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chr49
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Posts posted by chr49
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I stand with all Vets no matter when they served. A victory for one is a victory for all. I do not begrudge any Veteran especially the presumptive ones. I strongly belioeve until Veterans unite together that our government can and will pick us off and in some cases use one era against another era.
I have no problems with VA making the new Veterans a priority either.
Well said Pete53...I agree
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This seems to be true. I was diagnosed with heart disease in 1999 but didn't file until October 2009 for IHD. Actually, I didn't file my first claim with the VA until January of 2009 because I didn't have a clue that you could. No one ever told me about compensation benefits. I just happened to be talking to a friend of my brothers and he mentioned the compensation he was getting for tinnitus. I told him," You've got to be kidding." I've had that ever since I got back from Nam.
As veterans, we need to get the word out to our fellow brothers and sisters about the help that is available. We all know that the VA isn't going to send you a letter or give you a call and tell you anything.
I recently went to a Veterans Reunion and the sign at the front gate reads as follows: "This is a healing field, Not a Fighting Field."
Hopefully this forum will be the same.
Jeff
Jeff,
My disability isn't IHD related but if not for a complete stranger who took the time to listen to me and recognize that I qualified for VA care & compensation, I would still be out there. I was in 'Nam in '70-'71 and had no awareness of how the VA could help me, either medically or thru compensation until '07.
I agree that we need to help each other all we can.
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Correct section aside--
A key section , 5.261, is missing. This section has the capability/potential of allowing the VA to write regulations restricting compensation for such things as A.O. presumptives, namely DMII and IHD,
Chuck75
I searched the .pdf for 5.261 and found 4 references to 5.261 (d) & (f) within in the RIN 2900–AM07 so they don't appear to be omitting it but they aren't making it easy to find out either. After reading the following statement it doesn't sound like they are making changes to that section....but who knows?
"For the text of proposed § 5.261(f), which is cross-referenced in proposed § 5.251(d), see 69 FR 44625(July 27, 2004)"
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Correct section aside--
A key section , 5.261, is missing. This section has the capability/potential of allowing the VA to write regulations restricting compensation for such things as A.O. presumptives, namely DMII and IHD,
My pessimistic thoughts for today!
It's not so much about family history as it is about the VA twisting things to it's ends.
Based upon familial medical history. The eventual VA logic might be ---
Family history positive for the disease.
Did A.O. cause or aggravate the disease? Require that the veteran prove aggravation if there is a positive family history.
What degree of family history. Any ancestor? members of immediate family? etc.
With family history positive, a veteran might have to show that
the disease is more severe than family history, or had an earlier onset, etc.
This puts thing into a gray area that ROs love to exploit as a reason to deny.
I tend to have a pessimistic point of view too. There's so much to go thru and so many ways the VA can twist things. What bothers me is how quietly this has been put thru the system. I hadn't heard about it until I stumbled on it while searching for something else.
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I'm not sure this is the correct forum to post the following. Moderators please move to appropriate forum if needed.
Federal Register / Vol. 75, No. 169 / Wednesday, September 1, 2010 / Proposed Rules
"The Department of Veterans Affairs (VA) proposes to reorganize and rewrite in plain language its regulations
concerning service-connected and other disability compensation. These revisions are proposed as part of VA’s
reorganization of all of its compensation and pension regulations in a logical, claimant-focused, and user-friendly
format. The intended effect of the proposed revisions is to assist claimants, beneficiaries, and VA personnel in locating and understanding these regulations."
Federal Register link:
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I've been gone awhile and missed this one. They must have pulled the file. The link doesn't work for me. Just my luck these days.
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Good news! Hopefully getting an IMO on your back claim will make a difference!
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Congratulation Stever...nice effective date!
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Vync,
Congratulations! Hopefully an IMO will change the back claim ruling.
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A common misconception is the plain fact that a Veteran does not have to be either 100 percent or TDIU to be rated Permanent and total.
Example: A Veteran lost an extremity in service. The VA 100 percent P and T's the lost extremity. Then after the fact the VA rates the extremity at 30 percent. The extremity is not going to grow back so the Permanent and total should not be severed.
The 100 percent is only a rating. What counts is the permanent and total. That opens the door to the Chapter 35 and champ VA benefits.
J
Jbasser
Well, I never knew this little bit of info. Thanks for the explanation!
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Bufloguy
This is great news....Congratulations!
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Cooter,
My wife says the doctor would most likely bill using a new patient consultation code (there are several codes available for extended office calls, etc)and add billing codes for any necessary procedures(such as lab work, X-Ray, EKG, stress testing, etc). As far as diagnoses goes, the doctor would most likely include codes for all diagnoses that are related to your IMO.
I hope this helps.
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Thanks for replying. My husband was a Yeoman. He served 12+ years on ships. The VA seems to want to blame his pulmonary disability entirely on his smoking history. Since my first post we have gotten another statment from his pulmonologist, saying that exposure to diesel exhaust and other particulate matter contributed to his problems. Another question I have is if his COPD began in service, which we have two doctors statments that it did, does it matter what caused or contributed to it.
Kathy
Here's a copy of the General Counsel memorandum (it's also in the Fed. Register).
Under HELD #3 appears to be the trick question in my opinion.
Chr49
Department of Memorandum
Veterans Affairs
Date: October 28, 2003 VAOPGCPREC 6-2003
From: General Counsel (022)
Subj: Service Connection for Cause of Disability or Death
XXXXXXXXX XXXXXXXXXX
To: Chairman, Board of Veterans' Appeals (01)
QUESTION PRESENTED:
Under 38 U.S.C. §§ 1103, 1110, and 1131, may service connection be established for a tobacco-related disability or death on the basis that the disability or death was secondary to a service-connected mental disability that caused the veteran to use tobacco products?
DISCUSSION:
1. The Board of Veterans' Appeals has requested opinions in two cases raising in essence the same issue involving secondary service connection. We are responding to these requests in a single opinion. The question raised by these two cases is whether, for purposes of a claim received by VA after June 9, 1998,[1] secondary service connection may be established for a tobacco-related disability or death that is a result of or aggravated by a service-connected disability unrelated to tobacco use.
2. In one case, the veteran served on active duty from May 1959 to March 1961. The veteran has been service connected for schizophrenia since discharge from service. In June 2000, the veteran filed a claim for service connection for emphysema, bronchitis, and asthma as secondary to smoking as a result of the service-connected schizophrenia. A Department of Veterans Affairs (VA) physician provided an opinion that the veteran's schizophrenia is as likely as not related to the veteran's tobacco use and subsequent development of chronic obstructive pulmonary disease and bronchitis.
3. In the other case, the veteran served on active duty from June 1943 to November 1945 and died on September 18, 1998. The veteran's death certificate lists the cause of death as metastatic lung cancer. The death certificate also indicates that tobacco use contributed to the cause of death. The veteran, a former prisoner of war, had been service connected for post-traumatic stress disorder (PTSD) since December 1990. The veteran's surviving spouse filed a claim for dependency and indemnity compensation (DIC) in March 1999. A letter from one of the veteran's private treating physicians stated that the veteran's lung cancer was "almost without question related to [the veteran's] history of tobacco abuse" and that the stresses of the veteran's military service made the veteran much more vulnerable to developing a smoking habit that eventually contributed to the veteran's death. A physician involved with the veteran's treatment at a VA medical center from 1988 until the veteran's death stated in a letter that the veteran smoked since World War II, that the veteran developed nicotine addiction over time, that the veteran's psychiatric condition most likely played a significant part in the development of the nicotine addiction, and that the veteran's psychiatric condition "undoubtedly doomed [the veteran's] attempts at smoking cessation to failure, and in this manner, contributed to [the veteran's] eventual demise." Another physician involved in the veteran's treatment at a VA medical center from 1988 until 1997 noted in a letter that the veteran had been addicted to cigarettes since the veteran's military service during World War II. The physician reported that the veteran had told him that the veteran's nervous condition prevented the veteran from giving up smoking. The physician concluded that the veteran died from "cancer, the result of years of smoking, refractory to cure because of . . . severe PTSD."
4. Pursuant to 38 U.S.C. §§ 1110 and 1131, compensation is payable “[f]or disability resulting from personal injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty.”[2] DIC is payable to the surviving spouse of “any veteran [who] dies after December 31, 1956, from a service-connected or compensable disability.” 38 U.S.C. § 1310(a). Section 1310(a) states that the “standards and criteria for determining whether or not a disability is service-connected shall be those applicable under chapter 11 of this title.” Chapter 11 contains the eligibility criteria for disability compensation for service-connected disability.
5. Section 1103(a) of title 38, United States Code, prohibits service connection of a death or disability "on the basis that it resulted from injury or disease attributable to the use of tobacco products by the veteran during the veteran’s service." (Emphasis added.) VA implemented 38 U.S.C. § 1103 by promulgating 38 C.F.R. § 3.300. Section 3.300(a) and © provide in pertinent part:
(a) For claims received by VA after June 9, 1998, a disability or death will not be considered service-connected on the basis that it resulted from injury or disease attributable to the veteran's use of tobacco products during service. . . .
. . . .
© For claims for secondary service connection received by VA after June 9, 1998, a disability that is proximately due to or the result of an injury or disease previously service-connected on the basis that it is attributable to the veteran's use of tobacco products during service will not be service-connected under § 3.310(a).
(Emphasis added).[3] The plain language of 38 U.S.C. § 1103(a) and 38 C.F.R. § 3.300(a) prohibits service connection for a condition that is attributable to a veteran's use of tobacco during service. In addition to barring direct service connection where tobacco use results in disability or death, this prohibition appears to apply to disability or death secondary to a service-connected disability that caused the veteran to use tobacco products during service, unless disability or death arose during service or during an applicable presumptive period. See 38 C.F.R. § 3.300(b)(1) and (2). Further, section 3.300© prohibits a finding of secondary service connection where the secondary condition is proximately due to a disease or injury that was service connected based on a claim filed on or before June 9, 1998, on the basis that it was attributable to use of tobacco products during service. However, the plain language of the statute and regulation do not bar a finding of secondary service connection for a disability related to the veteran's use of tobacco products after the veteran's service, where that disability is proximately due to a service-connected disability that is not service connected on the basis of being attributable to the veteran's use of tobacco products during service.
6. With regard to a claim for secondary service connection, section 3.310(a) of title 38, Code of Federal Regulations, provides that “disability which is proximately due to or the result of a service-connected disease or injury shall be service connected.” “Proximate cause” is defined by Black’s Law Dictionary 213 (7th ed. 1999) as a "cause that directly produces an event and without which the event would not have occurred.”[4] See Forshey v. West, 12 Vet. App. 71, 73-74 (1998) (that which in a continuous sequence produces injury and without which the result would not have occurred), aff'd on other grounds, 284 F.3d 1335 (Fed. Cir.) (en banc), cert. denied, 537 U.S. 823 (2002). There may however be more than one action that has an effect in bringing about a harm. When there are potentially multiple causes of a harm, a similar rule is to be applied, i.e., an action is considered to be a proximate cause of the harm if it is a substantial factor in bringing about the harm and the harm would not have occurred but for the action. Shyface v. Secretary of Health & Human Svs., 165 F.3d 1344, 1352 (Fed. Cir. 1999); Restatement (Second) of Torts §§ 430 cmt. d. and 433 cmt. d. (1965). A determination of proximate cause is basically one of fact, for determination by adjudication personnel. VADIGOP, 3-17-71 (Vet). The questions that adjudicators must resolve with regard to a claim for service connection for a tobacco-related disability alleged to be secondary to a disability not service connected on the basis of being attributable to the veteran's use of tobacco products during service are: (1) whether the service-connected disability caused the veteran to use tobacco products after service; (2) if so, whether the use of tobacco products as a result of the service-connected disability was a substantial factor in causing a secondary disability; and (3) whether the secondary disability would not have occurred but for the use of tobacco products caused by the service-connected disability. If these questions are answered in the affirmative, the secondary disability may be service connected.
7. As noted above, DIC is payable where death results from a service-connected disability, 38 U.S.C. § 1310(a), and the standards and criteria for determining whether a disability is service connected are those applicable under chapter 11 of title 38, United States Code, for determination of eligibility for disability compensation. Those standards and criteria include the rules for secondary service connection under 38 C.F.R. § 3.310(a), which are based on the authority provided by chapter 11. See VAOPGCPREC 8-97 (38 C.F.R. § 3.310 cites 38 U.S.C. §§ 1110 and 1131 as its statutory authority and implements section 1110). Whether the cause of a veteran's death is service connected is a finding of fact. Swann v. Brown, 5 Vet. App. 229, 232 (1993). Pursuant to 38 C.F.R. § 3.312(a), a veteran's death "will be considered as having been due to a service-connected disability when the evidence establishes that such disability was either the principal or a contributory cause of death." Thus, in a DIC claim in which the claimed cause of death is related to use of tobacco products after service secondary to a disability not service connected on the basis of being attributable to the veteran’s use of tobacco products during service, adjudicators must resolve the same three questions stated above to determine whether the disability that was the principal or a contributory cause of death may be considered service connected. If these three questions are answered in the affirmative, the secondary disability may be considered service connected and may be considered as a possible basis for service connection of the veteran’s death, applying the rules generally applicable in determining eligibility for DIC.
HELD:
Neither 38 U.S.C. § 1103(a), which prohibits service connection of a disability or death on the basis that it resulted from injury or disease attributable to the use of tobacco products by the veteran during service, nor VA’s implementing regulations at 38 C.F.R. § 3.300, bar a finding of secondary service connection for a disability related to the veteran’s use of tobacco products after the veteran’s service, where that disability is proximately due to a service-connected disability that is not service connected on the basis of being attributable to the veteran’s use of tobacco products during service. The questions that adjudicators must resolve with regard to a claim for service connection for a tobacco-related disability alleged to be secondary to a disability not service connected on the basis of being attributable to the veteran's use of tobacco products during service are:
(1) whether the service-connected disability caused the veteran to use tobacco products after service;
(2) if so, whether the use of tobacco products as a result of the service-connected disability was a substantial factor in causing a secondary disability; and
(3) whether the secondary disability would not have occurred but for the use of tobacco products caused by the service-connected disability. If these questions are answered in the affirmative, the secondary disability may be service connected. Further, the secondary disability may be considered as a possible basis for service connection of the veteran’s death, applying the rules generally applicable in determining eligibility for dependency and indemnity compensation.
Tim S. McClain
Attachments: C-files
[1] Section 1103(a) of title 38, United States Code, is applicable to claims received by VA after June 9, 1998. Internal Revenue Service Restructuring and Reform Act of 1998, Pub. L. No. 105-206, § 9014, 112 Stat. 685, 865-66.
[2] Section 1110 of title 38, United States Code, is virtually identical to section 1131, except that section 1110 authorizes disability compensation for disability resulting from injury suffered or disease contracted during a period of war, while section 1131 authorizes such compensation for disability resulting from injury suffered or disease contracted during peacetime service.
[3] See Kane v. Principi, 17 Vet. App. 97, 102 (2003) (section 3.300 constitutes a permissible construction of 38 U.S.C. § 1103).
[4] This definition is very similar to the following definition of proximate cause adopted by the General Counsel of the Bureau of War Risk Insurance in a January 12, 1921, opinion, 13 Op. G.C. 141 (Bureau of War Risk Ins. 1921):
An act which directly produced the injury * * *. That cause which naturally leads to and which might have been expected to produce the result. That from which the effect might be expected to follow without the concurrence of any unusual circumstances. That which immediately produces the effect as distinguished from a predisposing cause.
See also VADIGOP 3-17-71 (Vet) (quoting same definition).
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I believe I have fixed it try this http://tinyurl.com/24d6kn2 it should download the PDF to your computer for viewing, depending on how you have your computer setup.
No problems with the link. Thanks..Great article!
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Well, James, I really WAS so, well, so EXCITED that I had to run and tell my Wife, I had to tell someone. I mean, I'm 65 years old and I don't get real excited, real quickly, much, anymore!
This is so KEWL!
I did spend quite a bit of time getting ready to turn these two claims in to y'all. I made doubly sure that all the basic "paperwork" was there (DD214, SMR's, VA MedRecs, 21-4138 from the vet, explaining how his disability affected his daily life and how his medication affected his daily life, then I had him sign the "affidavit" stating that this was, essentially, a "fully documented claim", for both claims, then I Hi-Lited all the pertinent evidence and listed it on the 21-4138.
If this is how it goes, and this is how it takes to see a veteran's claim through to completion, then I will willingly spend as much time as it takes on the front-end (SMR's, SMT's, service records, St. Louis, VA med records, private treatment records...........), WHATEVER I can do. I do think that it makes ME a better veterans service officer, I really do, I have become much more INVOLVED in my veterans claim, I mean, I KNOW what the medical records SAY, I know what their service records actually SAY, I know HOW MUCH the veteran is REALLY is affected by his disability.
And, I think it makes me, BETTER because of the hope that I have that these veterans are being BETTER served, by me, and by you.
Thanks, James, for all You and WE can do. Sincerely.
Larry.
Your true passion is heard, loud and clear, thru your typed words. It's wonderful to read about your excitement and know that you truly work for the veterans you service. Thank you for reminding us that there are many good, caring VSO's out there!
And James...thank you too!
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Congratulations Mik!
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ALL VA Regional Offices have a FAX number (I have all the FAX numbers around here someplace). FAX the stuff to them. The date that they receive the FAX is your established effective date. Then, then send them a "paper copy" (I use FedEx for MY own personal correspondence with the VARO, it costs $7-$8 bucks and well worth it........I know, I know, it's overkill but MY ALTER EGO, the one with the OCD..........he likes overkill)!
As regards POA's and the "firing" of a POA or VSO...............all you have to do is fill out ANOTHER VA form 21-22, listing your NEW VSO/POA and that automatically removes your prior POA from your file and institutes you NEW POA. No other form is necessary, as long as you are REPLACING one VSO for ANOTHER!
Excellent advice Larry. I was hoping you'd chime in. Cr has recently gotten the VARO fax number so we will be following thru in the manner you describe. I always mail C's stuff certified, return receipt ($$$$) but it's well worth it.
Kathy
Note: Talked to Cr at work. He sounded good and said the Vet Center sent him where he needed to go. We will talk more tonight. Thanks to all that have helped me thru this!!!
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John & Pete,
Thank you so much for your input on C's current situation. Cr left to go into the Vet Center for support and advice early this AM. I haven't heard from him yet but he was heading to work immediately following the appointment. Hopefully, they will help him clear his head and give him some direction.
I think that your thoughts are something he needs to seriously think about. He did consider consulting with a lawyer when he received his decision letter.
Thanks John, for explaining that he has to revoke their POA. I imagine he would have been told to do so by his new representation but it's nice to hear it here first.
Pete, your decription of 'most' VSO's is exactly how it is in our situation. C has done all of his own work (I'm his secretary so I often use the word "we")on his claims but he's always consulted with his VSO. Essentially, the VSO has simply passed our papers along to the VARO. Actually, we didn't expect more than that, especially with the distance involved, but we did expect our paperwork to be sent along thru the channels properly.
At this point it's hard to point a finger and say our VSO did us wrong. It's possible that the VARO misplaced the packet that he sent over but the fact remains... Somebody dropped the ball and we've learned a lesson the hard way!
Kathy
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This is chr49's wife. I help with C's claims so I feel a responsibility here. We live 2.5 hours from the VSO's location so that's been a problem. Cr went to his office to initiate a secondary claim back in January and was instructed to send everything thru him so he could make copies, see that they got to the VRO properly, and he could stay aware of what was going on, so we've complied with that request. Since January, Cr has received 2 letters from the VRO asking for information/evidence. Each time he phoned his VSO, asked his opinion and let him know that we would send him our packet when it was finished. C's never phoned him excessively or held him on the phone(phoned him exactly 3 times since January)and he's always been polite in his communications.
CR's recently received a denial letter, so he phoned his VSO to set up an appointment to see him. When he got off the phone I asked him what was wrong and he said the guy was rude and wouldn't even allow him to give him his claim #, saying he needed to take his letter to a VSO a bit closer to our home. I told him the VSO must have misunderstood, most likely he gets tons of calls and wasn't aware that C's entire file is in his office but C's having a hard time trusting the situation and refused to call him back. Neither of us understand what's happening. But this isn't the end of the story......
When C received the denial letter I noticed that an entire packet of evidence wasn't included in the list of evidence used. The packet was sent in response to a VRO letter and was supposed to be submitted to the VRO by his VSO early in April. I want to believe it was sent because the VSO sent CR further paperwork for his files after receiving our packet. The VRO claims they never received the packet. So how does C handle this from this point on?
Is it proper for C to look for another VSO or is that a no-no? If so, does he need to stay with the TN DVA? He really doesn't think this VSO wants to help him anymore.
Kathy
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This is so important!
Thanks to N4XV & Berta for the latest information regarding AO IHD claims.
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What you AIC is saying with a score of 6.2 is that you are at very high risk of DMII. If you have PN don't mention it to the VA until you have official DX of DMII. If you think there is a lot of difference between an AIC of 6.4 and 6.5 your body does not know the difference. Your heart and arteries don't know the difference. Most doctors outside the VA would probably say you have DMII. Because the VA is focused on compensation they have an arbitrary cut off for compensating DMII.Doctors ourside the VA might even put you on meds to reduce your blood sugar. You are probably going to develope DMII to the level of what the VA compensates. I would go to a doctor outside the VA and see what he/she says about your health. Forget a claim for compensation. Your health is what is at stake. I am just a little more diabetic than you and I get 10%. I also get 10% for the PN as secondary.
John,
Well, my wife is in agreement with you. She said there is just too much evidence out there saying an A1C of 6 is too high. She has kept us both on diabetic, low fat/sodium diets since 2005. In honesty, I don't always understand where she's coming from but I know she's a smart gal. She tends to get a bit nutty about such things at times, but it's nice that she cares.
BTW, Compensation isn't the reason I use the VA medical system.
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my levels varied between around 140 and 152 when I was in in patient..
they only gave me insulin when it went above 150.
retiredat44
This is my understanding: Blood sugar levels above normal but below 125 are considered 'pre-diabetic'. The DMII diagnosis comes into effect when your blood sugar rises above 125. Most often lower blood sugar levels are treated with diet &/or oral medication. Once your levels get consistently higher, insulin is brought into the picture.
The VA also ran A1C levels on me annually until this year. I've been told that the A1C shows an average of your blood sugar over the past 3 months. My lab results say that 6.5 is considered diagnostic for diabetes. Mine was 6.2
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Eat a candy bar 5 or 10 minutes before the blood test.
sledge
Gotta laugh because I know a Pepsi or Coke will do the trick too. My wife had a soda prior to an appointment years ago. Obviously, she wasn't expecting any lab work. Set off bells and whistles when they saw her blood sugar level!
I really don't want to be diagnosed for something I don't have...not smart me thinks!!!!
Filed Nod With My Vso
in VA Disability Claims Research
Posted · Edited by chr49
I went to a new VSO (same organization - TN DVA) on Aug. 13th and filed a NOD on a July 28th rating decision. I haven't heard anything from the VA yet. My VSO says it could take 60 days before I hear anything at all but I don't remember it taking this long with a NOD I filed a couple years ago. I'm trying hard to be patient but don't want to wait too long either.
I may have mentioned this before, but I'm worried because I received a request for further information and sent in medical records & a statement in support of my claim in April and those records were ignored. When I made an IRIS inquiry about the records I'd filed, they came back saying: "Our records do not indicate receipt of the packet sent by your VSO after April 13, 2010; however, it appears that we received similar documents on February 16, 2010. If you feel that your packet was not received, you can resend the information via U.S. mail or fax". I followed up by requesting my C-file and found date stamped (4/20/10) evidence that they had received my packet. Everything I'd sent was in my c-file. This is upsetting to me because there were medical records, pertinent to one of my claims and that evidence is not shown in my decision letter. I'm at a loss and the new VSO doesn't offer much support on how to follow thru.
Any suggestions on how should I proceed? How long should I wait to hear about the NOD I filed on 8/13/10?