broncovet

My sleep doctor (I have sleep apnea and use a CPAP) said that my OSA (Obstructive Sleep Apnea) was caused by "excess tissue in the throat", which is a result of my obestity. He further said that if I lost weight, it would help my OSA and sometimes even cure it. I have gone through this sleep apnea thing and maybe my story will help. I first found out that I had sleep apnea about 2 years ago. I had chest pain and went to the hospital. (The VA was full so they sent me to a heart hospital). The cardiologist told me that I had an enlarged right side of the heart, caused by sleep apnea, and that I needed to get a sleep study done. I did so, and the study revealed I stop breathing 67 times per hour of sleep. I got a CPAP machine, and feel much better..more alert and dont fall asleep during the day. Less tired. I applied for SA through the VA. They denied me, of course.

Make sure you mention to the C and P examiner that you are on social security disability, but also do your homework and find out why. It should be on your SSD decision. If you have been awarded SSD because of a service connected condition, that should make things easier for you. Be sure to spell it out for the VA, and send a copy of your SSD decision. However, if you are on SSD for a condition that has NOT been SC'd, then things will be harder. Have you applied for Service connection (from the VA) for the same condition that you are receiving SSD for? You still have to provide a Nexus. (No its not a car). If you feel that your SSD condition occurred while in military service, be sure to tell the examiner this, and why you think so.

The VA can/does manipulate the effective date of dependent benefits also. They are trying to avoid paying me for dependents prior to 2006. I am nailing them on this issue, because I looked at my original application and it shows that I have dependents. The decision, in 2005 said I was a single Veteran, with no dependents, and they are trying to give me crap that decision became final a year later, so I dont get any dependents. However, I am going to file a CUE, if I have to. Clearly, I had dependents in 2005, and they knew or should have known about it by reading my application. The VA shredded some of my documents, possibly those that included my dependents. I have filed for "special claims handling" because my original application listed my dependents.

It takes some time to figure out the VA system. In the mean time, do not worry about your percentanges, go ahead and apply for TDIU, let the VA worry about whether or not you meet the regulations, or are eligible under 416.b The critical thing, for now, is your effective date. You see, you can get retro benefits back to when you applied. What that means to you, is that waiting to apply will cost you about $2800 per month, or almost $100 per day, if you are approved. Dont delay, file today, and you will have lots of time to sort out the rest. JMHO.

I have doubts whenever I see someone "blaming the Veteran". I think the "ingrown toe nail" is probably a hypothetical Veteran..if not just a rumor. All the real Veterans I know served honorably, and dont resort to such stuff. I know Veterans are mad that we now have the biggest claim backlog in history..approaching 1,000,000 Veterans waiting on the Va to process their compensation claims. This number is up from about 400,000 backlog from the Bush administration. I am concerned about these numbers...they are definately not headed in the right direction, and I do not see a "turn around" in these numbers anytime soon. At this rate, 2,000,000 Veterans will be waiting for the Va to process their claim in a few short years.

If you beleive that you can not work due to Service Connected conditions, then you should apply for TDIU.

T Bird I have a request to publish a hearing loss manual that the VA published in 2002. The VA has removed this from the public, so that Veterans cant use it to win their claims. I would like to post it here, but, it is too large to upload, as it is 4.2 mb and your maximum is 2 mb. Even when I compressed it, it was still more than 2 mb. Do you have any ideas on how I can publish this adobe (.pdf) file so that this may help a Veteran possibly win his depression/hearing loss claim?

JMHO I think you should look through your VA medical records. If you told your doc you were unemployed, and he documented that in your file, I would apply for IU, in order to maximize your retro with something like this: I am submitting my formal claim for IU (attach IU application form). I first applied for IU with an informal claim at VA Dr. _________ office, on an 8-11-02 medical examination. Please expidite my claim. Then sign your name.

Incidently, Carlie, if you read the regulations on informal claims, and cases like Roberson, you can see where Alex got this. That is, when a Veteran goes to his VA doctor (assuming he has already applied for VA benefits), and tells his doc that he is unemployed, that constitutes an Informal claim for TDIU.

Carlie Several people, including yourself, have attempted to post links to Alex Humphries posts, and, as far as I know, none of them work anymore. I suggest You try these..they did work, once about a few months ago, then stopped working for reasons that are unclear to me. Maybe you can have better luck with this one: http://www.hadit.com/forums/index.php?showtopic=26566 I dont know why they dont work anymore.

The backlog of claims continues to get worse. We Veterans have had politicians promise to reduce the backlog, and fail so many times it is ridiculious. Nicholson, for a couple years, actually reduced the backlog, but it has grown pretty much every year before and after that. There is no sign that the Obama administration is going to reduce any backlogs..they have gotten worse even faster than with previous administrations growing about 25% since Obama took office. Someone has suggested the "IRS" method of reducing backlog. The IRS accepts your tax return, and sends you a check within weeks, as long as a few basic things check out. Then, if you have defrauded the IRS, they come after you big time. In other words, the IRS trusts its citizens, and they have done pretty well with this method. THe VA, on the other hand, assumes every Veteran is a lieing, theiving, con artist, and no benefits can be paid until every little thing is carved out of stone. It would appear that things should be the opposite way. In other words, once a person has served his country, honorably for 4 years, we should be able to trust him more than someone who has never served that we know nothing about. I cant see why VA claims cant be paid in days or weeks, say, like IRS checks or unemployment claims. The answer is that VA likes it the way it is, because they are collecting huge bonuses for delaying and denying our claims. There is a big fishy smell coming up from the VA, and if it smells rotten, it probably is rotten. Even Hillary Clinton said that the NY RO was corrupt. Are we to believe that other RO's are NOT corrupt?

According to the way I understand what the late Alex Humphries said, if you told your VA doctor that you are unemployed, that would constitute an informal claim for TDIU, and that would be the effective date..upon appeal. Dont count on the VA to acknowledge this informal claim date until you have appealed multiple times, but the appeals court (either the BVA or CAVC or Federal) will "notice" your informal claim as long as the Regional Office did not shred this evidence. To be safe, I would point this out in your Notice of Disagreement and say something like this: I disagree with the decision dated Feb, 1, 2009. While I agree with the TDIU rating, the effective date should be April 1, 1998 because medical records confirm an informal claim for TDIU was made on that date at VA Dr. _____________'s office when I informed him that I was depressed and could not find work.

I am going to supply a few sources that the VA does do "secret denials" or they use the word "deemed denials" http://www.democraticunderground.com/discu...ddress=259x2281 http://www.tpromo.com/wwc/viewtopic.php?p=...2d39499d2e96390 Jackson vs Mansfield: "In Deshotel, this court noted that even if the VARO does not specifically address a claim, that "second claim is deemed denied, and the appeal period begins to run." Id. at 1261." The court denied Jacksons appeal, saying, "Thereafter, Ms. Jackson did not appeal the VARO's decision with respect to the nervous condition or sexual harassment claims nor file a CUE claim seeking to reopen the decision. Thus, both these claims became final. See Cook v. Principi, 318 F.3d 1334, 1340 (Fed. Cir. 2002); Deshotel, 457 F.3d at 1261."

In my opinion it is True, from a practical standpoint, that "large retros go to the Board". Think about it. You are a new rater, and here in front of you is a claim with a potential half million dollar payout..large retro. What are you going to do? Approve it, and watch you supervisor yell at you? No, you are going to do one of two things: Deny it or delay it. Never approve it, no matter how valid. It keeps going on down or up the line, in the same way, and wont be approved until the Board of Veterans Appeals approves it. Its called, "Pass the Buck", please.

As Larry pointed out, even tho the Va did not follow the required regulations in Roberson, that does not exempt the Veteran from having to comply with all the regulations (and the one year clock starts ticking). In a nutshell, the VA nails the Veteran whenever he does not comply with regulations, but the VA freely ignores their own regulations until/unless the Veteran appeals, and EVEN then, the VA may get away with it if that issue is not brought up on appeal. (Again, the regulations prohibit this, but the VA likes to "Weasel"..."I didnt know we were supposed to follow THAT regulation" I wonder how many poor widows are out there, who the VA did that to them, and then the VETeran died before the claim could be approved. No wonder why Vets are so mad.

I agree, and think it is CUE from the moment they "forget" to process one or more of the Veterans claims. I think this is no small part of the shredding issue..they "forget" a claim, then shred any document that references it when it goes to BVA or appeal, so there is "no record of the Veteran every applying for _______ condition". The real sad part is they know this and do it anyway. It is one example of how the VA Regional Offices manipulate the regulations in their favor, at the expense of Veterans. As mentioned earlier, the precedential case of Roberson shows they cant do this, but they ignore those regulations and do it anyway. It creates an immediate CUE, but the Veteran is required to know how to beat them, because they wont admit to it on their own. The Veteran looses out either way, because even if he notices this happened, Files a timely NOD, it will take him years of appeals, and the VA gets an interest free loan from the Veteran, because no interest is ever paid the Veteran for VA mistakes. In the mean time, the Veteran is often homeless and suicidal. Those responsible for treating Veterans like this and manipulating those regualtions should be fired and brought to trial.

Someone recently had applied for multiple issues, and got a decision which denied one issue, and said nothing about the other. This is a "secret denial", or the courts use the term, "Deemed Denied". This is one more trap to snare unsuspecting Veterans, and is a big "loophole" in the legislative/legal process which allows the VA to do this. DONT GET CAUGHT in this TRAP. If you have applied for more than one issue, and your RO decision mentions only one and forgets the others, you have been "deemed denied", and you must appeal within 12 months, or that denial without a decision becomes final. This works with awards of benefits also: If you are awarded SC for hearing loss, for example, and your decision does not mention your arthritis claim, your arthritis claim has been deemed denied. What to do: If you are "deemed denied" then file a Notice of Disagreement stating that the decision did not address your claim for __________ condition. Do this within a year. If your decision is more than a year ago, and your Regional Office blew off your claim, you have to prove CUE. To prove Clear Unmistakable Error, in this instance, cite court case Roberson, which points out that "the VA must consider all the Veterans claims before rendering a decision". In my humble opinion the VA does not have a legal basis for doing deemed denials, however, they do them anyway, and the Veteran has to go through years of appeals just to try to get benefits that are due to him. There is no accountability for this, and no penalty for the rater. Its the Veteran who pays dearly.

Easy way to post a link: 1.Go to the website you want to post, in another window, and highlight the address bar. 2. Hit "CTRL and C" at the same time, (or go to file, then copy) 3. Click in area where you want link posted, such as hadit. 4. Hit "CTRL and V" at the same time, (or go to file, then paste) This is known as "Cut and Paste" and works for many things, not just links. Another method: Use the "link" button, and cut and paste the link in the box that appears, as above. The link button is just to the right of the smiley face, when you are typing in a post. (the smiley on top)

To fight against "deemed denials" you have to go all out. It is the VA declaring war on you. I am convinced the regs do not allow it, but they get away with it time after time. This is why the VA cant get away with it: Moody states: "The appellant argues that the Court of Appeals for Veterans Claims erred in construing our decision in Roberson. In Roberson we held that the VA has a duty to “fully and sympathetically develop a veteran’s claim to its optimum,” 251 F.3d at 1384 (quoting Hodge v. West, 155 F.3d 1356, 1362 (Fed. Cir. 1998)), and that this requires the VA to “determine all potential claims raised by the evidence, applying all relevant laws and regulations.” When the VA "blows off" a Veterans claim, they have violated the above regulations in Moody, and Roberson. When you do your appeal, be it a DRO or BVA CAVC etc, I suggest you quote Moody and Roberson, above. Moody is available here: http://www.ll.georgetown.edu/federal/judic...ns/03-7119.html

You are right, Pete, about comparing disability to wages. One of the problems is that the average disability compensation among Veterans is NOT 30k per year, but varies among states, from about $8000 per year in Ohio to about $12,000 in New Mexico. It was my bad, I was comparing the maximum Veterans income to the average government employee/household income, as was pointed out. Source: http://blog.cleveland.com/openers/2008/04/...k_vasil_of.html That is, the Average Veteran fares much, much worse..many times worse, than a government paper pusher. The AVERAGE disabled Veteran is forced to try to survive on about $10,000 per year, or about a fifth of what government employees get..as an average. $30k per year is not the Veterans average, but very close to the MAXIMUM (except for SMC, housbound, etc.) Disabled Veterans have almost no hope of ever going much above 30k per year, adjusted for inflation, whereas NON disabled employees, can earn six or even seven figures.

The "bothersome trend" I see is that whenever something goes wrong, the Veteran is blamed. Now, you are suggesting that the Veteran should be blamed if he is taking meds, prescribed by his doctor, which cause complications or side effects..and that no benefits should be due to him for these side effects, because it is the Veterans own fault that he could not or did not switch his meds to one with fewer side effects. Should the Veteran be also blamed when the VA uses dirty equipment to do a colonoscopy? After all, the Veteran could theoretically have gone to school, and tested all that equipment for contamination before he allowed the doctors or nurses to insert in him. A Veteran being "pro active" in health care decisions does not mean that he should not be able to trust his doctors expertise. Veterans are a very diverse group and millions of them lack the knowledge and expertise to research the doctor's prescribed meds to ensure that the side effects do not outweigh the potential benefits. The Veteran SHOULD be able to trust that the VA doctors prescribed meds that have the maximum benefit with the fewest risks of side effects, and that the medical equipment to be used on him is clean and free of contamination. JMHO

For the most part, I do not see Veterans trying to rip off benefits. I see far more deserving Veterans waiting...and waiting...and waiting..often to be denied benefits. If money was the only issue, why would anyone want to join the military? Surely, the E1 pay is not a big incentive, and neither are VA benefits. The average salary in America is around 50k, or almost double what a Veteran gets, even if he can get 100 per cent. I dont begrude a disabled Vet his thirty k per year for getting injured protecting our country. I think maybe it should be the other way around. The Vet, who risked his life, should get fifty thousand a year, and the office GS employee working at the VA pushing paper should get thirty thousand a year. Perhaps the Veteran should delay the government workers paycheck for six months to a year, and the Vetran should get his disability check pronto and on time instead of the other way around.

I personally think a deemed denied claim is, in fact, CUE, as the VA has a mandataroy obligation to consider all claims and evidence before rendering a decision. Look it up, if you like. I recommend filing a CUE NOD, based on a deemed denial. I would also ask for a copy of your c file, to make sure the VA didnt shred stuff on the deeemed denial part. YOu have a long fight coming.

There is a real possibility you ARE P and T. Your decision does not always say that, sometimes it says no exams are scheduled..OR, if you get commissary priveleges, and the like, then you are P and T. Did your docs say you are p and T?

Dont give up. Tho some of them are combined, another possibility is that the RO just plain secretly denied one of your claims. They dont use the word secretly denied, instead they use the word "deemed denied". It is a giant ripoff to Vets. Here is how it works. You apply for two or more unrelated benefits..say, hearing loss, and loss of use of your leg. They deny (or award) hearing loss and dont mention loss of use of your leg. Loss of use of your leg is "deemed denied" and YOU MUST appeal it within a year even when it is not addressed. Since most Vets do not appeal this, the VA pulls a fast one on you. After a year passes, it is extremelely difficult to appeal, you now have to prove "Cue". You are going to have a big fight on your hands if you dont appeal a claim that the Regional Office messed up and never addressed it. There are hundreds of "deemed denied" cases..that means the RO never addressed your claim so it was, therefore denied. It is one of many "dirty tricks" the VA pulls on unsuspecting Veteran claimants. Dont believe the VA would do this? Do a search using "deemed denied" and you will find many, many instances this happened.