Vync

Back around 2000 the VA was handing out dope like candy.  Now I can't even get an increase in the little pills that are 5% Oxycodone.  At one time I had a script for Morphine and Oxycodone.  It turned my guts to concrete and I told the VA to back off with the Morphine.  Then they put me on Fentanyl strips.  That was ineffective as well.  When I complained they reduced everything.

This is a familiar problem with both the VA and private doctors.  In a nutshell, the government is "going after" doctors who prescribe too much pain medications (aka vicodin, oxy, etc, the real pain meds), and, in response the doc's pretty much quit writing pain med prescriptions except for 3 instances:
1.  If you see a pain clinic, who monitors carefully your use with frequent blood checks to make sure you are not getting it also from other docs.  
2.  If you have had surgery, your surgeon will prescribe pain meds (opiates) on a limited basis for post surgical pain.  
3.  When you are in the hospital.  
    
     Its a huge problem.   A few years ago, VA handed out Vicodin as if it were candy.  Problem was, people became addicted, and often turned to street drugs when docs cut them off.    Some Veterans have turned to edible marijuana, such as gummies, as it tends to offer "some people" pain relief for some conditions, and, its legal in most states now.  I checked and Florida is one where medical marijuana is legal.  
That, too, is problematic.  Even tho marijuana is legal in "way over half" the states" it is still Federally illegal, so VA generally wont prescribe or dispense it.  However, I did read about a pilot program where its being tested at the VA, but dont hold your breath.  
      THE BIGGEST PROBLEM:  Since doctors wont prescribe pain meds, it drives people to obtain street drugs and those are often dangerous and even deadly, since many are laced with fentanyl.  
      For ME, what I do is use (legal) herbal supplements which are often superior to chemical pills.  You would need to either see a herbal specialist, read a bunch online, and/or sometimes health food stores can be very helpful, at least some of them.  Herbal supplements are not without risks, however, and you do not to be careful there too..there are scams.  
     In my opinion there are scams with BOTH herb supplements AND pharmaceuticals.  The Vicodin fiasco was a famous one, and, if "FDA approval" was so good, how come drugs get approved, then removed from the market sometimes just a few years later?  Did they not do a good job with studying it the first time?  
    Herbs mostly come "out of pocket".  But they are generally far less expensive than many/most pharmaceuticals, and often safer.  Its your life, and you make your own choices, but whenever I have a choice, I choose supplements first, and only then will I turn to pharmaceticals.  And, I try more than one supplement, too.    My health care is generally a "blend" of pharmaceuticals and herbs.  Remember, tho:  Doctors dont like Herbs, and Herbalists dont like pharmaceuticals.    Medical schools are mostly funded by pharmaceutical companies.  FDA generally does not approve herbs, in no small part, because herbs can not be patented.  So, a company wont spend 100,000,000 dollars to reseach say, Pau D' Arco because anyone can sell it.  Its sad that more research is not there for herbs, but the law does not allow a plant (herb) to be patented.  
    Some pharmaceuticals extract the main ingredient of plants and research those, sometimes combined with other stuff.  
    Its a big reason health care is a mess in America.  Prescription drugs are the third leading killer of people in the USA, according to at least one site:  Its not "just" pain meds, either.  
https://www.riscassi-davis.com/blog/2022/april/death-from-prescription-drugs/

Finally, still another example is your VSO or representative.  
Most Veterans sign "stacks of paperwork" and dont read every word, ever.  I did.  
Maybe your VSO was sharp and saw a medical report and said, "gee, that Vet has a diagnosis of tinnitus", I will include that also.  
He may or may not have explained that to you, and you may or may not have remembered his explanation that happened months or years ago.  
 
The same thing often happens when you buy insurance or a car, or whatever.  You may get tired of listening to his talking.  Insurance agents often include something called "waiver of premiiums".   Do they always tell  you?  No.  You may not want to hear it all!  You may get a headache when they start talking about double indeminty comprehnesive, other than collision, and a bunch of other stuff you dont know or care what it means.  So, you dont ask.
So, you bought waiver of premiums.  3 years later, you get in a car accident and are disabled.  Your agent calls, noticing you stopped paying the premiums.  You respond that you cant, you are disabled.   The agent informs you that he included "waiver of premiums" which means your premiums are paid by the insurance company when you become disabled!   You are happy!   You get to keep your insurance without paying!  And you did not know what waiver of premiums meant, but your agent did, and he included it.  

Maybe.  There is such a thing as an "inferred claim".   While those are mostly not allowed CURRENLTY, in the past inferred claims were common.  
A great example is:
   You apply for PTSD.  You speak with the doctor, AND you tell him you are unable to work because of your PTSD.  Your doctor docutments this.  This could be considered an INFORMAL or inferred claim for INCREASE for TDIU.  
   Many Veterans, especially those with PTSD or other mental health disorders dont know the difference between TDIU and an IOU.  The VA is supposed to have a Liberal interepretation of his claim for benefits, and its highly likely telling his doctor this, could be construed as a claim for tdiu.  
   In many instances, the VA would be required to send the Veteran a TDIU claim form.  But, what if they dont?  
    Chances are pretty good, the Veteran "eventually" runs into a competent VSO or someone else who may explain to him that he/she should apply for tdiu.  So, lets say he does.  He could well get an effective date much earlier, since his statment to the doctor could have been construed as a claim for tdiu.  
 
   There are other examples, too.  Many of those involve Veterans "not understanding" a diagnosis.  
A DRO "could" view a diagnosis on a medial report "you did not apply for" because, for one thing, you may not have known you had the disorder" and applied for you.  The vA has a duty to maximize benefits, and its presumed the Veteran, when applying for benefits is seeking the max.  

The VA can reduce your rating "regardless" (independent of) whether or not you apply for an increase.   "If" the VA does not comply with the regulations, the Veteran can hold them to them by:
A.  Asking for a hearing in a proposed reduction.  
     If there is no proposed reduction, then VA did not comply with their own regulations.  
B.   Appealing a reduction "in the event" that you can not defeat it before it even happens with the proposed reduction.  
    Source:   I have had the VA do proposed reductions on me TWICE.  NEITHER time had I applied for an increase.  
I easily beat the proposed reductions before they became final. The VA must give 60 days notice of proposed reduction, see below.  I simply wrote a letter, with applicable evidence, explaining why a reduction was not warranted.  The VA wrote back, and said that the proposed reduction would not take place, that my rating would remain unchanged times 2.  
Source:  38 CFR 3.105 e:
 

The VA has "hoops" to jump through to try to reduce your 100 percent p and T rating.  Generally, it means that your condition "not only" has to show improvement, but it has to show SUSTAINTED improvement (not just improvement on one exam or on one day) "under ordinary conditions of life" which are not due to Sustained rest.  
Read it yourself:
https://www.law.cornell.edu/cfr/text/38/3.344
I have read it at least 20 times.  NOWHERE does it say anything close to "When a Veteran applies for an increase, reduce his rating instead".  
 
That is an old wives tale.  Snake oil.   Dont buy that snake oil.  Instead, apply for any benefits to which you deserve.  The VA can reduce your benefits, but NEVER just solely based on you applying for an increase.  They have to comply with the regulation, above.  And, if they dont, you can protest the proposed reduction, or appeal it if they do reduce it.  

I posted this several years ago.  P & T ratings are only granted or awarded when a veteran has a disability or disabilities that is likely going to exist and last for the rest of the veteran's lifetime. I have been P & T for well over a decade and was granted several EEDs (Earlier Effective Dates) and the VA/BVA/CAVC (Regional Office/Board of Appeals/Court of Appeals) has said nothing about me losing my P & T, in fact that has been back dated also.  

Two of the most common legal theories to argue for an Earlier Effective Date in a VA Disability Compensation Claim. Author Chris Attig Veterans Law Blog Earlier Effective Date: Your VA Claim – When You Should Argue!
  While there are two legal processes to pursue an earlier effective date, several legal theories can be used in those processes. Here are 2 of the most common legal theories to argue for an Earlier Effective Date in a VA Disability Compensation Claim.   Here are 2 of the most common legal theories to argue for an Earlier Effective Date in a VA Disability Compensation Claim.
Reopen your claim and prove service connection based on military service records or service medical treatment records.   This is one that the VA hates. Here’s how it works…   You, the VA, or any third party discovers service records or medical records not previously included in the VA C-File.  38 CFR 3.156(c) requires that the VA reconsider any previously denied claim to which those records might apply.   If those records lead to a grant of service connection for a previously denied claim (even if finally adjudicated), then 38 CFR 3.156(c)(2) contains the following requirement: An award made based all or in part on the records identified by paragraph (c)(1) of this section is effective on the date entitlement arose or the date Veterans Affairs received the previously decided claim, whichever is later, or such other date as may be authorized by the provisions of this part applicable to the previously decided claim. The VA hates 38CFR3.156(c). In fact, they commonly “overlook” this basis for an earlier effective date when Veterans find new military service records or military treatment service records.   Show that the VA should have granted an earlier claim date based on the “implicit denial” doctrine. The VA doesn’t have to go digging through your C-file to find every viable claim. However, if a claim is “reasonably raised” by the record, then the VA’s failure to address it could be considered an “implicit denial” of that claim. Here’s how that might work: A Vietnam-era Veteran who served at NKP in Thailand files a claim for service-connection due to Agent Orange exposure. He tells the VA that he has  Diabetes Mellitus Type II. To confirm the diagnosis of Diabetes, the VA receives medical records from the Veteran’s treating physician. The treating physician’s records are replete with diagnoses of ischemic heart disease. However, in the rating decision, the VA fails to address the ischemic heart disease, even while granting Service-Connection for the Diabetes based on Agent Orange Exposure.   A claim like this might be “reasonably raised” by the record. In fact, this scenario occurs very frequently. While granting one claim, the VA turns a blind eye to a fairly obvious claim in the record that the Veteran may or may not have specifically asked for. Most commonly, this occurs with secondary conditions – conditions that the medical record clearly indicates are caused by the service-connected condition. This happens because the bureaucrats deciding VA claims have little or no medical knowledge or training and are punished for thinking outside the box.   The BVA and the CAVC are going to look at a couple of factors in analyzing the implicit denial doctrine:  relatedness of the claims, the timing of the claims, whether the rating decision (or other adjudication of the Veterans Benefits claim) refers to the condition in a way that suggests it was denied, and whether the Veteran was represented or acting pro-se.   Remember, there are only two paths to an Earlier Effective Date – a CUE claim (or a Motion to Revise the Effective Date based on Clear and Unmistakeable Error) and as a legal basis in a current and pending appeal.   Author Chris Attig Veterans Law Blog  

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Let's assume they were not lying to you, and they grant the claim at the Board.  If so, you could get a letter sometime in the next 2 to 5 months, perhaps earlier, if your attorney calls you as he may get some documents online earlier.  
Unfortunately, the procedure is that the award is sent to the VARO to "implement" the decision.  The regiional office would then determine a disability percentage, if applicable, and an effective date. They would then send you and your attorney notice of this VARO implemntation of the board grant of benefits.  This takes another 30 days to 6 months, sometimes more, sometimes less.  
In short my wild guess is that you have a 50 to 70  percent chance of seeing a deposit (money) to your account before Christmas in December.  I would estimate that the chances of seeing money for this before July 4, are low, maybe 20 percent.  And, the chances of you seeing money before memorial day (May 30) are about 5 percent.  
I would give an 80 percent chance you would have your money by VAlentines day, 2025.  
"ONE" of my Board decisions was implemented in less than 30 days.  Most of the time they are in the 2 to 6 month range.  
You actually are waiting on 2 decisions, one from the board, another implementation decision from the regional office.  
On occassion, "the first notice" you get of a VARO implementation decision is a deposit of money, and the decision letter comes later.  
Its around 8 months or so to Christmas, so about 4 months for each would put it at christmast time.  The board decision "could" move quickly now that you have had a hearing, but not always.  They should have your complete package together.  But, its often a different person who decides the claim than the judge who interviews you in person.  It could be longer or shorter than 8 months.  My guess is that its near equally likely for it to be longer or shorter than 8 months. 

Thanks for the response.
Wow, I didn't know that was how they did business, but I guess I shouldn't be surprised. It was a formal appeal to the board. I guess I'll give it a while, then see if my attorney knows anything. Thanks for the advice.

Who, hoss!  While you COULD (possibly) crawl across America on your hands and knees, flying in an Airplane would be much faster and easier.  
In a similar way, you COULD file CUE on SMC S, but when you understand that filing CUE is "all about the effective date" AND, the filing date does not matter with SMC, simply file for it again.  If awarded, your effective date for SMC S, should be the date you first became eligible for it.  
Its well known that CUE is harder to prove than a simple claim for ONE major reason:
CUE must be undebatable
While regular claims a tie goes to the Veteran, that is, the doctrine of equipose.  (The benefit of the doubt goes to the Veteran)
Why give up the benefit of the doubt (BOD) when you dont need to?  
Dont make your claim harder than it needs to be.  Make it easier.  File for SMC S again.  No need to file CUE, it wont change your effective date.  Reason:
SMC is "inferred" whenever the Veteran meets the criteria.  That is, he should not have to apply for it.  Yes, the VA misses it and the Vet has to apply anyway.  But, if awarded, the Veteran should still get the same effective date. 
In a regular claim, the effective date is the later of the date of claim or the facts found (the date the doc said you became disabled to the extent of the criteria)
However, in SMC, you need not worry anout the "claim date"..its always the facts found, when you first meet the applicable criteria. 
Therefore, my advice:
File for SMC S (regular claim, supplemental claim form) and dont file CUE for SMC S, for reasons above.  

The VA, VSOs and some veterans say that a veteran must be rated at least 70% or have one disability rated as 60% but that falls under part (A).  Here is part (B) and as you can see it does not list any rating percentage. When quoting the regulation, if you leave out part of it, the part you leave off will make the quote a little off. 
We have been trying to get veterans to understand 38 CFR 4.16(B) for decades and some still miss the point that a veteran can also not have a 60% for a single disability or a combined 70% but the VA can still grant them Unemployable based on their symptoms and 38 CFR 4.16(B).
(b) It is the established policy of the Department of Veterans Affairs that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. Therefore, rating boards should submit to the Director, Compensation Service, for extra-schedular consideration all cases of veterans who are unemployable by reason of service-connected disabilities, but who fail to meet the percentage standards set forth in paragraph (a) of this section. The rating board will include a full statement as to the veteran's service-connected disabilities, employment history, educational and vocational attainment and all other factors having a bearing on the issue.

This statement is a little off, while it is true, it only quotes part of the regulation 38 CFR 4.16(A) and not the most important part that states a veteran can be awarded TDIU if his/her disability precludes them from work and make them unemployable 38 CFR 4.16(B).

Until I learned how to read the letters I did the same thing you just did. Read down to the part where they piss you off and get lost in that.  If you could take a Sharpie and black out your personal information and post it here we can look at it and help you. brokensoldier244th works at the VA and is very good at reading between the lines with the letters, as am I, after 45 years. The VA is spose to tell you in the letter why did what they did.
From what you posted and my own experience you have said, "TDIU based in part on their verbal garbage saying that TDIU is based on my 70% CNS and all my other disabilities."  To get TDIU you have to have one rating of 60% (or more) and one rating of 40% or more. You stated, "But none of those are rated above 50%." So, if they rated you at 70% and 50%, you would qualify for TDIU.
The only other question I have for you is, did they give you T & P with it? (Total & Permanent) They sometimes will give you T & P with TDIU. This will help you from getting reviewed. 

It means that it’s no longer part of something that needs to be found on its own, it’s in the manual with everything else. 

For more information read this:
https://veteranclaims.wordpress.com/2020/03/08/single-judge-application-delayed-onset-tinnitus-tinnitus-can-manifest-years-after-an-underlying-cause-va-training-letter-10-028/

Bump
Since more veterans are having questions about SMC, I decided to bump this post. SMC is quite tricky and hard to understand and follow. I suggest that all veterans should seek out an accredited attorney for assistance. 
 

Any update on yours? 10/02/2020 was my file date and 02/26/2024 it was finally assigned to a judge so hopefully anytime now. 

Read about it here.  Its a proposal.  Feb. 9, 2024. 
https://news.va.gov/press-room/va-presumes-exposure-agent-orange-herbicides/

Often radiologist reports are incomplete and incorrect.  I have Xray results that say WNL when they mean, no change.  Very misleading.  MRI report does not report the "left lateral blowout of the spinal disc) only the disc on the sciatic neural foramina.  The directions of the blowout connects to the T-bone MVA.  So BVA judge had to rely on my medical background to remand the decision to AOJ.  Still the AOJ ignored the remand for the lower back.  Accepted the remand for the cervical neck and granted SC.  Lower back is secondarily connected through the T-bone MVA caused by an absence seizure confirmed in the record.  But because a physician put notes on another patient in my file that dated his injury earlier than my T-bone MVA, I still have not been granted SC for lumbar spinal disc disease.
The films are important.  Even a laymen can understand the pressure on the disc causing a directional blowout like popping edamame.

Generally, Xrays are interpreted by Radiologists, not  C and P examiners anyway.  The image is less of use to the examiner than the 
Radiologist report.  ONE reason this is done, is because the Radioligist specialized training gives him the authority AND the responsibility to interpret xrays.  
About 40 years ago, after a motor cycle accident, a doctor had an xray taken, and "missed" a navicular fracture.  This meant I had to have a bone graft about a year or so later.  While I did not sue the doctor, my guess is this is not the only time this kind of thing has ever happened.  Thus, while a doctor may "look at" an xray, the official interpretation is almost always left to a radiologist, in no small part because regular doctors dont want to be liable for a mistake misreading an xray that could harm a patient.  It takes many years of specialized training to become a radiologist to be qualified to interpret xrays.  At my VA, doctors dont do that, the radiologist "reads" the xray, and sends his report to the doctor, not the xray.  
Doctors, also, generally dont perform lab tests either.  Those are left to specialists who are trained in performance of those tests, with specialized modern equipment.  The doctor gets the report from the lab, he does not want to see any slides of bacteria or anything like that, except in unusual circumstances.  
Its not suprising your c and p examiner was uninterested in the xray.  He may have been more interested in a radiologist report of the xray.  This is just my unsubstantiated lay opinion, not medical or legal advice.  
My advice is to get a copy of the c and p examiner report, if possible.  You can usually tell if the exam is "favorable or not".  If the examiner says stuff like, "in his opinion the Veteran's xxx diagnosis is at least as likely as not due to an event in service" then its a favorable opinion.  
If you are talking x rays, then you may have already "passed" SC, and are looking to document symptoms for a disability percentage.  Its true that a disability which shows on an xray has some serious credibility..more than "just" the Veteran's "complaint" of pain without confirmation of an xray.  
Remember, too, the rating specialist "almost certainly" is also not a radiologist either, and is also not competent to interpret YOUR xray to mean you have xyz condition shown on xray.  No.  Instead, he/she will rely upon the c and p examiner interpretation of the radiolgist report..because the radiolgist report may well be written in language which is not understandable to lay persons (raters) or patients.  Indeed, its the doctors job to read the radiologist report and determine a diagnosis, as well as a treatment plan if applicable.  

So wait and see what the decision is you may be worried about nothing. Some of the time there is enough in your file to make a decision with out the x-rays. The first MH C & P exam I did I don't think the Doc ever looked at any my medical records. 

You are right.  I try to be an independent, but I strayed to one side in that post.  Thanks for binging some balance.  The issues are what is important.  Not the party or the person.  Hope I can do better next time and not hit one party.

radarguy
Can please resubmit the Veterans_User_Guide_BTSSS_20200622. It isn't downloadable or viewable. I would like to read it as I have a verry sick Vet that the VA is giving crap to about his travel.
 

I had a reputable attorney and in a way felt attacked by the person for continuing my journey to 100% P and T and not excepting being tdiu 100% P and T after an appeam they got me, they can be wrong as well. I got to 100% scheduler P and T with doing my own research from hadit and sharing my stories on the way to that it. Thank you Hadit for being here