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Everything posted by Berta

  1. I never have enough time to peruse the whole VBM- but they make a good point in the 2018 VBM. As I have advised here MANY MANY TIMES , do NOT use the Freedom of Information act, 5, USC, 552, but use instead the Privacy Act under 5, USC 552, to request your C file. FOIA under FOI Act will add more time to their release of the C file. Your lawyer however would have to use FOIA to get the C file. NVLSP agrees -Use the Privacy Act 5, USC, 552, and actually you should not even need to cite any regulation to get copies of records that belong to you, in the C file... Also NVLSP advises ,if your C file request has gone unsatisfied for 6 months or more- to file a Writ of Mandamus- (and send a copy to the VARO..they didnt say that , I do however,because a Mandamus writ I filed decades ago was denied by the court, but nevertheless, the copy my RO got also got some thumbs out of butts.) I paid the filing fee but they will usually always waive the fee. And it usually does not take the CAVC long to read a writ- and deny it , and very few are awarded, but it is one more way to get your C file if a reasonable period of time has passed without getting it. I got 12 letters and.or phone calls from vet lawyers when I filed my writ- but as soon as they found out it was for Mandamus they didnt want to get involved. However Ken Carpenter was one of the lawyers who called me, and we talked for over an hour re: all things VA.......and he was surprised at what I had done so far without a lawyer, in my FTCA case. It used to be that lawyers only picked up filings at CAVC ( and COVA) with only the claimants name and address and phone number in those days , and they did not have access to what the case filed was all about.Maybe it is still like that.
  2. "Berta, they actually used Dc 5241 on the rating decision but if you noticed they didn't use it anywhere in the letter rated me under the old criteria So do you think I should make any reference to the law requiring them to use the old material why just leave that alone" After reading it all -I would leave it out of the CUE Carmand-you are right-
  3. Here 's the main Patient Advocate's # for Central Arkansas Patient Advocate for the Central Arkansas Veterans Healthcare System at 257-5410. Maybe that should be your first effort to find help.
  4. There is quite a bit to the Arkansas VAMC situation: https://www.littlerock.va.gov/ I have no idea where you feel he should go- You can contact the Central Arkansas VA Health care system via the Contact us button on the left of the page. You will be Asking a question,click on that , and re directed to IRIS and hopefully to someone who can help- You will need a lot of his Military info however-do you have his DD 214 and C file # with you? Or possibly by calling the specifc hospital here- you can get some help on what to do as far as transportation for him goes. John L. McClellan Memorial Veterans Hospital 4300 West 7th Street Little Rock, AR 72205 501-257-1000 Directions Eugene J. Towbin Healthcare Center 2200 Fort Roots Drive North Little Rock, AR 72114 501-257-1000 Directions
  5. You are in a very difficult situation. I agree that one of the Big Six ( DAV, AL, VFW etc) might be able to give you some guidance as to getting him to a VA Hospital. With his type of disability it is obvious he cannot drive.Is there anyone he knows locally to him who might be willing to drive him to a VAMC? I live in a rural area , but am only 20-25 minutes from a VAMC. I donated quite a bit of money to the DAV years ago to help them get a van ,to use for this type of problem and they did get one, and maybe two vans that helped veterans I knew in this area , the way your husband needs help. Try to find out of they can offer something like that for him. Conversion disorder is far different from PTSD. I believe he could get TDIU as Broncovet stated, due to the SC disability he has now. Does he receive SSDI or SSI solely for this disorder? Do you actually have a claim in progress? Make sure the VA knows how desparate the situation is. You might want to call the Little Rock VA, as they might have some sort of van there or have a way to get him transported to the VAMC. Our local VAMC had not only the DAV van but also their own VA van-that picked my husband up with other rural vets and delivered him home, when he was VA Day Treatment.
  6. Just to add: You are already a successful Cuerino! If I see a CUE in the downloads, I will prepare it for you ,you can tweek it, and it will fly-
  7. YES SPO you are on the right track. It is a Valid secondary condition. Our IMO/IME forum might give you a better idea of what you need from a real doctor- a non VA doctor. A real doctor with expertise in this condition. But the most important thing you need is medical rational to support that this is secondary to the psoriasis- If a real doctor gives you tht rationale and also uses some excerpts from good medical web site like the ones above-to support their diagnosis of this as secondary, the VA will not be able to adequately refute that. This might be another CUE within the appellate period. They can go so fast, there might be no need for a NOD.
  8. These claims can succeed. "ORDER Entitlement to service connection for nonspecific inflammatory polyarthritis and/or psoriatic arthritis is granted. Entitlement to service connection for psoriasis/eczema is granted." https://www.va.gov/vetapp09/files3/0925539.txt What the Hell do they mean here: " The VA contract medical opinion dated December 15, 2018, was not based on a review of your claims file or an in-person examination. " That right there, if they somehow used that opinion against the claim, might well be a CUE. Is VA paying these contracting firms real money to do deficient C & P exams? YES!!!!!!!! Read the lastest GAO report I posted here yesterday- I am going to write another Bill to send to the H VAC on this. Vets are being screwed and tattooed by very deficient C & P exams. It is an unjustice that causes multiple denials.
  9. There is plenty of medical evidence that shows the link: https://www.medicalnewstoday.com/articles/323672.php https://www.psoriasis.org/about-psoriatic-arthritis https://www.ncbi.nlm.nih.gov/pmc/articles/PMC4206220/ https://www.mayoclinic.org/diseases-conditions/psoriatic-arthritis/symptoms-causes/syc-20354076 It is well know in the medical community but a strong IMO/IME eeds to refer to the best links and abstracts a doctor can find, to boldster their opinion. You can win this. "My doc included a statement in the DBQ that said it was more likely than not caused by/connected to psoriasis." The doctor has to give a full medical rationale, by using excerpts from the above links, and if they are a dematologist they might have even stronger information. "Also the VA got a medical opinion in December 2018, and an in-person C&P exam in April 2019." What was the medical background of the C & P examiner? Have you googled their name? It pays to give an IMO/IME doctor a copy of any negative C & P exam, so that they can attack it, and refute what it says. SPO, they might have committed CUE- in the decision, can you scan and post it here? Cover your C file #, name, etc prior to scanning it.
  10. "EMERSON V. MCDONALD "Emerson v. McDonald centered on effective dates when reopening a VA claim. Veterans are able to reopen VA claims if new and material evidence arises. Usually, these reopened claims’ effective date will be that of when new and material evidence is submitted, with one exception outlined in 38 § CFR 3.156(c): this states that the effective date for a claim reopened with service records not originally considered in the claim can go back to the date of the initial claim. For example, let’s say a Vietnam combat veteran receives a diagnosis of Post-Traumatic Stress Disorder in 1980 and promptly files a VA disability claim, however, VA did not obtain service records proving that he was in combat in Vietnam. Now in 2018, the veteran requests a copy of his service records that do, in fact, show he was a Vietnam combat veteran. If the veteran still has a diagnosis of PTSD, he may submit these service records to reopen his PTSD VA claim with an effective date in 1980." https://cck-law.com/news/10-court-of-appeals-for-veterans-claims-cases-all-veterans-should-know-1/ I was wrong when I said exceptions- this is the only EED exception-within 38 CFR 3.156. And the above 10 CAVC cases are well worth taking the time to read.
  11. A great discussion! And one can say that CUE and 3.156 to some degree have nuances. A reconsideration is mandated by the appearance of "newly discovered service records." The Federal District court has found the word "relevant" regarding those records, as ambiguous- (Kisor V Shinseki 869 F.3d 1360,1367, -68 (2017) And NVLSP gives this example- say a Vietnam veteran is denied because he cannot prove he witnessed the death of a unit soldier. CRUR existed at the time of the initial denial ( part of former JSRRC -now US Army and Joint Services Records Research Ceneter ( CRUR )Center for Research of Unit Records). The VA had received a verification of the soldiers death, the same name the veteran had identified to VA ,and was in his same unit.The CRUR verification however did not mention the veteran claimant by name. Is that a "relevant" record- Yes because it corroborates the veteran's description of the stressor, same deceased soldier,same, time, same place, same unit. I believe Emerson V McDonald covers the exceptions to the EEDs.......within 38 CFR 3.156... will check Emerson and post
  12. There are male MST survivors here at hadit. There are ways to prove a MST occurred. They have MH professionals who understand MST at the VA. If you use the search feature for MST or male MST alot should pop up.
  13. There is good info in this thread on 3.156 claims: https://community.hadit.com/topic/48552-svr-show-follow-up-to-38-cfr-3156-c/page/3/ and this started out as a 3.156 claim but instead was a CUE with mega retro: Mega
  14. They can try to reduce a rating whether a vet reopens their claim ,files a new claim , during a Re-elavuation they (VA) ordered, or on a whim, unsupported by any of the evidence...I helped my husband with the latter- they proposed to reduce and I used their very own regulations they used for the reduction proposal , against them, to get the reduction proposal overturned, with a Strong NOD I wrote. But I would not hesitate to file for a better EED. If we know more, we can help more. An EED claim usually involves these regulations 38 CFR 3.156 , or CUE. There are many claims here regarding a better EED.
  15. I think the best bet is to complain directly to the QTC, LHI, or VES, whoever did the faulty C & P exam. I called the WH Hot Line 2 week ago to complain on a posthumous C & P exam done by an actual VA employed doctor. Some joker from the VHA called me up to discuss this.He didn't seem to have a clue on what to do. He kept saying if I brought up the claim it involved, that VHA has nothing to do with the VBA. I realized he did not understand that our benefits are determined by C & P exams, under the VBA, not the VHA. I just told him I would take my concerns to Congress. There is a bill there about these lousy C & P exams but it is not a viable bill. It is easier to write a legitimate bill and see if someone will introduce it- then deal with clowns. This is what the Bill should be based on: https://cck-law.com/news/va-contracted-cp-exams-not-meeting-quality-timeliness-standards-gao/
  16. I agree to wait out the HLR, since there is also another CUE pending.
  17. I missed that- I wonder even if the 5293 originally was the right DC. Dr Anaise ,who wrote this article has helped many vets here with their claims.I think he requires an inperson exam, and his fees do not seem to be too high: http://www.danaise.com/understand-the-new-rating-for-back-and-neck-spinal-disability/ He certainly seems to know his stuff- I regret I am not good at all on these types of conditions-because they seem to involve many diagnositic codes. One thing I did learn is that these conditions might have caused some of your secondary conditions that you now have.VA is so dumb that a claim for secndarys might well need an IMO/IME- an opinion from a real doctor, with a full rationale associating the secondary condition to the main C5-C6 disability. 5241 is included here: General Rating Formula for Diseases and Injuries of the Spine (For diagnostic codes 5235 to 5243 unless 5243 is evaluated under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes): With or without symptoms such as pain (whther or not it radiates), stiffness, or aching in the area of the spine affected by residuals of injury or disease Unfavorable ankylosis of the entire spine 100 Unfavorable ankylosis of the entire thoracolumbar spine 50 Unfavorable ankylosis of the entire cervical spine; or, forward flexion of the thoracolumbar spine 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine 40 Forward flexion of the cervical spine 15 degrees or less; or, favorable ankylosis of the entire cervical spine 30 Forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or, forward flexion of the cervical spine greater than 15 degrees but not greater than 30 degrees; or, the combined range of motion of the thoracolumbar spine not greater than 120 degrees; or, the combined range of motion of the cervical spine not greater than 170 degrees; or, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis 20 Forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or, forward flexion of the cervical spine greater than 30 degrees but not greater than 40 degrees; or, combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees; or, combined range of motion of the cervical spine greater than 170 degrees but not greater than 335 degrees; or, muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or, vertebral body fracture with loss of 50 percent or more of the height 10 Note (1): Evaluate any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, separately, under an appropriate diagnostic code. Note (2): (See also Plate V.) For VA compensation purposes, normal forward flexion of the cervical spine is zero to 45 degrees, extension is zero to 45 degrees, left and right lateral flexion are zero to 45 degrees, and left and right lateral rotation are zero to 80 degrees. Normal forward flexion of the thoracolumbar spine is zero to 90 degrees, extension is zero to 30 degrees, left and right lateral flexion are zero to 30 degrees, and left and right lateral rotation are zero to 30 degrees. The combined range of motion refers to the sum of the range of forward flexion, extension, left and right lateral flexion, and left and right rotation. The normal combined range of motion of the cervical spine is 340 degrees and of the thoracolumbar spine is 240 degrees. The normal ranges of motion for each component of spinal motion provided in this note are the maximum that can be used for calculation of the combined range of motion. Note (3): In exceptional cases, an examiner may state that because of age, body habitus, neurologic disease, or other factors not the result of disease or injury of the spine, the range of motion of the spine in a particular individual should be considered normal for that individual, even though it does not conform to the normal range of motion stated in Note (2). Provided that the examiner supplies an explanation, the examiner's assessment that the range of motion is normal for that individual will be accepted. Note (4): Round each range of motion measurement to the nearest five degrees. Note (5): For VA compensation purposes, unfavorable ankylosis is a condition in which the entire cervical spine, the entire thoracolumbar spine, or the entire spine is fixed in flexion or extension, and the ankylosis results in one or more of the following: difficulty walking because of a limited line of vision; restricted opening of the mouth and chewing; breathing limited to diaphragmatic respiration; gastrointestinal symptoms due to pressure of the costal margin on the abdomen; dyspnea or dysphagia; atlantoaxial or cervical subluxation or dislocation; or neurologic symptoms due to nerve root stretching. Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis. Note (6): Separately evaluate disability of the thoracolumbar and cervical spine segments, except when there is unfavorable ankylosis of both segments, which will be rated as a single disability. 5235 Vertebral fracture or dislocation 5236 Sacroiliac injury and weakness 5237 Lumbosacral or cervical strain 5238 Spinal stenosis 5239 Spondylolisthesis or segmental instability 5240 Ankylosing spondylitis 5241 Spinal fusion 5242 Degenerative arthritis of the spine (see also diagnostic code 5003) 5243 Intervertebral disc syndrome Evaluate intervertebral disc syndrome (preoperatively or postoperatively) either under the General Rating Formula for Diseases and Injuries of the Spine or under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, whichever method results in the higher evaluation when all disabilities are combined under § 4.25 . All long bunch of other stuff came out on the paste: With incapacitating episodes having a total duration of at least 6 weeks during the past 12 months 60 With incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months 40 With incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months 20 With incapacitating episodes having a total duration of at least one week but less than 2 weeks during the past 12 months 10 Note (1): For purposes of evaluations under diagnostic code 5243, an incapacitating episode is a period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician. Note (2): If intervertebral disc syndrome is present in more than one spinal segment, provided that the effects in each spinal segment are clearly distinct, evaluate each segment on the basis of incapacitating episodes or under the General Rating Formula for Diseases and Injuries of the Spine, whichever method results in a higher evaluation for that segment. The Hip and Thigh Rating 5250 Hip, ankylosis of: Unfavorable, extremely unfavorable ankylosis, the foot not reaching ground, crutches necessitated 3 90 Intermediate 70 Favorable, in flexion at an angle between 20° and 40°, and slight adduction or abduction 60 5251 Thigh, limitation of extension of: Extension limited to 5° 10 5252 Thigh, limitation of flexion of: Flexion limited to 10° 40 Flexion limited to 20° 30 Flexion limited to 30° 20 Flexion limited to 45° 10 5253 Thigh, impairment of: Limitation of abduction of, motion lost beyond 10° 20 Limitation of adduction of, cannot cross legs 10 Limitation of rotation of, cannot toe-out more than 15°, affected leg 10 5254 Hip, flail joint 80 5255 Femur, impairment of: Fracture of shaft or anatomical neck of: With nonunion, with loose motion (spiral or oblique fracture) 80 With nonunion, without loose motion, weightbearing preserved with aid of brace 60 Fracture of surgical neck of, with false joint 60 Malunion of: With marked knee or hip disability 30 With moderate knee or hip disability 20 With slight knee or hip disability 10 3 Entitled to special monthly compensation. The Knee and Leg Rating 5256 Knee, ankylosis of: Extremely unfavorable, in flexion at an angle of 45° or more 60 In flexion between 20° and 45° 50 In flexion between 10° and 20° 40 Favorable angle in full extension, or in slight flexion between 0° and 10° 30 5257 Knee, other impairment of: Recurrent subluxation or lateral instability: Severe 30 Moderate 20 Slight 10 5258 Cartilage, semilunar, dislocated, with frequent episodes of “locking,” pain, and effusion into the joint 20 5259 Cartilage, semilunar, removal of, symptomatic 10 5260 Leg, limitation of flexion of: Flexion limited to 15° 30 Flexion limited to 30° 20 Flexion limited to 45° 10 Flexion limited to 60° 0 5261 Leg, limitation of extension of: Extension limited to 45° 50 Extension limited to 30° 40 Extension limited to 20° 30 Extension limited to 15° 20 Extension limited to 10° 10 Extension limited to 5° 0 5262 Tibia and fibula, impairment of: Nonunion of, with loose motion, requiring brace 40 Malunion of: With marked knee or ankle disability 30 With moderate knee or ankle disability 20 With slight knee or ankle disability 10 5263 Genu recurvatum (acquired, traumatic, with weakness and insecurity in weight-bearing objectively demonstrated) 10 The Ankle Rating 5270 Ankle, ankylosis of: In plantar flexion at more than 40°, or in dorsiflexion at more than 10° or with abduction, adduction, inversion or eversion deformity 40 In plantar flexion, between 30° and 40°, or in dorsiflexion, between 0° and 10° 30 In plantar flexion, less than 30° 20 5271 Ankle, limited motion of: Marked 20 Moderate 10 5272 Subastragalar or tarsal joint, ankylosis of: In poor weight-bearing position 20 In good weight-bearing position 10 5273 Os calcis or astragalus, malunion of: Marked deformity 20 Moderate deformity 10 5274 Astragalectomy 20 Shortening of the Lower Extremity Rating 5275 Bones, of the lower extremity, shortening of: Over 4 inches (10.2 cms.) 3 60 3 1/2 to 4 inches (8.9 cms. to 10.2 cms.) 3 50 3 to 3 1/2 inches (7.6 cms. to 8.9 cms.) 40 2 1/2 to 3 inches (6.4 cms. to 7.6 cms.) 30 2 to 2 1/2 inches (5.1 cms. to 6.4 cms.) 20 1 1/4 to 2 inches (3.2 cms. to 5.1 cms.) 10 Note: Measure both lower extremities from anterior superior spine of the ilium to the internal malleolus of the tibia. Not to be combined with other ratings for fracture or faulty union in the same extremity. 3 Also entitled to special monthly compensation. The Foot Rating 5276 Flatfoot, acquired: Pronounced; marked pronation, extreme tenderness of plantar surfaces of the feet, marked inward displacement and severe spasm of the tendo achillis on manipulation, not improved by orthopedic shoes or appliances Bilateral 50 Unilateral 30 Severe; objective evidence of marked deformity (pronation, abduction, etc.), pain on manipulation and use accentuated, indication of swelling on use, characteristic callosities: Bilateral 30 Unilateral 20 Moderate; weight-bearing line over or medial to great toe, inward bowing of the tendo achillis, pain on manipulation and use of the feet, bilateral or unilateral 10 Mild; symptoms relieved by built-up shoe or arch support 0 5277 Weak foot, bilateral: A symptomatic condition secondary to many constitutional conditions, characterized by atrophy of the musculature, disturbed circulation, and weakness: Rate the underlying condition, minimum rating 10 5278 Claw foot (pes cavus), acquired: Marked contraction of plantar fascia with dropped forefoot, all toes hammer toes, very painful callosities, marked varus deformity: Bilateral 50 Unilateral 30 All toes tending to dorsiflexion, limitation of dorsiflexion at ankle to right angle, shortened plantar fascia, and marked tenderness under metatarsal heads: Bilateral 30 Unilateral 20 Great toe dorsiflexed, some limitation of dorsiflexion at ankle, definite tenderness under metatarsal heads: Bilateral 10 Unilateral 10 Slight 0 5279 Metatarsalgia, anterior (Morton's disease), unilateral, or bilateral 10 5280 Hallux valgus, unilateral: Operated with resection of metatarsal head 10 Severe, if equivalent to amputation of great toe 10 5281 Hallux rigidus, unilateral, severe: Rate as hallux valgus, severe. Note: Not to be combined with claw foot ratings. 5282 Hammer toe: All toes, unilateral without claw foot 10 Single toes 0 5283 Tarsal, or metatarsal bones, malunion of, or nonunion of: Severe 30 Moderately severe 20 Moderate 10 Note: With actual loss of use of the foot, rate 40 percent. 5284 Foot injuries, other: Severe 30 Moderately severe 20 Moderate 10 Note: With actual loss of use of the foot, rate 40 percent. The Skull Rating 5296 Skull, loss of part of, both inner and outer tables: With brain hernia 80 Without brain hernia: Area larger than size of a 50-cent piece or 1.140 in 2 (7.355 cm 2) 50 Area intermediate 30 Area smaller than the size of a 25-cent piece or 0.716 in 2 (4.619 cm 2) 10 Note: Rate separately for intracranial complications. The Ribs Rating 5297 Ribs, removal of: More than six 50 Five or six 40 Three or four 30 Two 20 One or resection of two or more ribs without regeneration 10 Note (1): The rating for rib resection or removal is not to be applied with ratings for purrulent pleurisy, lobectomy, pneumonectomy or injuries of pleural cavity. Note (2): However, rib resection will be considered as rib removal in thoracoplasty performed for collapse therapy or to accomplish obliteration of space and will be combined with the rating for lung collapse, or with the rating for lobectomy, pneumonectomy or the graduated ratings for pulmonary tuberculosis. The Coccyx Rating 5298 Coccyx, removal of: Partial or complete, with painful residuals 10 Without painful residuals 0 (Authority: 38 U.S.C. 1155) [29 FR 6718, May 22, 1964, as amended at 34 FR 5062, Mar. 11, 1969; 40 FR 42536, Sept. 15, 1975; 41 FR 11294, Mar. 18, 1976; 43 FR 45350, Oct. 2, 1978; 51 FR 6411, Feb. 24, 1986; 61 FR 20439, May 7, 1996; 67 FR 48785, July 26, 2002; 67 FR 54349, Aug. 22, 2002; 68 FR 51456, Aug. 27, 2003; 69 FR 32450, June 10, 2004; 80 FR 42041, July 16, 2015] CFR Toolbox Law about... Articles from Wex Table of Popular Names Parallel Table of Authorities How current is this? 1K25
  18. http://www.uscourts.cavc.gov/documents/Quattlebaum_09-3557_published_opinion_1-5-2012.pdf This is established VA Case Law- and works this way: "The Board found the notion of reopening an accrued benefits claim pursuant to section 5108 inconsistent with the one-year requirement of section 5121(c), reasoning that "accrued benefits [claims] cannot be reopened once the [one-year] time period expires." R. at 7. Succinctly stated, however, we see no such inconsistency. On its face, section 5121 in no way indicates a preclusion 4 of reopening accrued benefits claims. Similarly, section 5108 on its face allows the reopening of any previously disallowed claim. Read together, an accrued benefits claim must be filed within one year after the veteran's date of death pursuant to section 5121(c), and an accrued benefits claim can be reopened upon the presenting of new and material evidence pursuant to section 5108." and "In sum, as long as an accrued benefits claimant submits a claim within one year of the date of death of the veteran, the claim is timely. Once timely submitted and thereafter denied because accrued benefits are deemed not warranted, it is subject to being reopened if the claimant submits new and material evidence. Accordingly, we hold that the Board's determination that an accrued benefits claim cannot be reopened more than one year after the veteran's death is not in accordancewith law and will be reversed. See 38 U.S.C. § 7261(a)(3)(A) (Court shall hold unlawful and set aside decisions and conclusions "not in accordance with law"). B. Prejudice As noted above, Mrs. Quattlebaum asserts that she was prejudiced by the Board's misunderstanding of the law. We agree. By improperly concluding that the statutory scheme prohibited a claim to reopen a prior denial of accrued benefits, the Board did not adjudicate whether she was entitled to accrued benefits, either via the 2001 original claim or the 2006 claim to reopen, and adjudication may lead to a successful outcome for Mrs. Quattlebaum. See Arneson v. Shinseki, 24 Vet.App. 379, 388-89 (2011) (finding prejudice where error could have made difference in outcome); see also supra note 1" Conclusion "Upon consideration of the foregoing, the finding of the June 11, 2009, Board that an accrued benefits claim cannot as a matter of law be reopened more than one year after a veteran's death is REVERSED, and the decision of the Board denying Mrs. Quattlebaum's attempt to reopen her accrued benefits claim is SET ASIDE and the matters REMANDED for further development and readjudication consistent with applicable law and this decision." http://www.uscourts.cavc.gov/documents/Quattlebaum_09-3557_published_opinion_1-5-2012.pdf My husband had a Section 1151 claim and a claim for higher rating of his PTSD (at 30%) when he died.I applied for accrued and I applied for DIC under the 1151 claim as well as direct SC DIC within the first year after he died. Years after I applied the VA developed their 2000 VCAA enhanced DTA regs. For both claims I filed after 2000, however, the VA violated my VCAA rights twice. In the original claims I had, I also had to support them with evidence. I didnt need or get any DTA assistance. The result was 100& P & T for SC PTSD and DIC for 1151, with a very favorable EED, as well as DIC as direct service connected death. Same for my subsequent claims. But this is because I have been a claimant and advocate for over 24 years.And all I had 24 years ago was the annual VBM by NVLSP and a highly limited internet-the Best weapon we have for any type of VA claim. The best place for a surviving spouse to be is here. One claim I had, the most important one- with considerable monetary awards, in addition to my FTCA settlement, my former vet reps said -it did not have a chance. 20 NY lawyers in 1995-96 also told me my FTCA case would never succeed. Two of them were actually in the law library when a lawyer I know,due to a different situation, asked me about my FTCA case against the VA I told him I won. Those 2 lawyers were shocked. They were all wrong. But if a survivor does not know how to use a PC or to get good info here, their claim will be doomed. Some of us like Mrs Quattlebaum, and of course Beverly Nehmer, refused to put up the crap the VA can dish out to survivors.They know we are grief stricken and the claims process can become quite overwhelming, and the VA knows the chances of a survivor getting a good vet rep to help them is practically nil.
  19. I will post Quattlebaum in the DIC forum. The VA treated this widow the same way they treated me- by not properly extending their VCAA rights to the widow. It happened to me twice, but only because I know the regulations, o I won those cases anyhow. I wonder how many survivors out there are treated by VA so recklessly and they might have valid claims, but they are denied. It speaks of a mantra I keep posting here from time to time- make sure your spouse knows your claims and disability status, and can use a PC to get here, for the info they need.I had former vet reps but they didnt have a clue on DIC and accrued.I did better without them. I have 4 DIC awards (only one payment but 4 separate awards. One of my CUEs is to rectify the fact that my husband had 100% P & T SC PTSD ,awarded 2 1/3 years after he died and also 1151 HBP, contributing to death and direct AO SC DMII causing death and AO IHD, also to include 1151death, and catatrophic stroke under 1151, rated at 100% P & T by 2 VA doctors, also by a former VA secretary, awards from th original AO Settlement fund, and other info.and prevented him from continuing Voc Rehab. The director of my RO called me twice to try to get me to believe that he was 100% total but not Permanent regarding the stroke when he died. It was never an issue with their PTSD100% P & T award. I asked what miraculous cure he got that VA failed to inform of - no answer, and I also mentioned that all 100% total disabilities become Permanent at death even without medical documentation of the P status which I had and they even confirmed receipt of it all. The stroke , in the FTCA case (wrongful death),was one of multiple misdiagnosed or undiagnosed and untreated conditions he had, and all contributed to his death. I wonder how many widows she tried to pull that one on. I hope you dont deal with Buffalo VARO.
  20. If the wife and you were married for at least one year she would be eligible for DIC, from the ten year continuous 100% P & T, regardless of what caused your death. The DIC would continue unless she remarried but the regulation says that when a spouse rceiving DIC remarries after age 57, she can usually retain her DIC. Chris Attig, vet lawyer and hadit member puts it this way: "One word of caution, if you are a surviving spouse who remarried before December 16, 2003, and on or afterattaining age 57, the VAs position is that you must have re-applied for DIC between December 16, 2003, but no later than December 15, 2004, in order to have DIC restored. The VA claims that they must deny applications received after that date; a recent decision by the Federal Circuit Court of Appeals (CAFC) in Frederick v. Shinseki (July 2012), seems to support that viewpoint. Court’s Holding in Quattlebaum brings GREAT news to Veterans Survivors! Find out how to get the MOST IMPORTANT Document in Your VA Claim." https://www.veteranslawblog.org/veterans-benefits-dic-and-remarriage/ I need to check out the case he mentioned. I am a surviving spouse.
  21. Just to add Kuzma was a Federal Circuit Court opinion: It might not be applicable to this CUE above, but sure might help others here: In part: "Kuzma argues that the Court of Appeals for Veterans Claims erred by not applying its own precedent as set out in Karnas v. Derwinski, 1 Vet.App. 308 (1991), and Holliday v. Principi, 14 Vet.App. 280 (2001).  Karnas held that “where the law or regulation changes after a claim has been filed or reopened but before the administrative or judicial appeal process has been concluded, the version most favorable to appellant should and we so hold will apply unless Congress provided otherwise or permitted the Secretary ․ to do otherwise and the Secretary did so.”  1 Vet.App. at 313.   After enactment of the VCAA, but prior to Dyment and Bernklau, the court relied on Karnas to conclude that “all provisions of the VCAA are potentially applicable to claims pending on the date of the VCAA's enactment.”  Holliday, 14 Vet.App. at 286.   It reasoned that “there can be no question that Congress, which is presumed to be aware of [Karnas] and its progeny at the time of enacting the VCAA, clearly did not provide the specificity required by Karnas to disavow retroactivity.”  Id. Because neither we nor the Court of Appeals for Veterans Claims have explicitly overruled Karnas, Kuzma argues that it is still controlling precedent in the Court of Appeals for Veterans Claims.   Therefore, that court was bound to follow it and remand the case to the board for readjudication.   The government responds that both Dyment and Bernklau implicitly overruled Karnas.   We agree. We are obligated to apply both Supreme Court precedent, see Williams v etc,etc: https://caselaw.findlaw.com/us-federal-circuit/1410796.html Oddly enough , Bernklau's "wife" got in touch with me after he died, (he had found my email here many many years ago and called me up to be on some radio show with him. He just wanted to gripe about the VA and did not even seem to have a valid claim. , and after he died this woman tried to pull something on the CAVC. I emailed the CAVC and got that attempt to deceive the court resolved. She was not his wife , and she did not even advise the Court that he had died. She thought the court would grant his claim, and she wanted to get any money they owed him. Some people will do anything they can for money.This was around the same time that a member emailed me for a Buddy statement- like I had witnessed something in the Navy that happened to him, and was onboard ship with him at the time-to prove his case- But there were no women serving aboard ships when this happened and , he knew I was a civilian. I closed my email addy here forever.
  22. "In the SOC and the SSOC of September 2001, the veteran was notified of the old rating criteria for his low back disability. He was informed of the new criteria in the SSOC issued in May 2004, at which time the AOJ had the opportunity to determine the applicability of both the old and new rating criteria to the current claim. See Kuzma, supra." and "Based on the above analysis, the evidence supports a higher evaluation for the veteran's low back disability to 20 percent disabling. That is, a 20 percent evaluation is authorized under the old criteria at Code 5292 (effective prior to September 26, 2003) for moderate limitation in lumbar spine motion, and under the new criteria at Code 5237 (effective on September 26, 2003) for an abnormal spine contour. In addition, the criteria at Code 5237 authorize a separate evaluation for the minimal radicular symptoms under Codes 8260/8270 effective from February 4, 2004. " https://www.va.gov/vetapp05/files2/0509857.txt This case is a little different from the member here but my point is that should Kuzma be raised in the CUE? It might not be needed but enhancing a CUE with regulations as well as established VA case law,such as Kuzma, can be wonderful.
  23. I have gone over quite a few BVA decisions and believe that your CUE is solid. I have been reading this statement you got from VA over and over again: "Page 4, paragraph 2 the decision dated 27Feb04 the rating criteria for evaluating spine and neck conditions changed on September 26, 2003 your increased evaluation is based on the old criteria that was in place prior to September 26, 2003 change." The letter you had from a Neurosurgeon and also theMRI was dated in August 2003, prior to the September 2003 change date of the DC they used ( 5293) Maybe I am going nuts- but since the decision was dated Feb 27, 2004, they knew of the change to the ratings schedule, and I wonder why they still applied 5293 to your claim. I found this mumbo jumbo in a BVA decision: "3. The criteria for a separate 10 percent evaluation for right lower extremity neurologic manifestations of the service-connected low back disability, from September 23, 2002, have been met. 38 U.S.C.A. งง 1155, 5107 (West 2002); 38 C.F.R. ง 4.71a, Diagnostic Code 5293 (as in effect prior to September 23, 2002, and from September 23, 2002 through September 25, 2003); 38 C.F.R. ง 4.71a, Diagnostic Codes 5237, 5239, 5243 (as in effect from September 26, 2003); 38 C.F.R. ง 4.124a, Diagnostic Code 8520 (2009)." Then they clarify it: "The schedular criteria for evaluating disabilities of the spine have undergone revision twice since the appellant filed his claim. The first amendment, affecting Diagnostic Code 5293, was effective September 23, 2002. 67 Fed. Reg. 54,345 (Aug. 22, 2002). The next amendment affected general diseases of the spine and became effective September 26, 2003. 68 Fed. Reg. 51,454 (Aug. 27, 2003). Effective prior to September 26, 2003 As in effect prior to September 26, 2003, 38 C.F.R. ง 4.71a, Diagnostic Code 5289, provides that a 40 percent evaluation is warranted for favorable ankylosis of the lumbar spine. A 50 percent evaluation is assigned for unfavorable ankylosis of the lumbar spine." They also state this: "Effective from September 26, 2003, 38 C.F.R. ง 4.71a, also provides that intervertebral disc syndrome may be rated pursuant to Diagnostic Code 5243 under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, or the General Rating Formula for Diseases and Injuries of the Spine (as outlined above), based on whichever method results in the higher evaluation when all disabilities are combined under 38 C.F.R. ง 4.25. The criteria for rating intervertebral disc syndrome based on incapacitating episodes remain unchanged from that which became effective September 23, 2002, as outlined above." https://www.va.gov/vetapp10/files2/1017852.txt Finally I found what I was looking for in that decision: "Pursuant to Karnas v. Derwinski, 1 Vet. App. 308, 311 (1991), where a law or regulation changes after the claim has been filed or reopened, but before administrative or judicial process has been concluded, the version of the law most favorable to the veteran applies unless Congress provided otherwise or permitted the VA Secretary to do otherwise and the Secretary did so. As such, the rating criteria in effect prior to September 26, 2003 (except for the revision to DC effective from September 23, 2002 through September 25, 2003, are for consideration throughout the rating periods on appeal, with application of the version of the law most favorable to the appellant. However, the amendment to DC 5293, effective from September 23, 2002 through September 25, 2003, and the revisions to the rating schedule effective from September 26, 2003, may not be applied retroactively. Hence, in a claim for an increased rating, where the rating criteria are amended during the course of the appeal, and the Board considers both the former and the current schedular criteria, should an increased rating be warranted under the revised criteria, that award may not be made effective before the effective date of the change. Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003) (overruling Karnas v. Derwinski, 1 Vet. App. 308, 312-13 (1991), to the extent it held that, where a law or regulation changes after a claim has been filed or reopened, but before the administrative or judicial appeal process has been concluded, the version more favorable to appellant should apply). Does anyone here feel they should have applied the changed regulation, if it was more favorable then the older one on 5293? They had the evidence for a higher rating under 5293, and were aware of the DC change made in Sept 2003 but made this decision in Feb 2004. Kuzma V Principi overruled Karnas. We have 5293 vets here with similar C-5, C-6 issues I am sure- maybe they will chime in.
  24. The regulations for attorney fee appeals apparently changed in 2008- long after the experience I had above with the local veteran. Did the RO send you any appeal criteria at all ,for the amount the are withholding? But you said "I don't feel the attorney fee was excessive, I do feel the attorney's effort was sub-par." I wonder if OGC would review it on that basis.
  25. Many years ago I helped a local vet succeed. He had been to the CAVC twice and VA withheld quite a chunk of cash from his backpay, for legal fees. I searched for his appeal rights on legal fees, and found them. They involve as I recall, a 5 or 6 point criteria. I prepared a letter for him to sign and mail-I guess it was to his VARO, appealing these fees under the legal fee criteria. I also enclosed a letter that I, an unpaid disabled veterans advocate, found his service nexus myself, and then I added what information I found on his lawyers, to include the startling fact that they had never even read his BVA denials, because the last one contained a clue, and I followed that clue, to support his claim..... This was a veteran who had started to pressure me relentlessly-one of the last local vets I ever helped. I knew if the VA did end up paying those legal fees , he would have been calling me and emailing me a lot-but I never heard from him again, so I believe the VA never paid their fees and sent him the money they had withheld. This is one of the regulations I found: https://www.ecfr.gov/cgi-bin/text-idx?SID=7c8f90d08160838eff7394bf01103d9e&mc=true&node=se38.1.14_1636&rgn=div8 I will try to find the legal fee criteria. GEEZ, there are 73,177 decisions at the BVA since 1994 on the search I did for attorney fees- I deleted the link, I dont think it would help-
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