broncovet

Was your denial within the most recent 12 months? If it was, an appeal would be better than a supplemental claim, relative to the effective date. However, it may not matter "too much" if your hearing loss is rated at zero percent, because a SC hearing loss rated at 0 percent and a denied hearing loss pays at exacty the same per month: $0.00 per month. There are at least 2 possible reasons for your denial, and you maybe should get to the bottom of which one it is: 1. The audiologist made a mistake and your hearing loss was worse that the test showed. Not impossible. This is fixable with another audiologist (favorable opinion) where their test showed your hearing loss was actually worse than the exam showed. The audiologist equipment for testing is not always perfect, either. 2. The audiologist was correct, but the rating specialist made a mistake either through a computer error or by one or more errors hand calculating the hearing loss rating. (Its complicated!) This should be fixable upon an appeal with either a bva appeal, or possibly an HLR, as long as you dont need new evidence. Generally, I rarely recommend filing a supplemental claim when the Veteran is in the appeal period (tho there are exceptions) and suggest appealing instead to preserve the effective date. However, I will venture a "guess" that if your hearing loss was at a low level, your most likely percentage was 0 percent. Many Vets are rated at 0 percent, (hearing loss) even with some significant hearing loss. I wore hearing aids for a long time and was still rated at 0 percent (after I appealed the denial). I appealed that, too, and it got raised to 20 percent. All this said, I agree with Rattler because it may not make much difference whether you file a supplemental claim or appeal, if you are rated at 0 percent (likely, if you did not even meet the threshold before that). And, the supplemental claim may go faster. But, while there is a temptation to simplify the answer, I do think its better to let the Vet know of all his options before deciding, rather than filling in blanks for the Veteran that may or may not apply to him. There are, however, sometimes while even the effective date of a zero percent rating can make a difference elsewhere. For example, if you have other conditions, some of which may be secondary, such as depression or meniere's diesease, then the effective date of your hearing loss could limit those secondary effective dates.

Its not unusual to get negative c and p exams. I had a very negative exam. If you read very many board decisions, you will see that many say something to the effect "there is a balance of evidence for and against the claim". It's rare, when 100 percent of your evidence is positive. The good news, is, that, when there is a "balance of evidence for and against the claim" this is known as equipose, and the Veteran gets the benefit of the doubt, and the claim is awarded. In most court cases, there is evidence for both sides..its rarely all one way. And, if you do get denied, the solution is to get a favorable IMO..that you pay for. You see, people are loyal to the guy who signs their checks. Remember, VA pays for the c and p exams. It may cost you money for a independent medical opinion or independent medical exam, but its almost always worth it. Its one of the best investments you can make. I invested $500 in an IMO from a voc rehab specialist who provided a favorable IMO. This IMO "tipped the balance" in my favor and resulted in a six figure retro, plus ongoing awards, much more than $500. The idea that your seizures cant be "confirmed" because you did not have a seizure in the docs office while you were there 1 hour of your life when you are 50 years old, is preposteerous. Remember seizures only last a minute or two and by the time the doc arrives, its over, even if you had one 10 minutes before your c and p exam. Other people can confirm a seizure. Your spouse. EMT's. Nurses. Other family members who took you to the hospital. Other doctors. It sounds like seizures have already been documented, thats why you cant fly! You probably just need an IMO to review your records, and basically say, "Yes, there is evidence of a history of seizures in your records since dd mm yy". This is at least as likely as not due to an event in service. When you do hire an IMO, ask them to review your records and state that he did that in the IMO, and to give the date, also. (This could establish your effective date). I dont blame you for being skeptical of the Va, but, read the regulations on reductions, and you will see its very tough for the va to reduce vets who are p and t or over 5 years: https://www.law.cornell.edu/cfr/text/38/3.344 The VA would have to show you "actually improved" under ordinary conditions of life (aka while working), and that improvement was sustained, not just from a single exam, since many of us have good days and bad days. If you are not working outside the home earning an income, they are not gonna be able to give you a c and p exam and take away tdiu..altho sometimes they try, because some vets roll over and play dead and let va have their way. Dont do it, insist on your rights. VA tried to reduce me twice, I rebuffed both easily and quickly. The idiots tried to take away benefits for my spouse suggesting I was no longer married. Twice. I wrote a letter, and had my spouse write a letter that we were continiously married since 2006. The va had 0 evidence to refute my evidence, because it was the truth. About 3 weeks later, I got another letter, stating that my benefits would continue as man and wife. They just hope we are "asleep at the wheel" as many Vets are, and dont read the letters VA sends them. Its really unfair, because the people who are illiterate, or who can not understand the letters, get reduced. Of course, they use VA'ola lingo designed to confuse us, which often works for them. If you have difficulty understanding a letter from VA, white out your name and address and ssn, and post it here, and others will help.

The definition of tdiu is "unable to maintain substantial gainful employment(SGE)due to service connectected conditions". And, SGE is defined as the inability to earn "the poverty level" in a 12 month period. It does not mean you will lose your tdiu if you cut the neighbors grass or shovel their snow, as long you dont earn the poverty level (some where about 15k in a 12 month period). You can find the poverly level online (for va purposes). See my previous post, on the previous page, tho. It sounds to me like its for an increase to the CFS not to try to reduce your tdiu, as I explained.

"UNLESS" you started working and worked for a year, earning more than the poverty level, your p and t tdiu should not be reduced.

Whoa, Hoss! Before you get upset about a possible reduction to your TDIU, consider the real possibility of an INCREASE for CFS. Remember, you posted that CFS was "deferred", which means it will be rated "later". They may need a c and p exam for a possible increase and/or to rate your CFS. YOU COULD simply call your VSO, or, if/when an appointment is scheduled, ask them the nature of the disability. Its almost certainly for CFS, again, because its deferred and its a loose end. Its important because: "If", in the end result you wind up with a single 100 percent (tdiu counts) plus a combined 60 percent, (seperate and distinct) you should be awarded SMC S, Statuatory, which is good for about another $450 per month or so for you. Of course, IDK if that would be the result or not, but it is certainly possible. It would depend on your other ratings, your new cfs rating, and whether or not they combined to the 100 plus 60, and whether or not your disabilities were seperate and distinct.

Close, but no cigar, "relatively happy camper". It used to be that a Veteran could file an "informal claim FOR INCREASE" in his/her doctor's office "provided that" the doctor documents the Veteran is seeking BENEFITS for the condition, not just treatment. Informal claims for increase are no longer permitted, and a claim form must be filed for each new claim issue desired. However, if you have docutmentation of an informal claim for increase prior to Feb. 2019, you "may" be able to allege an earlier effective date in some instances. Remember, your effective date is the later of the date of claim or the facts found (the date the doc said you were disabled), so the documentation of the informal claim for increase may or may not result in an eed, but its worth a shot. NOTE: The term FOR INCREASE is important. The idea is the Veteran already submitted his formal claim form, and it was unnecessary to submit all that over again, so he could informally file claims, that essentially referenced his already filed formal claim. But, you had to first file the formal claim, thus, it has to be a claim for increase, that is, you have already filed a formal claim. Incidently, it worked for me, and I fought and won an eed based on an informal claim for increase. I had it documented in my file that "I was out of work and unable to find a job", in a letter to my vso that went with my application, and they determined that the va should have considered me for tdiu from the get go, because of that statment. Naturally, of course, the VA shredded my letter, BUT, low and behold, they shredded too many other Vets evidence and got caught doing it. And, it resulted in the famous shreddergate scandal of 2008, which allowed me to resubmit this evidence, per order's from Dr. Peake, the VASEC, at that time.

Agreed. Its tough enough to get it when you own the property. Frankly, I own my home and if I thought I could pull it off, I would seek a walk in tub/shower from VA, but have not persued it that much, because, if I know VA, they would delay it just long enough to they were sure I would either go into a nursing home and not need it or die. Its the VA way. The late Jim Strickland used to say, the VA delayed our benefits until we die.

...I moved this from another poster's thread...I should have done this earlier. Hopefully more will see this now.

I messed up. The OP asked about SMC L1/2 plus K. Then, I permitted the thread to go into SmC T, A DIFFERENT TOPIC. Its my fault, I did not notice it until now. To keep the confusion down, Im gonna move this to a new topic, so you may be able to get better answer's Lemeul, and, likewise, so other's may chime in on the original topic of L1/2 plus K. My fault. I should have caught this earlier.

Congratulations. Its my opinion that your odds are very good, just because you have been accepted by cck law as I will explain. I dont know anyone who has gotten SMC T. (BUT DONT GO BY MY LIMITED INFORMATION!) I heard through the grapevine "T" is not awarded anymore. Did cck law suggest you could get T? If so, I stand corrected. They are obviously more up on the regulation changes than I am. However, I do know your odds are great for some retro, because CCK law is not in the business of working for free, and they dont get paid until you get paid. And, they know way, way, way more about SMC than I ever will. In the past, its been my experince, that they dont recommend "applying for a rating of 80 percent" for example, but instead, suggest Vets apply for the maximum. That, would also apply to SMC, so my guess would be cck law would be seeking the max allowed by law. Therefore, I doubt that cck would make a business decision to represent you unless they felt there was a good chance, aka 70% or better, of getting you retro. Since I have never seen your c and p exam, and they have reviewed your file, they are also in a way better position to guess the level you may be looking for. R2, I think, is the highest level, and Im not sure if you would qualify for that, or not. It may be more realistic to look for SMC R1 but I have no idea, its just a completely unsubstantiated guess. Again, tho, they must think you should be eligible for retro, or they would decline to represent you, as they have to pay employees and the bills also, to keep their doors open, which they have succeeded in doing for a long long time.

Thanks, Mark, for your great, informed opinion. Navy Vet. Bergman and Moore focuses on issues which have the highest likelihood of winning Veteran's benefits (aka, retro). And, this is not always consistent with our own ideas. This is usually a judgement call by the law firm, based on their years of experience. Of course, we mostly lack their legal experience, and that is why we hired them. Like yourself, I was suprised that the 3 law firms I hired did not always persue the issues that I mentioned to them, and, instead, focused on issues they felt were most likely to result in additional retro for me and them. And, yes, I was disappointed, and, further, I did not like being "wrong" about those issues. But, in the end I discovered that all 3 firms..which I have named in the past, wound up winning additional benefits for me, and, they further did so at little or no cost to me (after eaja fees). However, like you, I was upset at least a portion of the time, like yourself, when they did not persue particular issues I felt were valid. Looking back, Im glad I trusted their judgement, and expertise..which I paid them for. I also learned that Veterans law firms are pretty much "not" in the education business, teaching us by explaining all the "why they do this". They have to justify their law fees to the CAVC or the VA, per hour, and "educating Veterans" is not billable, so they generally dont do it. There are around 25 million Veterans, but only about 1000 or so attorneys to represent them, so most of the good ones are very very busy. If you go in a busy resteraunt, the cook probably does not want to take time to explain how/why he cooks your meal, either. My advice is to judge your law firm "by his results", not by how quick he returns your calls, by what you think he should have filed or how long he took explaining it all to you. We do that at a resteraunt too. We judge "how good the food was", not how good they are at explaining how they cooked it. Many law firms are so busy it may take weeks to return non emergency calls.

Im gonna give you my best answer, but be forewarned: My best is not always the right answer. To be sure, you should check with a competent law firm such as CCK law firm. So, here is my 2 cents:

Once service connected, disabilities are rated on symptoms. We dont know your symptoms. And, specifically, symptoms which are related to "how well" you are able to perform a job, that is to earn a living. VA compensation is designed to compensate Veterans for the loss in earning capacity due to their disabilities. For example are you able to lift things? How many pounds? Some jobs require lifting. Does it affect walking? Do you have pain? All these symptoms, and more, have to be documented by a doctor to guess at a possible rating. It could be as little as 0 percent if you have no symptoms, and could be as much as 100 percent if you were unable to maintain substantial gainful employement because of your back disability. Back problems can cause other problems such as nerve issues, and other stuff a doctor would have to document and figure out, if it causes (provide a nexus) to other disabilities. As already stated, we would need more to venture a guess. Reminds me of a GSW. (gun shot wound) A gsw can be fatal, can be a "nick", barely even noticable, or anywhere in between. My father had a gsw. While he did have a scar, the wound hit no bones and caused no symptoms, with the exception of the scar. Scars, from surgery or the woulds can be compensable, again, depending on symptoms. Some scars cause pain, while others do not.

This is an age old problem. While I have not read your medical opinion, or lack therof, in regard to the eitiology of your ED, you will need a medical statement from a qualified medical person that opines your ED is at least as likely due to either an event in service, or related to an existing service connected condition. I see it that you have some choices: 1. Get another doctor in the VA and ask him or her for a nexus. He or she may or may not do it either. However, people are not the same, and doctors are not either. The next doc may be willing to write a nexus, I can not speak for them. 2. Hire your own physician for his/ her medical opinion. (nexus statement). 3. Forget about sc for ED, because it probably wont happen without a valid nexus either from a VA doc or from a private doc. You can certainly try item 1, before shelling out the money to pay for your own doc. You can try going to a nearby VAMC, or you can try another provider (doc). Remember, the VA is signing the doc's paycchecks. And, so their loyalty goes to the one that signs their checks, not to us Vets. We dont have to like it. Its the Golden rule: The guy with the gold makes the rules. In this case that is the VA.

Ok, lets focus on helping this Veteran, please. Sometimes that last 10 or 20 percent is difficult. Lets begin at the beginning. You have at least 3 options, and you dont have to choose, you can choose them all! 1. Apply for an increase percent to your existing rating. This generally means either you were lowballed or your symptoms got worse over time. 2. Apply for new disability conditions, either that are from military service or may be secondary to your existing service connected condtion. 3. If you are not working, due to Service connected conditions, apply for TDIU. My advice, if you are not working, is to apply for all 3, especially if you may have new conditions that may or may not be related to your service connected condition. We would need to know more to suggest what you should apply for. Incidently, yes, I agree 4.16B (extra schedular TDIU is rare) and I got it! But it was a fight!

Welcome to hadit. My answer is in 3 parts: 1. You might as well get used to VA "wanting to know everything and I mean everything about you". Here is the deal. You give them all the information they request or its easy for them to deny you. We do not get to pick and chose what is relevant. In order to get VA benefits, you have to lay your life bare. Remember, when you went into the miltiary, they made you strip down and cough for a physical. So they checked inside and out. Expect no less with the VA. While you are not required to release information, they also are not required to provide benefits if you dont provide the requisite information and they get to decide what that requisit information is. While I agree with dustoff, they send that form out all the time, you could get benefits right away or you could get a quck denial "if va thinks" they dont have all the information 2. Now, the good news. The "fear of the reduction wolf" mostly turns out to be a puppy. There are numerous regulations in place which protect your rating from the big bad wolf and they do a great job, but only when you know how to scare the wolf off, and know how to find and use those regulations to protect you from the big bad wolf. In sum, if you have been rated over 5 years, or are P and T, its very tough for the VA to reduce you. THe protections for 10 years, is still better, and the 20 year protection is like Fort Knox, because VA cant reduce you after you have been rated for 20 years without proving fraud. My short paraphrase of the protections (over 5 years or P and t) mean that "not only" does the VA have to prove you "actually improved under ordinary conditions of life (not with prolonged rest)", but your improvement is sustained (ongoing) and not just a one exam improvement. Further, the exam to reduce you has to be "at least as thorough" as the one where you were rated. Finally, remember, when the VA issues you a decision, and does not address past disabilities, then the presumption is "there was no improvement in previous disabilities since that time", so they have to show that improvement occurred since your most recent VARO decision. However, dont take my word for it, then go pet your new puppy: Read the regulations your self: The threats to reduce are often overblown BUT you must act if you get a proposed reduction letter or else its assumed you dont protest the reduction. If you get a Proposed reduction letter, start a new topic on hadit and get help. https://www.law.cornell.edu/cfr/text/38/3.344 3. My last part is concerning to me. You posted: "Clear nexus letter" is relative. Clear to who? You? probably? VA, maybe not so much if it was worded like that. Rating specialists search for terms like "at least as likely as not" related to an event in military service. It may work, but VA seems to love "at least as likely as not caused my heart disease", and not so much the little less clear (to some rating specialists, who may be doing a search for a nexus using search terms like I suggested). The BVA is full of cases where the nexus was less than clear. Most of those wind up getting remanded for clarification of the nexus. This means another c and p exam. My advice is to read over the nexus letter again. Now, "if" your prime care is a va doc, he likely knows how to write a nexus letter. However, if he does not work for the VA and you get your care outside of VA, he may be unfamiliar with exactly how to do a va nexus to satisfy them. Especially critial parts of a nexus letter: A. The doctor provides his CV detailing his competence as an expert witness. (The VA c and p examiner gets a presumptive, your doc does not!). He needs to demonstrate medical training and experience diagnosing and treating your types of maladies, aka blood pressure/heart disease. B. The doctor needs to state he reviewed your records. This seems obvious, but VA often loves to do the "gotchas". This is one. C. The doctor needs to provide a medical rationale as to "why" he presented the opinion your high blood pressure was related to heart disease, such as citing a Harvard medical study that showed this link. D. He needs to sign it, and provide his medical license number along with address and stuff. "Anon" or "ghost" docs cant provide a nexus because their competence can not be verified. The VA can check with the medical license number to see if this doctors license in under suspension for any reason. E. Of course, the VA needs to be able to read his writing. Im not trying to be a naysayer here about your nexus. It may be fine. However, it is best to review it. It may well save you years of delays and denials, as "there may" be time for your doctor to slightly amend that nexus letter to include all of the above, "if" any one or more of the above is missing, incomplete, or inaccurate. Instead, Im trying to save you heartache which has resulted in delays and denials for many Veterans. EVen tho, I had a "dead on" nexus, the VA still found a way to deny, and that delay meant I lost my home to foreclosure. They made up a way to deny. Even tho, the Caluza elements of diagnosis, event in service, and nexus should suffice, they made up a new one. They said it had been "too long since military service" a bogus denail. I overcame their denial..but lost my home in the process. Im trying to prevent that from happening to you.

The original post was from almost 8 years ago, Lemeul. While it would be awesome if the OP responded, it is not exactly likely. Im not sure how/why this is happening.

The obvious advice is to appeal all the ratings. You can allege an inadequate exam, alleging they could not have done a thorough job in 45 minutes. However, be sure to address the reasons and bases for denial. Dont make it an attack on the examiner, make it an appeal, on the bases that the "reasons for denial" were inapplicable/incorrect. Example: (Dont use my example) "While the Nov.4, 2023 VARO decision (cite the decison) denied tinnitus stating that "no evidence of tinnitus could be found", in an exam by Audiologist Cooper, on Jan, 2019, it was noted the exam could not be completed correctly because of ringing in the ears (tinnitus)." This Jan. 2019 exam directly refutes the VARO decision claim that no evidence can be found.

Its the same reason VA (loans) can charge Veteran interest on the loan, but not PAY interest to the Veteran when they delay his claim 5, 10, 20, or even 30 years: The VA gets to interpret their own regulations because of Chevron Deference aka Auer Defence. Many times, cases boil down to "how VA interprets" their regulations. The VA is free to interpret their own regulations in a manner they see fit, and to modify, scrap, or change those regulations, at will, for their own purposes, when it serves their best interests. Further, it seems to be that for Veteran "Joe" the Va can interpret its regulations in xyz manner, but for Veteran "Bob", the VA can decide this is a different situtation and they are to be interpreted in abc manner. And, unfortunately, VA has apparently interpreted the regulations requiring those above it to be 100 percent plus a combined 60 percent, seperate and distinct, not an "added" 60 percent. In the ground breaking case of Chevron, the Supreme Court ruled that (a government agency) was in a postition to interpret its own regulations, and "the bar for us to get that overturned" is very very high. The good news is that Chevron deference is being reconsidered by SCOTUS, and it could be changed, or eliminated: https://www.duanemorris.com/alerts/us_supreme_court_signals_it_may_jettison_chevron_doctrine_0124.html#:~:text=The conservative majority of the,federal agencies less interpretive discretion. I suggest you watch this Scotus decision, I will try also, and let you know if the results when I find them.

Good point Jamescripps. I did not know that. Great advice. I heard that you were the first to get sc for AO in Conus, is that right? That is quite an accomplishment.

Its not that unusual to have more than one exam. The C and P exam has to have pretty much everything right to be ready for rating. As an example, as you pointed out, if there is a nexus, are the symptoms documented? Further, Va sometimes requires a medical reasons as to why the doc makes said opinion, "especially when/if" that opinion is somewhat controversial. Lets say a doctor opines that your high blood pressure caused your prostate issue. Since that may be rather rare, the VA may ask the doc to explain his medical rationale as to how high blood pressure can cause a swollen prostate. So, you may have to go back. There are many reasons why you may have to go back, this is just a couple. I have posted things c and p exams need to be valid, but wont do that again here.

Excellent question. I would refer you to the regs on reductions, found below: https://www.law.cornell.edu/cfr/text/38/3.344#:~:text=Rating agencies will handle cases,governing disability compensation and pension. The answer to your question depends on many factors, such as "how long have you been rated?" and are you P and T? It will also depend on your symptoms and residuals. https://www.law.cornell.edu/cfr/text/38/4.115b

Something a bit weird is going on. Your question appparently is from 2022, but no answers until 2024. I generally at a minimum answer way, way, way before that. However, my advice, if you feel like you deserve "loss of use" , the go ahead and apply. If awarded, you should get an effective date "the facts found" regardless of when you apply, because this involves SMC. SMC is inferred and the effective date is not limited by the date of claim, but rather only by the date the doc said you had "loss of use".

Make sure you understand: You do not need a TBI DIAGNOSIS in service. NO. You need an "event" in service. There is a difference. If you jumped out of airplanes, its entirely possible, or even likely you hit your head at least once. Instead, you need the Caluza elements of: 1. Current diagnosis. A doctor needs to diagnose you have TBI now. And 2. You need documentation of one or more events in service. Jumping out of an airplane is an event. So is combat. If you have a buddy from the service who was there and saw you hit your head, then he could write a letter about same. This letter, may suffice for Caluza element 2: "event in service" 3. Nexus, or doc statment that "its at least as likely as not that your current diagnosis of tbi is from head trauma you received from combat, jumping out of airplanes etc while in military service". Use your actual example, not my sample. Get the Caluza elements: Get service connected. Miss one or more Caluza Elements: Get denied. NOTE: SECONDARY TBI does not really make sense to me, UNLESS PTSD caused you to hit your head. (maybe, IDK). In any case secondary SC is mostly like the above except: 1. Current diagnosis 2. Nexus that your Secondary condtion (TBI?) was at least as likely as not due to PTSD. This seems a little far fetched to me, but IDK, so it may well be possible to bang your head with PTSD. IDK. My opinion does not matter anyway, it takes a doctors opinion regardless.

My attorney explained it. The law firm can collect the "greater" of (the percentage agreed upon) or eaja fees, but not both. In my case, I had agreed to 20 percent which would have been 5000. But, since eaja already paid her 4000 from the cavc, She got 1000 from me and 4000 from eaja. And, she only got the 1000 because I agreed to pay her for representation at the BVA. In my other appeal, Chris attig does not represent claimants at the board. He won a remand at cavc, collected his eaja fees, I paid nothing. He advised me to go pro se, I went with a vso and hired a IMO per his recommendation, with a name he provided. The IMO cost 500, and I won a six figure retro where my only cost was a 500 IMO. I hope this explains it. IN short: EAJA pays fees at the CAVC YOU pay the fees at the BVA