog. And, being that way would have saved me a whole heap of trouble over the years. However, I cant help being who I am. Larry Scott was that way. He didnt "keep his mouth shut" about many of the scandals that rocked the VA..and I am very glad he didnt. No, Im not and will never be Larry, nor will any one else. But I do think "SOMEBODY Has to watch over the VA." ...because the VAOIG sure doesnt..they just help the Va cover up their own bloopers. Larry Scott was to Veterans, as Orville Wright was to Aviation. I just couldnt imagine the Wright brothers announcing..."Ah..we are giving up on Airplanes...those things are dangerous, and we are getting to old and poor health do try to fly anymore".

Ok...Will someone please give the "hampster wheel" a spin after I jump on? On second thought, I dont know if I can take another 10 years on the VA benefit hampster wheel. I was hoping to find someone who had figured out how to get off the hampster wheel, other than the "usual" method of getting off the VA hampster wheel by giving up on your benefits. That is the only sure way to get off the wheel that I know of.

"VAntage" is a website ran by the Department of Veterans Affairs, complete with links to www.va.gov. IMHO its of "doubtfull" use to Veterans, because it has little/no information that is not already on www.va.gov EXCEPT Veterans comments. In no way shape or form does this website come "even close" to replacing www.vawatchdog.org It seems like an "incredible 'coincidence'" that watchdog shut down around about the same time frame that "Vantage" started up. It also seems very odd to me that Larry Scott did not "turn over the site" to others when his health failed, and instead just shut her down rather suddenly. It smells an awful lot like Larry Scott was pressured to shut down his website by the VA, who we all know HATED VAwatchdog for doing things like exposing the shreddergate scandal. I would not put it past the VA to offer Larry a lot of money for his website...paid for, of course, by Veterans, so they Va can continue on their merry way of putting Veterans seeking benefits on the proverbial decade long "hamster wheel" of trying to get their benefits. This is all just my opinion..but if anyone else has a credible explanation for this incredible coincidence, I would love to hear it.

Does anyone smell the same "rat" that I do? Remember, according to the article, this lawfirm was handpicked by the VA, and these lawyers formerly worked at the VA? And now these lawyer-rats are stealing money from Veterans.. ....sounds like an "inside job" to me. Where is the VAOIG in all of this? Man, do we ever need www.vawatchdog.org back! Larry Scott would have been on this like white on rice.

Of, course, did you miss the first sentence of the article? This attorney was handpicked by the Department of Veterans Affairs. Man, do we ever need "Va Watchdog" to watch over the VA or what? Did anyone ELSE find it curious that VA Watchdog went off the air and VA's own blogging site went on at about the same time?

I agree with Berta. "To Vetrep or not to Vetrep" that is the question. I think if you dont know the answer to that question, then you probably need a Vetrep (VSO). Of course, people like Berta do not need a Vetrep, and I am not really sure whether she has one or not. If she does, I am sure she keeps him squared away. When you do a search of CAVC decisions, I think you can seperate the "precedential" or "non precedential" CAVC decisions based on whether they are "single judge" (non precedential) or "full panel" (precedential). As already said, BVA decisions are non precedential, and Federal court decisions/supreme court decisions are precedential. The dividing line of precedential/non precedential seems to be divied up at the CAVC.

Dsgsr If I am right on this (and I dont know if I am or not), then it could be a lot for a lot of Veterans. There is even some chance if it applies to a lot of Veterans, then many of them could basically get a $311 per month "raise" for SMC S (Housebound). When I asked a similar question on another board, a retired rater with some 20 years experience chimed in with his opinion. He did not say, "Yes, you are entitled to SMC Housbound under Bradley if you file a CUE", but he also did not expressly say no, either. He did say something about a "loophole" suggesting that is was not the intent of the law to award SMC S Housebound to IU-Schedular Vets. This retired rater related a story about a different "benefits loophole" as follows: (This is my paraphrasing of the story) There was a loophole in the law, which basically stated that before a Veteran could receive compensation as a result of VA medical care, there had to be proof of negligence or malpractice. Then, apparently a Veteran took the VA to court over this, and the court ruled that the VA had no authority to deny claims simply based on the absence of malpractice or negligence. After the court ruling congress stepped in and "fixed" the legislation, however during the interim period before congress could act, the Va had "no choice but to grant a bunch of claims that otherwise should not have been granted". Apparently a number of Veterans took advantage of the "window of opportunity" before the loophole was closed. At this point, I dont know if its a "loophole" or a "noose" to hang me with. I think I will be watching for anyone in the VA who looks like they are trying to "kick the chair out from under me". However, I think if the VA "had the goods" on me, I would already be swinging from the bottom of that noose, because I am pretty sure there are enough VA employees that would really like to see me choke to death, that, if they could, they would already have done it. I just dont think they can "hang me out to dry" with this large of an audience. I feel compelled to proceed, at some risk of retaliation by the VA, for the benefit of other Vets as well.

Here is the gist of what I am getting at in this post: Frankly, I think many/if not most recent 100% Schedular Vets are also unemployable, and should be entilted to about another $311 per (SMC S) month under Bradley vs Peake. But they are going to have to file a CUE. I have just about made up my mind that it is CUE for the VA to tell the Vet that TDIU is moot, when it is not. I am fairly sure I will file, and have a message into a law firm. Other Vets can do what they like, but I am not leaving any money on the table to which I am (or even may be) entitled.

I have told my wife that when I pass away to get hold of Berta on hadit immediately. Frankly, I think there needs to be a special part of hadit just for widows, because I think this is one of the most complex parts of VA benefits...it has all the already complicated stuff about the VA, plus all the DIC stuff, and I think most widows are simply not up to this challenge and loose out on their benefits. I am making a suggestion that his be moved to a "Widows/Dic" section, where widows can easily find out what they need to do. Oh, yes, Berta I want to thank you for being an encyclopedia of VA-ology, especially when it comes to widows benefits. I think you know more about VA widows benefits than most, if not all, VA attorneys.

PR I timely filed a NOD on the RO decision disputing the effective date. I guess that makes the decision "pending". If the RO ever does a SOC (its been 2 and a half years), I am going to bring up the issue of disagreement with TDIU being "moot" in that, if TDIU were awarded, I would have been automatically eligible for SMC Housebound. Since some of the people seem to think the failure of the VA to consider the Veteran for SMC housebound is CUE, then it may not matter whether or not I brought up that issue in the NOD. It seems that once a Vet files a NOD, it pretty much seems to cover all the issues. That is, the VA doesnt seem to be willing to say, "Well, yes, you filed a NOD, but you didnt bring up THAT issue in the NOD so THAT ISSUE became final. I think the claim is either pending or not, final or not, and they dont seperate the issues saying, well, your Depression is final, but your tinnitus is not final because you didnt appeal that issue kind of a thing. I am pretty sure once the Veteran files a NOD, he can "clarify" the NOD and even include issues he did not include in the original NOD. I dont think NOD's are "one shot" but you can submit more evidence, or add/subtract issues as you see fit, especially since it often takes 4 or 5 years for the VA to complete an appeal.

Thks, Allan. This regulation "flies in the face" of multiple CAVC decisions which have "deemed denied" the Veteran his or her benefits, without so much as a decision. For example see this document, demonstrating how Veterans can have their claims denied without a decision even tho the regulation you posted suggests that Vetrans are entitled to a decision. http://www.legion.org/documents/pdf/vt_circuit_0806.pdf

Remember, if you cite a BVA decision, and that BVA decision was overturned by a CAVC decision, then your citation has little, if any, credibility. But if you cite the supreme court decision, then that cant be overturned.

Gosh I know you want/deserve a "yes/no" answer, but it isnt that simple. IMHO, if you can find CAVC or even Federal cases that support your case, then cite them instead. However, if a search of CAVC cases comes up empty, you can normally read the BVA cases which sometimes cite CAVC cases as reasons or basis for their decision. In a nutshell, I recommend NOT citing BVA decisions to support your position UNLESS there is nothing higher. (Supreme, Federal, or CAVC). I would like to note that even CAVC single judge decisions are usually not considered "precedential". They usually have to be PANEL CAVC decisions to be precedential. I think by "precedential" they mean that if a previous precedential case ruled the same way, they have to also. But, in a BVA non precedential case the judge CAN rule the same way the previous judge did, or he can dissent and rule another way. Its just safer and a stronger arguement to cite precedential cases.

Wow..Berta. Im sure glad your here! You said what I was trying to say WAY BETTER than I could say it. Just to make sure I got it straight in my head, tho, do you think what you just said applies to BOTH TDIU and 100% schedular, because both of these are pretty much "inextricably intertwined" the way I see it because if you are 100% schedular, you are almost certainly also unemployable (TDIU). And vice versa. Since the VA denied my TDIU as "moot" because I was awarded 100% schedular, I think they are saying that they are ignoring Bradley, because TDIU is NOT moot if I was eligible for SMC housebound! I dont know if I said that right, but it is not "moot" to me whether or not I get SMC housebound!

Carlie also made a good point. Us "old Vets" are standing around trying to figure out if we should file papers that could get us a better income (housebound). I know if I were in my right mind, I would have filed a CUE to have Housebound included in my award a long time ago. I remember filing for benefits the first time, back in 2002. I was made aware I was probably eligible for at least some VA benefits AT LEAST 4 years previous to that. I think the words are "in denial" apply. My state Voc Rehab counselor used the word "unemployable", back in 1998, and I was not sure I knew what that meant. All I knew is that I had mouths to feed and I needed a job, bad. My state voc rehab counselor knew what I was in denial of. Frankly, nobody wanted to hire an old, washed up Vet, way, way, past his prime. I was kind of like Bret Favre who decides to quit the NFL and go back to college and play again, and try to re enter the NFL after another 4 years. The VA takes advantage of our disabilities, especially mental. Who is going to be able to figure out that Bradley vs Peake entitles us to file a CUE for SMC housebound from that decision? Not many. I still cant figure that out. This is why I need you guys to help me. Thanks for all of your help.