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Vync

Content Curator/HadIt.com Elder
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Everything posted by Vync

  1. @MoDiggler As far as I know, the VA does not have a dedicated team handling CUEs. In fact, when I filed a couple of them in 2019 the VA let mine go into limbo while they pondered which form was needed to file a CUE. I actually had to send them a direct link from M21-1 telling them no form is needed. I decided to just send in a supplemental along with it. To my surprise, the team working the supplemental granted CUE on one, but denied the other (which is now idling at the BVA). Because you are still within the one year window, filing a supplemental/HLR/BVA would be the best option because of benefit of the doubt. However, CUE can be filed at any time, but for a CUE to be valid it does have strict requirements, but benefit of the doubt would not apply.
  2. @retiredat44 It might be time to consider getting a new rep, a lawyer, or an accredited agent. The VA often trips on itself when trying to process CUE claims. The AMA process is new claims and then supplemental, HLR, or BVA -- the VA doesn't have a special queue for CUE claims. They really fall closer to an HLR than anything, but I have had CUE granted as a supplemental. Both CUE and 1151 don't have time limits, but the longer the VA delays the less time you will be around to see it granted properly. CUE and older claims pose a challenge because they must be in the context of the laws/regs in effect at the time the decision was made. I don't know if the VA makes it easy to provide a "snapshot in time" of those to help them figure out things. Doing things over the phone or by mail is part of the problem. We need to be able to sit down in person and hash out the issue face to face for a couple of workdays to get it all sorted out. Waiting months to hear back from each other and to resend and reclarify doesn't help. The person who originally worked it may not be the next person who picks it up. They have to familiarize themselves with the details. And we have to hope that we get a person who is diligent and committed to a fair and sympathetic reading of the facts and evidence.
  3. @brokensoldier244th I hope you are able to get that MST vet some justice. Glad you are looking out for them to attempt to maximize their benefits. I know that I rarely saw that happen with my VA claims. Good to know that there is someone who cares.
  4. @broncovet Like @blahsaysme2u, I appealed the denial of my waiver. The BVA apparently did not certify it, whatever that means. The previous denial letters all said I had the right to appeal to the BVA. However, I did have my BVA hearing on a different issue, but that is separate from this. I vaguely remember talking to the VA insurance hotline and being told something like the benefit to VA life insurance is that they can't fault SC disabilities by charging you a higher rate like non-VA insurance can.
  5. @blahsaysme2u Yikes! I would say that's crazy, but it is more of the same old routine. They also left mine idle because Janesville did not know that it needed to go to the insurance facility. Either way, you have due process rights to appeal, per your denial letter. The odd thing is the insurance division works somewhat different than the rest of the VA. I had my BVA hearing in December, but was surprised to learn they did not certify the S-DVI portion even though it was on the same form as the other stuff. My VSO and I just decided to wait and see on my CUE and deal with the insurance later.
  6. About 10 years ago, my VAMC has a "Patient's Bill of Rights" framed and mounted in one of the main corridors. It read about like what I was able to find here: https://www.dailykos.com/stories/2013/2/14/1187054/-Attention-Veterans-Read-it-Your-VA-Patient-bill-of-rights, and specifically this part: However, after the DEA changed the narcotic policy around the same time, the framed patient bill of rights simply disappeared for a while, but came back with watered down content which omitted this specific part about the right to receive pain treatment. Since then, the VA doesn't give out meds which work the first time around.
  7. @Whodat That's promising. I recently received a replacement along with a separate TENS unit. If you use the ear clips, just consider doing it earlier in the day. If I use it in the evening, I lay awake much more than usual. Don't use it while driving. There should be a DVD or video included, or you can find it on the alpha stim site. Worth the time to watch it. I hope it gives you some form of relief.
  8. The link to the PDF is about 10 years old. The original site hosting it may have disabled the link. I checked archive.org and the link has not been cataloged. Capt. C has not been online here for about 8 years... Unfortunately, I do not have any additional info outside of some web sites casually mentioning both greely and orange, but not in relation to each other. Other members here might have info, but you could always submit a Freedom of Information Act request asking the VA to provide any info they may have on AO being present at Greely.
  9. @Whodat Did they give you the alpha stim probes or did they also include the ear clips? I got both. It helps to turn the volume down on the pain, but not a cure. Yep, I got tired of masking the pain, too... @broncovet Good points. And don't forget the potential side effects of any meds to treat post-surgery. My ortho doc gave me Vioxx, a strong NSAID. Of course, that got pulled from the market due to being related to heart issues. Those of us who had heart attacks also cannot take NSAIDs long-term due to cardiac risks... I did have another surgery on a limg, but ended up getting angioedema and urticaria. All of the other scars look fine except a big scary one from the swelling... Skin is the first barrier to infection.
  10. @JoniBlake It can be helpful to some. I had a number sessions, but had mixed results. They are not fun to get and left me pretty nauseated, but others might have had better luck. In the end, it did not offer me enough benefit to not have to lay down in a dark quiet room to recover. Because this topic is about a year old, please refer to "38 CFR § 4.124a - Schedule of ratings - neurological conditions and convulsive disorders" for exact rating criteria. Typically, the way they rated them can differ based on being related to TBI or not. Best advice I can advise to someone is to keep a "migraine diary" so the VA can rate things accordingly. https://www.law.cornell.edu/cfr/text/38/4.124a
  11. @Whodat I wanted to wish you the best of luck on your surgery. By chance, are you SC for your shoulder? To get temporary 100%, I think it might have to be related to an SC disability. Recommend checking on that first. @broncovet makes some great points. If it is being done through the VA, keep in mind that many resident docs are very eager to jump in and do procedures to build up experience. For my TMJ, the resident oral surgeons said they could fix me up. However, when I visited several non-VA oral surgeons, they gave me the success percentage for my specific issue. That's when I learned resident surgeons are craving to get experience under their belt. When you are under anesthesia, you really have no idea about what happens in the OR until you wake up. Prior to surgery, consider looking into the surgical release form. There are a few things you might want to verify. First, will your surgeon merely be in the room, place hands on you for a second, and then let the residents do the work? Second, will it allow you to choose having the surgeon and resident both work on you? Last, some forms allow the patient to restrict the procedure to being done by the surgeon only, not residents or trainees. Prior to surgery, make sure they mark the correct shoulder with an ink pen. Yes, mistakes can happen... In 2000, the VA denied my SC claim saying the x-ray was WNL but disregarding my complaints as usual. The problems just got worse. I had a younger ortho surgeon who missed the injection target in the acromioclavicular joint. I passed out cold and woke up with frozen shoulder. He was not using a flouroscope to guide the injection home. Three months of physical therapy helped a lot. Next, I did my homework. I found a private non-VA specialist who was a legendary surgeon famous for performing surgery on pro sports athletes and training his entourage of student surgeons. They gave me an injection and relied on a flouroscope to do it right. I did get some relief. The MRI showed the rotator cuff was fine, but I had some impingement and bone spurs developing in the joint. The surgeon required me to attend three months of physical therapy and a another MRI to see if there was any improvement before determining surgery was our last option. The recovery from arthroscopic surgery was not pleasant, but was much more pleasant than if they would have opened me up. Ice and physical therapy were my best friends. When I woke up from surgery, they had my arm in a velcro immobilizer splint. I got to work a week later and everyone was cracking Napoleon jokes based on the way my arm was positioned.
  12. @broncovet I took a quick look at the PDF he attached. The C&P exam was performed prior to the decision in 2000, but found only reports of pain and some tenderness, but otherwise normal. The VA decision said reasonable doubt did not apply because the preponderance of evidence is unfavorable per 38 CFR 3.155, 3.400. The decision from 2000 does not include the evidence listing. However, one page contains what appears to be a VA-authored imaging report (not sure if it is x-ray, CAT, or an MRI) from 1999 which found reversed cervical lordosis and degenerative disc disease from C3 to C5. Per 38 CFR 4.71a, as of today, the reversed cervical lordosis could yield a 20% regardless of having normal ROM. Not sure if those imaging results match the rating criteria between 2000 and today. That could be sufficient to challenge the decision letter noting reasonable doubt did not apply because the preponderance of evidence is unfavorable. However, the decision text makes no mention of the favorable 1999 imaging findings. In my opinion, the unfavorable part is just normal ROM, but the favorable parts are his assertion of pain, observing tenderness, plus findings of the imaging report. I agree with you that he should approach this from the new and material evidence and request an earlier effective date and maybe grant a higher rating via a supplemental. I agree that CUE is probably not the best option right now because he is still well within his 1 year appeal window. However, it could be mentioned in his response as CUE can be called at any time. However, it could be worth noting that VAOPGCPREC 12-95 may not have been correctly applied. Bell v. Derwinski, 2 Vet. App. 611 (1992) requires “…medical records which are in VA's possession at the time VA adjudicators render a decision on a claim will be considered in the record at the time of the decision, regardless of whether the medical records were actually before the adjudicator at the time of the decision.” Based on that, I would assume that even if the VA is in possession of favorable evidence even one day before the decision, the VA would still be responsible for considering it in the decision even if it was not on the decision maker's desk. Additionally, “The General Counsel found that if the outcome of the case is altered by the records, a later claim may result in a finding of clear and unmistakable error.” It might be worth requesting a copy of his entire claims folder, just to have that in the system while the VA is working on his NOD. Seeing exactly what is in the C&P exam might be beneficial.
  13. They are "supposed" to do this, but it is not always that automatic. I have mostly seen it happen after the VA has submitted a disability claim of some sort. The VA's medical care providers do not automatically refer potential SMC claims to the VBA for adjudication. I had checked with a VA nurse and a doc and they said they never send anything to the VARO. Case 1: A friend of mine had problems with ED and wasn't all that old. Once he learned it was possible to file for ED secondary to medication side effects, they filed and won SMC-K. The VA did not proactively notice an ED diagnosis in his records and grant SMC-K. Case 2: I had a heart attack leaving me out of work for three months. No idea if I would ever work again. Filed claim for heart attack, VA denied repeatedly. While waiting, I did therapy and eventually returned to work. Eventually SC was granted via HLR. I got a single 100% for the heart per the rating criteria, but just for three months. I already had a separate and unrelated single 60% for something else, so they actually did add SMC-S housebound without having to ask for it. I honestly did not expect to get SMC-S at all. I just wanted to ensure the heart attack was SC just in case my condition continued to deteriorate. However, the heart rating criteria required re-eval after three months (despite me already being 100% P&T), the evidence showed I had slightly improved to the 60% level and the SMC-S was removed simply because I did not meet the 100% + separate 60% criteria. The VA did not automatically consider extraschedular SMC-S housebound because I work remotely in a sheltered environment and receive other employer-provided disability accommodations.
  14. Agree with both @broncovet and @pacmanx1. Wait for them to make their decision so you can see what it says. New and material evidence is definitely an option. You may have to dig in the Federal Register to see what laws/regs said when they were in effect between when you initially filed and were granted repeated denials. The VA never bothered to fully share all of their evidence in my initial rating decisions until many years later when I requested my c-folder. In your case, if you win SC, like they said you might be able to pursue an earlier effective date and SC based on evidence of record. Keep in mind that even if the VA either authored or was in possession of favorable evidence, yet it was not before the person who made the decision, that is still considered constructive receipt and can be brought up later. Get SC first, then look to get the effective date and rating % backdated/corrected. If I had known to do this via N&ME, I would have, but I was successful doing it with a CUE many years later (but it was not easy). Good luck!
  15. @treysnonna I am so sorry to hear about your husband's passing. Deepest condolences from myself and all of the other fellow Hadit members. Although I do not know how to approach this, I am pretty certain that others will comment and offer their recommendations. I remember reading something about spouses being able to file on their dearly departed's behalf, something like spousal substitution. I think there is some form that needs to be submitted. Additionally, explore any potential for dependency and indemnity compensation which can provide you with a stipend depending on the circumstances. Again, others know more about those things than I do. Your VSO might be able to also assist if you have one. Although I was on active duty back in 1992, I did finish my enlistment and leave the service in 1995. Many years later, I always felt something was not quite right with the initial rating decisions I had received in 2000 (yes, it took 5 years). However, after a near-death heart attack in 2019, I was out of work for months recovering. I had requested copies of my VA claims folder, plus all service and medical records to go along with it. The CD came in the mail over a year later and I thoroughly read every page to look for anything I had originally claimed. After careful examination, I found two issues which looked like they had lower ratings than they should have received. The big challenge was looking online for copies of the Federal Register to see exactly what the rating criteria was at the time I filed and from then until when the decision was made. I had identified two cases where the VA had not properly followed the laws and regs which were in effect at the time. I filed Clear and Unmistakable Error (CUE) claims. After a lot of confusion on the VA side, supplemental, and HLR's, the VA granted one claim, but denied the other which I promptly appealed to the BVA. The claim which was granted had boosted my combined rating % just enough to go from 40% to 50% and yielded 13 years of retro. The other pending BVA decision could bring my initial combined rating from 50% to 60% and also produce another 13 years of retro. Because I had filed for increases in those years later, winning an increased rating would also increase the earlier effective date and allow them to be protected under the 20 year rule. However, that kind of change would not help your husband's case. Don't discount the potential that you can right some of the wrongs in the VA's past. When I got initial SC, my VSO told me not to rock the boat because they felt it was right. Honestly, I was just happy that I had won anything initially. However, I did not have the knowledge I have learned here at Hadit. If I had that information on how the system works, I would have pursued ever claim to the correct and proper conclusion. Again, prayers to you and your family. I really wish you the best.
  16. It's funny for me because I have bilaterals for arms and legs, but when those decisions for SC were finally made I simultaneously was granted 100% P&T. Doubt they would go back and do anything in my case...
  17. The VA responds and says, "Nope...": https://www.military.com/daily-news/2023/03/23/va-secretary-swats-down-idea-cut-va-disability-pay-wealthier-vets.html
  18. @broncovet Could you consider taking Treysnonna comment and those after to a new topic (if possible)? This one is about 15 years old. @treysnonna The VA gave me sertraline (Zoloft) to help address chronic muscle, joint, nerve pain, and fibromyalgia. It did not do much at lower doses, but was more effective at higher doses. However, despite ordering refills on time, the VA failed to send them to me in a timely manner. I ran out and didn't expect to feel like my head was about to explode from the worst migraine ever. I did not have organ failure (yet), but did wind up in the hospital with a heart attack caused by the migraine medication sumatriptan. When @Berta was here, she recommended I look at the medication insert and read the fine print. The print was so fine I could not read it, but the FDA web site had it online. I learned that there are certain precautionary diagnostic tests which should have been done to individuals with certain risk factors. I had most of the risk factors. I filed a claim and won SC for having a heart attack. I also filed an FTCA claim which I also won. I would recommend you look up the medical information for Zoloft and review contraindications, side effects, etc... to see if those are potentially related to his current issue. Yes, you can file SC for new disabilities caused by the side effects of medications used to treat SC disabilities. @jamescripps2 It's amazing you survived through all that. You literally won the lottery of life. I hope you are doing well and continue to remain with us for a very long time.
  19. @brokensoldier244th When I took Introduction to Psychology in college, which relied on an earlier version of the DSM, one of the things they focused on was interim diagnosis like adjustment d/o instead or going straight for PTSD. If the symptoms continue, even with treatment by psychotropic meds, they would not change the diagnosis until certain criteria and/or durations are met. That's probably why you are noticing this having had occurred with much older claims. @Rattler I do the same thing with my appeals. I have been burned repeatedly since the very first claim I sent. They claim something is not there, but I make certain that it is, plus I spoon-feed it right to them. All they need to do is take a moment or two to simply verify. I also was surprised to find that the VA repeatedly has said that they could not find something in my service treatment records. I pop open my physical folder and there it is. I also open the c-file copy they sent me 10+ years ago and usually find it there, too. But when I look at the PDF containing my c-file I got a couple of years ago, I find it is either completely missing or some redaction element is covering up the text on an older handwritten document. Or, I can find it in all of those places and the VA still says they cannot find it. It never fails to amaze me...
  20. Three of the links on the PDF are simply recommendations from the Congressional Budget Office (CBO). Please keep in mind the CBO does not write the bills which may eventually become law. They simply submit recommendations to Congress on ways to cut or reduce spending on government programs. Some may also define a cut as a reduction of future growth (i.e. instead of increasing something by 5%, they only increase it by 4.9%). Actual lawmakers in the House and Senate simply take the CBO recommendations under advisement. For decades, the CBO has constantly made recommendations like this regarding VA benefits. Veterans and others who love those who served get panicked and stirred into action to contact their representatives. It is very rare for Congress to intentionally cut anything related to the VA because they would have to answer to their constituents, thus those kind of sweeping cuts rarely happen. However, sometimes things do get zapped by proactively ensuring some benefit continue and letting it expire. The VA Caregiver coverage issue recently was gutted to a degree, but when the word got out then it was eventually put back into effect. The "Choice Act" for vets to get treatment in the community also was tagged with an expiration date, but eventually morphed into the "Mission Act". However, there is still way too much red tape, overhead, and delays. As a vet who takes advantage of Community Care, they need to cut that red tape and simply give the vet a card so they can get the care they need immediately when and where they need it, instead of having to go through a convoluted process of getting referrals and extremely delayed approvals with expiration dates on the benefits. We should not be forced to grovel just to continue getting care which is much more convenient, effective, and timely for us. I watched the YouTube video linked in the PDF. Gotta hand it to the guy with over a million subscribers, he is definitely getting views and likes on this video which can help put some dollars in his pocket... I am a firm believer in freedom of speech . More power to him. However, keep an eye on the bills which make it out of the VA committees or budget committees and see if they increase, decrease, or reduce the amount of increase to VA budgets -and- actually get passed into law.
  21. @Lemuel Roger that. The CUE I submitted two years ago contested an inaccurate percentage on an initial decision from 20 years earlier. However, they stuck it under AMA because that was when I got my CUE, despite the fact that the error was made during the legacy appeal timeframe.
  22. I could not look it up by docket number, but did find it listed by both docket number and name when I searched for "Bray" only. Of course, I never tried looking up anything other than CAVC decisions. If I clicked on the name, what I see from my side is very limited. It says it the originating case was "Redacted for USCAVC" and that's it. No content details. If I clicked on the number, it does give a granular listing of filings. All are locked (unviewable), but the BVA decision is in a PDF which grants some things and denies other. However, nothing in the BVA decision mentions "fraud". I realize that the CAVC application probably clarifies those details. Until the CAVC makes their decision, we likely would not be able to read anything more. If you do post some info, be certain to redact/omit other personally identifying information like your SSN. It was already redacted on the BVA PDF document.
  23. @jamescripps2 You make some good points. My current VSO is paranoid about any new claims introducing the chance that the VA can dig into anything to reduce a 100% P&T rating. I conveniently pointed out laws, regs, and m21-1 references explaining they just can't do that on a whim, despite the fact that I have evidence to prove all my issues continue to meet their current ratings, has them for 15 years, and will be 55 in a few years... Additionally, with the OIG recently reporting that the VA has been improperly reopening and improperly reducing claims, it makes me wonder if the VAROs have been reading the wrong release of M21-1... Congress needs to consider stepping in and give vets peace of mind. Living in fear of maybe being reduced actually increases stress on disabled vets, something which they need less of.
  24. @Lemuel I remember reading that a while back, too. I did some digging on it. https://www.va.gov/vetapp16/Files4/1629360.txt This one mentions referrals to the Director as being extraschedular and mentions 38 C.F.R. § 4.16(b). Maybe you have to request it...
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