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Berta last won the day on November 29

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About Berta

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    PLEASE post questions in the main Forums
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    Beautiful hills of NY andwidow of  2 vets, 2 HD each and mother of USAF vet-my daughter, 7 years Top Secret Intel
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  1. I would hope so- the EF is a prime indicator of how they factor the percentage of disability.
  2. You mean you did file a CUE on the older decision in 2014 and they have completely ignored it? That means it is still an open issue. Do you have proof , such as a priority mailing slip or any other proof that you did send it is? If I were you I would file an IRIS request for the status of that claim.Ask them for an email reply, so they cant make something up via a phone call. And/or if you have proof of mailing ( unless a VSO sent it in?) you could also contact the White House Hot line: 1-855-948-2311 But I also suggest you get a copy of your C file. I realized not long ago I still have an Open CUE issue. The VA under Nehmer awarded the main claim ( AO IHD) but I have never had a Section 1151 decision on the IHD CUE filed in 2004 , and I requested the Nehmer people to adjudicate it. They didn't. They awarded for direct SC for IHD, however. My recourse was to request an audit, due to monetary errors they made in my Nehmer award.and I filed another CUE claim on the 1151 IHD as well as another 1151 disability. I often wonder if any vets here under Nehmer awards got an"estimated" amount of retro.I had never seen an "estimated" retro amount in any VA decision I ever got before. But it took me quite a bit of time to figure out what was missing from the award.They did award one CUE in it (SMC)but I specifically requested that they adjudicate both pending CUE claims. This is the 3th audit I have requested and one (the 4th)came from the regional counsel ,who cued them. I digress- I am shocked that they did not acknowledge the 2014 CUE you filed.There is Nothing wrong with it- Did a vet rep or anyone else say they would file it for you? It should be in your C file.
  3. I am so glad I helped you! This vet had quite a rigamorale getting the proper award but this recent award is great and the BVA remanded for TDIU consideration. "After reviewing both the law and facts set forth above, and resolving doubt in favor of the Veteran, the Board finds that an effective date of September 3, 1992 for the award of an 80 percent rating for narcolepsy is warranted. However, an effective date prior to September 3, 1992 for the award of an 80 percent rating for narcolepsy is not warranted." And: "Additionally, the Board observes that prior to September 1992, the Veteran did not meet the percentage requirements for a TDIU under 38 C.F.R. § 4.16(a). However, the evidence available to the Board suggests that the Veteran has not been consistently employed since separation from military service. Given the record on appeal, the Board finds that referral of the TDIU claim to the Director of Compensation Service for extraschedular consideration is warranted. Thus, the matter is REMANDED for the following action: 1. Ask the Veteran to provide information regarding her employment from November 1987 to June 2000, to include information regarding all income received during that time. 2. Refer the claim for a TDIU to the Director, Compensation Service for a determination under 38 C.F.R. § 4.16(b) and notify the Veteran of such action." https://www.va.gov/vetapp18/files5/18106779.txt The decision des not mention this was a CUE claim. If you have evidence that the 10% was wrong in 2014, based on medical evidence that the VA had, at that time, that warranted a higher rating, that would be a great CUE ! Are you able to work with this disability? Do you get SSDI solely for narcolepsy? "So I filed for an increase and submitted a CUE letter in my supplemental documents, they of course ordered another C&P exam of which i gave the same exact statements as where in my CUE letter. Longer story short they awarded 80% but only to the date I filled for increase and instead of putting it with my original rating for narcolepsy " So this was a CUE award for higher rating. You can file a CUE on a CUE decision.But I think the best bet is to file a CUE on the 2014 decision.
  4. I believe that is solely a lung condition and would not be an AO presumptive. Since it was a verbal diagnosis maybe that diagnosis will change.
  5. I am glad you are SCed for the HBP- but not glad you have HBP---- There certainly is medical associations between HBP as causing IHD: https://www.webmd.com/hypertension-high-blood-pressure/qa/can-high-blood-pressure-cause-ischemic-heart-disease https://www.mayoclinic.org/diseases-conditions/myocardial-ischemia/symptoms-causes/syc-20375417 But I think you will probably need an IMO/IME to prove the claim. Secondary conditions can often be obvious ones, bu it seems the VA does not always provide a C & P exam that will support these types of claims. A IMO/IME doctor following the IMO criteria here at hadit can rule out any other etiology but for the HBP as the sole cause of the ischemic heart disease. They will give your medical records the first thorough reading they will probably ever get.
  6. to add- I am not a doctor but Ischemic heart disease is often due to affects of hyperlipidemia, ( meaning high cholesterol and high triglycerides- which is a different association than to HBP. I mention that because I had to prove to the VA-General counsel- that my husband died of IHD, which was never diagnosed or treated by the VA, in spite of high glycericide values, an ECHO revealing severe atherosclerotic heart disease, and 2 EKGs clearly indicating heart disease, and the autopsy confirmed that. Years later I was able to prove that he also had undiagnosed and untreated Diabetes Mellitus from AO, and I proved that to myself and then I also obtained 3 IMOs that supported my claim. That is why I asked if you are a diabetic.
  7. "IHD is rated under Diagnostic Code 7005. The rating criteria are as follows. A 10 percent rating is warranted for a workload of greater than 7 metabolic equivalents (METs) but not greater than 10 METs resulting in dyspnea, fatigue, angina, dizziness, or syncope; or continuous medication required. A 30 percent rating is warranted if a workload between 5 and 7 METs results in dyspnea, fatigue, angina, dizziness, or syncope; or if there is evidence of cardiac hypertrophy or dilatation. A 60 percent rating is warranted if there had been more than one episode of acute congestive heart failure (CHF) in the past year; or if a workload between 3 and 5 METs results in dyspnea, fatigue, angina, dizziness, or syncope; or if there is left ventricular dysfunction with an ejection fraction of 30-50 percent. A 100 percent rating is warranted if there is chronic CHF; or if a workload of 3 METs or less results in dyspnea, fatigue, angina, dizziness, or syncope; or if there is left ventricular dysfunction with an ejection fraction of less than 30 percent. 38 C.F.R. § 4.104, Diagnostic Code 7005 (2017)." https://www.va.gov/vetapp19/files6/19144427.txt You claimed the IHD as secondary to your HBP_ do you have a SC rating now for the HBP? The ECHO states Risk Factors as Hyperlipidemia- are you a diabetic? Are you an incountry Vietnam veteran or did you serve anywhere else, (even in USA) where you might have been exposed to AO?
  8. HR 299 took 12 years to become law. Procopio was a Federal Circuit court decision that overturned Haas, V Peake (2008)and probably took as many year as HR 299 did. Many Blue Water AO vets have died. Hopefully if their survivors get news of these decisions and if the veteran died of an AO presumptive causing or contributing to death and served within the 12 mile limit-they will file a claim. And hopefully soon, when the stay is lifted January 2020, the news of these outstanding regulations, will get into major newspapers, online news outlets and within the entire veteran's community..as well as on TV. Secretary Wilkie only made a brief announcement months ago on Fox News on this important and long over due issue.
  9. "If the actions of VA aren’t supported by reasoned decision-making, what recourse does a veteran have? If VA provides explanations of its actions that are arbitrary & capricious, what can a veteran do about it?" I seem to recall that you had a Section 1151 issue? I am a Section1151 er . Your recourse is to fight back with medical evidence. All of my denials on my initial 1151 claim ( I became claimant when my husband died, on his 1151 claim,) were arbitrary and capricious, and when I settled with OGC VA for wrongful death they still denied my 1151 claim. I called the OGC attorney in DC and he referred that info to his boss, who in turn ordered the VA to award the 1151 claim. I am not sure however if you mean the 1151 issue. I am not sure what this phrase means: "reasoned decision-making" The VA must give claimants a Reason and Basis for their decisions. Their Reason and Basis, in many, if not most 1151 cases, must be overcome by an independent review of the case. VA fights these claims aggressively and they depend on documented evidence of VA malpractice, that has caused the veteran additional documented disability or death.
  10. Broncovet is Right- if we have more info we can help more- this could be a BVA decision thus a Motion to revise must be filed. Since 1992, there have been 54,957 CUEs filed and decided by the BVA.Most are appeals of CUE denied at the RO level, some are Motions against past BVA decisions, and most CUEs at the BVA are denied, often because they are prepared incorrectly... Almost 5 thousand have been decided by the BVA in 2018-2019. The longest wait I ever had for a proper CUE decision was on a CUE I filed in 2004. It was a prime facie CUE, obvious to anyone who could read the SMC regulations. Husband was 100% SC PTSD and 100% under Section 1151.By all established medical evidence he was HB as well as the 100% plus 60%. They never considered him for SMC.I received 8 years of BS rhetoric from my RO and finally it was set for BVA transfer. SMC is mandated by law whenever the medical evidence warrants it.It was awarded in 2012-by the Nehmer division, and never went to the BVA.
  11. A few months ago the general consensus was to file the CUE on a 21-526 EZ. Widows however, if eligible for potential accrued, under CUE need to file it on a 21P-601. We have templates here on CUEs. In the past I always filed CUE as a simple letter, and made them as brief as possible, and attached the rating decision that was wrong and I told them why it was wrong and exactly what regulations they broke. The HRL review is because of a letter I wrote to former Secretary Shulkin. I made the point that so many vets have been filing CUEs these days, that someone at the RO level should be trained in seeking a CUE in a new decision, to be corrected before the decision even leaves the RO.That has worked for some members here, with the HRL review. Also if you have a CUE in recent decision, you can file CUE on it within the appeal period, that has worked for me. No need for many NODS, etc. CUE for daughter's DEA extension due to 7 years of Military service , properly awarded 3 weeks after they got CUE. Cue for 1151 HBP denial, awarded 3 weeks later, CUE for AO death claim due to IHD.awarded within a few more weeks.*** ***(This CUE error was so alarming to me that I complained to the Director as well as within my audit request to the IG, and to the District VA Counsel.They could have easily deprived many AO widows or their proper DIC and accrued under Nehmer 2010, if they made the same error on other widow's claims filed due to the 2010 Nehmer regulations.) Two or 3 members here have filed CUE within the appeal period as I did and they succeeded. I have 2 CUEs pending now, which, as mentioned in my audit request, could be resolved by a proper audit, and if that occurs ,I could withdraw them. Most of the CUEs the VA makes should be filed right away on the decision. But that means a claimant has got to know if a valid CUE actually occurred in that decision, to their detriment. The regulation VA broke, that awarded most if not all of my CUE claims is 38 CFR.4.6.
  12. Finally a VA Press Release: 'VA extends benefits to offshore Blue Water Navy Vietnam Veterans January 1st Law also affects survivors of Veterans, certain dependents and Veteran homebuyers WASHINGTON – The U.S. Department of Veterans Affairs (VA) begins deciding Blue Water Navy Vietnam Veterans Act of 2019 claims, Jan. 1, 2020, extending the presumption of herbicide exposure that include toxins such as Agent Orange, to Veterans who served in the offshore waters of the Republic of Vietnam during the Vietnam War. Prior to the measure, only Vietnam War Veterans who served on the ground in Vietnam or within Vietnam’s inland waterways were eligible to receive disability compensation and other benefits based on a presumption of herbicide exposure. Signed into law June 25, the law specifically affects Blue Water Navy (BWN) Veterans who served as far as 12 nautical miles offshore of the Republic of Vietnam between Jan. 6, 1962 and May 7, 1975, as well as Veterans who served in the Korean Demilitarized Zone (DMZ) between Jan. 1, 1967 and Aug. 31, 1971. These Veterans can apply for disability compensation and other benefits if they have since developed one of 14 conditions that are presumed to be related to exposure to herbicides such as Agent Orange. Veterans do not need to prove that they were exposed to herbicides. The specific conditions can be found by searching Agent Orange on www.va.gov. “For six months VA worked diligently to gather and digitize records from the Naval History and Heritage Command in order to support faster claims decisions,” said VA Secretary Robert Wilkie. “These efforts will positively impact the claims process for Veterans filing for these benefits” Qualifying recipients, in addition to affected Veterans still living, are certain survivors of deceased BWN and Korean DMZ Veterans. Survivors can file claims for benefits based on the Veteran’s service if the Veteran died from at least one of the l14 presumptive conditions associated with Agent Orange. The law also provides benefits for children born with spina bifida if their parent is or was a Veteran with certain verified service in Thailand during a specific period. The Blue Water Navy Act also includes provisions affecting the VA Home Loan Program. The law creates more access for Veterans to obtain no-down payment home loans, regardless of loan amount, and the home loan funding fee is reduced for eligible Reservists and National Guard borrowers who use their home loan benefits for the first time. Certain Purple Heart recipients do not pay a funding fee at all. VA’s website describes these and other benefits. Veterans who want to file an initial claim for an herbicide-related disability can use VA Form 21-526EZ, Application for Disability Compensation and Related Compensation Benefits or work with a VA-recognized Veterans Service Organization to assist with the application process. Veterans may also contact their state Veterans Affairs Office. BWN Veterans who previously filed a claim seeking service connection for one of the 14 presumptive conditions that was denied by VA may provide or identify any new and relevant information regarding their claim when reapplying. To re-apply, Veterans may use VA Form 20-0995, Decision Review Request: Supplemental Claim. As a result of the new law, VA will automatically review claims that are currently in the VA review process or under appeal. For more information about the Blue Water Navy Act and the changes that will take effect visit https://www.benefits.va.gov/benefits/blue-water-navy.asp. ### https://lnks.gd/l/eyJhbGciOiJIUzI1NiJ9.eyJidWxsZXRpbl9saW5rX2lkIjoxMDAsInVyaSI6ImJwMjpjbGljayIsImJ1bGxldGluX2lkIjoiMjAxOTEyMTIuMTQyMTQyODEiLCJ1cmwiOiJodHRwczovL3d3dy52YS5nb3Yvb3BhL3ByZXNzcmVsL1ByZXNzQXJ0SW50ZXJuZXQuY2ZtP2lkPTUzNzYifQ.U_UAIeEj4S0nITbZGU0zIOk371zO2aPaVp5p4lbXLqk/br/72804146562-l
  13. This BVA decision contains the rating for vasomotor rhinitus .https://www.va.gov/vetapp19/files8/19160495.txt However it is not a CUE if the VA is unaware of the medical name for the actual disability and if it was not formally claimed. You could claim it now but your EED will be the date of the claim for this disability.
  14. Do you mean Advancement on the BVA docket? Or is there some new change to this info? "Customer Service Login to Vets.gov to view the status of your case! Advancement on the Docket (AOD) The Board is required by law to review appeals in docket order unless unusual hardship or “other sufficient cause” has been shown to advance a case on the docket. 38 U.S.C. § 7107(a) and 38 C.F.R. § 20.900(c). If applicable, you may submit brief, but complete, reasons to the Board for advancing your case on the docket, which must include supporting documentation to factually demonstrate reasons for advancement. The following are some examples of unusual hardship or other sufficient causes, along with recommended supporting documentation: Severe financial hardship (bankruptcy petition, home foreclosure notice, homelessness); Serious illness (physician’s statement documenting terminal or grave illness, preferably with clinical findings); Advanced age (defined as 75 years or more); Administrative error (resulting in a significant delay in docketing your appeal) Affected by a natural disaster such as a hurricane, earthquake, or flood (you may submit evidence such as newspaper clippings, pictures, FEMA declarations, etc) Motions for advancement on the docket, along with supporting documentation, should be submitted to the Board in writing at the address or fax number listed below. Please remember to include your name, the Veteran’s name (if different), Legal Representative (if applicable) and your claim number." https://www.bva.va.gov/CustomerService.asp
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