broncovet

The "effective date" is supposed to be the later of the date the claim was received by the VA or the date the facts show the disability occurred. In a nutshell the VA tries to weasel out of paying at the claim date, and often cites the C and P exam as the date the disability occurred. This happens because the C and P doc wont say, "Veterans disability occurred on .....date" Instead the C and P doc does not give a date the disability occurred and the VA assumes that meant the date of the C and P exam.

Try this link, it is the OGC interpretation of Bell http://www4.va.gov/.../Prc12-95.doc

I have used a CPAP for about a year. I am not service connected for OSA. It is critically important that the mask you use is comfortable, and fits you well. I use "nasal pillows" type of mask..air goes in the nose only. It does not block your view, and, after you get used to it, you can even talk with the mask on. I wont go without my CPAP. It is wonderfull not being sleepy during the day. I wake up refreshed. My quality of life has improved significantly with the CPAP. Basically, I dont have a choice. I found out that I have an enlarged right side of the heart, which is a symptom of untreated OSA. What happens is, you stop breathing hundreds of times per nite. Then you wake up. Then you go back to sleep, stop breathing wake up. You never get restful sleep. Since I was not getting enough oxygen, being literally choked by the sleep apnea, my right side of my heart compensated by getting larger to pump more blood to make up for the lack of oxygen at nite. If this is allowed to continue, without the CPAP the right side of the continues to get larger and your heart becomes "unbalanced" and, well, it eventually kills you. Because my OSA was discovered and treated, it literally saved my life. If your mask is uncomfortable, or you cant work it right, go back and tell your sleep doc you want to try another type of mask. There are many. Keep trying until you get one that works. If your doc has prescribed a CPAP, then that means you need it, and it is literally life threatening, tho it often takes years to kill you. Loosing weight will help, if you are significantly overweight. In fact, sometimes enough weight loss will be able to discontinue the CPAP. Basically my problem is excess tissue in the throat that collapses when I relax and fall asleep, choking off my air. The air pressure holds the airway open. My uncle also uses one, as does my Sunday School teacher. All of them used them for years, and all of them wont be without their CPAP, as I wont. I am far too tired the next day, I feel like I have been "partying all nite" and never went to bed the next day without my CPAP.

The link Berta posted is for diseases of the ear, but not percentages for hearing loss, which is what I think you wanted. Tinnitus (ringing in the ears), if Service connected, is 10%. There is no "bilateral factor" for tinnitus..its pretty much 10% or nothing. I think there are some cases awaiting a decision, which may change the bilateral factor, if the Veteran is successful. It may have already been decided, I am not sure. The "speech discrimination" is critical to the rating. The audiologist will put you in a sound proof room and you put on headphones. She will say, "Say the word popcorn" And you repeat the word she says. If you get 10 out of 10 right thats 100% speech discrimination. Speech discrimination often "drops" with people who have been hard of hearing for a long time, especially without hearing aids. Basically, the brain interprets words into something meaningfull...however, the brain looses that ability when you cant hear well. In other words you may say the word "spoon", but the interpretation to a round eating utensil does not happen...almost like you said "spoon" in Chinese. You could hear the word in chinese, but your brain would not likely make the connection. In a similar way, a person with speech discrimination problems NOT ONLY does not hear well but looses "speech discrimination". It is often very poor in the elderly who have been HOH a long time.

The hearing loss rating page is 38 CFR Book C 4.85, 4.86, 4.87 You can follow this link. http://www.warms.vba.va.gov/bookc.htm and scroll down. Yes, the ratings do go to 100% . You would have to be profoundly deaf to get that. You need to know the average hearing loss, not the maximum. The chart is hard to follow, but if you post the decibel loss in each frequency, in both ears AND if you know the speech discrimination %, I will help you look up the hearing loss rating.

Linda The good news is that the VA is supposed to be lessening the requirements to verify the stressor for service connection for PTSD. The bad news is that the Va doesnt always do what they are supposed to do, or even what they promise to do. Many Veterans advocates would recommend you consult with a Veteran Service Officer (DAV, VFW, PVA etc.) Others recommend you do everything yourself, as there is a variety of different competency levels of VSO's and you often dont know how good of a VSO you got until its too late. It is pretty well accepted that some VSO's have made mistakes that resulted in a delay or even a loss of benefits to the Veteran, so I definately dont recommend "turning your life" over to a VSO that you met 5 minutes ago without at least a minimum of careful watching on your part. At a minimum, choose your VSO very carefully. Whenever you send evidence to the VA Regional Office, keep copies and mail it certified mail return recipt requested since the VA is famous for "loosing" evidence then denying you, whether or not you have a VSO. You have the right idea asking for advice on hadit. To recieve any kind of benefits, you are going to need a Nexis.

Pete is correct, as usual, and I would add that you should take the information from your C file and do a thorough job on your NOD. Cite specific examples. For example: I disagree with the decision dated April 1, 2010 on the issues of Service Connection for PTSD and Pulmonary Fibrosis. I elect a DRO Review (or hearing, your choice). I believe the decision is incorrect for the following reasons: 1. On May, 1, 2009 I faxed a copy of a medical report from Dr. Smith to the Regional Office and have enclosed the fax recipt. This evidence was not listed in the "evidence" section, so the document was either mishandled by the RO, or the RO failed to consider it. If the RO had considered this evidence, but decided to deny the claim anyway, then the RO should have explained in the "reason and basis for decision" why this Veteran favorable medical report still did not warrant an approval of benefits. 2. The RO also failed to give an explanatory "reasons and basis" for denial of the Pulmonary Fibrosis when the evidence supports the Veterans claim. (Then list the medical exams and dates that you think support your claim) 3. There is evidence of "shredding" or mishandling of evidence by the RO. Altho the extent of shredding is unknown, regulations require the VA consider all the evidence before a decision is rendered. Ima Veteran April 13, 2010

Very well, halos. It is an honor to respond to a Vet. As you may know, I was the victim of something similar. My recommendation: Send an IRIS asking the status of your 2006 claim. A week later, mail in a 21-4138 asking for "an INCREASE IN RATING". The RO will be confused. You want them to be! They may even rate your claim and give you an award at a 2010 effective date. Then appeal, pointing to your IRIS email, and pointing out this was a claim for increase, not an initial claim, to READ your 21-4138. Remember: The VA wants you to be confused, not know your rights, not know to appeal, etc. As Jim Strickland once said, play their game. Then you will have to go to the BVA to get your effective date. It is a PAIN IN THE NECK TO DO IT THIS WAY. However, remember the VA ALWAYS LOVEs to complicate even the simplest of things, giving them more opportunities to deny you. You see, the idea is to be ONE STEP ahead of the RO. Let them think YOU forgot about your 2006 claim, remebering the VA motto, "The right hand does not know what the left hand is doing." Use this to your advantage. You see, the rating specialist has nothing to do with responding to IRIS, and wont know you asked about the 2006 claim status, and will think you forgot about the 2006 claim. They will say, "Gotcha"...this Vet forgot about his 2006 claim, then submitted it in 2010, so we will award it and save 4 years of retro. You will get the last laugh, at the BVA when you point out that was a resubmission, noting your IRIS, which you saved a copy of, and also pointing out that was a claim for INCREASE, not an initial claim.

I will give my 2 cents worth. When bird hunting, novice bird hunters sometimes, when they see a flock of birds over head, shoot into the flock thinking they surely must hit one. That is a mistake. You need to take careful aim at ONE BIRD, not at a flock, as you will almost never hit one shooting into the flock. Same way with yours. PICK YOUR EASIEST "BIRD" and take careful aim. In other words dont ask for depression secondary to OSA, DMII, hypertension, tinnitus etc. Instead, look up from other cases (BVA CAVC etc) where other Vets were succussfull at, say getting depression secondary to DMII, for example. If Vets have been successful at getting depression SC'd to OSA AND DMII, for example, you could try a "double barreled" shot, but I dont recommend throwing the kitchen sink at em. JMHO. (Even if you "shoot into the overhead flock" and manage to hit one, then often it will be with only one or two bb's (Shotguns have "bb's" in them), and it wont be enough to "bring the bird down", but often wounds it and it may keep flying but then tragically die from its wounds, sometimes days or weeks later) Good hunters go to great effort not to just wound their animal and leave it to suffer a prolonged suffering, but rather take a "clean shot" and bring home the bacon.

IMHO if you get a denial, then you need to file a NOD even if that denial was in error (or especially if it was in error). By regulation, if you do not file a NOD a decision becomes final in one year. After one year, you can still dispute a decision but you must meet the very strict "Clear unmistakable error" standard. If you got a bad decision, you want to file a NOD within a year...it preserves your rights. It is simply not in your best interest to have to meet the CUE standard if you dont have to. Go for easy..getting VA benefits is challenging enough without making it more difficult for you to meet the "Cue" standard.

If the VA shreds documents (which is illegal), and the VA violates other regulations with impunity, why should they bother to be in compliance with 38 CFR 4.23, especially when "an attitude" is a judgement call, but I do appreciate Carlie calling this reg to our attention. The risk of retaliation at the VA is very real, and the burden would be on the Veteran to prove retaliation on them. Sometimes that would be difficult, because the VA is down right mean to many of us, purposely delaying claims. I have a Vetran friend who applied for benefits in 1973 and still has not gotten them in spite of obvious disabilities obviously caused from service. You can't tell me that it takes the VA 37 years to process paperwork, under any circumstances other than downright meanness, and because they can. Most posters on hadit do so anonomously, with the use of a "handle", in part, to prevent the VA from retaliation. If Fox News wants a story, and will help me shield my identity, then I will blast them with the truth.

I think there are plenty of horror stories, but since most Veterans are aware of the VA's "ability to retaliate" on Veteran's, they arent talking. The VA can deny, reduce, delay or even shred Veterans claims, and the Veteran simply has no recourse, as it would appear that VA employees are "exempt" from prosecution. Consider the Cleveland RO manager. The Cleveland RO is one of the worst in the country to Veterans, and also one of the worst at shredding evidence. So, what happens to that manager? She was promoted to the VA Central Office. Sources: http://blog.cleveland.com/openers/2008/04/...k_vasil_of.html http://www.vawatchdog.org/08/nf08/nfdec08/nf120408-1.htm

I realy think Pete's idea is a good one. I would love to be able to ask them some questions, in person, in front of the rater with the C file. It has been my experience the VARO simply avoids answering my questions. For example, I got a recent copy of my C file, noticing there were hundreds of pages missing..including old RO decisions, VCAA letters, etc. So, I sent an IRIS email asking the question, " Do you have electronic copies of my old RO decisions and VCAA letters, or does the fact that they are missing from my C file mean that my evidence has been lost or shredded by the RO?" The VA was on the spot, and I knew that. They "ducked" the question and never answered it. Oh, yes they sent me a reply, but they carefully worded it so as not to admit to shredding, but not get caught in a lie, either. This is one advantage of IRIS! I can keep copies of their response, and, if necessary, use their response as evidence to present to a judge! Telephone coversations would not work that way, but since IRIS is a secure email, the VA can't say something like that IRIS was not from the VA it was from a hacker! If I was in person, in a hearing with a rater, especially with the conversation recorded, then I could simply ask them to answer the question, and wait for a response! They are going to either have to admit to shredding or, get caught in a lie. I already know my evidence was shredded..there is no doubt. The VA wont even give me "Special Handling", per Dr. Peak's fast letter 08-14, in part, because they dont want to admit to more shredding! They know that will open up a can of worms! My goal would not to be to get the rater in trouble. Frankly, they are peons, and probably just want to get their paycheck and go home. VA management, I am convinced, is the problem. Why? Because one or even 2 "untrained mailroom employees" would not be able to shred Veterans evidence at 47 Regional Offices! The fact is that these "untrained mailroom employees" ARE TRAINED..and doing exactly what they are told. There is no way that 47 mailroom employees would make the same mistake at once..all of them confusing yesterdays Burger King Wrapper with Veterans evidence and shredding it!

Pete... I have never heard of having a hearing with a rater. How do you go about this? Send in a 21-4138, or an IRIS? This is good information, Pete. Probably real good. It could mean you can check the C file, make sure everything is there, and, importantly, ask the rater if everything is there to make a decision. Then, the VA would have little reason to delay you more, if they have already said everything is there to make a decision, assuming, of course, that you can "hold the rater to" what he says. Maybe it should be recorded!

Of course there are many "white collar" jobs that do not require walking...accounting, lawyers, computer programmers, telephone sales, office work, etc. However, you do have to get to work some way, and most of the time that involves walking at least part of the way. Someone already pointed out that the job needs to be related to the skills of the person. A high school dropout construction worker probably would be pretty lost as a computer scientist. However, Voc Rehab may be able to help, sometimes with retraining of something this Veteran would like to do and was capable of doing.

James I am in a similar position trying to get the RO to comply with a BVA order. So far it has taken me 6 years (The BVA decision was in 2004 and is still not fully implemented). This is just one more of the VA's "bag of dirty tricks". I have been partially successful at getting them to implement it, but not the effective date. The BVA decision was in 2004, about a 2002 decision, but my effective date is 2007. I have gotten my benefits except about 5 years retro from 2002 - 2007. My advice is not to get congress or the president involved. Altho I have a lot of respect for Pete and do not dispute that it worked for him, I think the chances of it working now are not so good, but do, be my guest and write the president if it makes you feel better. I have never gotten an answer from a president but have written them letters about 6 times, over the years, democrats or republicans..it doesnt matter. It used to be you could actually meet with the president..on certain days..if you were patient..back when Lincoln was president. ..and the president would give you about 5 minutes maybe. Now, with 300 million people and 25 million Vets, I doubt that any president would read all the letters they get. Who ever reads them, if anyone, would only refer the ones to the president they thought were particulary helpful or important. Other Vets advocates agree that it rarely helps to get congressmen involved, and often delays your claim further. Our congressman has been unable to get a Veteran I know a RO decision for his 1973 application. He will probably die before his decision. What I do recommend is a Writ of Mandamus. You need to understand, from the get go, it will be denied, almost certainly. However, it will most definately rattle the RO's cage and get things moving. This is what worked for me.

Berta.. Yea..sometimes I wonder if RO employees can figure out that they might be "a little" frustrated too, if it was their check that was delayed 8 years! Sometimes I forget this is America, and our government is not supposed to be able to discriminate against us because we have a personality conflict with one or more government officials. I saw where someone disagreed with Sadamm Hussein..Sadaamm didn't mind..he just killed him. Others watched but dared not say anything else that would happen to them, too. In America, we are supposed to have "freedom of speech", and it is ok if I say I dont agree with the president. I think it should be ok, also, to say we dont agree with the VA. Jim Strickland and Larry Scott, I think are both getting Va bennies, and they have published some things that are not particularly complimentary to the VA...that the VA would love to see swept under the rug and go away. These two say they are not "hate VA" sites, but you certainly dont see the VA providing a link to www.vawatchdog.org on the VA webiste. Ditto for hadit...I know the VA doesnt like hadit or especially watchdog, but I havent heard them doing a "proposal to reduce benefits" for Tbird, Larry or Jim, because they dont like their attitude. My son was a manager for a resteraunt chain. When people did not like the food, he liked it when they complained..it was feedback, tho negative, it helped him resolve some issues he would have never known about. In a similar way, if the VA really wanted to fix any of their problems, they should embrace and at least listen to watchdog and hadit. The VA wont do that, and instead ban employees from visiting hadit or watchdog..tho I suppose these people could do this on their own time. I guess I am frustrated with the Va also..and I really dont want to wait 4 years on the BVA a second time...especially knowing there is no guarntee that the VA wont just choose to "blow off" the BVA decision again, and just do things their own way. I do think the BVA and CAVC has "some influence" on the the RO's, but have you ever heard of a Va employee getting fired for non compliance of a BVA order? The VA reminds me of many cats...they will come when you call them..only if they think you have something for them. Otherwise, they ignore your calling. My dog, however, always comes when I call whether I have treats or not. I think the Va is like a cat...ok..here is my disablilty application...ok we will process it and not shred it...as long as you dont complain about VA bonuses....but if you complain..gee..your aplication could wind up in the shredder bin..because some of those employees just arent that well trained.

Berta Did you find any evidence that the RO employees were mad because you asked them to CUE? Did it "stir up a hornets nest"? I am pretty sure that I have already angered some RO employees by filing a Writ of Mandamus, but the good part of that is many/most of the employees that knew that I did that are gone, and the RO shredded any evidence of the Writ. I found that out with my newest copy of the C file..writ was gone! I have enough trouble ticking people off at the hadit board, as it seems I have angered some. I guess if I anger the wrong ones, then I will get kicked off, and Veterans will loose again, since SOMETIMES I come up with some pretty good stuff that helps Vets. Of course, at other times I just rub people the wrong way. I kinda wish people would understand that I have severe mental issues, or I would never have recieved the rating I have. Not to make excuses, but "it is what it is". In the recent watchdog article, one of the Va execs asked Vets to "cut him some slack" that they are working on the problems. Well, if anyone deserves "slack" its Vets as almost all of them gave up more for less than g employees. So I am asking, not so much for me..but for the Vets I have helped, past present and future, to cut me some slack. I earned it. That VA exec didnt. JMHO. The reason I asked about the anger part, is, of course, "you can get more flies with honey, than with vinegar" and there is no doubt that the VA can and does retaliate on individual Vetrans, just because they can. I forget that Vets name who went to prison, basically because he "vigiously persued his benefits" and ticked the wrong people off in the process. Because the VA has zero accountability, and a "employee friendly" VAOIG, the hundreds of VA lawyers have to have something "to do" so they seem to go around looking for Vets to prosecute, since VA employees/executives enjoy VAOIG immunity to prosecution and the Attorney General wont go near the inside of the VA. It appears to me that a VA employee could commit murder, and the VAOIG would "recommend retraining" of that employee.

Berta.. Thanks for comments. I think I will try it..what do I have to loose, since it takes 4 years for a BVA appeal?

Typical VA BS...asking for documentation for things they already have. Of course, one possibility is they shredded the original....

I am considering asking for a "Motion for Reconsideration" or even, as Berta has suggested, asking the vA to Cue themselves, because I really do not want to wait another 4 years at the BVA. I am in a dispute with the VA for my effective date. Essentially, I am contending that, at a VA medical professional's offfice, I made an informal claim for benefits years ago. I am just curios if you think it will do any good to ask for a MFR or ask the VA to Cue themselves. I only have 60 days to file an I9, or I will "loose" the possibility of an appeal. Do you think its ok to ask for a MFR at the same time I appeal, or, ask the VA to CUE themselves concurrently with this appeal? Thanks..Bronco.

IMHO mental disorders are "lumped together"...depression, paranoid schizo, etc, etc. HOWEVER, and this is important, the VA requires you specify the benefit requested. It seems to me I have seen where the VA "weasels" out of paying by a Veteran applying for a nuerological disorder, when it was depression. To be safe apply for shizo, nuero disorder..everything. What a shame it would be for you to not get your benefits because you were unsure of the diagnosis....

If your denial on the other claim was within a year, you can still file a NOD disputing the deemed denial. I do remember reading something about a court case where deemed denial was weakened somewhat. You could try googling "deemed denial" or maybe even add something applicable to you...for example TDIU, or hearing loss.

I just mentioned this so you would not be "another victim" of deemed denial. Katrina Eagle has expressed the opinion that "deemed denial" was a rather high court decision and probably only a new law will overturn it, if I recall correctly. But, dont take my word for it, read what she has to say and draw your own conclusions. Follow the link I gave earlier.

I was in a discussion a few weeks ago, and this person seemed to think that "deemed denial" was dead. However, if you went to the link and read Katrina Eagle's opinion, you would think that "deemed denial" is alive and well. IMHO it is better to be safe than sorry on this. For example, lets say you think deemed denial is dead, and the Va cant do that to you. If you are right, fine. If you are wrong, it could cost you hundreds of thousands of dollars, possibly. However, if you filed a NOD on a deemed denial, and it did turn out that the courts overturned it, then you may have in an appeal that would probably be meaningless. In this case you have invested a couple hours writing a NOD. Therefore your "bet" is a few hours to write a NOD vs possible hundreds of thousands of dollars. I would go for the safe route, and file a NOD. I would not take a hundred grand and go to the roulette wheel and put it on red. You decide..its just my opinion. However, I based my opinion on, pretty much a VA legal expert..Katrina Eagle. I think her title is the president of NVLSP so I would say what she said is highly credible, and well informed.