GulfWarVet1990

I have also greatly benefited from using an independent MO from a paid medical expert in addition to the several claims and appeals I won representing myself pro se before the VARO, BVA and CAVC vet court.
I highly recommend Dr. David Anaise.  He has an excellent website and offices are in Tucson.
My comment is not legal advice as I not a lawyer, paralegal or VSO.

@GulfWarVet1990
Check your medical records for the past 12 months to see if you have evidence proving you meet the criteria for an increased rating for each disability. If it does, the VA should evaluate it and then issue a decision. When the decision letter arrives, it might either be just for the increases or it could also include the HLR as deferred pending decision. 
If you submitted the intent to file a few months back, the VA can still consider favorable medical evidence of an increase going back the previous 12 months. For example, if the medical records showed you met the criteria in December 2021, but you filed the intent back in July 2022, the increase should be effective back to December 2021. Keep in mind that the effective dates of increase may differ between each of the two disabilities based on when you met the criteria qualifying you for an increase.

I don't know whether it's better to wait or not.
I have an appeal in for PTSD, unspecified depressive disorder and earlier effective date. The EED is from 1978 when I was first denied. Apparently VA did not have my medical records at the time. I've brought up the idea of increasing my % to the atty a couple of times. She talks me out of it, saying the BVA has a nasty habit of changing the effective date on claims like mine. I go back and forth -- old age is here and 100% would sure be nice in the mailbox, but I'd hate to give up on backpay even if it's only from 2015.
Of course people on the 'other' forum say the atty is just stalling in order to get a bigger fee...

Well I'm sure a believer in IME's when filing an increase.  I went from 50% PTSD to 100% P&T with additional evidence from an IME.  Was worth every penny. It did trigger several VA C&P exams.

Thanks Broncovet. I submitted an intent to file a few months ago to secure a claim date. 
Are IMOs recommended to submit with SC increases.  

You got it Vync NEVER GIVE UP! NEVER GIVE UP! Thanks all for the response. You hear about this but you never get to talk to someone who has done it and how they did it.  I expected 5 figures not what I got. I didn't think they would include the UI. I have 2 others that were denied in 1982 (Left Shoulder & Wriest) and 1993 (Fibromyalgia) that hasn't been addressed yet. They are my next project.  I will need help with getting to extra scheduler and deciding an SMC.

Keep up the fight. I have 2 appeals before the BVA. Dr Anise wrote my IMO for OSA secondary to Sinusitis, tinnitus, and something else. When I originally submitted it thru the VSO, he freaked out because of the many pages and documentation. Yet it was denied. I have been in this appeal process since Aug 2018\2019, can't remember.
The person that rejected my claim is a geriatric nurse that wrote that she consulted wikipages and found "more credible" evidence there against my claim. And that I should continue my therapy for my medical issue, even if it isn't disabling??? WTF?!!
It is extremely frustrating reading stupid crap like that, especially from a trained nurse. One would think that there would be a checklist or a flow chart to help the rater make a simple but accurate decision.
Just remember, it costs you nothing more than what you have in it to continue the appeal. But it costs you more when you don't appeal.
Fight, Fight more, find away forward.
Look at any other issues you may have and fully document them and file for them. It's about documenting your disabilities. Before Military Disabilities Made Easy became a paid site, you could look at the criteria needed for each issue and provide evidence to support your claim. I only used it for my 2 months to support my recent claim. I also sent in everything I referenced, even if they had a copy of it. I also had a statement from my wife, and I submitted a statement of my own, describing the condition I was filing for, how it affected me, my ability to not be able to do things, the affect on my family.
I had a 1stSgt tell me one time, you gotta potatohead things for people. Make it simple and straight forward for them to follow the path you want to lead them on.
I'm not saying it is a guaranteed path to getting it approved, it's just what I have done.
So it won't surprise me if my recent claim is denied in part, or in full.

dont give up man....i had all my claims when i got out denied except for tinitus....i had 10% from 2008 to 2013 bc i gave up...
then i met my wife- shes a fighter...she pushed me...
i found hadit- these guys pushed me further...i found a great VSO...i found a great lawyer...now im 100% and fighting for earlier effective dates back to 2008....it can be done man...just dont give up! 
i wish you luck my friend...listen to these guys...they are smart cookies!

I know this is a lot to take in and digest but as stated it seems that you are just beginning and if you are already familiar with this then great.
Sleep apnea 50%, Insomnia, adjustment, anxiety: 30%, Tinnitus, 10%, Right knee 10%, Left knee 10%, Back 10%
Which would round up to an overall combined rating of 80%, you need to get to 95 in order for the VA to round up to 100% combined and schedular.
First things first, a veteran can file for an increase in rating or a new service-connected disability if he/she chooses. When filing for an increase the veteran just needs to show/prove that his/her current service-connected disability has gotten worse or is worse and meets the higher rating percentage. As to filing for a new disability, the veteran must have 1. an in-service event, accident or incident. 2. A current diagnosis and 3. A nexus (a medical opinion) that connects 1 and 2.
If your rating decision has been less than 1-year (365) days, then you should file a disagreement and request a higher rating, but you will still need proof that your symptoms are worse than rated. If it has been more than a year, then you will have to file new/open claims.
Instead of shooting in the dark, trying to get to 100% from 80% is kind of hard but not impossible, IMHO (IN MY HUMBLE OPINION), your mental health rating should be at least 70% but no higher, also your back is rated as 10% and that should be higher. You can also file a claim for migraine headaches, hearing loss, acid reflux, and any other rating you choose. Try to focus on disability symptoms/rating that are more than 10%. ED which is an SMC payment (A little extra above the current rating percentage, about $118.00 a month above your 80% rating).
Now here is the part that you may not like but it is the most important to you. You are going to have to get familiar with 38 CFR part 3 and part 4, these are the regulations that the VA goes by. No, you do not have to know every little thing in these regulations, they are huge, but you do need to know the regulations that deals with your particular claims and or ratings. I say this because you do not want someone/anyone to lie or mislead you and the VA may try, even other veterans and some VSOs. I don’t think intentionally but it does happen. As my signature states, do your own homework.
When filing a disagreement, you must use one of the VA forms 0995, 0996 or 10182 and you will need to look them up to know when and where to use them and when filing a new claim or opening a new claim, you have to use VA form 526 or 526EZ but make sure you attach the evidence and keep a copy because things do get lost with the VA. I am sure others will chime in, but this is just a start, and you have some ways to go. I normally download adobe acrobat and make a copy of all VA forms I send in on my computer, they all are downloadable. Just make sure they are the latest or newest version that the VA is accepting.
You can start with your Local County Veterans Service Office, they can steer you in the right direction but as stated above, make sure you get familiar with your symptoms and your rating requirements.
 
eCFR :: 38 CFR Part 3 -- Adjudication
eCFR :: 38 CFR Part 4 -- Schedule for Rating Disabilities

Thank you for your positive words of encouragement and advice.

I am sorry to hear about your denial. I am also waiting on my supplemental claim for OSA. I added my civilian PCP's IMO. We will see what happens. I'm only a month in on my wait though. Good luck with your appeal. 

Just appeal, appeal and then appeal some more.  I was DX'ed with a heart condition. The VA rated me at Zero.  I appealed and got 60% just because I appealed it and got some new evidence from the VA itself.

Ok here is n my 2 cent in the issue.
Ok you have two imo did they address both in the decision and give a reason and base for choose one over the other.
If they only address there own imo I would appeal. Based on this.
Va eplain there decision to choose one imo or others.

I do apologize, maybe wrong choice of words. Just a little frustrated on how the vets get treated. 
Stay in the fight. 

Because you mentioned the va sided with its own c&p examiner.
It’s all in the way the C&P Dr writes his report.
Certain statements within his report need to be highlighted…”I have received and reviewed veterans entire cfile, and all private records and lay statements”.
You said your Dr addressed this in his report, so I don’t know what else to say but appeal, appeal, appeal.

Here we go again. All of this hooblah about nexus letter, now vets are financially struggling as is, paying all of their money to get a nexus just to get shot down. 
I just received a pm from a member stating that legacy appeals are extended for another 3 years. I have not found anything on that but if it is true, then think about how long AMA claims will take. 
Nexus or not, VA is doing to take advantage of people that have sacrificed their lives for their country. 

Dr. Anaise is the greatest.  Thanks to his very detailed explanation and list of medical references to support his contentions I won on BVA appeal OSA Sleep Apnea secondary to PTSD and PTSD medications in their December 2021 decision.  The BVA cited his nexus medical opinion as a key piece of evidence in granting my appeal and also found the sorry VA C&P examiner denial of my OSA due only to 30 lbs overweight opinion as "defective".
Dr. Anaise also opined that my overweight condition of many years was due to PTSD and PTSD plus other VA medications.
He also won a BVA remand for me on appeal of a VARO denial of my claim for increase in Agent Orange heart disease known as IHD/CAD.  This remand is still pending.
You have an excellent chance of winning your claim on appeal.  It is unfortunately typical for VARO raters to deny vets claims with strong supporting evidence to include good quality doctor's medical nexus opinions.  It is their game and rules.
My comment not legal advice as I not a lawyer, paralegal or VSO.

You could file a complaint with your local VARO and contest the VES examiners credentials and exam.  This probably will trigger another C&P with a different examiner.  I've done this in the past.  It worked out for me.  I guess you have nothing to lose by filing an HLR, but they'll probably rubber stamp the VES examiner.  But you never know.
I believe Dr. Anaise is also a lawyer.  You may want to contact him again to see if he can represent you.  I imagine he might take interest since his exam is being dismissed.

Good news. Don't forget to donate here.

I wanted to say thank you to everyone on this board who has help me over the last 3 years. I checked my claim this morning and I saw that I was 100% and I didn't believe it at first but after checking my letter I saw it was real. This has been a long uphill fight but every single person on here told me not to give up and keep going and that's what I did. Again I just wanted to say thank you and I wish everyone the best in their pursuit of the rating the really deserve. 

It’s crazy! Unfortunately, this is why a lot of our brothers in arms give up.
To make a long story short, after my discharge, I had a senior VSO ask me why I didn't medically retire and there was enough evidence in my records that I should/could have retired but when I filed my claims the VA denied most to all of them, so I decided to read 38 CFR part 3 and 4 that pertained to my service-connected disabilities and filed my own claims. I also feel that the VARO lied to me, and I want them to correct their decisions and I feel that I will fight for my benefits. Sometimes it's good to get mad but we have to learn how to channel that energy into something positive. 

This is what won my sleep apnea.  Please feel free to use this in your fight against the VA.  Most would not need to be this long, but I would use what you feel is needed and fits with your claim.  
Dear Ladies and Gentlemen:
Supplemental Claim is elected. If additional evidence or clarification is needed, please
contact me by facsimile, telephone, or U.S. mail.
The above veteran received a Rating Decision dated March 12, 2020 and wishes to
appeal this decision regarding the following issues:
1. Service connection for sleep apnea.
The Veteran is entitled to service connection for sleep apnea. The Board remanded the
veteran’s claim because the VA failed to provide a medical examination. The VA finally
provided an examination on February 17, 2020. Counsel has not received a copy of the
examination and therefore cannot fully assess its sufficiency. However, from the portions of the
examiner’s opinion provided, it is inadequate for several reasons. First, the examiner determined
that because the veteran was not diagnosed until 11 years after his service, it is less than likely
that the veteran’s sleep apnea is related to his service. A lack of medical records is not negative
evidence that disproves the veteran’s claim. Sleep apnea does not require immediate medical
care. Moreover, sleep apnea in particular is a condition that is often undiagnosed, as noted by the
attached article by the University of Washington. It is inappropriate to discredit the veteran’s
claim merely because he does not have a treatment record for a historically underdiagnosed
disorder that does not require immediate treatment.
Furthermore, the examiner determined that the veteran’s sleep apnea was likely not
caused by the veteran’s military service because “exposure to burn pits does not cause a physical
obstruction in the airway, which is the cause of sleep apnea.” Some older research questioned
whether burn pits could cause sleep apnea, however the most recent academic research from
May 2020, which is attached, shows that sleep apnea is caused by exposure to burn pits. The
basis of the examiner’s decision is based on a decisively faulty premise and is therefore
inadequate.
Moreover, the examiner entirely failed to consider secondary service-connection due to
the veteran’s PTSD. PTSD is a well-established cause of sleep apnea, as noted in the attached
articles. The examiner’s failure to consider secondary service connection due to the veteran’s
PTSD, which is noted throughout his medical records, renders the examination inadequate. If the
VA provides an examination, it must be an adequate one. The multiple failures committed by the
examiner renders their opinion inadequate and the veteran must be provided a new examination.
Please readjudicate the claim accordingly.
Also attached are the following articles:
1. Visesh Kapur et al, Medical Cost of Undiagnosed Sleep Apnea, Pulmonary and Critical
Care Division, Department of Medicine, University of Washington.
2. Chelsey Poisson et al, A Pilot Study of Airborne Hazards and Other Toxic Exposures in
Iraq War Veterans, International Journal of Environmental Research and Public Health,
published May 9, 2020.
3. The Connection Between PTSD and Sleep Apnea, Sleep Foundation.
4. Peter J. Colvonen et al, Obstructive Sleep Apnea and Posttraumatic Stress Disorder
among OEF/OIF/OND Veterans, Journal of Clinical Sleep Medicine.
Additionally, based upon common errors committed by the VA, the Veteran argues and
preserves the following:
Examination inadequate. If the VA Secretary provides an examination, it must be an
adequate one. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). VA regulation instructs
adjudicators to return as inadequate an examination report that is not supported by sufficient
findings or does not contain sufficient detail. 38 C.F.R. § 4.2; see also Bowling v. Principi, 15
Vet. App. 1, 12 (2001); Vazquez-Flores v. Shinseki, 24 Vet. App. 94, 97 (2010) (citing Daves v.
Nicholson, 21 Vet. App. 46, 51 (2007), for the proposition that “...when a medical examination
report was susceptible to multiple fair but inconsistent meanings, the Board erred in failing to
seek clarification”). “Most of the probative value of a medical opinion comes from its reasoning”
and a medical opinion is not, “...entitled to any weight . . . if it contains only data and
conclusions.” Nieves-Rodriquez v. Peake, 22 Vet. App. 295, 304 (2008).
An inadequate medical examination frustrates judicial review because it does not
adequately reveal the current state of the disability. Hicks v. Brown, 8 Vet. App. 417, 422 (1995).
The necessity of a thorough examination and a thorough explanation of the examined conditions
is simple. The primary purpose for the examination is to require the Board to decide the claim
based on sympathetic development and the resulting accurate view of the veteran’s current
medical status. See 38 U.S.C. § 5103A(d); Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991).
The Board “...must provide for the conduct of an adequate examination during the active stage
of appellant’s (disorder), and must, on the basis of that examination and all evidence of record,
ascertain the existence, extent, and significance under the rating schedule of any (symptom) due
to (the disorder).” Ardison v. Brown, 6 Vet. App. 405, 408 (1994).
If the VA decides a case without an adequate and competent medical examination, it is,
in effect, supplying its own medical opinion, which is remandable error. See Colvin v. Derwinski,
1 Vet. App. 171, 175 (1990). An independent medical opinion must contain sufficient
information so that VA is not exercising independent medical judgment. Stefl v. Nicholson, 21
Vet. App. 120, 124 (2007); see also Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301 (2008)
(The Secretary, “...when he undertakes to provide a medical examination to obtain a medical
opinion, must ensure that the examiner providing the report or opinion is fully cognizant of the
claimant’s past medical history”); Stegall v. West, 11 Vet. App. 268, 270 - 71 (1998) (VA
examination remanded for inadequacies of exam on remand).
When the examiner states that a non-speculative decision cannot be reached, the Board
must consider several factors in determining whether the opinion is adequate. First, the record
must demonstrate that the examiner has weighed all procurable information. Next, the examiner
must provide an explanation for his or her conclusion. The record must also demonstrate that an
inability to provide an opinion without resorting to mere speculation “’reflects the limitation of
knowledge in the medical community at large’ and not a limitation—whether based on lack of
expertise, insufficient information, or unprocured testing—of the individual examiner.” Sharp v.
Shulkin, 29 Vet. App. 26 (2017).
Veteran’s lay statements. The VA must adequately review veteran’s favorable lay
statements concerning his medical status. His statements are competent proof. These statements
of his current medical condition need not be supported by contemporaneous, corroborative
medical records. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006); see Dalton v.
Nicholson, 21 Vet. App. 23, 39 (2007) (where Court explained VA was in error when the sole
premise for the examiner’s conclusion was the lack of notation or treatment of the claimed
disability in service); see also Smith v. Derwinski, 2 Vet. App. 137, 140 (1992) (noting that the
purpose of section 1154(b) was “...to overcome the adverse effect of a lack of official record of
incurrence or aggravation of a disease or injury and treatment thereof” (citing H.R. Rep. No.
1157, 77th Cong., 1st Sess. (1941), reprinted in 1941 U.S.C.C.A.N. 1035)).
VA must address the credibility and probative value of veteran’s lay statements in its
analysis of veteran’s case. VA must have a valid basis for finding veteran’s lay testimony
incredible where VA concludes that veteran’s claimed injury is one of such severity, it would
have been recorded in service had it actually happened during that time. Kahana v. Shinseki, 24
Vet. App. 428, 433-34 (2011).
The VA must consider lay statements where (1) the, “...layperson is competent to
identify the medical condition, (2) the layperson is reporting a contemporaneous medical
diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a
medical professional.” Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Credible
lay evidence alone is competent to establish the existence of the claimed condition(s). Further, in
some instances lay evidence by itself is sufficient to establish a medical nexus between veteran’s
service and current disability, insomuch that no “medical evidence” is needed to substantiate the
claim. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009).
To decide the claim without an accurate record and review of veteran’s lay statements as
to his actual physical condition is in contravention to law and effectively operates to allow the
VA to substitute its own opinions for that of record. This is always harmful error. See Doran v.
Brown, 6 Vet. App. 283, 287 (1994) (citing Colvin v. Derwinski, 1 Vet. App. 171, 175 (1990)).
Discounted favorable evidence. VA has the obligation to weigh and consider all of the
evidence. See Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997); Hogan v. Peake, 544 F.
3d 1295, 1298 (Fed Cir. 2008) (A determination regarding service connection requires
consideration of “...all pertinent medical and lay evidence...”) (quoting 38 C.F.R. § 3.303(a)).
The VA must do this whether it finds the evidence persuasive or not. See Gilbert v. Derwinski, 1
Vet. App. 49, 56-57 (1990).
If the VA is going to discount favorable evidence, it must explain why it did so, make its
explanation understandable to laypersons and provide sufficient detail to facilitate court review.
See Norris v. West, 11 Vet. App. 219, 224-25 (1998); Allday v. Brown, 7 Vet. App. 517, 527
(1995). This is required as a matter of law. See 38 U.S.C. § 7104 (d); Gilbert v. Derwinski, 1 Vet.
App. 49, 56-57 (1990); Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Schafrath v.
Derwinski, 1 Vet. App. 589, 592-93 (1991); Daves v. Nicholson, 21 Vet. App. 46, 51 (2007)
(citing Meyer v. Brown, 9 Vet. App. 425, 233 (1996)).
VA errs when considering the effects of medication on the appropriate rating for
appellant’s service-connected condition when those effects are not explicitly contemplated by the
rating criteria. Jones v. Shinseki, 26 Vet. App. 56, 61 (2012). VA errs in taking those effects into
account when evaluating veteran’s disability rather than limiting itself to the symptoms expressly
contemplated by the appropriate rating code. Conditions caused by the adverse side effects of
medications used to treat a service-connected condition should be service-connected on a
secondary basis. Wanner v. Principi, 17 Vet. App. 4 (2003), rev’d on other grounds, 370 F.3d
1124 (Fed. Cir. 2004).
Where a medical record is incomplete, the VA should refer the examination report back
to the examiner for clarification. 38 C.F.R. § 4.2. This is also the case for private medical
examination reports. Savage v. Shinseki, 24 Vet. App. 259 (2011) (In Savage, the Court
explicitly limited VA’s duty to seek clarification of private medical reports to situations where
“...the missing information is relevant, factual, and objective–that is, not a matter of opinion...”
24 Vet. App. at 270. Specifically, the Court held that when a private medical report is the only
evidence on a material issue, and material medical evidence can no longer be obtained as to that
issue, yet clarification of a relevant, objective fact would render the private medical report
competent for the assignment of weight, the Secretary must attempt to obtain such clarification.
Id. at 267.
Sympathetic development. 38 C.F.R. § 3.103(a) mandates the “...VA to assist a
claimant in developing the facts pertinent to the claim...” and obligates the VA “...to render a
decision which grants every benefit that can be supported in law...” See Cook v. Principi, 318
F.3d 1334, 1337 (Fed. Cir. 2002) (en banc) (noting 38 C.F.R. § 3.103(a) is the regulation setting
forth the duty to assist codified in 38 U.S.C. § 5103A)); see also Roberson v. Principi, 251 F.3d
1378 (Fed. Cir. 2001) (declaring Congress has mandated “...that the VA is to fully and
sympathetically develop the veteran’s claim to its optimum before deciding on the merits.”).
(Quotation omitted).
Included in this obligation is the obligation to weigh and consider all of the evidence. See
Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997); Hogan v. Peake, 544 F. 3d 1295, 1298
(Fed Cir. 2008) (A determination regarding service connection requires consideration of “...all
pertinent medical and lay evidence...”) (quoting 38 C.F.R. § 3.303(a)). This pertains to all
claims. Ingram v. Nicholson, 21 Vet. App. 232, 238 (2007); see also Szemraj v. Principi, 357
F.3d 1370 (Fed. Cir. 2004). The VA must consider all evidence whether it finds it persuasive or
not. See Gilbert v. Derwinski, 1 Vet. App. 49, 56-57 (1990). This obviously includes
conscientious, independent consideration of veteran’s lay statements. See Buchanan v.
Nicholson, 451 F.3d 1331, 1335 (Fed. Cir. 2006).
The Court in Ingram v. Nicholson stated that although there is no legal “...definition of
‘sympathetic reading’, it is clear from the purpose of the doctrine that it includes a duty to apply
some level of expertise in reading documents to recognize the existence of possible claims that
an unsophisticated pro se claimant would not be expected to be able to articulate clearly.”
Ingram, 21 Vet. App at 255; see also Robinson v. Mansfield, 21 Vet. App. 545, 553 (2008)
(Board must consider all theories of entitlement that were reasonably raised by either the veteran
or by the evidence in the record).
Despite such obligation, the VA has failed to develop and adjudicate its decisions with an
eye to allowing the veteran the maximum benefit to which he is entitled, which is a failure in its
duty to assist and outcome determinative error. See Roberson v. Principi, 251 F.3d 1378, 1385
(Fed. Cir. 2001); Schroeder v. West, 212 F.3d 1265, 1271 (Fed. Cir. 2000); see also Akles v.
Derwinski, 1 Vet. App. 118, 121 (1991).
Benefit of the doubt and burden of proof. Veteran argues he is being held to a burden
of proof beyond that set by law. The VA holds veteran to an unfair burden. Federal statute
clearly states, “When there is an approximate balance of positive and negative evidence
regarding any issue material to the determination of a matter, the Secretary shall give the benefit
of the doubt to the claimant.” 38 U.S.C. § 5107(b). “...the preponderance of the evidence must
be against the claim for benefits to be denied.” Gilbert v. Derwinski, 1 Vet. App. 49, 53-55
(1990). VA applied the improper standard of proof in this case.
Reasons and bases. VA is required to consider and “...discuss in its decision, all
‘potentially applicable’ provisions of law and regulation.” Majeed v. Nicholson, 19 Vet. App.
525, 529 (2006) (citing Schafrath v. Derwinski, 1 Vet. App. 589, 593 (1991)); 38 U.S.C. §
7104(a). The VA must account for all of the evidence whether it finds it persuasive or
unpersuasive, and provide reasons and bases for rejecting evidence. See Gilbert v. Derwinski, 1
Vet. App. 49, 56-57 (1990). It must weigh the credibility and probative value of all evidence. See
Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997).
If VA is going to discount evidence and refuse to provide veteran a medical examination,
VA must explain why it did so. These reasons must be sufficient to allow veteran the opportunity
to understand why it did so. See Norris v. West, 11 Vet. App. 219, 224-25 (1998); Allday v.
Brown, 7 Vet. App. 517, 527 (1995). This is required as a matter of law. See 38 U.S.C. §
7104(d); Gilbert v. Derwinski, 1 Vet. App. 49, 56-57 (1990); Gabrielson v. Brown, 7 Vet. App.
36, 39-40 (1994). This is not only for the benefit of the veteran, but also the federal appellate
court which will ultimately review the claim and its adjudication. See Allday v. Brown, 7 Vet.
App. 517, 527 (1995).
Missing medical records. “Since the VA has been unable to obtain the veteran’s service
medical records, it has a heightened duty to explain its findings and conclusions.” See Lee v.
Nicholson, 2006 U.S. App. Vet. Claims LEXIS 1393. More specifically, in Washington v.
Nicholson, the Court held that when a veteran’s records are presumed lost or destroyed, the
Board is “...under a heightened duty to consider and discuss the evidence of record and supply
well-reasoned bases for its decision as a consequence of the appellant’s missing SMRs.” 19 Vet.
App. 362, 371 (2005). The Court held the Secretary breached the duty to assist in failing to
“explore alternatives” to missing service records and “...VA should make reasonable efforts to
obtain such reports, statements, or other records that might provide corroboration for the
appellant’s assertion...” of an in-service injury, disease, or event. Id.
The Secretary’s duty to assist includes a duty to obtain any “...relevant records held by
any Federal department or agency that the claimant adequately identifies and authorizes the
Secretary to obtain.” §38 U.S.C. § 5103A(c)(1)(C); §38 C.F.R. § 3.159(c)(2); Loving v.
Nicholson, 19 Vet. App. 96, 102 (2005). Efforts to obtain records in the custody of a Federal
department or agency must continue unless “...VA concludes that the records sought do not exist
or that further efforts to obtain those records would be futile.” 38 C.F.R. § 3.159(c)(2).
“If VA . . . after continued efforts to obtain Federal records concludes that it is reasonably
certain they do not exist or further efforts to obtain them would be futile, VA will provide the
claimant with oral or written notice of that fact.” 38 C.F.R. § 3.159(e)(1). The notice must (1)
identify the records VA was unable to obtain; (2) explain what efforts the VA took to obtain the
records; (3) describe any further action VA will take regarding the claim; and (4) notify the
claimant that he is ultimately responsible for providing the evidence. 38 C.F.R. § 3.159(e)(1)(i)-
(iv).
Negative evidence and mischaracterization of claims. The Board may not consider the
absence of a medical notation to be negative evidence when there is no reason a medical
examiner would have commented on a particular matter. Buczynski v. Shinseki, 24 Vet. App.
221, 224 (2011). See Douglas v. Shinseki, 23 Vet. App. 19, 25–26 (2009) (“...the duty to gather
evidence sufficient to render a decision is not a license to continue gathering evidence in the
hopes of finding evidence against the claim”).
The Board may not mischaracterize veteran’s claims. Mischaracterization of claims may
lead to considering issues outside of “...the scope of the appeal, applying the wrong law, and
engaging in the wrong analysis.” See Murphy v. Shinseki, 26 Vet. App. 510, 513 (2014) (the
Murphy Court recognized mischaracterization of claims as the catalyst to improper reduction of
claims, which the Court indicated has a “...’chilling effect’ in the administrative appeals
process...”).
Medical treatises. A medical article or treatise “...can provide important support when
combined with an opinion of a medical professional” if the medical article or treatise evidences
“...generic relationships with a degree of certainty such that, under the facts of a specific case,
there is at least ‘plausible causality’ based upon objective facts rather than on an unsubstantiated
lay medical opinion.” Sacks v. West, 11 Vet. App. 314, 317 (1998); see also Wallin v. West, 11
Vet. App. 509 (1998).
“A veteran with a competent medical diagnosis of a current disorder may invoke an
accepted medical treatise in order to establish the required nexus; in an appropriate case it should
not be necessary to obtain the services of medical personnel to show how the treatise applies to
his case.” Hensley v. West, 212 F.3d 1255, 1265 (2000). “An ‘evaluation’ of treatise evidence
should be made in the first instance by the BVA.” Timberlake v. Gober, 14 Vet. App. 122, 131
(2000). If the Board fails to consider medical-treatise evidence by the veteran, the Court will
remand the case to “...the Board to evaluate “that evidence” to see if it supports a nexus.” Id.
Due process. Veteran also contends the Regional Office’s (RO) failures as expressly
asserted in this Notice of Disagreement rise to the level of the Secretary’s denial of Veteran’s
procedural due process protections, guaranteed to U.S. military veterans by the Fifth
Amendment, U.S. Constitution. See Cushman v Shinseki, 576 F.3d 1290 (Fed. Cir. 2009).

Was finally able to hire a programmer who got the calculator fixed. Check it out here https://www.hadit.com/va-disability-calculator/

Good morning,
I am not new to HadIt.com, but this seemed like the best category for this post.  There are a few things I wanted to say to you all - in no particular order:
I work for the VA I am a 100% disabled Vet I DO NOT speak for the VA my opinions are strictly my own I see and hear you - as a Vet and as a VA employee Working for the VA as a claims processor (more than one job title fits in that category) is my dream job.  Every single day, I make a difference in a Veteran's (claimant, family member, etc.) life.  I am very conscientious about the work I do.  I always remember that my work directly impacts a specific Veteran.  I am constantly learning new stuff that affects my job.  Changes in laws and regulations occur nearly on a constant basis and those changes impact Vets.  I work fast, smart, and hard.  I work with a lot of people who are similarly motivated...not all of them are Veterans.  I also run into folks who are "boxes of rocks", just like when I was in the military.  I have been a mentor in various positions to claims processors new to that particular workload. 
I pay attention, but I still miss stuff and I make mistakes.  The blame for that falls in a couple different places and I want to talk about that with you.  Sometimes the mistakes I make are all mine - I should have caught that; I missed a step; I interpreted something wrong.  Sometimes the blame is more difficult to assign.  Congress passes the laws that govern the work VA does.  Courts interpret those laws, but so does VA.  Interpretations change over time.  Laws get updated for lots of reasons and those changes can cause chaos in a system that struggles in a chaotic environment.  Training sometimes doesn't cover specific scenarios (lots and lots of them) and sometimes training is flat-out wrong.  Workload priorities change.  Emphasis on issues change.
One of the biggest challenges faced by claims processors (every single one of them) is that our job performance is primarily measured by two factors:  the number of "transactions" you complete; and the error rate of your reviewed claims.  Perhaps some of you are familiar with "production" environments where your pay and your ability to meet the required numbers ruled your work life.  This has been the first time for me.  By the way, I have earned awards and promotions for my production numbers (that and 6 bucks will get you a latte), so I'm not here whining about how I can't keep up.  Traditionally, I keep up.  I wouldn't do this work if I wasn't really good at it because it's important work that deserves your best.  That doesn't mean that it's not a rough environment.  Let me give you a hypothetical example:  let's say that a claims processor has been doing the work for over 24 months and holds a particular GS level.  The production requirements (numbers) vary depending on the work you are assigned to do.  If you are assigned to work claim "development", you might be the first person reviewing a claim for benefits - original or new or increases, etc.  You need to review everything in the file, order necessary federal records (service treatment records, social security records, personnel records, VA medical center records, etc.), verify and enter valid military service in the system, request appropriate private records, follow up on previous development requests, send information requests and letters to the Veteran/claimant, order exams, and review every response received to every request to make sure it meets minimum requirements.  That list isn't exhaustive.   This claims processor would be expected to produce 9.45 transactions in a day to be minimally successful (they did enough to keep their job).  You might think that each claim you work is worth 1 transaction credit...but you'd regularly be wrong.  You can only get credit for 1 transaction per claim, but the amount of that transaction credit varies. 
So lets say the Veteran submitted a request for service connection for a new condition - joint pain.  The first processor needs to reach out to the Veteran to clarify which joint since DBQs for joints go with each body part/system.  Knees, ankles, and hips all get different DBQs.  Once that is clarified, the processor gets to review service treatment records(STRs) for some event in service - a medical complaint, an accident, a physical profile, something.... They don't need to only mark one instance.  Certainly folks get denied because the examiner says it was an acute and transitory (A&T) condition that resolved without complications.  The more treatment/complaints identified and marked in the folder for examiner review, the less likely the examiner is to call it A&T.  Depending on the size of the STRs (number of pages/documents) and when the Veteran served (are the entries handwritten, bad photocopies, microfiche copies) that process can take a LONG time.  You know...if you do it right.  If the processor doesn't/can't find (or concede) an event in service, the Vet doesn't get an exam for that issue.  Not every claim requires an exam, but every claim requires an event in service (potentially proved in a number of different ways).  If the application says "joint pain" and nothing about how the Vet acquired the joint pain, the processor is left to scour the records to try to find something.  It is also common that the processor gets to review every other processors' actions on that claim to make sure the previous claim development was done properly and completely.  The processor who submitted your exam and medical opinion requests may very well not be the one who reviews it when the examiner uploads it.  If that original exam/opinion request wasn't done properly (didn't ask the right questions, didn't provide enough information for the examiner's review, etc.), the next claim processor is going to have to redo the request - if they catch the error.  In a perfect world, the work gets done properly the first time.  Less ideal is the next processor catches the error and fixes it with a minimal delay to the Vet/claim.  It gets worse the longer an error gets missed.  Your experiences will show the range of possibilities (horror stories).  For this example, let's say the processor has to review the STRs for complaints/events and then order the exams, if any.  The highest possible transaction credit for that new issue that the processor ordered an exam for is 1.309 credits.  If the processor finds the event in service in under 5 minutes (dang near never happens), it still takes time to mark it properly in the file.  Contract vendors can only download documents from the eFolder that have been properly marked...they can't even see the rest of it.  Then, the exam request has to list all of the relevant information and the location(s) in the document(s).  Doing the exam/medical opinion request (with all of it's required prep work) is gonna take at least 15 minutes to do properly - usually more.  How long did the processor spend reviewing all of the records?  That seriously depends.  What if the processor needs to send the Vet a letter or form?  Did the Vet ever get treatment for the condition at a VAMC?  All of those records (the system requires separate searches/downloads for each location) have to be uploaded and any relevant information marked for an examiner.  No extra transaction credit for any extra development requirements.  What if the only action the processor gets credit for is extending an exam suspense date (they look in the vendor's system and the exam report is still pending quality review)?  The processor gets .4 credits for extending that suspense date.  That seems pretty easy, but the processor also needs to review the entire life of the claim and all actions to make sure they were done correctly.  That review takes time.  Especially if the processor is trying to catch previous errors (one of my favorite things to do "how about we fix that error before you get denied").
Bottom line:  to do a thorough, excellent job on the Vet's claim takes time.  The system is built to deny the processor enough time to do it right.  The claim processing times reported by VA don't tell the whole story.
In the meantime, the clock is ticking.  That processor needs to meet production requirements.  You can't help a Vet if you can't keep your job.
Hypothetically.
One of the main reasons I wanted to do this work is that the process for my VA claims was tortuous and long.  I wanted to be part of the solution.  I have innate skills that are useful/necessary in this work.  I'm not bragging - the list of things I can't do well would fill reams of books.  I have learned A LOT since I started working for the VA.  I help friends, family, and total strangers online 😉 with their claims/the claims process.  I'm not an expert.  I have my own experiences as a Vet and a claims processor that I bring to the table, but that is obviously limited.  I can tell you the trends I've noticed when doing my job.  If you look closely at my posts, you'll see that I tell you what I recommend, experienced, advise, etc.  I always want you make a final judgement on the actions you take based on YOUR assessment, confidence, etc.  You have to live with your claim results and you are your strongest advocate (hopefully).
I have always been glad to be part of the HadIt.com community.  I hear your horror stories (I have some of my own) and I see how angry, depressed, and defeated that some Veterans get.  I know it seems like VA is this huge,  monstrous, impersonal, malevolent entity, but I wanted you to consider another small piece of evidence (you decide how much weight you give it).
In closing, "fight the fights that need fighting" and take care of yourselves and other Veterans.
Happy Independence Day 2022,
Phury  

I almost forgot and important point on this.  Never just go off what eBenefits states, doing so can lead to disappointment.  But when you get the decision and it is in black and white, for the most part, this is a solid sign that the VA got something right.