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brokensoldier244th
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Posts posted by brokensoldier244th
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6 minutes ago, harry59 said:
Thank you, brokensoldier244th. Those two claims were denied because the rater at the supplemental level totally ignored the "intermediate-step" that I made VERY clear in my veteran statement. No mention of the intermediate-step in my Decision Letter. I am unable to exercise because of my SC back issues, which of course caused my weight gain. I even had a Nexus from my Sleep Specialist linking my OSA to my weight.
Intermediate step is exactly how I got mine. I filed it BVA, IIRC, but it was about 5 yrs ago so its a little fuzzy on the details.
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In an supplemental HLR (20-0996) you can't submit new evidence- it only is allowed to review the evidence of record. If you submit a supplemental, you can, but its at the local level (20-0995). If you go for a Board appeal (not local level) then there are a few ways you can do it.
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55, Generally yes, and P&t are usually left alone. These ages are for any contention not just physical ones .
You aren’t going to get reevaluated so soon after just winning your claim and you aren’t claiming anything that is MH related. We don’t automatically look at every single contention and reevaluate it. We don’t have time to do the claims we have now.
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3 minutes ago, Vync said:
Because you never received a formal decision letter on your 1151, would that still be considered an active unadjudicated claim?
I know Berta had mentioned that Citation: Vet. Aff. Op. Gen Couns. Prec. 8-97, VAOPGCPREC 8-97, 1997 classified 1151 "...may be considered “ancillary” benefits because they are payable in addition to the general compensation benefits...". Once a vet reaches the 100% schedular or TDIU pay level, if the VA causes an additional disability due to negligence, etc..., would pursuit of 1151 be fruitless and not produce any additional payments? I wondered if that might apply to your situation or other vets with similar occurrences.
Reaching 100% P&T took 18 years and was a literal nightmare for me. My initial rating was 40%, but took two trips to the BVA over five years. It was recently corrected to 50% after I filed CUE for not following the regs and I have another at the BVA which could further increase that. The "Presumption of Regularity" was repeatedly disproved every time I filed a NOD or appealed because someone failed to read the evidence or failed to properly apply laws and regs, effectively repeating the same errors over and over.
If its rated 60% or more it would put him into SMC S territory.
SMC-S
One type of SMC which is particularly advantageous to veterans is SMC(s). 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.
The current SMC-S rate for veterans without dependents is $3,486.65 per month. This rate increases depending on the veteran’s marital status and other circumstances.
Housebound status is the main criteria that apply to SMC-S. Veterans who are housebound may live at home or in a care facility. Veterans who qualify for SMC-S may also be in a hospital ward. Typically, veterans who are housebound are unable to leave their dwelling due to their service-connected disabilities. This is typically a permanent circumstance.
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Well,if we’re blocked, actually- you won’t. /out
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Blame it on my mental health issues. Just doing my part to be helpful.
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Or, rather than cherry pick BVA decisions to find the occasional grant to try to use s evidence (which aren’t binding on the VA except in that decision- BVA decisions are not case law and only apply to that veteran), just get a opinion outside the VA and drive on.
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Semantics, im sorry to say, are exactly what the regulations are, and they were written based on whatever Congress approved. The VA isn't the only bogyman, here.
Just having a condition in your SMRs is not service connection. You are missing the 1st part- it needs to be a diagnosed current disability, or persistent recurring symptoms, i.e. that 2 day bout of indigestion after Thai food in your sick call notes 10 yrs ago is not GERD now. Just because you have headaches NOW doesn't mean its related to service THEN, and just because you had headaches in service THEN doesn't mean its related to having a headache NOW.
There are hundreds of 'acute' conditions that show up in an SMR that are not chronic- they happened once and they're done. They don't meet the threshold for element 1 or element 3, an indication of plausible association with an in-svc event.
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I said that at the start, too.
You must have missed it while trying to talk down to me like my dad. I was a veteran for almost 20 yrs before my job now- this isn’t my first rodeo, either. And, bully for you, I guess I post in more than 1 spot. I'm on Reddit and a mod in a FB group, too, you want to sleuth that out then go ahead. It doesn't make what I posted incorrect.
You’re saying you win without them. You also won based on presumptive contentions. Many vets don’t have that, or 40 yrs of medical treatment, that so an opinion of kind outside the VA is advantageous to them.
You made a blanket statement based on what worked for you. I’m telling you how it works for everyone else, and how it works during the claim process. Take it or leave it, but your blanket statement is misleading to veterans that see it and think “oh, I guess I don’t need one….” when their medical is just a list of symptoms with no discussion about what may have caused them.
Therefore some kind of opinion is going to be a lot more beneficial, especially if they get a negative opinion from a C&P. A list of symptoms alone says little of evidentiary value. /out
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I posted exactly where to look….. sounds pretty “assisty”- seems like it might be useful information - "get it?"
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11 minutes ago, Mr cue said:
This is what I see happening alot now ever post is about one.
I don't see many post a rating code for a veteran or cfr to help a veteran with there claim or to understand the condition.
And what they need to get the rating.
We have ppl getting ban over it and mad if you don't like it.
Ppl are advertising ppl. Things are really.changing.
I just want to make my point a hope veterans see these threads.
And make there own choice.
An understand you can put your claim in and the VA has a duty to assist.
Which mean 9 times out 10 they are going to send you to a comp exam.
That how the process start.
Yes you need evidence of the injury in service.
I think we all have our service medical records.
If you don't part of the va duty to assist is getting your service records and medical records.
So there is no need for u to wait to put in your claim or appeal in.
An you don't have to run around looking for doctors before you do.
This is my opinion
Treatment and records win claims and appeals.
Veterans can look at CFR38 Book C- the ratings schedule with conditions is there. The DBQs are posted publicly, also. What more do you want?
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Continuity doesn’t just mean in service. but claiming for arthritis 20 yrs after RAD with no treatment? That’s what I’m talking about. They give you an exit exam opportunity? Use it. At least mention the stuff in passing. That’s all I need most of the time to get a claim as far as at least getting exams for stuff.
They don’t? Then start going to the doc at least for a few times after you get out to establish something within the year or so after. The longer people wait the harder it is to connect without having to consider other environmental factors being the cause. For example, don’t create the opportunity to have conditions not service connected because after 20 yrs of no medical history you suddenly have arthritis or something. After 20 yrs there are too many competing possibilities to just say it’s SC because you were in. Just because something shows up now doesn’t mean it has to do with being in, back then.
That’s the point I’m trying to make.
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A nexus is not a specific form or letter- a simple statement within your medical notes or labs or whatever bout the possible etiology is enough. The records themselves are often enough if you have extensive enough treatment. Veterans have developed the idea from somewhere that they need a formal letter/IMO etc for a claim. Maybe for an appeal, but for a regular claim its the lack of medical evidence that usually causes them to be denied, not the lack of a specifically formatted letter. I see them every day- a veteran had one instance of a condition in service (not a presumptive- thats a whole different thing), and then no medical treatment afterwards, didnt note it on their exit physical, etc. No private or VAMC treatment, or just 1 visit here or there afterwards. Its now been 10 yrs after you got out and you file. There is barely medical evidence, much less enough to form any kind of Caluza connection to plausible cause by military service. Rather than focusing on getting a letter (or the lack thereof) as a reason for a claim being denied for lack of evidence focus on the denial that tells why it was denied.
For new claims I advise people not to go to 1 doctor visit and blindside them with asking for an opinion, much less telling them that you want to file a claim for disability (this goes for VAMC or private). Regardless of the opinion of your doctor about immediately asking for a decision from them about a medical connection, it doesn't lend a lot of plausibility to connect a condition now to something that may be from years ago unless you have a continuity of care from after discharge (again, not for presumptive stuff). They can't make a supposition like that without history, and without history with them. Two things. You may have tons of records from before them but it's their medical license and expertise you are expecting them to make a decision with. They aren't going to just toss out a belief about service connection or plausible connection until they have something to go on besides your word, a pile of records that they didn't have anything to do with, and no treatment history from them (yet).
I waited at least 6 months after starting to see a doctor for anything service related before I filed- to give them time to have a clinical history, and to have a treatment relationship with me. THEN I filed. It worked in every claim I filed except 1, and for that I needed an appeal to the BVA and a doctor's statement supporting my contention. The circumstances of that one were pretty specific, though, and I don't blame them for denying it the first time- its the only one that I filed after about 2 visits rather than waiting to build up more of a history.
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1 hour ago, carlos_v said:
Thank you for responding and giving me advise. Yes his PTSD has gotten worse and I read the table and he does qualify for 100%. The thing is that I didn’t know how to do this claims and now I’m getting advise from his friends that served with him and I’m getting in forums like this reaching out. One of his friend just told me to check and see if functional neurological disorder is not in the same mental health category as PTSD because it would be pyramiding.
They have their own section, yes, but some of them overlap with PTSD and other things so it depends on what is causing the neurologic deficiency. You can claim it is secondary to PTSD but id talk to your doctor and see if they can't at least definitively tell you if its its own thing or caused in some way by his PTSD. If it is, then it wouldn't get rated as its own thing under neurologic disorders, but secondary to his PTSD.
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Have a great rest of your day.
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PTSD and Ischemic heart disease are on the presumptive conditions list, ischemic heart disease since 2010, most people don't need a nexus for those unless (in the case of IHD) they filed before 2010. You can't just tell people that a medical nexus is not needed- your statement is just as misleading as what you assume you are disproving. Of course you didn’t need one, you were presumed already.
Sometimes you don't need a medical nexus.
Many times you do.
Is it usually better to have one anyway, especially if the VA examiner's opinion is the opposite of yours? Yes. Because then they have to be evaluated in equipose, rather than submitting a claim with no nexus of any kind along with some medical studies (that aren't opinions) and expecting the VA examiner to make an opinion- which they do. If its not favorable, then the rater has an opinion from a doctor, and the submitter's lay evidence. The opinion vs the lay evidence is going to weigh higher for evidentiary value, even the Court recognizes this. Will it completely sink a claim? No, a rater can go with the medical in front of them instead of just the opinion from the examiner, or they can order another opinion if they think that the examiners opinion is not fully rationalized. I send re-works and re-exams every day because of this. /Done
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Is it worse? You are asking about two different things- the neurological symptoms and the PTSD. At the end of it, you can claim whatever you want. Just make sure that you have some support in your medical stuff behind it. You can see the criteria for 100% PTSD in CFR38 Book C. Compare that to his symptoms through the lens of 'his worst days" and see how it lines up with the criteria for 100% PTSD. https://www.ecfr.gov/current/title-38/chapter-I/part-4#4.130 Scroll down a bit and you'll see the table.
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You know where you can put your 'sport'- you aren't my dad and i'm not a child.
I cited just like you did, and I used the full text. If you are going to cite text to support an opinion of yours as a guide to others at least use the entire contextual paragraph instead of cherry picking.
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If his doctors already established the causality (the PTSD) then you just have to file a claim for secondary connection to the PTSD. Loss of use is only a fixed payment of approximately 110.00 a month. You'd probably be better served by filing both for loss of use AND secondary service connection so that it is considered both on its own and under loss of use- the potential for a higher rating from that is considerably better since VA has to take the higher of the two.
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I have no problem with self representation/ I did it myself. In research, however, if you aren’t part of the study it’s not relevant to you. I know this because I’ve written some (not for medical things, but for other areas) while working in my masters area. If VA if different, that’s great. However, your cited text also says that the veteran is already diagnosed with the condition- an important part of Henlsey. Hensley doesn't establish that no plausible connection needs to exist other than the lay observation from the veteran and a pile of medical journal studies, and there are also CAVC limitations on the application of lay evidence towards establishing a nexus.
The United States Court of Appeals for Veterans Claims (the Court) has held that "[g]enerally, an attempt to establish a medical nexus to a disease or injury solely by generic information in a medical journal or treatise is too general and inconclusive." Mattern v. West, 12 Vet. App. 222, 228 (1999) (citing Sacks v. West, 11 Vet. App. 314, 317 (1998)). The Court has, however, also held that medical treatise evidence "standing alone, discusses generic relationships with a degree of certainty such that, under the facts of a specific case, there is at least plausible causality based upon objective facts rather than on an unsubstantiated lay medical opinion." Wallin v. West, 11 Vet. App. 509, 514 (1998) (citing Sacks, 11 Vet. App. at 317). The United States Court of Appeals for Federal Circuit (the Federal Circuit) held that "[a] veteran with a competent medical diagnosis of a current disorder may invoke an accepted medical treatise in order to establish the required nexus; in an appropriate case it should not be necessary to obtain the services of medical personnel to show how the treatise applies to his [or her] case." Hensley v. West, 212 F.3d 1255, 1265 (2000).
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The medical journals don't matter unless they apply to you, or to at least your condition or root cause i.e. tbi as an example. Medical studies are done with specific criteria in mind and if you don't meet the criteria for whatever he study participants were selected for then the studies findings don't directly apply to you- they are anecdotal, and not significant to you, unless your doctor says it is.
Insomnia isn't a separate condition under VA standards because it isn't a separate clinically diagnosable condition if its related to a mental health issue- insomnia presents under almost every mental health issue in the DSM V. If its organic then you can do OSA or respiratory (if in general related to breathing). Many vets go straight for OSA for sleep issues and get denied because they don't have OSA. OSA is not 'not sleeping', or "can't sleep because my COPD/Deviated septum, whatever is exacerbating sleep patterns", its a clinically significant diagnosable condition with very direct etiologies and a specific diagnosis.
You can file for it both ways if you want to, there is nothing stopping you. I see vet claims every day with a condition claimed 5 different ways for 5 different reasons, even if the reasons have nothing to do with what they are claiming. It all gets evaluated under the relevant DBQs for whatever they claimed, it just takes a lot longer.
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Are you evaluated for sleep apnea? Otherwise it would be mental issues if not organic, OSA if you are diagnosed, or it would be secondary to whatever organ system is causing the insomnia. Same with the CFR. OSA if dx, otherwise MH or whatever organic system is causing it.
Not Sure - Would Really Like a Consensus
in VA Disability Claims Research
Posted
Probably a good idea, especially if you have continuing or new evidence to submit.