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Berta

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Everything posted by Berta

  1. Berta

    SMC-S1

    "You will not find a bva decision granting Howell. Because it was granted at the ro on remand from bva." Good, you must have called or emailed Ken Carpenter to learn that-I assume Howell supplied more evidence on remand, probably an IME. I might call Ken myself.
  2. Berta

    SMC-S1

    We have to make too much of it-, because the VA does . and HB depends on medical evidence. https://search.usa.gov/search?affiliate=bvadecisions&sort_by=&query=HB+substantially+confined&commit=Search Before I even filed a SMC CUE, I read multiple BVA decisions to see what the term "substantially AND PERMANENTLY confined" meant, I read remands, denials and awards. There are only 86 decisions at the BVA, that show exactly why they awarded, denied, or granted or SMC HB. But you are right- I am making too much of it-and have no further replys I could possible make. I narrowed down 40,996 BVA cases to about 990 but am no longer interested or have the time to find what apears to be Howell's decision there.
  3. Berta

    TDIU and SMC S

    Maybe better yet Broncovet- Mr. CUE : Why not call Ken Carpenter- He represented Howell at CAVC : https://www.vetadvocates.org/users/kenneth-carpenter I dont think Ken handles VA claims per se, anymore- and is certainly one of the BEST!!!! I was surprised to see he now has email but I spoke to him by phone many years ago, when he did not use emails at all for claims. - and it was a fabulous conversation. He had sent me a letter to call him when he saw my Petition Extraordinaire at COVA. I told him it was a petition mandamus and he didn't handle much stuff like that.None of the 12 lawyers who contacted me would rep me on it. When I told him I sent a copy of it to my VARO to maybe get some thumbs out of butts there, he laughed and then he was surprised at my VA history claims- wise at that point and we talked for over an hour on VAOLA. BTW, it did get thumbs out of butts at the RO level. It forced them to read my evidence.They awarded within a few months. I could have cued them but I did not have a good handle o CUE then. This was around 1996. COVA Court of Appeals of veterans claims ( Now US CAVC.) I had to promise to pay them a few bucks by mail to get copies of their decisions by fax.
  4. Berta

    TDIU and SMC S

    LIve chat at above https://cck-law.com/blog/10-cavc-cases-all-veterans-should-know-part-2/ Mr. CUE -Why not ask them if Howell V. Nicholson is Precedent setting-or if they have any idea if he ever succeded. I will continue to try to find his BVA case, that he appealed to the CAVC.
  5. Berta

    TDIU and SMC S

    Robert L. Howell served in the US Army from April to September,1951. "Based solely on the medical opinions of Dr. Raghavan and Dr. Duque, the Board determined that Mr. Howell was not entitled to SMC-AA benefits because "it was only from a combination of his service-connected and non-service-connected disabilities" that Mr. Howell required the assistance of others. R. at 11 (emphasis in original). However, these medical opinions lacked the proper foundation to be given any weight. " Howell should have submitted a strong IMO/IME that could have completely altred his case. As I mentioned here before, his 100% P & T schizophrenia did not necessarily mean he was unemployable or that he was "substantially confined" to his home. In addition to former hadit member Terry Higgins, and even a Navy friend of mine-)( a school teacher) sometimes this MH disability can be controlled. (schizophrenia) "The Secretary submits that the clear implication of this term is that the requirement that one be "substantially confined" is met when the claimant is restricted to his house except for medical treatment purposes. The Secretary, citing to Senate Report No. 1745 (June 27, 1960), notes that in passing section 1114(s) Congress intended to provide additional compensation for veterans who were unable to overcome their particular disabilities and leave the house in order to earn an income as opposed to an inability to leave the house at all. Mr. Howell does not contest this interpretation." That statement of intent by Congress means to me ,that if a veteran's service connected disabilities prevent them from leaving their home except for medical treatment, they are "substantially confined" to their home. Additionally this statement " Congress intended to provide additional compensation for veterans who were unable to overcome their particular disabilities and leave the house in order to earn an income as opposed to an inability to leave the house at all. Mr. Howell does not contest this interpretation." This means to me,as a personal example: My husband with 100% P & T for SC PTSD, could not work, due to a Section 1151 stroke. Rated at 80% in 1998 , subsequently raised to 100% via SSDI ,2 awards, I explained before, Voc Rehab records, VACO Mdical review, OGC FTCA case, Student loan Waiver, and letter from a former VA Secretary to him, as well as extensive documented proof of the malpractice ( I had no IMO, and didnt need one at that time). Section 1151, 38 USC means " as if" service connected, this is the way VA compensates documented proven malpractice hether or not FTCA was filed. So the 1151 aspect does not matter. Due to the stroke my husband was unable to work again. He had worked for the Electric Company, and also the VAMC. He wwas a former Nuclear power plant Operator as well as he had a Boilerman's licence, was a fully qualified Fireman, and also was a licensed PHVAC for many years. Two days of extensive psychiatric tests at VA were able to separate the Stroke residuals from his PTSD. He could not drive, had trouble with his mobility, could no longer use a PC affectively, and had severe short term memory problems, visual problems, and got lost during a trip from VA 21 day PTSD Buffalo inhouse program. He managed to find a pay phone and called me collect- he never forgot our phone number, and the stroke never took away Vietnam.It was a severe short term memory loss. I asked him to describe where he was in Buffalo. He was unable to read street sign and the name of any store or business due to the occipital nerve damage of his eyesight due to the stroke , I could hear him ask passerbys where he was, but with a USMC cap on, and cameos covered with Vietnam and POW stuff,no one would help him, thinking he was a crazy vet from the Buffalo VA. This was documented in his 21 DayVA records. Suddenly someone else got on the phone- "We found him Mrs Simmons!" -it was the PTSD team leader. The VA had a lay statement from me along with the claim.But all of the evidence supported that statement. I came in from feeding the livestock one AM to all of our smoke detectors going off. He has started to cook something and walked away from the stove. He was taken to Day Treatment at the VAMC 2-3 days a week, as part of a respite program-the VA van took him and brought him home.The respite was for me to catch up on the farm work-I was a livestock farmer. I had tons of hay, square bales, to unload from the wagon and stack, many times in the summer ,among all of the other things a livestock business involves. Our heater broke one winter and as a PHVAC he tried to fix it and broke it even more.I had never seen him cry like that before. He was devastated that he could not fix it- I enclosed the heater bill with my lay statement on this. I agree with the statements in Howell as to congressional intent and the SMC regulations. "In light of our holding here today and the fact that this matter is being remanded for readjudication, the Court need not address the various notice-error arguments raised by Mr. Howell. These purported errors, which were not raised to the Board, can be addressed on remand. See Maggitt v. West, 202 F.3d 1370, 1377 (Fed. Cir. 2000) (with regard to a claim properly before it, Court is not compelled to hear legal issues raised to it in the first instance). Moreover, on remand, Mr. Howell will have the opportunity to present any additional evidence and argument in support of his claim, including the notice arguments raised to the Court, and any evidence and argument so presented must be considered. 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. III. CONCLUSION Upon consideration of the foregoing, the February 2, 2004, decision of the Board is SET ASIDE and the matter is REMANDED for readjudication consistent with this opinion. SET ASIDE and REMANDED." Unfortunately, this case hs no additional info at the CAVC- I a used to more current cases whereby, in a search you can find th BVA decision they appealed to the court. I have been unsuccessful so far in finding BVAs decision on the remand.( assuming it was denied at the VARO level and appealed again) or maybe Howell won at the VARO level- or maybe he died and no subsitution was possible. https://efiling.uscourts.cavc.gov/cmecf/servlet/TransportRoom?servlet=CaseQuery.jsp&cnthd=1234465763&caseid=35862&csnum1=04-624&shorttitle=Robert+L.+Howell+v.+R.+James+Nicholson I regret that my advice here is the same as it was- it is possible an IMO/IME doctor with expertise in the field of your disability, and with proof of Housebound criteria, from your medical records and any other entities ( lay statements etc) could change this for you .at the RO level or at the BVA,if BVA gets the claim back again. VA also consided him for A & A but he could button his clothes and feed himself, and showed every day and shaved , but I had to stay with him while he showered. VA gave him accomodations for the shower. Shower seat rails, and a portable shower head. They denied A & A and they were correct. Others will comment on Howell. I have No evidence that Howell succeeded in his claim. Remans do not set precdent because the claim is still open, and many closed cliams at CAVC are not precedental. CAVC cases that are, clearly state that.: https://cck-law.com/blog/10-cavc-cases-all-veterans-should-know-part-2/ Most of us here are familar with these important precedent setting cases.
  6. Berta

    TDIU and SMC S

    Mr Cue -I admire your tenacity in trying to get what you feel you deserve. I just do not see the CUE in your regard but then again-I sure do not know it all. I have not seen Howell V. Nickolson ever referenced at all by the BVA in any decision. Even the TDIU regulations have been around since 1975, but they have been amended many times: [40 FR 42535, Sept. 15, 1975, as amended at 54 FR 4281, Jan. 30, 1989; 55 FR 31580, Aug. 3, 1990; 58 FR 39664, July 26, 1993; 61 FR 52700, Oct. 8, 1996; 79 FR 2100, Jan. 13, 2014] https://www.law.cornell.edu/cfr/text/38/4.16 The first time TDIU shows up at a historic BVA search is in 1994- there were 9 cases re: TDIU in 1994, that were filed prior to 1992. I realized that the vets, when I was voted into the PTSD combat Rap group at a vet center (1983) never mentioned TDIU.I never heard of TDIU until I moved to NY many years later. Most of them had 100% SC for PTSD from the VA ( often called nervous condition then)
  7. Berta

    TDIU and SMC S

    There has been a lot of discussion here on SMC s and maybe this BVA case will explain our points on it: https://www.va.gov/vetapp21/Files7/A21012520.txt or this one: https://www.va.gov/vetapp21/Files11/A21018338.txt or search the BVA for TDIU and SMC - the denials are as important as the awards and remands.
  8. Berta

    SMC-S1

    You said: "Mainly I am curious as to your thoughts as to why the VA continues to not award the SMC-S1 automatically as they state they will do, but in fact again use the well the IU was awarded for more than one SC." I have been through a posthumous SMC battle but no where do I recall reading that SMC is "automatic." The VA will consider SMC S when the rating sheet warrants it. "SMC(s) is available to veterans who: have a 100 percent rating and an additional disability rated at or combining to 60 percent or more, or. who are substantially confined to his or her dwelling or immediate premises as a result of a service-connected disability.Jan 10, 2022.: https://www.hillandponton.com/va-benefits-special-monthly-compensation/#:~:text=SMC(s) is available to,of a service-connected disability. Hill and Ponton has a chat feature you could use to ask them to clarify. "To receive SMC, you must have a 100% total disability rating based on schedular ratings or TDIU and an additional disability rated at or combining to 60% or more. However, if a Veteran wants to receive SMC and TDIU, the 60% rating has to come from a disability that was not a basis for the grant of TDIU." https://www.seankendalllaw.net/blog/receiving-tdiu-and-special-monthly-compensation.cfm They also have a chat feature - And they make a very important point: "If you are no longer able to work and have been approved for Total Disability Individual Unemployability (TDIU) benefits, you may also qualify for what’s known as Special Monthly Compensation (SMC). This additional benefit should be decided when your original application is processed, but SMC benefits are often overlooked by VA representatives who aren’t fully aware of the law." I was told by a state vet rep my dead husband was not eligible for SMC S. He was WRONG. The VA awarded under SMC 100 P & T plus 60 independent and also under HB, and paid for one theory but stated he was eligible for both. The HB award is based on medical evidence.
  9. Berta

    Do I qualify for SMC-S

    I a repeating I am sure what I already posted in this long thread or somewhere else - as to Howell. You said "Housebound by fact. Is for veterans who can't leave there home to make a income. Howell v Nicholson percendent" That means that Every veteran with TDIU because they are unemployable, is due the HB benefit? No way. Can you give us a link to the "percendent " decision that says that? This is the only decision I can find and it is not precedent setting as far as I can tell, because it is not a final decision, it is a remand. Howell V. Nicholson (Vacated BVA and remanded ) https://www.uscourts.cavc.gov/documents/Howell_04-0624.pdf Do you have any idea on the outcome of the Remand? The VBM by NVLSP (2020-20210 has considerable info on SMC-however NVLSP Never cites Howell in their discuss on Housebound benefts. I am sure if you have time and know how to use the BVA search feature you will find out whether Howell succeeded or not. Maybe he got a strong IMO/IME , and submitted it to the , and proved he was Housebound or A & A. BTW we had a veteran here long ago ( Terry Higgins -God rest his Soul) who was service connected for schizophrenia, chronic paranoid type. He was very funny and also sued a VA administered Home for vets for negligence. Terry was definitely not Housebound and didnt want to be- because he wanted to take his kids out a lot. And he loved going to shopping malls and food stores. He was VERY Happy to get a Cell phone when cell phones were invented because, as he said on our older hadit board, customers in line with him ,in stores, would look alarmed when he spoke back to the "little people" who talked to him in his mind, because, with a cell phone, he could put to his ear, the customers would think he was talking to real people. I will snoop around to see what I can find at the BVA on the Howell Remand.
  10. "10 Feb 2022 Military.com | By Patricia Kime "Roughly 4,000 patients at a Georgia Veterans Affairs hospital have been advised to get tested for several blood-borne viruses following concerns over the facility's sterilization procedures for reusable medical devices. Veterans at the Carl Vinson VA Medical Center are being notified that they need to be tested for hepatitis B, hepatitis C and HIV following a discovery that the durable medical equipment used during their procedures "may not have received all the necessary steps for complete and safe reprocessing," according to press release sent to WMAZ-TV of Macon, Georgia.The medical center halted all medical procedures and operations from Jan. 12-14 over concerns about the sterilization process for reusable medical devices. But any patient who had a dentistry, endoscopy, urology, podiatry, optometry or surgical procedure from Jan. 3-27 are being urged to get tested." https://www.military.com/daily-news/2022/02/10/va-hospital-warns-thousands-of-vets-of-possible-infection-risk-improperly-cleaned-equipment.html
  11. Berta

    Do I qualify for SMC-S

    Forgot to ask-what was your USMC MOS, when I asked where and when you served. Vets have proven exposure to AO in CONUS, Korea, Thailand, , lots of places outside of Vietnam. Also the PM said: "My vascular nurse says it's due to the diabetes, but with the popliteal aneurysm surgery, I'm not convinced of that." Your nurse might be correct but the aneurysm also might be of an ischemic nature. https://www.ncbi.nlm.nih.gov/pmc/articles/PMC4773462/#:~:text=Ischemic heart disease (IHD) is,death following elective AAA repair. My husband's undiagnosed and untreated DMII caused an ischemic 1151 stroke and 2 1151 ischemic heart attacks, all awarded due to his exposure to AO in Vietnam- 1965-66 First Amphibious Tractor Battalion.Danang. But it seems, with the 100% P & T for the aortic aneurysm, that the DMII could be secondary to that, if no exposure to AO. That 10% HBP might be the wrong rating as well. VA has been granting HBP as due to AO exposure in some cases, - all searchable here. Alex is an expert on SMC and will help you.
  12. Berta

    Do I qualify for SMC-S

    Mark, you just answered my next question to you in the PM you sent to me.Thank you. Please pass that info on to Alex-(asknod) Are you a Vietnam incountry veteran? If not where did you serve and when.? You presented in some ways a similar disability picture my husband did-he had multiple disabilities , to include PN and PAD, due to his undiagnosed and untreated Type !! diabetes. I never claimed the PN and PAD, it was a small part of 2 IMOs from Dr. Bash. who diagnosed those disabilities and the DMII (from AO) and I was happy to get the award and wanted to take a break from dealing with VA. They never rated his DMII at all. Another thing I should claim. But the retro was a Very tidy sum....even retro for Chapter 35,in a separate decision, and a very nice REPS payment. REPS is searchable here.(Restored Entitement Program.)My former vet reps didnt have a clue on that. The App was part of the original DIC application. AND most importantly Peace with Honor for my dead husband ( and for me- there is no Peace with Honor knowing the VA caused his multiple disabilities and untimely death. You will need a nexus for the DMII- that is why I asked about where and when you served.
  13. "Former VA rater on another forum quickly dismissed my court win as not CUE but he of course lost face as I did win the court appeal representing myself. Are you listening cruise?" Ha Ha-!!!!! they banned me because I correctd his incompetent advice about something. What gets me is how many vets , as a former rater, did he screw up- maybe survivors too? What is good however is that they kept my post up- with legal citations, that corrected cruiser. I just went to VBN and found that many there had wanted me to stay - I guess they didnt know I was banned, it was the second time- they banned me once because I gave a widow our hadit site addy in a message. I think they let me back on just to have cruiser challenge me . She needed a lot of help and wasn't gettin any help there. There are probably "cruisers" everywhere, on all sorts of help sites, talking out of their butts. Dustoff, as a survivor, I got nothing but negativity from my former Vet reps and even from many lawyers here in NY ,who said I could never succeed in a FTCA wrongful death claim. What a bunch of dopes. Negativity inspires me! However I bet it hurts many vets or their survivors, who just give up. Former VA attorney William Smith was with us ( me and my husband and a small but really good bunch of disabled veterans) everyday at the old Prodigy Veterans BBS- (1990s) on line . He always said he felt over 95% or more of all denied claims could succeed. But many were not properly worded , and vets did not know what evidence they needed or how to get it , and in the olden days, the BVA would deny based on being "not well grounded"--but things have sure changed. And the internet is now the best tool we have to combat VA BS.
  14. Berta

    Do I qualify for SMC-S

    Great advice Broncovet-those ratings might be old ones- Here is another 2021 Housebound CUE Beauty: "1. Beginning April 12, 2011, the Veteran met the criteria for SMC at the housebound rate. 2. The statutory and regulatory previsions extant at the time of the April 2013 rating decision were incorrectly applied to the record as it existed then, resulting in an undebatable error, the sort which, had it not been made, would have manifestly changed the outcome of the decision." https://www.va.gov/vetapp21/Files11/A21017756.txt This has been bothering me: You said: I am 20% SC for painful surgical scars , bilateral lower extremities." "am also 0% SC for peripheral vascular disease of the right and left lower." I assume you mean your lower extremities----- I am not a doctor but I assume, and could be wriong, that the PVD caused the need for surgery , but does the "0" % indicate they CURED the peripheral arterial disease (PVD)in your lower extremeties? You also might have peripheral neuropathy from the ischemic brain problems. Can you scan and attach any rating info you ( with date) have from the last decision? And the VA rationale behind these disabilities? Cover your C file #,name, address, prior to scanning it.
  15. Berta

    Do I qualify for SMC-S

    You might be eligible for SMC S under the Housebound criteria. I mentioned my SMC CUE was granted for both Housebound and 100 plus 60 independent. My husband's 1151 ischemic brain stem stroke caused him to be Housebound. This was awarded in his posthumous Ischemic AO Heart disease.death award. This vet was granted under CUE for Housebound in this 2021 BVA decision: "3. Entitlement to revision of the November 2012 rating decision based on CUE is granted, and entitlement to special monthly compensation (SMC) based on housebound status is granted, effective January 5, 2012." https://www.va.gov/vetapp21/Files11/A21018836.txt Lots of info here on SMC S Housebound under a hadit search. It pays the same as 100/60 SMC S "I am 30% SC for ischemic stroke with right homonymous hemianopia" Did that cause you severe vision impairment? I assume it caused effects to your basilar artery- Similar to my husband= multiple TIAs under 1151, causing visual problems-when major stroke cause his basilar artery to be affected-at that point he could no longer drive, but that was only a small part of the Housebound status and my extensive medical evidence for Housebound SMC S as well as 100/60- SMC S.
  16. WOW!!!! Fantastic and great advice!!!!!!! WOWWEE to this as well: "Diabetes Mellitus type 2-20%- No C & P Exam-(08/17/2020)-Secondary to PTSD/MST and Sleep Apnea- Had Nexus letter and researched and sent in some supporting Documents." NO C & P exam! That is incredible and also shows what a good Nexus letter from a real doctor can do!!!! Enjoy this Victory! You deserve it!
  17. Berta

    Do I qualify for SMC-S

    Yes Shrek the Tank is right. Can you scan and attach the decision to include it's date, and also the Evidence list? Cover your C file #, name , address ,prior to scanning it. You did Very well, so far, by representing yourself.!!!!! What was the cause of the aortic aneurysm? I ask this ,to see if there are secondarys in the other ratings, and/or if they are all independent of the main 100% P & T , to see if they should have considered SMC. They might well have committed a CUE,if they should have considered SMC. Plenty of CUE info here at hadit.I had a SMC CUE granted. The rating sheet clearly showed my husband was 100% P & T for SC PTSD and also had a 1151 stroke rated at 80% then up to 100%. They awarded SMC under both theories SMC Housebound and 100 P & T olus 60 or more-independent of the PTSD. They properly paid retro for one theory.
  18. This link Re: Walsh V Wilkie holds a OGC Pres Op which I believe is critical to these types of claims. G.C. Prec. Op. 1-2017, at 1. This article blog is not ,in my opinion, well written, so I dont know where this statement comes from- maybe someone here can provide that VA OGC Precedent Opinion. Walsh v. Wilkie, docket no. 18-0495 (February 24, 2020) "HELD: OBESITY MAY BE AN “INTERMEDIATE STEP” BETWEEN A SERVICE-CONNECTED CONDITION AND A NONSERVICE-CONNECTED CONDITION WHEN THE SERVICE-CONNECTED CONDITION AGGRAVATES THE OBESITY. THE SERVICE-CONNECTED CONDITION NEED NOT CAUSE THE OBESITY." https://abkveteranslaw.com/blog/tag/Walsh+v.+Wilkie
  19. Broncovet- the CAVC case was remanded- how does that make it precedent setting? What is the exact medical term for your back condition? If we have more info we can help more.
  20. Here are some medical articles etc that could bolster the IMO/IME opinion: https://www.ahajournals.org/doi/full/10.1161/01.hyp.0000101686.98973.a3#:~:text=Among the risk factors for,and the risk of OSA.&text=Significant sleep apnea is present,of OSA patients are obese. https://www.sleepfoundation.org/sleep-apnea/weight-loss-and-sleep-apnea https://sleepcenterinfo.com/blog/does-sleep-apnea-cause-weight-gain-heres-what-you-need-to-know/ However your IMO/IME doctor would have probably some better links- As VA cites 38 CFR 4.6 in the decision, ( that is my Favorite regulation) a violation of 38 CFR 4.6 is a CUE. https://www.law.cornell.edu/cfr/text/38/4.6 "§ 4.6 Evaluation of evidence. The element of the weight to be accorded the character of the veteran's service is but one factor entering into the considerations of the rating boards in arriving at determinations of the evaluation of disability. Every element in any way affecting the probative value to be assigned to the evidence in each individual claim must be thoroughly and conscientiously studied by each member of the rating board in the light of the established policies of the Department of Veterans Affairs to the end that decisions will be equitable and just as contemplated by the requirements of the law." If we see more of what I asked you to attach, just about anyone here, by now, can determine if a CUE occurred.
  21. What a joke I LOLled when I read this : "Some evidence supports your claim; however, we found other medical evidence more persuasive because it is supported by a greater degree of medical confidence." (38 CFR 4.6) YOu said your independent opinion was from a Sleep Specialist. Was the C & P exam done by a 'sleep specialist'? Have yougoogled the doctor who did the C & P exam to see what their expertise was? Reminds me of when VA said one of my CUE claims , ( it took 8 years for them to award it- an Obvious CUE ,because a different RO handled that as part of my AO IHD claim) had been sent to a CUE 'specialist'. I think they meant the guy who refills their toliet paper dispensers- then again he probably could read better than the RO claims people could. Did he/she provide a Curriculum Vita to VA or any escerpts from mdical abstracts to bolster the opinion, or any information as to his.her expertise to opine on the claim? Did he/she follow the IMO/IME criteria here at hadit? These claims can succeed : "ORDER Entitlement to service connection for obstructive sleep apnea (OSA), to include as secondary to posttraumatic stress disorder (PTSD), is granted. FINDING OF FACT The evidence is in relative equipoise regarding whether the Veteran's PTSD caused or aggravated his OSA through obesity as an intermediate step." https://www.va.gov/vetapp21/Files10/21066291.txt "ORDER Entitlement to service connection for obstructive sleep apnea (OSA), as secondary to his right knee disability, is granted. FINDING OF FACT Giving the Veteran the benefit of the doubt the evidence is sufficient to show that the Veteran's service-connected right knee disability aggravated or caused his obesity which in turn was caused by his OSA, which would not have occurred but for the obesity caused or aggravated by the service-connected right knee disability." https://www.va.gov/vetapp21/Files8/21049896.txt "ORDER Service connection for obstructive sleep apnea (OSA) is granted. FINDING OF FACT The Veteran's service-connected unspecified depressive disorder with anxious distress and service-connected cold weather injuries to the bilateral feet caused the Veteran to become obese, and obesity was a substantial factor in the Veteran developing OSA; and his OSA would not have occurred but for the obesity caused by his service-connected disabilities." https://www.va.gov/vetapp21/Files9/A21015901.txt These grants are all from 2021, and although there are many denials for OSA it also can be associated to a myraid of other SC disabilities, I am sure. These claims can be won- but they depend on a strong medical rationale from an expert in the field of OSA.
  22. I emailed my VSO about this and he said that the VA raters do not use court decisions when determining ratings because they are specific to that veteran. That just doesn't sound right to me." As Pacman said, the VA will not accept BVA decisions, because they are unique to the veteran who filed the claim. BVA deciions do not tell us everything----I was disappointed that in my BVA award ,they did not state all of my evidence, then again I had a lot of evidence, but some of it could have helped other widows. The VA however must abide by US CAVC precedent decisions. Walsh V Wilkie ends with : "The December 8, 2017, Board decision is VACATED and the claims are REMANDED for further proceedings consistent with this opinion." Nothing I see indicates this decision was setting "precedent"- do you know how the remand turned out? Maybe it is still in progress. The 1 page part of the decision says: "Some evidence supports your claim; however, we found other medical evidence more persuasive because it is supported by a greater degree of medical confidence." (38 CFR 4.6) Can you attach here the Evidence list and their full medical rationalem as to evidence that was "more persuasive." https://veteranclaims.net/2020/02/25/walsh-v-wilkie-no-18-0495-decided-february-24-2020-disability-compensation-when-a-service-connected-disability-causes-or-aggravates-a-non-service-connected-disability-three-step-determinatio/ You mentioned you had an IMO/IME. Did theymention it at all in the decision or Evidence list? Did the indeppendent doctor have a copy of the OSA C & P exam,so that he/she could fully knock down their rationale?
  23. To add something I remembered: On the medical records request, ask for All available medical records VA has to include the veteran's medication profile, and his psychiatric treatment records. He might not have had psychiatric treatment records, but this was one thing the VA overlooked in my initial request and I mentioned here somewhere, that I went over to the local VAMC and his PTSD doctor not only wrote to the VA to consider his psychiatric records, which he knw they had, but also verified his SSDI award to them and gave me a copy of his total assessment of my husband's PTSD. I think VA already had his PTSD inhouse 21 day hospitaization records. If this veteran had private MH care those records might reveal a nexus to his service ,if proven, that might have contributed to his demise. Also many psycotropical meds they give for depression and anxiety etc, can be contraindicated by other meds and also can have severe consequences even without a contraindication situation. (Contraindication- I proved as a small part of my wrongful death case, that VA had given my husband two meds that contraindicated each other-for 6 years prior to his death... one was for HBP, and was too low a dosage and the other was for Sudafed, a very high daily doseage, for a sinus condition that I proved he did not even have. ) This is a old article however I am sure VA and other medical entities have published more recent studies: https://www.uspharmacist.com/article/suicide-in-the-veteran-population
  24. The VAMC that treated him would have access to his medical records, and they would know what form to use. Their main VAMC phone number operator can direct you to their Record Access Officer. They would be listed as to that number at this site= https://www.va.gov/directory/guide/home.asp If she is a VA patient herself then I guess she could use the My Health VA account. I think it is only for veterans or spouses in the VA health care system. The VA Form : 10-5345 This is for 3rd party indicividuals, such as a lawyer representing a veteran or their survivor. "Use VA Form 10-5345 to authorize us to share your health information with a non-VA (or third-party) individual or organization." https://www.va.gov/find-forms/about-form-10-5345/ Since he was not in the VAMC system too long, she will also need his Private medical records too. Others here would know how to get copies of them.
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