Berta

I hope the regulation is in this thread- Mybe it is in the Burn Pit forum-

This is due to the new Presumptive regulations or Gulf War vets that the doctor was aware of, but I too am conerned about than ten year part if the regulations.We all should be. Did you have rhinitus documented in your SMRs?

I hope you realize Mr CUE that all of us want you to succeed. My interpretation of Howell, is explained somewhere here and also I gave Ken Carpenter my rationale for my opinion on that... Although your case is still on remand and being worked on ,as far as I can tell, by the VARO- did you actually file a recent formal CUE on the HB matter? If so what VA entity did you file it on? BVA? or the Buffalo VARO?

I just re read your CAVC remand and noticed something- "Finally, to the extent that Mr. appears to argue that VA has refused to accept an NOD or otherwise process a claim for vocational rehabilitation and employment (VR&E) benefits, see Appellant's Informal Br. at 10-11, 14, the Secretary is correct that the January 2020 Boarddecision on appeal did not address any VR&E issues." Did you ever formally apply for VR&E and did the VA turn you down ,solely due to your established SC conditions, prior to 2018? It might not matter if they did- maybe others will comment on that-it is here: https://community.hadit.com/topic/83325-cavc-decision/

This type of VA case law pops up here from time to time- Maybe this will help: In part: "In its directives, the Board specifically instructed that the Regional Office: (1) refer the extraschedular lumbar spine disability claim, for an opinion, to the Direct of Compensation and Pension Service, for the period prior to February 27, 1998; and (2) refer the extraschedular TDIU claim, for an opinion, to the Director of Compensation and Pension Service, for the period prior to February 27, 1998. Although the Regional Office obtained the requisite opinion for the extraschedular TDIU claim for the period prior to February 27, 1998, it, however, did not obtain an opinion from the Direct of Compensation and Pension Service for the extraschedular lumbar spine disability claim. A Board remand confers on the Veteran, as a matter of law, the right to substantial compliance with the remand order. Stegall v. West, 11 Vet. App. 268, 271 (1998). Thus, as the Regional Office did not substantially comply with prior Board remand directives, a remand is required for substantial compliance with the February 2021 Board remand directives, and specifically, obtaining the outstanding opinion for the extraschedular lumbar spine disability from the Director of Compensation and Pension Service. As the extraschedular TDIU claim is intertwined with the extraschedular lumbar spine disability claim, the extraschedular TDIU issue is also remanded, pending the Director of Compensation and Pension Service's findings and the outcome of the extraschedular lumbar spine disability claim. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (holding that where a claim is inextricably intertwined with another claim, the claims must be adjudicated together). " https://www.va.gov/vetapp21/Files8/21049366.txt

Mr CUE, I have no idea at all if Ken is going to formally represent you- He will let you know. We basically only discussed Howell and I thanked him for any help he can give to you. He sees Howell in a different way than I do-

just to add- the US CAVC home page has that link to Utube as well- http://m.uscourts.cavc.gov/ No one should overlook the CAVC web site- They publish their most recent decisions, every three days , and they list the Precedent setting decisions separately. http://www.uscourts.cavc.gov/recent_decisions.php If a precedent setting decision would apply to a specific claim- and claimant can cite it as evidence.And send then the whole thing. This recent case ( Ken Carpenter representing the veteran) was in the precedent list- I dont know why-I have not read the whole docket yet---in any event a Very good read: https://efiling.uscourts.cavc.gov/cmecf/servlet/TransportRoom?servlet=ShowDoc&dls_id=01208474248&caseId=103699&dktType=dktPublic As you can se, this was a Very unusual case: in part: "TOTH, Judge: This case is before the Court on remand from the Federal Circuit. Philbrook v. McDonough, 15 F.4th 1117 (Fed. Cir. 2021). The Court remands to the Board for further consideration in line with the Federal Circuit's decision. In a June 2018 decision, the Board denied a rating for total disability based on individual unemployability (TDIU) under federal provisions that prohibit the assignment of a TDIU rating to a veteran who "is incarcerated in a Federal, State or local penal institution or correctional facility for conviction of a felony." 38 U.S.C. § 5313(c); accord 38 C.F.R. § 3.341(b) (2021). In a May 2020 memorandum decision, this Court affirmed the Board's decision, holding that the plain language of the statute ("incarcerated" in a "correctional facility") coveredthe veteran's situation— confinement at the Oregon State Hospital after entering a stipulation of guilty except for insanity. Mr. Philbrook appealed to the Federal Circuit, which held that "the Oregon State Hospital is not a 'penal institution or correctional facility' under § 5313(c)" and reversed this Court's "decision that Mr. Philbrook was barred from receiving a TDIU rating as a matter of law." Philbrook, 15 F.4th at 1121. Accordingly, the Court VACATES and REMANDS the Board's June 19, 2018, decision denying TDIU for readjudication." https://efiling.uscourts.cavc.gov/cmecf/servlet/TransportRoom?servlet=ShowDoc&dls_id=01208474248&caseId=103699&dktType=dktPublic

Dont know if I mentioned this- my web cam can make a video- I never tried making or saving one ,except on a digital camera . It would be great if you could save the video- But others would know better here-on that.

These guys are right Mr. CUE, and we have all exerienced the anxiety of waiting for a VA decision- I heard back from Ken Cartenter-and he certainly seemed Optimistic about your HB issues. His take on Howell is far different from my take on Howell-but in any event he is the Greatest- in my opinion- and with full access of your VA issues, I am sure he will try to help you. By the way all- some US CAVC cases are heard and can be seen on Ytube: (I think) I have not tried this yet) Freund v. McDonough 21-4168 246 views

By all means get to the exam-and these guys are right- If the examiner says he read your VA records, C file etc, I assume he also would read the other great evidence they had from you-and it might really go OK. Whodat made a good point: "I do not know the answer to that but I do know that is that they must be licensed in the state that they are practicing in. I could be wrong." This is a tele- med Web cam exam--maybe telemedicine changed all that.

That happens Way too often- and is a good way for the VA to get a negative opinion and deny the claim. There is contact info here under a search for QTC,LHI, and VES- under a search- You can gripe about this with them, if he comes from one of those entitites ,and /or you can complain to the White House Veterans Hot Line 855-948-2311- Then again you do have great evidence but I wonder how much of it could even be shown via a web cam.Maybe the C & P examiner would give you his email addy for it-and the C & P exam then might actually help the claim------if he can read and understand it. But why take that chance- The VA denied a claim I had and said it was an inperson C & P exam for my husband- by then my husband had been dead for decades. They reversed the denial when I filed a CUE. It costs the VA , as I understand ,800 bucks or more for each of these C & P exams.To me that means they should be paying for someone with the expertise to opine ,but I guess they would rather pay 800 bucks or more for a lousy result from someone who doesn't have a clue, and then the denial is easy to make.

I m a civilian but if I was a veteran and could prove my disability began in service, I would probably be rated at 30%. I have severe bilateral pronation. It comes from pes planus (flat feet.) I have to get custom orthos every few years.My podiatrist also seeks the beginnings of callouses that this condition can cause. My point is the the claim might not be worded in the best medical terms. ---without orthos my ankles sort of cave in, as well as my knees,and also I have balance problems from it. A vet here told me he had the exact same symptoms I had, with flat feet- and the pronation was documented in his medical records. I am sure not a doctor- but this might be the probem with your claim- if you do have severe bilateral pronation they need to know that. There is also a possibility that instead of pronation you have supination and/or "Morton's neuroma and metatarsalgia." https://www.va.gov/vetapp21/Files12/21075888.txt There is a lot medically to foot disabilities. Flat feet can cause hip, nee, nd back problems as well.

Thi is a long and interesting report- but I don't see how it will help your husband- there are Many medical reports on the internet regarding inservice TBIs in veterans---- what will help is if you can scan and attach here his last decision from the VA , and the evidence list, and any rating info from the va. Years ago they alwaysincluded a rating sheet. You stated : ." This life is hard, and his multiple TBIs--at least 5--are service connected. " 1) If they were service connected he should have been rated for them- ( 5 TBIs is Very unusual.) 2) Was he ever rated for TBI at "0" SC percent? 3)Transcient ischemia of brain can cause multiple brain lesions, but how do you know he had 5 TBIs? He needs to have documented proof that he suffered from TBIs in the service. He also needs medical proof that these are, in fact, TBIs I assume and could be wrong, that his PTSD is from combat.It could be from an incident that caused the TBIs. 4)Did he ever have CT scans or an MRI from the VA or a private doctor that revealed the TBIs ? 5)Did he suffer from a concussion ( in his SMRS), from the TBIs? TBI is a traumatic Brain injury . 6) Does he have any other non service disabilities such as diabetes, or heart disease? I know how difficult and exhausting it can be when someone we love has brain trauma and both of my dead veteran husbands had it, and dementia. "I'd appreciate any insight and assistance. He is already rated 100% for PTASD and additional injuries are rated at 30%, I believe." Thatis the decision we need to see. I asked 6 questions, and they are the same questions a VSO or a vet lawyer would ask-and are questions I am sure others would ask as well. We can help more when we get more info.

WOW Ricardo- you have sure been through the VA Mill-it is heartbreaking to read how long many claims take. As Broncovet said, if you can scan and attach the decision and Evidence list, we can help you more- Cover your C file # name, address prior to scanning the decision...if you have received it. What do you believe turned the claim around for you? This will encourage many others here. We must NEVER give up. Re opened claims get the date of re open- most of the time-for the EED but this sounds like you prosecuted the claim for 8 continuous years. Good for YOU!

In one of your past posts you stated: "the mistake is when i was asked about the minor seizures i told the doctor i experience between 5 to 7 a day but last year i noticed that he had put 5 to 7 a week. the difference from 40% to 80% disability. I understand i should have reviewed the paperwork" Did you try to get that corrected? This is a big problem with C & P exams- they can misinterpret what we say. To our detriment. I have put advice here and contact #s for QTC, VES, and LHI- and also the White House Hot line number but it might be too late to contact them----- however a strong DBQ could definitely correct this, in my opinion, and you do have very GOOD evidence. If the evidence has any statements as to the fact that you have seizures many times a day, I would bring ALL of that evidence to the C & P exam if I were you. Are you able to work with this disability? Do you have cataplexy and sleep paralysis- nd if so, is that documented or supported by a buddy statement, or the Neuro DBQs you have?

Here is what I mean about a higher SMC level: In part: "ORDER Entitlement to an initial rating for service-connected posttraumatic stress disorder (PTSD) in excess of 30 percent from March 17, 2014 to May 23, 2018, is denied. Entitlement to a rating of 100 percent for PTSD since May 24, 2018, but no earlier, is granted. Entitlement to an effective date of May 24, 2018, but no earlier, for the grant of special monthly compensation (SMC) based on aid and attendance is granted. Entitlement to an effective date of May 24, 2018, but no earlier, for establishment of basic eligibility to Chapter 35 Dependents' Educational Assistance (DEA) benefits is granted." "Medical treatment records from the appeal period fail to detail any PTSD symptoms other than a negative February 2014 PTSD screening. A May 24, 2018 memory clinic evaluation report detailed symptoms of progressing frontotemporal dementia with agitation, impulsivity, apathy, and poor judgment. Medical records dated October 31, 2019 confirmed diagnosis of severe dementia." https://www.va.gov/vetapp21/Files5/A21009773.txt

To add, these are recent BVA successful claims due to a neurocognitive disorder, frontotemporal type, and show how this disability can be caused by many medical factors: (PS -the VA also uses th medical term Lewy Body dementia for many of these claims.Also My husband's psychologist gave him 2 days of extensive tests- 6 tests, that cmpletely separated his 100% PTSD from his 1151 100% stroke.) If your husband has full blown dementia , he would obviously need a lot of care. Our locl VA gave me a respite situation-I assume your husband is not longer able to drive,or leave the house alone. This could set him up for SMC HB or 100% plus 60% SMC or even a higher level of SMC. Our member Asknod is an exert on those higher levels. But we need more info. I know how difficult it can be ,dealing with dementia. my husband had very lucid moments and his intelligence was in tact, but that could switch fast to other problems. Has VA or SSDI ever stated your husband was incompetent? If so what for? Reason I ask- My husband had a SSDI award solely for his 1151 stroke. We asked for reconsideration and they tried to talk him out of that but they failed- they had to reconsider based on what he felt was his prime disability ( PTSD)-he was granted SSDI then for PTSD with a very favorable EED. SSDI however told him they had to declare him incompetent due to their PTSD findings but he coud appeal that. (VA had not declared him incompetent). But he told the SSDI person- 'No-I like it and wont appeal because the next time those Student Loan people call me I can tell them I am incompetent and cant deal with their calls.( Hs VA doctor signed a Student Loan waiver for him-he only owed them a few hundred bucks and they called relentlessly.He wanted to pay it but someone told him if you make any payment at all ,after you are 100% disabled, they will call even more! In December 2019, the Veteran’s treating VA physician submitted a medical opinion which stated that she had been the Veteran’s primary care physician since August 2018. She further stated that the Veteran’s progressive frontotemporal neurocognitive disorder or dementia was due to and aggravated by his service connected bilateral hearing loss. The examiner also submitted a medical treatise which supported her opinion. In December 2019, the Veteran’s treating VA physician submitted a medical opinion which stated that she had been the Veteran’s primary care physician since August 2018. She further stated that the Veteran’s progressive frontotemporal neurocognitive disorder or dementia was due to and aggravated by his service connected bilateral hearing loss. The examiner also submitted a medical treatise which supported her opinion. In a December 2019 VA examination, the examiner found that the Veteran’s dementia was not at least as likely as not proximately due to or the result of the Veteran’s bilateral hearing loss. Secondary service connection requires a finding that that the current disability was either caused by or aggravated by a service-connected disability. In the current matter, such a connection is supported by the evidence of record. The Veteran is service-connected for bilateral hearing loss and the Veteran’s primary care provider stated that the Veteran’s dementia was exacerbated by his bilateral hearing loss. The Board is aware of the December 2019 VA examination opinion, however, the Board finds that the evidence for and against the claim is at least in equipoise and, as such, reasonable doubt must be resolved in his favor. Accordingly, resolving all reasonable doubt in favor of the Veteran, the Board finds that a grant of service connection for dementia, as secondary to his bilateral hearing loss, is warranted. Accordingly, resolving all reasonable doubt in favor of the Veteran, the Board finds that a grant of service connection for dementia, as secondary to his bilateral hearing loss, is warranted. https://www.va.gov/vetapp20/Files2/A20002130.txt "ORDER Entitlement to service connection for a neurocognitive disorder, frontotemporal type, due to service-connected hypertensive heart disease with cardiomyopathy, thoracic aneurysm, and mild aortic dilatation (“hypertensive heart disease”) is granted." https://www.va.gov/vetapp19/Files1/19103726.txt ORDER Entitlement to a 100 percent disability rating for posttraumatic stress disorder (PTSD) and fronto-temporal lobe disorder with neurocognitive disorder related to temporal lobe syndrome is granted. Entitlement to a total disability rating for compensation purposes based on individual unemployability (TDIU) is granted. https://www.va.gov/vetapp19/Files5/19141986.txt

I got a nice letter from VA the other day- it explains their harrassment policy. The VA is against any harassment of veterans, their caretakers, volunteers, visitors,, and employees. They have ZERO tolerance on that. Theyincluded a brochure on how to report VA harrassment. I guess you all got that letter. I got it a few days ago. It was dated November 2021.

sorry for typos -I have CTS- and am going to lose internet if this cloud doesnt break up. I bet many here get tired of my renditions on the proven , and documented malpractice my husband received from VA...that caused his death. I believe the VA SAVES lives every day!!!!!!!!!!!!!!!!!!!! But if I see something here that does not sound medically 'right'- I certainly want to know why- If the H VAC ever gets my Bill S 221, that will save lives of veterans.It is a medical VA committee and the Senate passed it unanimously.Once out of committee the House will pass it ( I HOPE!!!!)

Angela, you stated: "My husband was diagnosed with a TBI years ago, but was never rated by the VA." Never rated.....??? So maybe he has never formally claimed the TBIs? "Now he has been diagnosed with frontotemporal neurocognitive disorder, and there is no family history. How do I get the TBI rated and where do I even start? I have been gathering research and doctor's notes and every" Frontotemporal neurocognitive disorder can be caused by TBIs and other neuro conditions. It can lead to dementia. My husband had dementia from a VA -caused stroke. It took them many weeks, as he was hospitalized , to get a CT scan-his doctor said he had laby rhinthitus, and their CT scan was "broken"and a nurse told me to get him out of there before they killed him. But I had just told his idiot doctor I was calling my congressman ,to report the broken Cat Scan and suddenly the local VA "fixed it". The nurse didnt know I had just spoke to a different VAMC , and asked the doctor there to read part of the CAT scan to me apparently the Bath VA doctor didnt know how to read a CT scan at all.( My Army husband had a brain tumor so I knew how to interpret it-I told the doc,a Neuro this was not a surgical matter and he said No- who told you that- I said his "doctor here just told him he was being prepped to go to your VAMC for brain surgery. and they were sending him there. The VA Neuro doctor was appalled at that. This word above bothers me-"NOW" ---was he diagnosed by the VA? If so did the VA ( or even if the diagnosis came from a private doctor) give any opinion on why he had this severe condition? If he never claimed the TBI he has to claim it=- it couuld put him into a SMC criteria- "He is already rated 100% for PTSD and additional injuries are rated at 30%, I believe. " Can you scan and attach here his last VA rating and decision? With his permission? Cover his C file #, name, address prior to scanning it. I suggest this because I have had decades of experience with the VA. I bought a box of Manila folders and sorted out everything I got from VA to put in them and identified each file-on the manila tabs, all rating sheets all decisions, VA medical records ( ther was a stack so I filed them by year, in many folders, and all of my FTCA/ Sectuiiion 1151 stuff regarding his wrongful death.Also SMRs and Personnel records DD 214s, ( he served twice) and DD 215, in a folder and SSDI studd in another folder. There are many more folders than that for me - and you probably wont have a lot like I do-but it can make things easier when we are prganized and know what to look for and what folder it is in- When I met him he only had one folder.2 DD214s, and his 1983 award from the VA for PTSD.( called nervous condition in 1983) You husband might well have other potential SC disabilities.If so now is the time to claim them but we need more info.

There are many 2021 narcolepsy claims at the BVA...for 2021. Here i a grant: "ORDER Service connection for narcolepsy is granted. FINDING OF FACT The Veteran’s narcolepsy began during active service." https://www.va.gov/vetapp21/Files3/21018799.txt There are many denials but also many remands. The remand part of this recent decision states: "The examiner should specifically address the medical records from August 1986 showing a diagnosis of complex partial seizures and the March 2020 opinion finding that the Veteran's clinical picture does not correspond with either a seizure disorder or narcolepsy. The examiner should address the March 2020 finding that the Veteran's severe OSA results in neurological dysfunction and may be the cause of his seizure like activity. The examiner should opine as to whether the Veteran's disability picture is best described by the criteria relating to TBI, seizure, or other pathology based on clinical examination and any testing that may be required. IF the Veteran's disability is best described as a seizure disorder, the examiner should provide an estimate of the number of petit mal seizures the Veteran experienced on average in a week since his discharge in September 1980. " There is quite a bit more on remand but the BVA ( who reads Everything) highlighted a 1986 medical record. https://www.va.gov/vetapp21/Files6/21034168.txt Remands are far better then denials.. Were you denied in the past for narcolepsy? Do you receive SSDI solely for narcolepsy? If so does the VA know of the SSDI award?

Scottishhere- I might have limited internet access all day- heavy cloud cover- but will try to find your past posts and see if I could add to what whodat suggested. This is the Narcolepy DBQ,released this January- https://www.benefits.va.gov/compensation/docs/Narcolepsy.pdf Is your inservice nexus solid? Thank you for the nice PM. I try to do my best here. We have a great bunch of vets that help others -even if it is just about their personal claims- because our individuals VA experiences have sure helped others. Can you take and save a video of anything that involves your web cam? Have you googled the doctor who is doing the Exam, to see what their qualifications are? I wonder why the Narcolepsy DBQ was changed in January 2022?

I feel a little optimistic about this-I got it earlier from the American Legion and just got home- and was surprised at some of the proposed changes- they sounded good . But I will read and re read it many times-the MH 10% makes sense- how could any vet with a MH issue, that is due to their service ,have a SC "0" percent. But some have been rated that way---- I did notice the AL ( this was from the Stars and Stripes article ), said with the first day of this news they have already gotten almost 700 comments at th Fed Reg site. In part: "A full list of the changes can be found on the Federal Register. Members of the public have until April 18 to comment on the proposals. As of Wednesday — one day after they were posted – the changes had garnered nearly 700 comments. “This appears to have generated interest, even overnight, with hundreds of comments on each of the proposed systems,” McDonough said. “I encourage anyone to submit a comment if they have one.” VA proposes changing disability ratings for mental health, other conditions | The American Legion I dont have time to post the Fed reg link so I hope someone here will- this is everyone's chance to have input into this proposed regulation.

Rivet, that is what I just said too -OMG! But that is the good part about the BVA- remands open the door for more evidence. And sometimes we can successfully knock down a C & P when a remand calls for a specfic type of doctor to do aother C & P exam. In 2009 I had 3 IMos for my AO DMII death claim and BVA remanded for a third VARO opinion- from a cardio doc but I got an opinion from a PA- and by thn ( thanks to the VA) I had a very good medical background on cardio issues, and endorinology---enough to get the PA oinion disregarded by the BVA.They gave it no weight and awarded. We often recommend IMO/IMEs but sometimes a vet does not need to incur that expense. Many years ago the term " fishing expedition" was used a lot by claimants- when they felt VA was fishing around for doctors who would deny the claim.- We don't need to use that term anymore. We have all the tools we need. The BVA still refers to a "fishing expedition" in many decisions. such as : (This is an excellent inservice chemical exposure claim:) The decisions refers to Dr C.L.B.'s IMO/IME opinion - I am 99% sure that is Dr. Bash.It is exactly the way he combats RO decisions. "ORDER Service connection for a skin disability, to include eczema dermatitis, xerosis cutis, melanocytic nevi, rosacea, and hypovitaminosis D, claimed as due to in-service chemical exposure, is granted. Service connection for anemia, claimed as due to in-service chemical exposure, is granted. Service connection for an ulcer, claimed as due to in-service chemical exposure, is granted." Also this is why I recommend getting 201 files ( inservice peronnel record) as well as SMRs from NARA: A"s an initial matter, the Board notes that the Veteran’s SPRs show that she was likely exposed to harmful chemicals during her military service and medical records show a diagnosis of anemia during the appeal period.  The only matter still in question is whether there is a medical link between the Veteran’s anemia and her military service.  " The veteran did her homework , and submitted some very good medical treatises, abstracts, etc, and invested in a strong medical opinion because she knew she had a very valid claim. https://www.va.gov/vetapp21/Files3/A21005249.txt And : "At this time, the Board declines to remand for an additional opinion as such would resemble a fishing expedition for negative evidence, which, in view of the available medical evidence, is not necessary.  Indeed, obtaining such additional evidentiary development in this instance would only result in additional delay with no benefit to the Veteran.  Sabonis v. Brown, 6 Vet. App. 426 (1994); VAOPGCPREC 5-04, 69 Fed. Reg. 59,989 (2004).  As such, the Board will resolve reasonable doubt in favor of the Veteran and find that the Veteran’s skin disabilities are related to her in-service exposure to harmful chemicals.  Therefore, service connection for a skin disability is warranted."  

Great! "He told me somebody had call him today to address Howell. Long story short." I contacted him myself this AM and he will get back to me.