Berta

This is odd: "She had to take her induction exam 3 times before she could pass because her blood sugar was to high.She is not diagnosed as being diabetic but must watch her sugar levels everyday"- Do her SMRs reveal any further high glucose readings?Prior to 1997 the classification of diabetes was different than it is today-and untreated diabetes can certainly lead to heart problems. "should I file for heart disease her SMR show that she complains of chest pain and dsypnea repeatedly for about 5 years records reveal chest pain while at rest and upon exertion." This might support claim of heart disease but does she have heart disease now? A lot will be revealed when she gets copies of her current medical records. Yes I agree she might need a different doctor.I think she needs a complete medical evauluation from someone else.

Any of you ALLVETS members might have gotten the email request for help- this involves a Gulf War vet diagnosed recently with MS- It is my understanding that MS has a seven year after discharge presumption with a 10% manifestion of disability- This vet was discharged 12 years ago- Has the seven year presumption been changed at all within last 2 years? Also on the other ALLVETS email plea for help- wouldn't this soldier be able to hire a lawyer to stave off the Court Marshall? Thanks- Berta

"I was reading my C&P for my heart what a joke they said A OK!" This condition didn't happen overnight- if I were you I would check your med recs to see if they perhaps should have diagnosed this sooner- maybe not- but if those records reveal a suspicion of heart disease or any abnormal ECGs-and they didnt treat it- this would be basis for Section 1151 claim-

I feel this is key to the denial: "of rule out PTSD on the basis of your subjective reports of traumatic experience upon PTSD screen" They need proof of inservice traumatic event-not just subjective reports-and it appears that they are not diagnosing PTSD. You will need any evidence that is in your SMRs, or any other personnel records of this traumatic event. Also it does not hurt to try to get buddy statements from your former unit ,even your former CO, as to what happened. If this involved others and generated a police report or some documentation to that affect-that too is proof of stressor.

Leroy- if this is the same vet you mentioned in prior post: "She has gone to the same doctor since getting out of the army but unfortunately for her he has only kept her records back 10 years. She has told me that he has been treating her for liver and some related problems since she was discharged" I think this doctor could write an effective opinion-even without all of the records, and to state that he started treating her right after service- Hepatitis and bronchitis symptoms-I think the VA web site in the BVA link would provide much help here- as they would show why they granted or denied claims for these conditions-if the bronchitis symptoms are in her SMRs that is possible to claim it as service connected- but I dont know why they would not have diagnosed it- did they treat it in service?

Leroy- the VA sends directives, memoradum and training letters directly to their VAROs- there really isnt a good link- I found the Diabetes Training letter years ago by accident- The VBM published some of them- usually they are incorporated into M21-1 as soon as the VA gets them- what did you need info on?

Here is Arthur Wilson's response- "In a recent editorial written by Arthur H. Wilson, National Adjutant for the Disabled American Veterans (DAV) we find: “Optimism was in short supply at the Commission’s March 16-17 meeting as some of its members maneuvered to authorize collecting data about Social Security Disability Insurance (SSDI) benefits paid to veterans who also receive VA disability compensation. That was done with a view toward an offset [reduction] of disability insurance if the veteran receives disability compensation from the VA.” Wilson continues: “A move to sidestep proper procedures and hold a secret ballot on the matter was postponed, but the issue is expected to resurface at the commission’s meeting in May. If so, it could lay the groundwork for cutting or eliminating veterans’ benefits as a way of saving the government money. The idea that disability compensation is some kind of income security or welfare program cheapens the service and sacrifice of disabled veterans. That kind of thinking might also open the door to cutting off VA compensation when a disabled veteran becomes eligible for Social Security retirement benefits. Veterans’ benefits are separate and distinct from Social Security, so receiving payments under both programs is not dual compensation for the same disability, as some have tried to argue.” The DAV -although I gripe abut their NSO program- is certainly willing to take stands on issues like this- in their comments on the 2006 budget at their website- they predicted in 2005 that this could become an issue which they would 'vigorously 'oppose. The VA Watch Dog article certainly points out that General Scott is attempting to get Congress to "unconstitutionally" interpret their own laws. This cannot be done. Scott might be a General but it sounds to me like he is just a 90 day wonder in the field of VA compensation, SSA disability, and also the laws we have to prohibit discrimination against the disabled. (maybe he should read the Constitution too)

Jim-- your skin cancer- is that in remission? I am wondering =is the "0"% NSC or SC? Of course I hope it doesnt get worse though- is this from the constant sun aboard deck of navy ships? Or service in tropics? I am just assuming but I sure dont suppose you guys ever got sun screen issued by the mil many years ago. and the exostosis distal right clavicle -do you have anything in your SMRs to support that? This vet was exposed to ionized radiation as well as tropical sun in the service- he was not awarded service connection for radiation causing his skin cancer, but for tropical sun exposure instead. He had two ways to go-but the rems he was exposed to were too low for ionized radiation SC (that is HARD to get SC on ) and fortunately he claimed service in tropics as one other potential reason for his skin cancer. He had good medical evidence and -dont know how they would rate this but he did get skin cancer service connected. http://www.va.gov/vetapp02/files03/0211672.txt

You stated: "ssos in ssos i state cue duty to assis plus benifit of doubt this case goes back" CUEs unfortunately are not dependent on violation of Duty to Assist or Benefit of Doubt errors. If that were the case , practically everyone here could file CUE claims- It depends on legal misapplication of VA regs at time of alleged CUE, that- had the errors not been made the outcome would have been different of the initial denial. There certainly could be a CUE basis to your husband's initial claim-but still hard to determine- In these old letters from the VA : "however i pointed out to va letter from 1994 will back up 1978 because 1978 was for 1948 1993 will back up1978 and 1974 will prove everything i stated i might add my husband was on the uss wasp the night they" if the VA made legal error in any denial that was not appealed- there is always possibility of CUE- but you must state the legal errors they made, the actual regulation they misapplied. CUE claims can be searched and studied at the BVA web site-a good way to see what is and is not a CUE violation- and many are denied becuase the claimant failed to state the exact VA regulations that were broken,the entire basis for a CUE claim- It appears you raised the issue of CUE already- and it is not too late-as far as I can tell for you to refine the alledged CUE and state to VA exactly what regulations they broke in the old denial decision.

SSA Disability awards are not offset by VA comp- (SSI is different) and one award can help the other claim.If SSA says a vet is totally disabled by a service connected condition the VA most always has to agree- "They are telling us to link all physical ailments to the DM II by doctor statement. All of the physical problems have been pretty much diagnosed at one time, since he waited so long before going into the VA clinic." They do need medical statements that these conditions are all related to the DMII-in order to service connect them too- If the VA can deny heart disease and say it "predates" the diabetes they can deny and save money- Oddly enough as the ADA knows- a heart attack can often be the initial reason for glucose testing, revealing long term undiagnosed DMII. He will probably get the DMII C & P and the heart disease C & P- "The letter we recieved it seems are asking for specific incidense for PTSD. Also for hearing loss and tinnitus. The paperwork also wants " etc Do you best and comply with the info they want- always best to get any of this medical evidence yourself and then submit copies of it to the VA. (just in case they fail to attempt to get it) They are asking for stressor information. In responding to this specific part of the claim, they should know where any current psychiatric records are, what meds your husband takes for PTSD, and a brief description of his stressors- the things about Vietnam that caused his PTSD. It pays to be specific here - names of his buddies that died there ,or date and place of operation or battle with resulting affects of PTSD, or his eye witness accounts and participation in traumatic events- the awards on his DD 214 and his MOS will help- I am assuming he already has a PTSD diagnosis? If so he has already stated these things, possibly- to a doctor- The VA will need enough information to confirm his stressors. If his DD 214 might be incorrect he should apply for a DD 215 and get all of his medals and decorations listed on it properly.I will attach the DD 149 form that he could use for that. You could add, in a separate page to the response to what they need- also that his ED is due to his DMII and he is claiming that condition also as part of his Agent Orange DMII claim. dd0149.pdf

http://webisys.vetapp.gov/isysquery/irl773c/36/doc We dont talk about this too much here- yet in this recent CAVC decision (#03-0747) This vet did Leg work: "Throughout the processing of his claim, Mr. Majeed has vigorously contested on various theories the validity of the Secretary's recoupment of his separation pay." He had two periods of service , many SC disabilities, and the claim is still pending and on remand: "III. CONCLUSION Upon consideration of the foregoing, that part of the 2003 Board's decision that $24,039.94 was the proper amount of Mr. Majeed's separation pay to be recouped from his VA disability compensation is SET ASIDE, and the matter is REMANDED to the Board to address in the first instance whether Mr. Majeed's disabilities arose to a compensable level during his first period of service. On remand, Mr. Majeed may present any additional evidence and argument in support of the matters remanded, and the Board must consider any evidence and argument so presented. See Kay v. Principi, 16 Vet.App. 529, 534 (2002). The Court expects that the Board will provide expeditious treatment of this matter on remand. See 38 U.S.C. 7112. SET ASIDE and REMANDED." This claim points out that separation pay and offset errors do occur- and the veteran's argument seems entirely valid- There is a lot in this claim-and the outcome is still unknown- there are many points in it that refer to revealing case law: Such as: "See Maggitt v. West, 202 F.3d 1370, 1380 (Fed. Cir. 2000) ( holding Court abused its discretion when it declined to remand claim to the Board to consider intervening change in law)." and this : "Although it was determined in the proceedings below that Mr. Majeed's disabilities all arose in his first period of service, the Board failed to determine whether those disabilities rose to the level that would make them compensable at that time or whether they only became compensable subsequent to that first period of service. This determination must be made by the Secretary in the first instance, not by the Court. See Elkins v. Gober, 229 F.3d 1369, 1377 (Fed. Cir. 2000). Therefore, remand is required. Inasmuch as the record is silent as to whether Mr. Majeed left his first period of service with any disabilities noted, the Board should also consider the applicability and effect of the presumptions of soundness and aggravation to this case. See 38 U.S.C. 1111 (wartime etc etc " Interesting read -this veteran is quite strong in his contention about his offset amount which could be dependent on the questions that the remand brings up regarding his initial period of service.

Bob- great point- " I had all this evidence when I had my initial C&P done and handed this to the VA doctor. I also attached this evidence to my initial claim." I gave my asbestos vet the VA asbestos info in 38CFR-for his C & P doc- he has colon cancer which is spreading-with no other known etiology for it but for his exposure to asbestos in the Navy in two separate occupations aboard ship- I also gave him a print out of a private lawsuit- non -vet but the guy got a very large settlement from an asbestos company- due to his colon cancer determined as caused solely due to asbestos. I cannot understand why asbestos disability is not presumptive if the vet can prove exposure- and has no other known etiology for an asbestos related disability. The above vet- I researched his ship-it had so much asbestos and other problems that they dumped it somewhere near Iran. When the Navy recognized how much asbestos was in those older ships, it was too costly to remove it.

I dont see how a lawyer can help you- what is his current rating? 100% as of 2001? Has he asked for higher rating? What reason did they give that they will not add his dependent child as a dependent? a helpless child per the VA " became before age 18, ""permanently incapable of self support". 38 CFR 3.315 This determination is made with medical evidence of current and past disability. The child must remain unemployed, unmarried, and permananetly disabled. I would imagine that a "helpless child" is eligible for SSA or SSI- if they get these benefits that too is proof to VA of disability.

Dorothy is correct and I would fight them toe to toe on this- "They base and sustain this reduction on a supposed improvement.All the leters from my private doctors mention the fact that the contidion has not improved and continues to worsen progresively.This seems to have no weight for them" How did they refer to this medical information in the denial? I assume you sent them a Notice of Disagreement- if I were you I would send another letter and put Evidence and Statement in Support of Claim on it and then refer them to and attach the medical statements you have that show sustained improvement has not occurred. It would help to add the background of these doctors and why their opinion is valid. Is that what they questioned? their medical rationale or did they just ignore these opinions? It seems a vet these days often has to shove their med evidence right in their faces- why feel that the BVA-will do any better on this if the BVA itself does not have the opinions you have and understands their validity? Just my opinion but I would request A DRO de novo review on this- and emphatically insist that they consider the opinions you have- Vets in the last few years have seemed to need ,more and more,- independent medical opinions to suceed in their claims- but if the VA can ignore them ,they will- and the vet has to take a stand on this and get them to consider them.

forgot----- TDIU form TDIU_form.pdf

Almost All of those conditions can be associated with DMII.Tinnitus can be associatiated to his inservice MOS in Vietnam. As long as he was an incountry Vietnam vet- the claim should succeed. If I were you I would send them copies of any recent medical evidence, as he accumulates it, with a cover letter stating it is in support of his AO DMII claim. Also I will attach the TDIU form- 100% rate of disability due to unemployability- under Remarks # 25 he can refer them to additional p[age and he should list all of his meds and their side affects to him as well as a clear statement that each of these disabilities he claims are from his DMII and I would list them all again- Also he should check off yes for the # 18 question-since he is applying for SSA benefits. More than likely the SSA award will come first- then that can be used as evidence with VA for TDIU- dont depend on the VA to get your SSA files- better to do that your self -unless they are quite extensive (they get a lot of info) but the award letter and the SSA disabiliy determination statement can help the TDIU claim. There is always possibility that the VA would find anything you send in that is current medical info is enough to award the claim-if the VA award comes first, this is good evidence for the SSA claim if that is still pending. "We filed some paperwok with VA in February and now they want him to prove related service connected illness." Are they asking how the conditions are all associated to DMII? The DMII Training leter is at hadit- if you cant find let me know- I posted it here again last month- they recognize these associated conditions but still they will need a doctors statement as to the association. My own local vet rep with DMII and heart disease had a heck of a time getting his HBP associated to his DMII but finally he succeeded. As you can see here at hadit- even the most logical and well supported claims are often denied by the VA and the veteran has to fight back. They are not questioning in your above statement-his exposure to Agent Orange , are they?

Raven-my experienece as a Chap 35er is that-I have had to pay my tuition in advance- then I email the VA college counselor and the VA Education counselor at the VARO a brief email giving my tuition as paid, the course name,my student ID #, Prof name- and also the length of course -accelerated or regular 4 month long. VA divides up the payments as they somehow determine the daily rate-the reimbursement checks usually have always come quickly. I dont really get how they figure out the rate at all- My tuition is usually 750.00 a semester and it seems to be covered by the VA. I get a book grant from MCA -I dont think (unlike Voc Rehab) any book grant is provided by VA for Chap 35.

Joy- you have much to deal with here- One can receive both VA comp and SSA benefits at the same time- (SSI is different) CHAMPVA on line at http://www.va.gov/hac/forbeneficiaries/champva/champva.asp might be able to help you as well as a phone call- Do you have the CHAMPVA booklet with the latest info in it? Pete's right-"Your husband is entitled to get some extra if you need special care but you have to apply for it"- I believe Pete means the Spousal Aid and Attendance or Housebound benefit. Special Allowances under 38 CFR 3.351 (2005) The veteran himself should file this claim- the medical criteria for these benefits are within the above regs- The CAVC has made the point that- any vet with 30% or greater is entitled to additional compensation for certain dependents meeting the above A & A or HB criteria. It is always a good idea to read some BVA A & A or HB claims as well as 38 CFR 3.351 to see what the VA requires for these benefits for spouses or veterans themselves.

forgot to post this too- TDIU- CUE claim-restoration of TDIU awarded: http://www.va.gov/vetapp03/files/0319228.txt The veteran clearly stated how the regs in 38 CFR were broken. The CUE was obvious- one reason that CUE claims fail is that the veteran did not state the actual regs that were broken or misapplied by the VA. Therfore the VA cannot decide a CUE claim without these specifics, as it is a claim regarding a special legal issue and error and not a medical one.

A CUE claim is a collateral attack on the legality of a past final VA decision. The vet has to prove that the VA made a CUE- clear and unistakable error -by virtue of improper application of regs in 38 existent at the time of CUE. The CUE has to have a result that manifestedly changes the outcome - ie: more retro due the vet. There has been much discussion here on CUE claims- I have one pending- it fits into their criteria 1.1997 VARO decision that was final and never appealed 2.clear erroneous application of established VA case law and regs at time of CUE (1997) 3. manifestedly altered outcome- years of SMC retro at R-1 level The evidence: 1.copies of VA regs from 38 CFR stating SMC consideration given and applied when warranted- 1997 regs (The vet was 100% SC and over 100% "as if SC" under 1151) Copy of OG Pres Op for NSC vet who got SMC under 1151 (1151 disability is part of SMC consideration) Copy of letter from CHAMPVA stating VA said the veteran's 1151 disabilities were total and permanent. Copy of final decision which denied SMC and copies of additional statements by VARO that SMC was not applicable in this vets case "under any circumstance" Manifestly different outcome- large retro amount due to erroneaous application of SMC regs in 38 CFR. in 1997 decision. You might have potential on a past decision you mentioned here (1980) ???never appealed??? CUES do not involve medical determinations-or any failure to provide Duty to Assist -however if the diagnostic code or any other part of the decision was legally incorrect and you never appealed that old decision-and the result was that-had they not committed the legal error, you would have succeeded in that claim-or it would have involved retro- you could file a CUE claim on it- CUES are best studied at the BVA and the CAVC web sites- to see how the VA interprets them- I say keep them short and to the point. State the date of the final unappealed decision (enclose copy if you can) State the regs at time of this decision that were erroneously applied. Tell them how they committed the legal error regarding your past claim and tell them what the error cost you in unawarded benefits. This is a legal challenge, not a medical one- One vet won a CUE back to 1953 -I posted info here at hadit in the past about successful CUE claims.

I have seen many different rating for vets on dialysis at the BVA web site- They probably sent you (and you also appear to have) the actual rating schedule- If you fully fall into that 100% criteria- for ESRD and dialysis, this should be brought up strongly in your NOD or in a response to the SOC- if they sent you a SOC already- with an attachment of the rating schedule and copies of med evidence that show you fall directly into the 100% criteria.

If a vet requests a DRO (Decisions Review Officer) to review their claim- they are supposed to get a 'new' look at the evidence -de novo- new review- because a qualified DRO as a senior VA employee might well interpret the evidence in a more favorable light the the initial denial rendered.

The VA is looking for clear 'asbestosis' involvement to the lungs as well as inservice exposure- This vet had an MOS with high probability of exposure yet could not get a medical association to asbestos: http://www.va.gov/vetapp04/files/0400088.txt the claim was denied, but this vet succeeded: http://www.va.gov/vetapp02/files02/0209324.txt You certainly are right to consdier an independent medical opinion- Many here contact Dr. Bash for IMOs- http://www.veteransmedadvisor.com/

"What would be the best method to ensure these conditions are given a fair assesment?" To respond to the SOC- state that the condition has gotten worse since you received the "0" SC award, send them copies of or tell them about any continued treatment and medications for this and tell them that although similiar in some respects to GERD , this is a different disability-and that they can only determine this condition and its proper rating with a C & P exam. you could attach this -it will show them the difference: http://allergies.about.com/b/a/110097.htm If you have any of the symptoms in this article that are directly related to you condition- I would tell them that too and send this in with the SOC response. http://n479ad.doubleclick.net/adi/abt.heal...VS2920kA1k06515

Yippee! Hadit seems to be on a roll-with some success stories- This is WONDERFUL NEWS Bound- and your question is what hit me before I even finished reading your post- "do have one question. On the amount of this award (Monthy Comp) is that what I will reveive as total, or for this decision only. I was rated at 100% T&P prior to receiving this letter. Will I receive my current monthy comp and this new amount? God bless you and thank you all?" You should be receiving a higher comp rate due to the SMC (Special Monthly Compensation) It will be ineresting to see what this reveals: 5) All addtional claims for increase and appeals have been granted(Please note will receive seperate correspondence on these claims THE SMC comp rates include the 100% rate-: http://www.vba.va.gov/bln/21/Rates/comp02.htm what I mean is when you read this table- (I am looking at 2005 rates-in the VBM but-as example- single vet gets 100% for PTSD $2,299 per month- vet then is awarded SMC at the "L" level- vet gets $2,860 instead of the 2299 I think many vets get snookered when VA figures out their SMC- Rich is our SMC expert-however this statement below seems to me to be the "L" award and a "single permanent additional disability or a combination thereof-at 50 % or greater could easily fit this into the "O" award as I understand this (VBM page 345) It is hard to determine how they will rate this under SMC. )" Entitlement ot SMC based on loss of feet with addtional disabilities evaluated as 50% disabling." Once they give you the SMC level- we can figure out better what they should pay you in comp-and it always pays to check those figures out real good- I assume that is retro SMC too less what they paid already- ----WOW- Did they state what level of SMC in the letter? This is just joyous news!!!!!!