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Vync

Master Chief Petty Officer
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Everything posted by Vync

  1. Which came first, the chicken or the egg? Or the claim request or the right form? Or when is a claim considered officially open? This is a case of my VSO helping me submit a new claim in April 2019 right after the AMA changes went into effect. At the time, neither of us knew we needed to submit it as a supplemental claim instead of a new claim. Years earlier, I had filed a heart claim for Afib, but I forgot about it. I have medical treatment records and a "more likely than not" IMO from a neurologist that I would like to provide to the VA. Just need to get an idea of the actual status of my claim and how I should submit the records. I never received a formal decision letter granting or denying my claim for heart condition. Instead, on July 29, 2019, the VA sends me a decision letter denying Cushing's (separate claim), but it says this about my heart claim: The VA claims "no action on this issue was taken", despite taking action on this issue (i.e. C&P exam). The rating narrative pages for the Cushing's claim make zero mention of heart issues. The VA's stance on supplemental claims appears to be that if you previously filed for any claim regarding an organ, then all future claims regarding the same organ would be supplemental, regardless of the actual diagnosis. I checked on va.gov and found the claim they received on May 3, 2019, for Cushing's and heart condition was closed. I called Peggy and they are as baffled as I am that the VA can claim to take no action, despite having taken action. Is my heart claim legally considered open? How can they take action on a claim request and not consider it open? Should I submit the IMO with a supplemental statement of claim or as a supplemental claim? Thanks!
  2. I admit I could be wrong, but read this article prior to posting https://cck-law.com/blog/is-tdiu-permanent which might be wrong then. I'm glad he got P&T though.
  3. @kanewnut I agree. Seen garbage like this happen too often. I ended up faxing my copy to the intake center. But in your case, you already provided it to them. If it was authored by the VA, they are deemed to be in constructive receipt of it -- even if it gets misplaced and was never reviewed when the decision was made. Having them examine evidence of record that was never reviewed could be CUE and/or new and material evidence. Either way, it should be treated as if it was in their hands when they made the decision.
  4. That's understandable. If you have a power of attorney with a VSO, you can ask them to print the letter for you. I did that earlier this year and picked it up from the VSO in person, but that was before the coronavirus craziness. If they want to reduce your rating, they have to send you a letter in writing. Then you get 60 days (possibly, could be wrong) to respond and provide evidence to justify continuing your rating. They are not supposed to reduce without forewarning. They may have granted you TDIU, which is the same as P&T except you are not supposed to be gainfully employed. I hope either is the case, and if it is, then pre-congratulations!
  5. When the VA pulled the public DBQs, one of the reasons they stated was the publicly facing documents were often out of date with the updated regulations. It makes me wonder if the publicly facing M21-1 might also be out of date...
  6. I ran into this recently. When the VA started scanning c-file contents, they either had to use an algorithm/scanning software or have a human interpret each page to get them filed "properly". If the record in question was handwritten, get ready for problems. I encountered this recently. The VA mailed me a paper copy of my c-file years ago. One key factor about mailed copies is the copier would add a numerical stamp to every page which signifies the VARO that made the copy. While sifting through the dead tree, I found a VA exam that they claimed was lost. When I recently talked to a VARO rater/VSR, they could not find it. When I explained it was handwritten, they said that could be a problem if the document was misfiled when it was scanned in.
  7. A number of years ago, I had an in-person DRO/NOD review. Nowadays, they are handled like HLRs and can be over the phone. I went in prepared and didn't want to waste their time at all. I explained the errors I found and the laws/evidence backing me up. To my humor, they actually admitted the person who denied my claim made a "stupid mistake". The meeting lasted about 25 minutes. I submitted a HLR earlier this year regarding a legal issue involving a claim unrelated to disability compensation. To my surprise, a VA attorney called me to discuss the details and we spent over two hours going over everything. In the end, it appears to be a case of how you read the laws. Once I get the decision letter, I'm going to follow up with a veterans lawyer to get their interpretation.
  8. A "deferred decision" is neither good nor bad in comparison to a final decision, but it does suck having to wait for your claim/appeal to be completed. If you do win 100% P&T status (via CUE or otherwise), the Chapter 35 benefits for your daughter would go back to the effective date. She would need to provide the usual proof of enrollment. She may also end up being eligible for CHAMPVA also, which can come in really handy.
  9. @pacmanx1 I think I remember reading that conversation. The VA shafted him for ages and then he finally won. @jo12208 Welcome to Hadit! I'm almost 50 and she's about 13 years younger than me, plus she's an RN. As mentioned above, if you have a 30% or higher rating, you would get extra pay each month for each dependent. If you get to 100% P&T or TDIU, they could use CHAMPVA and Chapter 35 Dependent Educational Assistance. There are some restrictions on it, but considering my wife used Ch 35 while getting her BS in nursing, it was very beneficial. You may also want to check your state to see if they have any special veterans benefits for which they might be able to use.
  10. @Buck52 About 10 years ago, I received an incorrect rating due to a typo error in a claim involving ROM. The C&P exam notes were correct, but somehow the VARO added an extra zero to the end of one measurement. I thought something was odd and I double-checked. At the time, we could submit requests for reconsideration. They corrected the value and rated me properly in about three weeks. In this case, it was an outcome determinative error because the actual result would have been different if not for the error. I had one claim come back recently with a typo referring to the incorrect 38 CFR regulation, but the actual quoted text was correct. In this case, this example of an error is not outcome determinative because it the outcome would have remained the same error or not. Nowadays, I assume typos could be handled via supplemental/HLR or potentially CUE requests depending on who you ask. For your question, I assume it would also depend on the exact typo involving an effective date. If they typo'd an effective date, and if not for the error, you could have had an earlier effective date, then it very well could be outcome determinative.
  11. I have been dealing with the VA system since 1995, but must give credit to @Berta's posts here on Hadit.com. I learned what M21-1 was by reading her posts. In 2013, I was granted P&T on appeal to a DRO and found the rating decision letter was considerably more detailed than any of my prior decisions. It left me wondering why it were so thorough, but all of my prior decisions were maybe one or two brief and/or vague paragraphs. After my heart attack in 2019, I decided to file CUEs on two prior decisions that were riddled with errors. While researching, I vaguely remember a BVA decision overturning a VARO denial of CUE because the VARO failed to follow M21-1 and adequately explain the evidence and claimant's contentions. The BVA chalked it up to the VARO failing to provide the veteran with sufficient information necessary to formulate an appeal or something like that. The VARO just simply said "nope", but the BVA required them to explain how, why, and answer all the other issues raised by the veteran. It didn't take much effort to find the above linked article on the M21-1 web site. After reading it thoroughly, it became evident why the DRO narrative was so well written. If the VA can use their regulations to deny veterans, we can use them to point out where they went wrong, especially when an internal policy or procedure is counter to what is clearly stated in laws and regulations. Honestly, I would focus any CUE effort first towards the US Code and 38 CFR, which are the actual laws. I just tossed M21-1 in as icing on the cake to show the VA couldn't even process my CUE correctly and simply dismissed my arguments without consideration. However, I have never had the need to use M21-1 as a standalone basis, so I cannot speak to that from personal experience. M21-1 is merely an amalgamation passing under the guise of an adjudication procedure manual. It tells the VA how to do their job in the light of laws, regulations, and court precedent rulings. With changing laws, regulations, and settled case law, someone at the VA has the unfortunate job of keeping track of it all. Laws and regulations are subject to a public comment period, but M21-1 is not. The VA can change it whenever they want. Precedent cases like DeLuca and Nehmert are well-cited. M21-1 tells the VA how to apply them in certain circumstances. It is kind of like if a law clearly states the sky is light during the day and dark at night, M21-1 cannot supersede that by saying it is only blue on Mondays and green on Wednesdays. Keep in mind I am not an expert, but have and am still learning about it.
  12. @GBArmy I completely agree. Too much red tape. My post was about reductions to what is currently being received vs. the ability to obtain new SC or higher SC amounts. Removal of the other two tools stinks. If the VA got things right the first time, they truly would not be needed. However, I don't know they will ever get to that point.
  13. I am glad the VA started posting changes to M21-1 online a few years ago. They can be found below the articles under "Attachments" and are usually broken out into key and historical changes. Important! M21-1 changes only go back so far. It's not like the Federal Register where you can track down every possible change to the laws if you are determined enough to do it. If someone is interested in learning about changes prior to when they were posted online, a FOIA request may be required. Old M21-1 content might not be available, even via FOIA, due to document retention and purging guidelines. Here's a good example of how I used M21-1 in responding to a VA rating decision: In Fall 2019, I filed a CUE and the rating decision was received in Jan 2020. It had a very brief rating narrative that failed to address any the evidence or contentions I made. Last month, I submitted an HLR/CUE on failure to properly apply 38 CFR, but also because they failed to properly follow "M21-1, Part III, Subpart iv, Chapter 6, Section C - Completing the Rating Decision Narrative". It is important to know the VA has two styles of claim rating narratives: short and long form. In my case, they used the short form. However, they are required to use the long-form rating narrative for HLR, CUE, and a lot of other situations to "address all pertinent evidence and all of the claimant's contentions". M21-1, Part III, Subpart iv, Chapter 6, Section C - Completing the Rating Decision Narrative https://www.knowva.ebenefits.va.gov/system/templates/selfservice/va_ssnew/help/customer/locale/en-US/portal/554400000001018/content/554400000014206/M21-1,-Part-III,-Subpart-iv,-Chapter-6,-Section-C---Completing-the-Rating-Decision-Narrative
  14. I was thinking about that when reading this other topic:
  15. That is exactly why I recommend reviewing your VA treatment/progress notes after they are posted. About 10 years ago, I checked my notes and found I met the criteria for a higher rating. I requested an increase based on the evidence present in my VA records. I had a couple of them that were approved without the need for a C&P. Of course, if the higher rating requires special criteria, testing, or details not present in the treatment notes, the VA may still send you to an exam.
  16. That site is not the official S&S web site. It appears to be independent media who has you on their mailing list. It's a pretty common practice. If you can't mail out current articles, rehash and resend older articles. Governmental fraud, waste, and abuse has been alive since governments were formed. I think someone at the CBO probably got in trouble and were assigned to the no-window basement office, given a red stapler. They have the unfortunate job of looking for all sorts of ways to save money regardless of the impact those funds have on the country. I don't think it is jealousy or envy, but the VA does contain a great deal of fraud, waste, and abuse when it comes to spending. Remember all they can do is advise. These kind of reports have been coming out for decades. Occasionally, the VA does cut benefits, like when they adjusted the veterans caregiver payments. But that might have been due to a program which had an expiration date. I don't know the details, but in general when was the last time any of us have seen a reduction in any VA program benefits?
  17. I agree. I can't remember where I read it, but they tried doing this a long time ago like in the 1950s and there was a huge uproar that didn't end well for many who were behind it. Cutting benefits to veterans would greatly reduce the likelihood of being reelected.
  18. It seemed reasonably fast. Everything on the page loaded in a second or two.
  19. @GBArmy Yeah, the web site provides a very vague status. You are right about HLRs. I had to submit an HLR because the VA failed to process my CUE correctly (ignored the existing evidence that was described in my CUE motion).
  20. @Buck52 I do appreciate it. I'm effectively 100 P&T for more than 10 years, so got DIC covered DIC. My stress test findings were very promising. Only a 10% blockage in one artery and ejection fraction of 69% (better than what it was 4 years ago). I feel pretty lucky to have had a major heart attack, a bunch of stents, and come out of it with minimal issues. Glad I live 2 miles from an emergency room.
  21. Yeah, I also have a non-VA heart doc with 30+ years experience. The video call doc said the same thing the non-VA doc said.
  22. I went a couple of weeks ago for two stress tests. Then today, I had a video call with the cardiologist.
  23. Just checked on va.gov. After being in their system for about three weeks, my HLR/CUE is still saying 4 to 5 months for completion. Perhaps idle employees are the ones who do not not pull from the national work queue.
  24. That is my understanding. However, there is some additional criteria on the S-DVI site. Keep in mind that this is just general info about qualifying for coverage. If you get approved, the next thing they do is determine if you are eligible for the waiver. If not, you'll have to start paying the premiums each month in order to get the coverage. https://www.va.gov/life-insurance/options-eligibility/s-dvi/:
  25. In a way, yes. If I would have died from the heart attack last year, my beneficiaries would not have received the $10,000 coverage granted under the waiver. I could have paid premiums to get coverage, but the error was made prior to that when they denied the waiver. While researching, I noticed some of the court decisions focused specifically on the waiver and employment status were granted posthumously in favor of the veterans' beneficiaries. I thought it would not be fair to put my family through that and wanted to chase this down before it is too late. Please keep in mind that I'm not a law expert. I could still be wrong. Every law firm I engaged opted against representing me unless I coughed up a retainer fee. However, one advised me to pursue via HLR and/or BVA to see what happens and then follow up with them win or lose.
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