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First Class Petty Officer
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About acesup

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    E-5 Petty Officer 2nd Class

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  • Service Connected Disability
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    Air Force
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  1. Thanks, Broncovet. I do have a NOVA attorney, although to the best of my knowledge, she's never done a CAVC case. I will discuss this with her soon.
  2. Gastone, I didn't understand your question at first, but now that I've re-read it... After 9 (or actually, 11) years of fighting the VA, I'm tired of it even taking up any of my time or energy. I feel like I just won the war, but these remanded issues, at first blush, seem like going back to re-fight a couple of battles that realistically might make no difference to me one way or the other. The remanded issues (SC for migraines and sciatica) will have no financial impact to me, no matter what the outcome. Neither is likely to become even a contributing cause of death, so they wouldn't help my wife if I passed away. If the attorney thinks it is wise to pursue them, I probably will do just that. But. like vetsquest says above, my relationship with the attorney is a two-way street. I'll always consider her opinion and my own opinion before I decide anything for certain. But, I like to look at situations from every angle. If other vets with related experiences have any insight on whether or not there is anything to be gained or lost, I'd definitely welcome the input and consider that information in my thought process. Everyone has opinions on the best way to cross a minefield. To me, the trick is to not run straight across, or to blindly follow the first trail I find, but to carefully consider all possible paths. But if someone will give me a pair of binoculars and I can see footprints that go all the way to the other side, that will most likely become my preferred path. So it is with this hadit.com site and the advice of other veterans.
  3. When I first filed for OSA, Sciatica, TDIU and back in 2007, I had already been rated 50% since 1974 ( 40% for SC lumbar spine and 10% for residuals of Hepatitis). I was living in a remote location where there was no VSO. Heck, there wasn't even an actual town within 30 minutes. In 2009 I resubmitted those conditions (they'd been lost in "Shreddergate") along with some others, (Depression, OSA, DVT with PEs, SC for neck disability and related nerve damage) but this time I was living in Texarkana. I had called a local VSO, but didn't hear back from him. I called the DAV, of which I've been a Life Member since 1974, and talked to some lady VSO in Dallas. She was argumentative, and gave me the distinct impression I was wasting her time. I heard from several vets in the area that I'd be better off to file on my own, so I did. After denial in 2011, I went to talk with a county VSO. He seemed quite uninterested and completely uninspiring, and told me basically to surrender. I then found, on the Internet, a "NOVA" attorney about an hour west of here. I called her, and within a few minutes, I knew she would fight for me. She was smart, caring, and very aggressive. We filed NOD for a DRO Review for everything. In 2014, DRO granted the Depression. Just before the 2014 DRO grant, I got a letter from the attorney. She informed me she was resigning as representative from ALL of her VA claims, saying that she could no longer deal with the "den of vipers" at VA. (I think she may have even completely quit practicing law, which is too bad, she's a great person with a big heart.) She recommended another NOVA lawyer in the next town over. I called and talked to her, and felt she'd be a good choice. I think I made a good decision. We then filed Form 9 for appeal to BVA. In truth, she didn't have to do much. I had gathered and submitted a lot of good evidence and IMO/nexus letters right from the start, and was quite surprised that my claims had been denied. Evidently, the BVA VLJ had a similar reaction. For example, in the reasons for the decisions (most granted, two remanded) he says in one place "the only competent opinion of record substantiates the claim... "There's no competent evidence to the contrary...". Several times on various conditions, he says of the C&P examiners' opinions (from 3 C&P exams) that their "opinions are inadequate" and he assigns "these negative opinons no probative value". (I added highlighting/italics). Still, at the end of the day, I'm glad to have had the attorney, and I think that if more had been needed from her, she would have risen to the task. And, for all I know, maybe she did things behind the scenes that I'm not even aware of. I don't mind that she'll get 20% of the retro award. I'd rather pay that than have a lousy "free" VSO that didn't care about me or my claim, or would have kept advising me to drop the claims/appeals.
  4. When speaking with my attorney last night, I agreed not to post the decision until after we've taken whatever action (probably reconsideration) for an EED. Sorry to have misled anyone, but I'd better listen to her, she knows all of the legal ins and outs of this stuff.
  5. Gastone, I'll try to do that tonight or in the a.m. I don't have any easy way to edit, so I'll have to make a copy, mark it out with a Sharpie, scan it, then post. Hopefully I'll get time this evening, too much happening around the house today. --Ken
  6. Here's the applicable info from VA Fast Letter 08-41. My claim was within the covered dates, and my claim was re-asserted before the Fast Letter expiration. Fast Letter 08-41 states in part:"The Secretary has determined that temporary special claims handling procedures are appropriate to relax certain administrative claim submission requirements for claimants who assert they submitted a claim or evidence within the 18 months preceding the date all document shredding activities ceased in VA regional offices; that is, claims or evidence submitted between April 14, 2007, and October 14, 2008. These temporary procedures are established to ameliorate any loss of claims, information, or evidence that may have occurred as a result of inappropriate document disposal in VA regional offices during this period. RO personnel will use the temporary special claims handling procedures set out in the attached enclosures to assist claimants and representatives in establishing whether or not a claim was previously submitted to VA but was not retained and acted upon. 

Claimants must assert their request for consideration under the temporary special claims handling procedures in response to the 2008 records incident within one year from November 14, 2008. RO personnel will exercise the Secretary’s authority to recognize a claimant’s or representative’s assertion that a claim and/or supporting evidence had been previously submitted to VA during the 18-month window from April 14, 2007 to October 14, 2008. The effective date will be established as though the claim was received on the date asserted by the claimant. Effective dates earlier than April 14, 2007, may be established based upon receipt of credible evidence supporting the earlier date of document submission.

This letter self-rescinds on November 30, 2009. 
  7. Hi Berta, thanks for coming in on this issue! My memory isn't as great as I sometimes believe it to be. I still think I did get a written acknowledgement of the Fast Letter deal, but can't find anything like that so far. I didn't actually get a "Fast Letter" from the VA, but back at the time, a Peggy Rep gave me a Fast Letter 08-41 to cite when making the claim. B.V.A. did not mention the 2007 date anywhere, neither do the denials I got in 2011 and 2014. BVA is granting everything back to Oct. 2009, the date of the rest of my claimed conditions. What I do have: My October, 2009 letter to VARO-Little Rock asserting that in May 2007, I submitted a written claim to VARO-Houston (I lived in that area during that period). I also included a copy of the original 2007 typed claim. (It was not required to be on any official form back then, so typed and signed was okay.) I sent it Certified Mail, so have the return receipt from the RO. On Dec. 3, 2009, after learning that VARO-Waco was going to be handling my claim, I then sent Waco a letter and documents in support of the 2007 claim. Once again, I sent it Certified Mail, and have a return receipt. Having not heard a specific response, on Dec. 22, 2009 I went online to VONAPP and submitted a Form 21-4138 restating my situation, and again citing the VA Fast Letter 08-41 that would cover it. A response from IRIS showing an inquiry about the 2007 claim, but doesn't actually answer it. A VCAA letter for my claim with "What Have We Received?" showing "Letter from you with copy of your claim dated May 3, 2007" I'll attach files. VAEvidence2007EED.pdf
  8. I received my BVA Decision Letter this afternoon. I feel totally vindicated in that the judge repeatedly pointed out that my STRs and medical records plus nexus letters and IMOs provided the basis for granting Service Connection, while the C&P medical examiners and the VARO failed to thoroughly address several issues of secondary SC, thereby denying my claims based on "inadequate" negative opinions to which he assigned "no probative value". Wow. Just wow. I had some incredibly good nexus letters/opinions from several doctors, some specialists, but they were ignored in the 2011 denials and subsequent DRO Review. The effective date for TDIU and SMC (s) was set back to 2009. However, I applied for two of the granted issues (OSA and sciatica) plus TDIU in 2007, in a claim that was apparently sent to sleep with the fishes back during the "Shreddergate" scandal in 2007. I asserted that fact in 2009, and received a VA Fast Letter stating that the 2007 filing would be recognized. I'm not 100% certain whether I should pursue this, but I will definitely be looking at it. If I do want to file NOD for the date, will it be to BVA or VARO? And, what is the deadline?
  9. Not having received the Decision Letter, yet, I'm not sure which condition(s) got the IU award. I was 50% depression, 20% lumbar spine, 10% + 10% lower extremity radiculopathies, 10% residuals of hepatitis. The "lung disease" granted is chronic Pulmonary Thromboembolism with daily anticoagulant therapy, so should get 60%. The O.S.A. is severe and requires Bi-PAP, so should get 50%. I expect the other conditions to get a couple of 30% ratings and a couple of 10%s. Reading the granted items makes me think they've also awarded SMC-S, but I won't know that until I get the BBE. I'm extremely curious to see the reasons and bases for all of these grants, because I felt I had a very strong case from the start, yet got shot down in flames on initial claim and DRO Review for most everything I had claimed. I had(what I thought to be) some great medical opinions/nexus letters from a number of medical specialists including three Pulmonary M.D.s (one was a professor and head of Pulmonary Dept. at University of Texas) regarding both the lung disease and O.S.A. I guess I'll also learn from the letter whether they call my ratings P&T. I do think when everything is said and done I will rate 100% schedular, but we shall see. While most of this appeal is from 2009, I just remembered that a couple of conditions and TDIU were claimed in 2007 and lost during "Shreddergate". Somewhere I have a VA "Fast Letter" assigning the 2007 filing date for them. Since it should also be in my C-file, they should hopefully consider that to be the Effective Date, Bottom line, though, I doubt there will be anything that I will appeal further. I feel vindicated now, and I just want to have this "underdog me versus the big bad giant VA" chapter of my life come to an end. Thanks to all for the advice and kind words and encouragement throughout this struggle. I plan to scan and share (redacted, of course) the Decision information in hopes that it will help the next vet be better prepared for battle.
  10. I'm 70% SC (50% for depression, 40% lumbar spine, 10% + 10% lower radiculopathies). I put in for several secondary and/or aggravation issues which VARO denied way back in 2009, went through DRO review in 2011, then filed Form 9. Checked vets. gov yesterday, got this information Current Status The Board made a decision on your appeal The Board of Veterans’ Appeals sent you a decision on your appeal. Here’s an overview of the decision: Granted The judge granted the following issues: Service connection, sleep apnea Service connection, lung disease Service connection, peripheral nerve paralysis Service connection, central nervous system disease 100% rating for individual unemployability Service connection, lumbosacral or cervical strain Increased rating, special monthly compensation New and material evidence to reopen claim for service connection, migraines New and material evidence to reopen claim for service connection, lumbosacral or cervical strain If this decision changes your disability rating or your eligibility for VA benefits, you should see this change made in 1 to 2 months. Two issues were remanded: SC for migraines and sciatic nerve damage. Now, I'm considering withdrawal of those two items. My thoughts are that SC will make absolutely no difference to me, so why waste the VA's time on a remand when they could be working on another veteran's claim? Can there possibly be any negative consequences to withdrawing them? It's not like I'm going to die of either condition.
  11. I was rated 50% depression, 40% lumbar spine chronic sprain with Degenerative Disk Disease, 10 percent hepatitis A, for a total of 70%. I have some other denied secondary SC issues from a 2007 & 2009 claim, on appeal since 2011, waiting certification to BVA. One of those issues is bilateral sciatica/lower extremity radiculopathy secondary to my lumbar disability. Although the C&P back in 2010 did show the sciatica condition, and both the VA Neuro ( at least as likely SC) and my private chiropractor (more likely than not SC) did opine in my favor, it was denied, and I appealed. Last year I had surgery on my lumbar spine, and filed for temporary 100%, which I recently got after reconsideration. In the Decision Letter, I was told I would have a C&P to check level of disability. I got that Decision Letter today. The VA C&P examiner recorded my Range of Motion (thoracolumbar flexion) at 50 degrees, well over the 30 degrees range of a 40% rating, so my lumbar disability is now immediately reduced to 20%. However, the exam also showed mild sciatica in both legs, so I am now rated 10% each side, effective 05/23/2017, the date of the C&P exam. I guess I'm okay with the reduced rating for my back. And my overall rating is unchanged, it is still 70%, so I'm reasonably happy. However, I believe the lower extremity radiculopathy ratings should have an Earlier Effective Date of 2007, and I think I will achieve that. My question: Do I ask now for a reconsideration, or file an NOD? But figuring that either of those will probably just further delay my BVA appeal, would I be better served to just sit on the EED question until the BVA hearing? Thanks in advance for your input!
  12. acesup

    5 year Rating Protections

    Great info, now I'm trying to decide if any of this applies in my situation. I'm almost 64 years old. I have a total rating of 70%. My lumbar disability has been 40% for about 15 years. I had surgery June of 2016, and requested temp 100% convalescence pay. They finally granted it on reconsideration, but scheduled a C&P to see if my level of disability has changed. I had the C&P exam two weeks ago, where the examiner claimed I had 50 degrees forward flexion, and now eBennies shows my lumbar spine rated at 20% effective that day. Back in 2009, I filed for sciatica and for TDIU, and had a C&P exam in 2010. The VA C&P examiner Nurse Practitioner, who was absolutely hateful and extremely dishonest, reported thoracolumbar forward flexion of 84 (YES, 84! degrees). I can promise you there's no possible way I could have done that since 1973, but that's what she wrote down in the C&P report, and VA DID NOT attempt to reduce my 40% lumbar spine. But now, it looks like due to the surgery, after 15 years at 40%, I will be rated 20%. Believe me, I'm glad I had the surgery. My spine was sliding forward so much that a wrong move could have meant a severed spinal cord. My hips don't hurt as bad as they did. My lower legs have issues, obviously, but are somewhat better than they were. My Range of Motion really is probably still about 30 degrees + or - a little bit, and the surgeon said it probably wouldn't improve with four fused vertebrae and two 8" rods attached. However, I thought they might drop it to 20%, and as long as they followed the rules, I don't guess I'd have much recourse, but I want to make sure they're following their own guidelines. They didn't warn me that they were seeking reduction, but it looks like it is happening.
  13. Here's a (hopefully) short history: I was rated 50% MDD, 40% chronic lumbar sprain with Degenerative Disk Disease, 10% Residuals of Hepatitis. The chronic lumbar disability has been 40% since 2002. Prior to that, it had been 20% since 1974. I injured my back in 1973 while active duty USAF, while moving a desk down a stairway, when the other two guys holding the desk got tripped up and dropped their side. I am 63+ years old. In 2007, I filed for bilateral sciatica "and/or other nerve damage" secondary to my SC lumbar disability. This claim was lost in "Shreddergate", but reinstated in 2009 by VA Fast Letter recognizing original 2007 date. I also filed for some other conditions in 2009, including TDIU. The sciatica was detected (by Nerve Conduction Study) in my 2010 C&P exam, and the VA Neurologist C&P examiner did state "at least as likely as not" related to SC lumbar condition. I also had a nexus letter from my chiropractor at the time stating "more likely than not"secondary to my SC condition. The VARO denied the sciatica, agreeing with a C&P Nurse Practitioner examiner with the opinion "your sciatica is not caused by or a result of" the SC lumbar condition, claiming my STRs showed a "two week history of non-traumatic low back pain" resulting in a diagnosis of "muscle strain". They add that "your private physicians have documented several intervening low back injuries including multiple motor vehicle accidents...". I had accidents that caused whiplash twice, and thoracic spine injury once; never lower back. They then state "service connection is denied because there is no evidence that your bilateral sciatica is caused by, aggravated by, or a result of your SC disability of chronic lumbar strain with degenerative disk disease...". That issue, along with some other stuff, is on appeal waiting certification to BVA. Now, fast-forward to the present: In June 2016, I had surgery, fusion and laminectomy of L2-3-4-5, with two 8" titanium rods and eight screws inserted in my back. I filed for temporary 100%, and while it was initially denied due to a missing "Op Notes" document, it was recently granted, for 4 months. On the Decision Letter, the VA stated there would be a C&P exam to check for changes in my level of disability. I did have that exam on May 23. The doctor reported a somewhat optimistic Range of Motion, but I knew it was probably better than 30 degrees, so I expected VA to want to reduce me to 20%. He also noted bilateral sciatica symptoms which he described as "mild". Now I see on eBennies that VA has reduced my lumbar spine to 20%. They have also added 10% for each side of lower extremity radiculopathy. These actions show an effective date of May 23, 2017, the date of the exam. In effect, my rating is still 70%, so I'm okay with that (not that it matters what I'm okay with). Now, regarding the bilateral sciatica (lower extremity radiculopathy): Will VA probably stick with the effective date of two weeks ago, or go back to right after my surgery last year, or will they be likely to just automatically apply an EED of 2007? If not, I don't know whether it would make sense to ask right away for reconsideration of EED, or just keep waiting for my 8-year-old appeal to reach a BVA hearing? Thanks in advance for your input.
  14. After my claim was denied on all counts in March of 2011, I spent some time pondering whether or not to pursue it, because of the all the stress involved. There was not adequate, competent VSO assistance in my area, to the best of my knowledge, so I had gone it solo up to that point, and got shot down in flames. After a lot of soul-searching and researching, I decided to contact a NOVA attorney. (I had seen some mention and a link on this site.) http://www.vetadvocates.org/ I retained the services of that firm. I am confident in the ability of my attorney, and I believe she will succeed in getting at least some key items of my claim approved. They filed my NOD for a DRO meeting back in November. There has been no action yet, but sooner or later it will happen. Meanwhile, I rarely even think about the claim, and don't get stressed, so the 20% to the attorney is a small price to pay. And as was said a few posts back, 80% beats the heck out of nothing! You do not have to wait. Once the decision letter of denial has been issued, you can get an attorney to handle everything, and live your life. Best of luck!
  15. http://www.vba.va.gov/bln/21/pension/vetpen.htm <-----Good information on this topic. Great post, I had never heard about this, and don't know when it began. I am not an expert, so my input may not be 100% accurate, but: As I read it, it isn't for every veteran; there is an evaluation of the veterans income and assets, then they determine whether one is eligible. Also, as I understand, you cannot draw it if you're getting VA comp for a SC disability, except if the amount of compensation is less than the $300 figure, and other qualifications are met. They do say if you're not sure you are eligible, go ahead and apply, and they will do an evaluation.

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