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hawkfire27

Chief Petty Officers
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About hawkfire27

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    E-5 Petty Officer 2nd Class

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    new mexico

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  1. Hi John999, thank you for your reply. Was your appeal based on PTSD. If so you can request a reconsideration of the BCMR denial based on the new and material evidence that is the Hagel Memo. As I stated my husband is a general discharge not a OTH as the memo describes but they are reviewing it again anyway. He was denied in his initial BCMR appeal of discharge. But here we are, and this time they are getting advisory opinions etc which indicate they are processing it correctly this time. It may be worth giving it another go. We just submitted the original BCMR discharge upgrade and medical retirement request with the addition of the Hagel Memo and a DD For 149 explaining it was a request for reconsideration based on new and material evidence. Apparently, and correct me if I am wrong, but the BCMR assesses upgrade requests because of an injustice based on the regs at the time, but in upgrading they are required to use the current regs when determining what a veteran is entitled to? Which should mean that 38 CFR 4.129 would be enforced today. Meaning if PTSD resulted in his separation he would be granted a minimum 50% rating by the military. Hmmmmm I wish I knew how the chips would fall on this one, it is hard not to get excited by the advisory opinion, but the reality is the BCMR can ignore that opinion if they want to as they have the right of independence from any military branch including the army's advisory opinion.
  2. Hi Berta, He had VA 30% for Anxiety Neurosis with Depressive feature from 1979 until it was changed to 100% P&T for PTSD in 2001 but effective (EED) 1988. The adjudicator was talking about taking his 100% back to 1972, not just PTSD. But because there was no proof of PTSD in 1972 she couldn't, because the VA didn't recognize PTSD before the 1980's. That may have changed. As for the incurred question, our lawyers understanding is them saying, "of course he had PTSD he was in Vietnam for 30 months." I think the 'more likely than not' statement was interesting to. My husband received SSDI in 1989 from social security for an "Anxiety disorder" the ABCMR has those records including the diagnostic summaries from VA and civilian psychiatrists. In fact it is the same date that his 100% PTSD was taken back to. I am assuming the VA fell in line with the SSA's effective date and they are just days apart. Obviously I hop that this advisory opinion has a positive impact on his case. What is interesting is that he hss a 'General under honorable conditions' discharge. Which is not addressed in the Hagel Memo but he seems to be being treated as though it was. It will be interesting.
  3. Hi Everyone, It has been a while since I have been active on the site. My husband is a Vietnam Veteran who has been 100% for PTSD since 1988. In 2014 we hired a lawyer to apply for a discharge upgrade from General Under Honorable Conditions to an Honorable with Medical Retirement. They flatout denied his initial claim in early 2015, citing that he willingly used a chapter 10 discharge and he had no recourse. Then the hagel memo came out, but it pertained specifically to veterans that may have had PTSD during service that received bad conduct discharges. Well through his lawyer we requested a reconsideration anyway in 2015. This week we received a letter from the ABCMR it was a copy of an advisory opinion from the Department of the Army, Office of the Surgeon General. There is a bunch of unnecessary info so I will just post what is most important. "3. In March 2015, Mr. Veteran requested that the board reconsider their March 2014 denial of his request for upgrade of his discharge to Honorable due to severe Post Traumatic Stress Disorder (PTSD). The Office of the Surgeon General was asked to determine if the applicant's military separation was due to PTSD or any other behavioral health condition. 6. The Board's prior decision was based partially on the lack of behavioral health documentation during Mr. Veteran's time in service. The scarcity of documentation at this time was not unusual and his sustained and intense combat experiences clearly menet the stressor criteria for PTSD. His subsequent diagnosis and treatment for PTSD incurred through 30 months in Vietnam indicate that he more likely than not suffered from PTSD at the time of his separation." Soooo... THis sounds really good for his discharge upgrade. At least to me it does. But my question is about VA compensation. He received his 100% in 2001 and it was backdated to 1988. During the hearing the adjudicator stated, "You really should be backdated to 1972 when you got out, but there is no documentation to prove this, so I will push it back as far as I can and that is when you Anxiety Disorder diagnosis was changed to PTSD in 1988." Therefore, my question is, does this ABCMR advisory letter constitute New and Material evidence, and what would the chances be of getting an earlier effective date? Should we just wait for the outcome of the ABCMR discharge upgrade request, or should we reopen his PTSD claim? Due to the backdating of his 100% award, is he covered by the 20 year protected rating rule, or do we chance his 100% rating being overturned if we ask for an earlier effective date? Any help would be great, I'm looking for experience and opinions. Especially from Berta as I know she has excellent experience in retroactive and new and material evidence claims. Thanks Guys!
  4. Hi Berta, Thank you so much for your response. I am sorry it is a bit murky isn't it. * No problem with the effective date. * problem with rating of 30% until 2001, as he was determined unable to work in 1988 and failed voc rehab. * Problem with the fact they state they did not have social security records just the earlier effective date is the date awarded social security, so they MUST have had the record to come up with the date. (no other mention of SS records in SOC) My husband applied for IHD in 1994 and was denied -not SC'ed. The again in 2010 with the new AO regulations and awarded the 30% (1988-2001) then 60% from 2001. The status of the Nehmer claim is closed. We attempted an appeal via DRO review but while waiting 3 years just for a hearing were informed that they would not review the claim with additional evidence (SS Records). So we dropped the appeal and went with a new and material evidence reconsideration claim, against the Nehmer case. Unfortunately they coded this as an new claim for increase instead of a reconsideration of the Nehmer claim and denied the increase based on his current condition. And that is where we are at. Will look over your response a little more, as it is a bit confusing too :-) Thank you again!
  5. Do you have a specific reference where it requires VA to use old Ratings Schedules for IHD for Nehmer claims??
  6. Hi Berta, Thank you so much for replying to my post. I received the reply to my husbands claim. They denied an increase stating that his condition has not worsened since the last rating.....In other words they did not even read his claim as he was giving new and material evidence and requesting a reconsideration because they used the wrong regs. We tried to do a new and material evidence claim by providing more social security records because they did not include his social security records on the original SOC. Yes they gave him 100% for PTSD based on various treatment records and SS disability at a hearing because he was proven to be unable to maintain "gainful employment" Thought this would be a quicker way than a DRO review which we were still waiting for 3 years later. So we cancelled the original DRO review on the Nehmer claim because they didn't have the SS records for that anyway, and submitted a new claim for reconsideration of the Nehmer claim based on new and material evidence, including a copy of a BVA case where it stated the regs requiring VA to use old regs, and a copy of the old rating regs as well. They apparently coded it as a new claim for increase instead of a new and material evidence claim to reopen the nehmer case. Do you think I should CUE the regs used on the original decision (they state they didn't have SS records which would be needed for these regs to be used correctly anyway) (they had the regs that's how they got the original 1988 date they used to grant 30%), or would it be better to use the most recent INCREASE Claim and CUE the type of claim?? Or do you think the Nehmer NVSLP lawyers would be a better option at this point? If you need more info please let me know. I am so discouraged and lost right now has been fighting this claim since 2009.
  7. Hi everyone, A couple of years ago my husband applied for AO presumptive IHD and was awarded 60 from 2001, and 30% from 19988 to 2001. In 1988 Social Security found him unable to work because of IHD and Anxiety. He is VA 100% for PTSD since 1988. So when he received the Nehmer IHD rating letter, he realized that they had used more recent and less favorable regulations in deciding his rating. So he appealed via DRO review. Approximately two years later, we were still waiting for a hearing date to be scheduled, and instead withdrew the appeal, and filed a new and material evidence claim requesting an increase to 100% from 1988. He requested this because prior VA regulation gives a 100% rating when you are unable to maintain gainful employment, which the social security records (new evidence) provided proof of. Fast forward to today, and my husbands nehmer claim for increase has been moved from "pending decision approval" back to development and he received a phone call advising him he has a C&P scheduled for Dec 16th. I don't understand why they are requesting a c&p because of a regulation issue. He has had 2 bypass surgeries etc. They never asked for a c&p in the initial nehmer claim for IHD in 2011/12, so why would they be randomly doing one now??? My husband is 100% + 6-% for statutory housebound. His is convinced that they are trying to take away his housebound rating. Any thoughts??? The last time he had a c&p done at the VA in El Paso, we had to have a congressional inquiry because it stated he didn't suffer from IHD. (Unrelated A&A claim) along with many other incorrect pieces of information. Soooooooooo I guess I am a little worried. It has been in pending decision approval for a long time, and now to be shoved back to the development phase. Any ideas??
  8. thanks carlie, we will if we have to, but hopefully someone knows of an alternative :-)
  9. Hi everyone, I am just seeking information about possible assistance due to the need for my husband to relocate due to medical reasons. We currently live in New Mexico at 7500 feet, my husband has been told he will need a second bypass surgery and simply put, cannot remain living at 7500feet, he has also developed chronic Valley Fever, a fungal infection that causes lesions in the lungs, and doctors have told him he should move to prevent constant exposure to this fungus in the soil of the southwest. Unfortunately we are not in a position to afford to move anywhere right now (house worth less than the mortgage). My husband is currently 100% for PTSD, 60% of IHD, and 20% for DM2. (160%) Does anyone know or any programs that are designed to help people who HAVE to move due to medical reasons???? Could the ILP (Independent Living Program) help? Is there any federal, state, or local programs that could help? or associations like the VFW or DAV? Any help would be appreciated.
  10. I recommend you contact a civilian attorney who can represent with the Army. The simple fact is that he is stating all of these things about how bad you were, and recommending you as unifiit/ unsuitable for military service (chapter 13) Do you have any Article 15;s that reflect this? If not then you don't have much to worry about, but you will still need someone representing you to point this out to the right people. I understand that you are wanting to get out of the military with disability? I seriously think you should get representation or you could lose your ass in this situation, your commander may have the power to get you a chapter 13, and you sure don't want that!!!! Try this guy: http://militaryadvocacy.com/areas-of-practice/administrative-separations.html
  11. Hi Everyone, Please see the link below. It provides very interesting information, as it is the manual the National Archives in St Louis use to fulfill your Medical Record Requests. There are some interesting Addresses, and also other interesting information particularly in Chapter 3, for people with mental health claims at the VA. It basically states that you will not recieve any mental health records at all if you are the veteran. click around, especially on app.3-b and app. 3-a, as these two appendix memos show who can get teh informaiton for you if you feel your mental health records have not been included in the information you request from the archives. http://www.cufon.org/CRG/memo/1865103.html#3-11
  12. Hey Carlie, I don't have any links, I simply went in and showed my card and the JAG office told me this, "Yes you are eligible, If you have an ID you qualify" All I have found online about it is that retirees and there dependents as well as "certain other qualified people and their dependents" are eligible to recieve legal assitance through the JAG office based on space available. I did find some bases that specified they only had legal assistance availibility for active duty personnel at this time. So the best bet it is go in and ask at you local base. We went to Holloman AFB in New Mexico.
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