broncovet

Cherie IMHO the VA's "P and T" status is one of the VA's dirty tricks. Many times the decision does not mention if the Vet has been declared P and T or not. So, the Veteran is left in the dark, and so is anyone else who you give a copy of that to when considering you for other benefits. For example, many states have a property tax exemption for 100% P and T Vets. So, if your decision does not specifically state that, even if the VA computer says you are P and T, you probably will have a big hassel trying to get approval for that. Same with Champva and Chapther 35 benefits. Sometimes the VA uses a "foreign language" to frustrate you. That is, they wont say in the decision something unambigious like, "Veteran is 100% Permanent and Total", but they will say things like, "Veteran is eligible for Ch.35 or Champva" or sometimes, "No future exams are scheduled". You see, the VA knows "No future exams are scheduled" means P and T, but your local county tax bureau does not know that. So you wind up hasseling them because the VA wouldn't come right out and say it in your decision, but instead uses one of their "dirty trick" codes. Of course, if you complain to the VAOIG about things like this, the Va would do an investigation in about 4 years and conclude you are right, and then the RO would blame "poor training" or "human error" on the problem. What to do about it: IMHO if your VARO decision does NOT specifically state, "Veteran is 100% P and T" but you think you are, then send em a 21-4138 and ask them to clarify the position. At my VAMC , there is a guy at the VA hospital who actually works for the VARO, called a "benefits counselor". Of course, everything varies with each VARO, but this guy will write you a letter to the effect that you are 100% P and T and eligible for free fishing licenses, free camping, commisary benefits, etc. etc as he has access to VA computers and can look up your status. He signs it right then and there and hands it to you. Of course, if you have to write to the VARO to do this, it will take months or years or maybe not happen at all and you will "miss out" on many of your benefits.

Halos Thanks for the heads up. I think the VA looses "positive" C and P exams 5000% more than C and P exams which give them evidence to deny. So, it is probably good news that the VA lost your C and P exam, because that means it was probably "Veteran favorable". Go to your VA medical Center's medical records and tell them you want 2 copies of that exam. Then keep one for yourself and send the other one to your RO certified mail return receipt requested, and ask them which OTHER EVIDENCE did they shred.

Pilgrim There has been some discussion about "deemed denied" claims on this board. To sum it up, if the Veteran is seeking multiple benefits (hearing loss, PTSD, tinnitus, etc) and some of these are NOT addressed by a RO decision, the courts have ruled that the others are "deemed denied", that is you have gotten a denial on the other issues. While the "deemed denial" issue is highly controversial, the bottom line is the courts can, and have, "started the one year appeal clock" when an issue was not even mentioned! Then, the Va has said the one year appeal period expired, so the Veteran has to meet the CUE standard, and the bottom line is it is one of the VA's "bag of dirty tricks" we have to watch out for. I call a deemed denial a "secret denial". Altho there are some cases which have weakened and delivered blows to this RO dirty trick, still it pays to be safe and NOD all the issues..even if the RO did not address them. I would say it something like this: NOD I disagree with the decision dated Feb 14, 2010 for the following issues: 1. I disagree with the 10% rating on my foot, as I think it should be higher because..... and .... etc. 2. I also disagree with the possible "deemed denial" of my back condition, even tho this was not addressed in the Feb. 14, 2010 decision. Va regulations require that the VA consider all applicable evidence and claims before rendering a decision, and I am in dispute of any RO decision that fails to address all my issues as I am entltled to a RO decision, along with "reasons and Basis" for all claims submitted. Signed, Joe P. Veteran March 4, 2010

Larry Thank you for the compliment.

There is supposed to be somewhat of a "priority". A medical opinion where the doctor has seen you one year would be better than a doc who has seen you 10 minutes. Also, a Board Certified MD (in the field of your issue, such as Psychiatry) should trump a PA hired by QTC who has never seen a Psychiatric patient before. A doctor who has reviewed your complete medical evidence, would "trump" a doctor who did a review that was less than the complete record. An IME (Independent Medical Exam) should trump an IMO (Independent Medical Opinion) because an examiner actually saw you, while an IMO doc simply read your record and offered his/her opinion without the doctor personally examining you. (That is, someone who reported seeing you with their own eyes would be better than someone who just read what others wrote about you) "Lay evidence" would be considered to the extent that it did not conflict with other evidence. For example, if your wife (who was not a medical professional) testified that you snored in your sleep during military service, her evidence could be considered, but if a sleep doc said you did NOT have sleep apnea, your wifes testimony would be of very little value. However, I am like Test, fully convinced that in real life the Va selects the medical opinion who provides evidence of a denial as a "Trump" over any other medical opinion regardless of the length of time you have been seeing the doctor, and regardless of the medical professionals expertise and regardless of whether or not that doctor reviewed your medical record thoroughly or not.

I have heard some debate about which is better, IU or 100% Schedular. Both pay the same, and both make you eligible for Champva/Chapter 35 for dependents if it is P and T. In theory you can work with 100% schedular but if you go to work with IU you will likely loose your IU status. However, even the the historic Max Cleland was a congressman and collected 100% P and T at the same time, that is highly unlikely to happen with 100% P and T due to depression or PTSD. There is still kind of a bias built into the VA system. For example if you are a quadrapelegic and you are able to over come great odds and work in spite of your disabilities, you are a genius/hero like Steven Hawking. However, if you have PTSD/mental illness and are able to over come it and work, the Va is going to think you are a fraud, that you werent REALLY disabled, you conned your doc into thinking so. It isnt fair, but, IMHO that is pretty much the way it is. I think people who overcome mental disabilities, (such as depression and/or PTSD) as well as those who overcome missing limbs, are both heroes. I think it is unacceptable to discriminate against someone who has a mental disability over someone who has a physical disability. JMHO. One large benefit to 100% Schedular vs IU..you dont have to fill in forms every year to say that you are not working with 100% Schedular. I have heard of people loosing IU because they did not mail in the form certifying they did not work in the past year.

Delta.. This is an excellent case, great information and "must" reading for anyone who has ever "missed" his one year time frame to file a NOD. (Or is an advocate for someone who has.) The way I read it, IF the VA did not send you a notice of your rights to appeal, the one year limit is meaningless because the claim is not finalized until the Veteran receives notice of his rights to appeal. Dont take my word for it, read the case and see for yourself. Pete Thanks for the link to this important case.

Pilgrim There are a very wide variety of opinions on whether or not to use a VSO. If you used one in the past, and had good luck with him/her, then I would go for the "If it aint broke, dont fix it," philosophy and use him/her again. I also think most people would agree there is a wide variety of skill levels amongst VSO's ranging from "Excellent" to downright dishonest and should be fired. Some people "use their VSO". That is, your VSO probably has a copier, and may make copies for you for free. This can save you money. Some also may provide forms, postage and envelopes. My VSO has secret names and phone numbers and will call the RO for you (on his 'dime') and I have gotten some good results from this. Other VSO's rarely, if ever call the Regional Office. A few may even have access to a Veterans Benefit Manual, that could cost you hundreds of dollars if you had to buy a new one yourself. Also, some VSO service officers have computer access to provide you advance notice of denials/awards before you get the news. I have even seem some Vets who are disorganized use the VSO so that the VSO will keep copies of everything and they trust them more than they would themself, knowing they sometimes loose stuff. Some VSO's provide great record keeping, while others are less good. Its a pretty good idea not to depend on them, unless you know for sure they are dependable. I guess you know there is a difference between a DRO review and a DRO hearing. Again, there are differences of opinion on which is best, but most agree that a DRO hearing takes longer, but there is an advantage in a hearing in that you can actually look at the file sometimes to make sure everything is in it. You need to decide if its worth the extra time it will likely take to have a DRO hearing vs a DRO review.

I agree pretty much with the advice already given. I seem to recall an attorney, the late Alex Humphrey say something about that if you are 100% P and T, "Take the money and run", in one of his hadit posts. However, I recommend you check on his posts to make sure. I do think Alex would advocate filing a NOD for an Earlier Effective date, however, if you thought you were 100% P and T IU BEFORE 2007. IMHO if you strongly feel you should be entitled, to say, SMC, then you should go for it. One way to get SMC is to have a single 100% rating, plus 60%. Only you can decide if you think you are entitled to more than 100%.

I agree with Pete. A GAF rating of 41 indicates serious difficulties and approximates a 100% rating but, even tho it would make sense, there is no direct relationship between GAF rating and disability percentage. Also the GAF rating can change from one doc appointment to the next, and, rather than take the lowest number, I have an idea the VA takes some sort of an average GAF, not the lowest GAF, like they do with hearing loss. Hearing loss is rated at the AVERAGE over 5 decibel ranges , not at the worst range if you look at the rating criteria for hearing loss. So, if you have a GAF of 40 one month, a GAF of 80 the next month, and a GAF of 60 the third month, you will probably be rated "as if" your GAF was 60. I seem to recall Alex Humphrey, a VA attorney now deceased, say something to the effect that he could get a Vet 100% with a nexus and a GAF of 40 or below. However, dont take my word for it, read Alex Humphries posts yourself, as I just cant remember exactly what he said. Alex H posts are extremely well informed and definately worth your time reading, assuming you are working your own claim.

I like your NOD, it seems to have all that is necessary: 1. any communication expressing disagreement with said decision, 2. A desire to contest the result. I would add my 2 cents worth, however: 1. Make sure you have addressed all the issues in the NOD even if those issues were not addressed by the decision. For example, if you applied for PTSD, AND the RO decision addressed your degenerative joint disease but did not say a word about your PTSD, include it in your NOD something like this: "I have 2 issues that I disagree with: 1. My degenerative joint disease of the right ankle should be a higher rating of at least 30%. 2. My PTSD was not mentioned in the decision and I disagree with a "deemed denial" of my PTSD claim." 2. Make sure you mail your NOD Certified mail return receipt Requested because RO's are notorious at shredding your NOD then claiming they have no record of it. Keep a copy safe, maybe by emailing it to yourself. 3. If you have other issues pending, mention them in your NOD also. If any part of your evidence was not included in "reasons and bases" for decision, mention that, too. 4. Good luck, and hunker down for a long appeal.

As it is with hadit, it would be a good idea to search "Nod's" website, (link posted below) to see if your question has already been answered before asking.

Skunk, I recommend you not walk but Run to this website: This guy is THE expert on Veterans claims for Hep C. His website is devoted JUST TO VETERANS filing HEP C, and he knows his stuff. Ask him your question. http://hcvets.com/AskNOD/index.html

I also like myhealthy vet. I can view records of my medications dating back to year 2002, and I think it is even possible to use this as evidence to support your claim. One example might be if you were trying to establish an Earlier Effective date for, say, depression. The VA could easily give you bull that your depression was not DIAGNOSED by a doctor until year 2007. But, you can come back and say, "Gee, my VA doctor e prescribed Zoloft, Wellbutrin, Prozac etc on July 1, 2002. Then, you can review these drug companies website. If the website says these drugs are used to exclusively treat depression, then you can say that the doctor prescribing anti depressant medication (Zoloft) is a diagnosis of depression on July 1, 2002. This would serve, IMHO, as "Diagnosis of Depression" effective date, in this example.

I agree with Berta and John, and will add my 2 cents worth. Whenever an evidence document you have submitted is NOT in the "evidence list" on your decision, I think it is safe to assume either 1) the document was submitted too late for the decision maker to consider or 2) the evidence document was mishandled or shredded or 3) The VA made an error and had the document but did not include it on the evidence list. I will address these seperately: 1. If your evidence document was "swirling around the post office or the VA somewhere and not given consideration", then I think you can submit "New and Material Evidence" to reopen your claim. It often takes weeks or even months for evidence you submitted to get to the right place and be given consideration, and, since the Veteran does not have a reliable method of really determining exactly where his claim is at, your claim could have been at the rater, and your evidence could be sitting in the mail room. 2. Obviously, if your evidence has been shredded, you have a legitimate "beef". You could try sending an IRIS and point blank ask them if ________ document, dated _____ is in your current C file. They will squirm, but I think this is a very valid question, in light of the recent shredder scandal. You have a right to know if some of your evidence has been shredded. If it is not in your C file, re send it to them. If it is in your C file, I think it is a legit question to ask why your _______ document was not considered in your decision dated _________. One possibility that Berta has pointed out before is to ask the VA to "Cue" themselves because they failed to consider your _________ evidence in the _________ (date) RO decision. Of course, you are entiltled under FOIA to a copy of your C file, and they may not answer your question but instead send you a copy of your c file. That is what they did to me, and wow, was I ever glad I got a copy of my cfile, because this is good evidence to shoot down their case. Every attorney I have ever spoken with has requred a copy of my c file before he even wants to decide if he will take your case or not. Since I assume you are representing yourself, do you deserve less information than what an attorney has? In either 1 or 2 above, there is a case (or regulation) that states the VA has to consider ALL the evidence before rendering a decision. Berta and John are right on, that the VA is not allowed to pick and choose which evidence to consider. Can you imagine a decision that states something like, "we did not consider your doctor's evidence because we are convinced you dont deserve any benefits, so we just decided to deny your claim based on this other evidence that supports our 'denial theory'" 3. If the VA made an error by not listing your evidence, but had that evidence in their possession, you have a basis for a CUE claim, IMHO, based upon a VA violation of the "consider all evidence" point of law, AND the legal point that the VA is required to give "Reasons and basis" for your denial.

I agree with Berta. If a VSO tells you, "you dont need to file for an increase, it will be done automatically" that is a BIG RED FLAG. I know of NO regulations that allow an "Automatic Increase". Does anyone else? It sounds to me like you need to file for an increase, and maybe file for another VSO, as I dont see how it could "hurt" you and could possibly help you. About the only thing I know that is "automatic" in the VA is a denial, altho the VA wont admit to that. Even things that are "supposed to be" automatic are not. For example, the VCAA requires a letter be sent out whenever the Vet makes a claim. That does not happen every time, and even when it does, the letter is not always correct. Remember, if the VA followed all their own regulations, we would not need an appeal system, or if we did have one and the VA followed all the regulations to the letter, every appeal would be denied. Instead, way over half of Veterans receiving benefits got them in some level of one or more appeals.

bronco, The ice you continue walking on is getting very thin. carlie

I would NEVER recommend to a Veteran they hire someone to represent them who is NOT a lawyer. VSO's and hadit advice is free, and is probably as good or better than any NON lawyer can provide to you. I am personally aware of basically a retired VSO who now charges a fee to represent Vets, who is not a lawyer. I dont recommend hiring one of those guys.

To VSO or not To VSO that is the question. I recommend you look at your specific situation to answer that question. Ask yourself: 1. Do you think you can do a better job than a VSO? You probably can if you are good with the internet, are willing to invest the time and money in research, are organized and have file cabinets and a good place to store copies of documents, and have good follow up. 2. However, if you are not good with the internet, or dont have access to a computer, or are unable or unwilling to invest time into research, then you probably should consider strongly a VSO. There are many, many people who can do a better job than a VSO. I dont think there is a VSO in the world that knows more about Veterans claims than, say, our own Berta. However, there are many, many people who should have a VSO..homeless people with no place to store documents, people with no computer, people with poor reading/writing skills etc.

I looked on the link you posted, and it does not specifically say its a LAW Firm. Most Law firms clearly state they ARE Law firms. Maybe it says so on TV..however, I am more than just a little bit leary of someone "helping" disabled Vets who charges to do so and is not a lawyer. If this is, indeed, a legal firm that helps Vets, please accept my apologies, however, that was not made clear to me on the website you posted.

Carlie The VA is making the connection from "the C and P exam" to "the facts found", not your posts. My post was designed to help Veterans because the VA often makes the effective date the date of the C and P exam, which I pointed out is almost never correct because Veterans dont usually go to the C and P exam well, and them come out of the C and P exam sick, like an effective date of the C and P exam would suggest. The VA could fix this, if they wanted to, by listing a "probable onset date of disability" on the C and P exam forms. That is, the C and P examiner could review the record and offer his medical opinion of when the Veterans medical disability began, but instead, the VA just often uses the C and P exam date. By automatically using the date of the C and P exam as a the effective date, the VA saves millions in Retro where Veterans suffered for years with a condition, applied for benefits, and the VA makes the excuse that is what the "facts found". It is more spin by the VA. Until/unless the VA changes the C and P forms, asking for a medical opinion of an effective date, the Veterans will have to appeal or settle for a later effective date. The VA is making a "leap" saying that the C and P examiner is saying the Veterans condition began on the date of the C and P exam. The C and P examiner is rarely doing that. He is saying, in his opinion, the Veteran's has"x condition" as of THIS date, and is (conveniently) opting not to make any opinions as to WHEN the Veterans medical condition first occurred. In the absence of a C and P examiner reviewing the record and opining as to WHEN the Veterans disability occurred, the VA just uses the C and P exam date. AS LONG as the Veteran does not appeal the effective date, The Va gets away with using the C and P exam as the effective date. If you show me a Veteran who becomes disabled at his C and P exam, I will show you a case of medical malpractice, because that examiner is not supposed to be making that Veteran disabled. If you look at a "student loan disability discharge" form, you will see that the Doctor has to fill out a DATE of the exam and another date the medical official opines the disability began.

Did I miss something here? You are applying for a pension which is NON SERVICE Connected. You arent claiming you got injured in the military, just that you were in there, and now you are either eligible for a pension or you are not. I would go ahead and continue trying to get your records, but NSC pension should have little/nothing to do with you MEDICAL records in the service. The link below states the requirements for eligibility for NSC pension: http://www.vba.va.gov/bln/21/pension/vetpen.htm

Yes, I agree with Carlie with one caveat: The Date of a C and P exam does not necessarily mean that is when the condition began! In fact, when would it EVER mean that? Did you become disabled from walking into the C and P examiners office? I dont think so! (The RO, however, really wants us to think that your disability was less and then magically became worse on the date of the C an P exam so they dont have to pay you retro to when you filed. ) Example: Veteran applies for benefit INCREASE in 2004. In 2008, the VA finally gets around to ordering a C and P exam, and the examiner states that the condition is "at least as likely as not" related to military service. Of course, the VA, IF THEY AWARD Benefits at all, are going to try to get an effective date in 2008, the date of the exam. The will use the excuse "thats when the facts establish the increase occurred". I do not recommend "buying their Bull". File a NOD for an EED anyway, especially if you have continuously sought treatment for the increased condition. It is not your fault the VA put your claim on the "back burner" for 4 years and never bothered to do a C and P. In this example, you may need an IMO/IME to opine that your condition occurred in 2004, NOT 2008, that 2008 was simply the date of the exam, and not the onset of your condition.

Here is what is going on with this: Like it or not, the BVA WONT make a decision on an issue that the RO has not considered, UNLESS the Veteran signs a waiver. That is, the BVA thinks the Veteran deserves a chance at his "local RO" before his claim goes to Washington DC and the BVA. Otherwise, Vets would just skip the Regional Office and just send their claims to the BVA. By signing a waiver, the Vet cant go to the CAVC and complain that the Vet never got a chance at the RO level. What this means to you is you can either sign the waiver and have the BVA decide, or, it will be remanded. This only applies to what I call a "Secret Denial" but the BVA/CAVC uses the terms "deemed denials" or "unadjuticated claims". They all amount to the RO adjuticating one issue and "blowing off" other issues. Bottom Line: Veterans for common sense says it takes 4 years for an appeal, and the VAOIG says the claims backlog will increase in 2010 and 2011, so you have at least another 2 year wait.

I saw some legislation about it, but I am not sure if it passed or what is going on. Thanks.