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Found 1,906 results

  1. First things first, any VA rating is subject to a re-evaluation if VA believes that a veteran disability has improved. The re-evaluation could go either way as to being increased or a letter for reduction. Now with that being said, once a veteran receives a P & T rating, the veteran is not likely subject to a re-evaluation. Even if the veteran files new claims once he/she is adjudicated to be P & T that rating will stay unless the veteran goes back to work or the veteran has a serious earn income raise. IMHO, if a veteran is rated TDIU P & T or 100% P & T and continues to work with a P & T rating VA can re-evaluate their ratings. I know with TDIU there is a SGA (Substantial Gainful Activity) but any income could cause a re-evaluation. Keep in mind that a veteran can also claim and receive SSDI (Social Security Disability Insurance). Instead of going back to work find a hobby, help other veterans, volunteer, read books. I know with physical limitations it is not possible to go fishing but find something else to do. Yes, I also know about the 5, 10, and 20 years rules. Keep in mind that the P & T rating simply means that the disability/disease is likely to last the rest of the veteran's lifetime. VA is hoping with medical advances that some veterans will get better.
  2. This is a 2 part question: Am I a good candidate for Voc Rehab even with a criminal background? Am I a good candidate for TDIU because my criminal background (which I attribute to acquiring through my PTSD) is preventing me from finding gainful employment? I have applied for Voc Rehab and I am to meet with a counselor in a few weeks to go over my disability (70% PTSD) and to decide if I am to be a good fit for Voc Rehab. I want to request that they allow and pay for me to go back to the local college for my bachelors in computer science. However, one of the serious (in my opinion) barriers to employment that I face is my criminal background. A D.U.I and a Domestic Violence conviction (I threw a plaque out of anger and it put a dime size hole in my apartment wall, this was by accident, but all employers see is Domestic Violence and don't care to hear the rest). Anyway, I got these charges literally right after I got out of the military and back from my second tour in Afghanistan. Things got worse from there but I feel I'm on the upswing at the moment. I have been offered 3 full time jobs this past year just to be later told, "oh you failed the background check, never mind". That's after applying to about 50 jobs, only getting 5 interviews, then receiving a job offer only 3 times, then being told all 3 times, "no, because of your background." The convictions are 3 years old (2012), the state of Texas allows employers to look back up to 7 years, I don't see myself getting around it. At my C&P exam the examiner took an interest in my criminal record, I'm assuming she attributed my PTSD for leading into these criminal charges. That's how I feel at least; I didn't drink alcohol or have violent outbursts before I joined the military. Look, I understand that some jobs will or may look past your criminal history. The problem is, I haven't found a job that will look past my criminal history that will pay a wage that I can live on. I feel really scared because the 70% is not enough to meet my financial obligations and take care of my son and so far I've had no luck getting around my criminal history to be gainfully employed. So I'm thinking, be completely upfront with Voc Rehab about my barriers, and if they decide I'm a good fit than do my best to be retrained and be cooperative as they try to place me in suitable (I'm assuming that's how it works) employment. Or, if they decide I'm not a good fit, take the denial letter for Voc Rehab and apply for TDIU. Either way, I have to do something. My ultimate goal is to be able to pay my bills on time and take care of my son and myself. If I would have received either of those 3 job offers this past year than I'd have already accomplished that. But at this point, I'm desperate. Your advice is greatly appreciated.
  3. Just talked an ro out of st. Paul. They are still denying aid and attendance for tbi n residuals. He said under 38cfr3.352 (a) I have to have 100% scheduler I read cfr and not true. I've been 100% permanent and total since 2008. Tdiu rating. My current overall rating is 90%.
  4. If any of us do hit the 20 year mark being TDIU for that entire 20 years then I assume your TDIU rating becomes permanent and untouchable. Does this mean the VA just grants you a permanent rate of 100% or a permanent rate of TDIU? I sure won't be young enough to go out and start working as I will be 71 years old when I get 20 years at TDIU. However, according to what I understand I could go get a job if I wanted to and nothing the VA could do about it. I just wish the VA would convert all of us P&T TDIU vets to straight 100% so we would not have periodic scares regarding having TDIU taken away when we reach full retirement age.
  5. I was concurrently receiving 70% disability and my retirement pay. I was just awarded unemployability and according to the approval letter it states since my disability is more than my retirement pay I will now not be receiving my retirement pay anymore. I just see the disability pending for the EOM for Jan. This is a big difference in pay, even if I include the tax free benefits I will now receive. DFAS states I should receive both. Did anything change recently, that I don't know of? If this is the case can I decline the IU? Thanks for the input and actually still surprised that got approved.
  6. Posted it before but not as detailed: I hope no vet or their survivor even needs to use this regulation but here it is: If ever needed by anyone An established 100% SC P & T disability plus an established independent 1151 100% P & T disability is paid as within these 1151 M21 regulations. The payment should be 100% for the SC AND Payment for the 100% 1151. The VA takes the SC 100 % and subtracts the 1151 100% and per Section 35 G, under 35 b, Step 3. Their is no payment offset from the 100% SC to the 1151 100% and vice versa. Section G. Benefits Under 38 U.S.C. 1151 Overview In this Section This section contains the following topics: Topic Topic Name See Page 33 General Information on Entitlement to Benefits Under 38 U.S.C. 1151 2-G-2 34 Determining Entitlement to Benefits Under 38 U.S.C. 1151 2-G-8 35 Preparing a Rating Decision Involving a Claim for Benefits Under 38 U.S.C. 1151 2-G-11 33. General Information on Entitlement to Benefits Under 38 U.S.C. 1151 Introduction This topic contains general information on entitlement to benefits under 38 U.S.C. 1151, including information on · benefits under 38 U.S.C. 1151 · qualifying disability or death under 38 U.S.C. 1151 · determining whether additional disability exists · establishing that VA fault was the proximate cause of disability or death · the definitions of express consent and implied consent · establishing that an event was not reasonably foreseeable · entitlement to compensation under 38 U.S.C. 1151 vs. service connection · considering direct and presumptive service connection · obtaining independent medical evidence and medical opinions, and · additional disability or death resulting from treatment or care in a non-VA facility under VA contract. Change Date September 5, 2008 Continued on next page 33. General Information on Entitlement to Benefits Under 38 U.S.C. 1151, Continued a. Benefits Under 38 U.S.C. 1151 38 U.S.C. 1151 provides for the payment of compensation for additional disability or death that is · not the result of the veteran’s willful misconduct, and · attributable to - hospital care, medical or surgical treatment, or examination furnished the veteran under any law administered by the Secretary, either by a VA employee or in a VA facility as defined in 38 U.S.C. 1701(3)(A) - participation in vocational rehabilitation training under 38 U.S.C. Chapter 31, or - participation in compensated work therapy (CWT). Award benefits for qualifying additional disability or death under 38 U.S.C. 1151 in the same manner as if the disability or death were service-connected (SC). Note: Per VAOPGCPREC 8-97, compensation may be paid for disability that is secondary to disability for which compensation is payable under 38 U.S.C. 1151. Reference: For more information on entitlement to compensation or DIC under the provisions of 38 U.S.C. 1151, see 38 CFR 3.361. Continued on next page 33. General Information on Entitlement to Benefits Under 38 U.S.C. 1151, Continued b. Qualifying Disability or Death Under 38 U.S.C. 1151 In order to meet the qualifications of 38 U.S.C. 1151, the proximate cause of additional disability or death must be · carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA in furnishing the hospital care, medical or surgical treatment, or examination · an event not reasonably foreseeable, or · the provision of - training and rehabilitation by VA or one of its service providers as part of an approved rehabilitation program under 38 U.S.C. Chapter 31, or - a CWT program. Notes: · The eligibility requirement that fault on the part of the VA be found, or that death or disability be the result of an unforeseeable event, applies only to claims received on or after October 1, 1997. · Eligibility based on participation in a CWT program is restricted to claims that were pending or received on or after November 1, 2000. · Evidence showing that a veteran received VA medical care, treatment, or examination, and that the veteran has an additional disability or died, does not establish proximate cause. Reference: For more information on proximate cause, see 38 CFR 3.361(d). c. Determining Whether Additional Disability Exists To determine whether a veteran has incurred additional disability under 38 U.S.C. 1151, compare the veteran’s condition immediately before the beginning of the VA medical care, training, or CWT program on which the claim is based to his/her condition afterwards. Note: Each body part should be compared separately. Reference: For more information on determining whether a veteran has incurred additional disability, see 38 CFR 3.361(b). Continued on next page 33. General Information on Entitlement to Benefits Under 38 U.S.C. 1151, Continued d. Establishing Fault on the Part of VA To establish that fault on the part of VA in furnishing medical care, treatment or examination was the proximate cause of a veteran’s disability or death, the evidence must show that · the medical care, treatment, or examination caused the additional disability or death, and · VA - failed to exercise the degree of care that would have been expected of a reasonable health-care provider, or - furnished the care without the veteran’s or veteran’s representative’s informed consent. e. Definitions: Express Consent and Implied Consent Express consent is consent that has been clearly stated either orally or in writing. Implied consent is consent that may be inferred from the circumstances in the case. Example: If a veteran requires emergency care to preserve life or prevent serious impairment to health, and the veteran or his/her representative is unable to consent orally or in writing, then consent is implied. f. Establishing That an Event Was Not Reasonably Foreseeable An event is considered “not reasonably foreseeable” if it is not the type of risk that would be disclosed as part of the informed consent procedures shown in 38 CFR 17.32. The incident need not be completely unimaginable, but it must be one that a reasonable health-care provider would not consider an ordinary risk of the treatment provided. Continued on next page 33. General Information on Entitlement to Benefits Under 38 U.S.C. 1151, Continued g. Entitlement to Compensation Under 38 U.S.C. 1151 vs. Service Connection Although compensation or DIC is payable under 38 U.S.C. 1151 as if the additional disability or death were SC, the additional disability or death is not actually SC. h. Considering Direct and Presumptive Service Connection Do not put direct service connection at issue if the only issue raised is compensation under 38 U.S.C. 1151, and the disability is clearly one that arose many years after service or coincident with treatment. Note: Undertake development and consider awarding service connection on a presumptive basis if the disability in question arose within the applicable presumptive period following release from active duty. i. Obtaining Independent Medical Evidence and Medical Opinions To clarify whether the care, treatment, or examination at issue resulted in additional disability or death, it may be necessary to obtain · a medical opinion from a VA medical facility as shown in M21-1MR, Part III, Subpart iv, 3.A.9 · independent medical evidence, such as - a medical statement provided by a regional office (RO) rating specialist who is a qualified medical professional, such as a physician, physician’s assistant, or registered nurse, and not a signatory to the rating, or - information from a medical treatise, such as The Merck Manual of Diagnosis and Therapy, Cecil Textbook of Medicine, or Physician’s Desk Reference (PDR), and/or · an independent medical opinion under 38 CFR 3.328, but only when warranted by the medical complexity or controversy involved in the case. Reference: For more information on obtaining independent medical opinions under 38 CFR 3.328, see M21-1MR, Part III, Subpart iv, 3.A.9.f through i. Continued on next page 33. General Information on Entitlement to Benefits Under 38 U.S.C. 1151, Continued j. Disability or Death Resulting From Treatment or Care in a Non-VA Facility Under VA Contract Hospital care, for the purposes of establishing entitlement to compensation under 38 U.S.C. 1151, does not include treatment or care provided in a non-VA facility under VA contract. VA treatment or examination resulting in additional disability or death coincident with a veteran’s residence in a contracted non-VA facility might result in eligibility under 38 U.S.C. 1151. Reference: For more information, see 38 CFR 3.361(f). 34. Determining Entitlement to Benefits Under 38 U.S.C. 1151 Introduction This topic contains information on considering entitlement to benefits under 38 U.S.C. 1151, including information on · disability resulting from - an examination - an act of omission - a premature discharge - medication, and/or - vocational rehabilitation training or a CWT program, and · disability resulting from veteran’s failure to follow medical instructions. Change Date September 5, 2008 a. Considering Compensation for Disability Resulting From an Examination 38 U.S.C. 1151 authorizes compensation for disability resulting from a veteran’s “having submitted to an examination” under any law administered by VA. Note: The U.S. Court of Appeals for Veterans Claims (CAVC) has interpreted this portion of the statute to mean that compensation is payable only for injuries that result from the examination itself, not from the process of reporting for the examination. Example: A veteran injured by another patient while awaiting the start of his/her scheduled VA examination would not qualify for compensation for residuals of that injury under 38 U.S.C. 1151. Reference: For more information on compensation for a disability resulting from VA examination, see Sweitzer v. Brown, 5 Vet. App. 503 (1993). Continued on next page 34. Determining Entitlement to Benefits Under 38 U.S.C. 1151, Continued b. Considering Compensation for Disability Resulting From an Act of Omission Entitlement to compensation under 38 U.S.C. 1151 may be based on acts of omission as well as acts of commission. A veteran may be entitled to benefits under 38 U.S.C. 1151 if VA failed to perform one of the following actions: · timely diagnose or properly treat a disability, thereby causing increased disability or death, and/or · obtain informed consent from the veteran or the veteran’s representative prior to treatment. Note: The natural progression, that is, worsening, of a disease or injury may be the basis of eligibility under 38 U.S.C. 1151 only if it is attributable to VA’s failure to timely diagnose or properly treat the disease or injury. References: For more information on · informed consent, see 38 CFR 17.34, and · the natural progression of a disease or injury, see 38 CFR 3.361©(2). c. Considering Compensation for Disability Resulting From Premature Discharge Compensation may be payable under 38 U.S.C. 1151 when a physician determines that a patient should be discharged from a hospital after a period of treatment, but the patient claims that the discharge · was too early, and · lead to a relapse and worsening of the disability. Consider whether the timing of the discharge aggravated the disability beyond the level of natural progression (that is, worsening). Notes: · Development should include a request for a medical certificate indicating that the - veteran’s condition at discharge was not stable, and - discharge was premature. · A medical opinion may be necessary in such a case. Continued on next page 34. Determining Entitlement to Benefits Under 38 U.S.C. 1151, Continued d. Considering Compensation for Disability Resulting From Medication Compensation is payable under 38 U.S.C. 1151 for any disability caused by medication that was prescribed by VA and taken or administered as prescribed, if the disability was directly due to · fault on the part of the VA, or · an incident that could not have been reasonably foreseen. Example: Compensation is payable under 38 U.S.C. 1151 if · VA prescribed a medication at ten times the proper dosage, and · additional permanent disability or death resulted from the erroneous prescription. e. Considering Compensation for Disability Resulting From Vocational Rehabilitation Training or a CWT Program Compensation may be payable under 38 U.S.C. 1151 for disability resulting from the veteran’s participation in an essential activity or function of vocational rehabilitation training or a CWT program. It need not be shown that VA approved the specific activity that resulted in disability, as long as the activity is considered a necessary component of the training or work therapy VA authorized. Reference: For more information, see 38 CFR 3.361(d)(3). f. Disability Resulting From Veteran’s Failure to Follow Instructions In some cases, the evidence will show that, following VA treatment or surgery, the veteran · failed to follow post-treatment medical instructions, and · incurred or aggravated a disability that would not have developed had he/she followed instructions. In such cases, this failure may constitute an intercurrent cause, thereby precluding payment of benefits under 38 U.S.C. 1151. 35. Preparing a Rating Decision Involving a Claim for Benefits Under 38 U.S.C. 1151 Introduction This topic contains information on preparing a rating decision involving a claim for benefits under 38 U.S.C.1151, including information on · determining entitlement to benefits for an additional disability · determining the additional degree of disability · preparing the Reasons for Decision · making uncorroborated conclusions in the rating decision · combining the disability ratings of qualifying disabilities under 38 U.S.C. 1151 and SC disabilities · possible eligibility for ancillary benefits · ancillary benefits not available by reason of a qualifying disability under 38 U.S.C. 1151, and · obtaining an advisory opinion. Change Date September 5, 2008 a. Determining Entitlement to Benefits for Additional Disability Establish entitlement to benefits for an additional disability under 38 U.S.C. 1151, if the evidence shows aggravation of a nonservice-connected (NSC), pre-existing condition as a result of · VA medical treatment or examination · a course of vocational rehabilitation, or · a CWT program. Continued on next page 35. Preparing a Rating Decision Involving a Claim for Benefits Under 38 U.S.C. 1151, Continued b. Determining the Additional Degree of Disability Follow the steps in the table below to determine the additional degree of disability for which benefits are payable under 38 U.S.C. 1151. Step Action 1 Determine the current level of disability (expressed as a percentage) based on all the symptoms and findings. 2 Determine the level of disability prior to the treatment or examination, vocational rehabilitation, or participation in CWT that resulted in additional disability. 3 Subtract the percentage of disability reached in step 2 from the percentage of disability reached in step 1. Notes: · If the percentage of disability in step 1 is 100 , do not subtract the percentage of disability in step 2, even if it is also 100. · If a percentage of disability cannot be determined in step 2, no subtraction may be made. Reference: For more information on rating a disability for which compensation is payable under 38 U.S.C. 1151 as if it were SC, see VAOPGCPREC 4-2001. c. Preparing the Reasons for Decision Provide an adequate discussion of the factual bases for the claim in the Reasons for Decision section of the rating decision. Indicate whatever surgery, treatment, or therapy was provided. If VA treatment is found to have been erroneous, resulting in an additional disability, discuss such fault as the basis of an award of benefits under 38 U.S.C. 1151. Continued on next page 35. Preparing a Rating Decision Involving a Claim for Benefits Under 38 U.S.C. 1151, Continued d. Making Uncorroborated Conclusions in the Rating Decision Do not make uncorroborated conclusions in the rating decision that a relationship between the treatment, surgery, or medication provided and the claimed disability does not exist. Example: Without corroborating medical evidence, a Rating Veterans Service Representative (RVSR) may not simply state that · the evidence does not show a myelogram caused a claimant’s tinnitus, or · it is unlikely that the veteran’s medications caused a claimed side effect. Reference: For information on evaluating medical evidence for a rating decision, see M21-1MR, Part III, Subpart iv, 5.5. e. Combining the Disability Ratings of Qualifying Disabilities Under 38 U.S.C. 1151 and SC Disabilities Combine the disability rating(s) assigned to disabilities for which compensation is payable under 38 U.S.C. 1151 with the disability ratings assigned to SC disabilities, as if the former were service-connected. If two or more disabilities (at least one being a qualifying disability under 38 U.S.C. 1151) are rated 0 percent disabling but interfere with the veteran’s employability, the assignment of a 10 percent disability rating under 38 CFR 3.324 is acceptable. Note: 38 U.S.C. 1151 disabilities may serve as the basis of an individual unemployability (IU) award. f. Possible Eligibility for Ancillary Benefits A veteran with a qualifying disability under 38 U.S.C. 1151 may also be eligible for · a clothing allowance · specially adapted housing benefits, including a special housing adaptation grant, and · an automobile or adaptive equipment benefits. Reference: For more information on ancillary benefits, see · M21-1MR, Part IX, Subpart i · M21-1MR, Part III, Subpart iv, 6.B.3, and · M21-1MR, Part IV, Subpart iii, 3.G.39.d. Continued on next page 35. Preparing a Rating Decision Involving a Claim for Benefits Under 38 U.S.C. 1151, Continued g. Ancillary Benefits Not Available by Reason of a Qualifying Disability Under 38 U.S.C. 1151 The following ancillary benefits are not available by reason of a qualifying disability under 38 U.S.C. 1151: · Service Disabled Veteran (RH) Insurance · the Civilian Health and Medical Program of VA (CHAMPVA) · waiver of the loan guaranty funding fee · 38 U.S.C. Chapter 31 education benefits · 38 U.S.C. Chapter 35 education benefits · the 10-point Civil Service Preference · the special allowances under 38 U.S.C. 1312(a) and Public Law (PL) 87-377, Section 156, Restored Entitlement Program for Survivors (REPS) · SC burial allowance, and · loan guaranty benefits for a surviving spouse. h. Obtaining an Advisory Opinion Submit unusually difficult cases involving claims for compensation under 38 U.S.C. 1151 to VA Central Office (CO) (211B) for an advisory opinion. Reference: For more information on CO guidance and advisory opinions, see M21-1MR, Part III, Subpart vi, 1. Section G. Benefits Under 38 U.S.C. 1151 Overview In this Section This section contains the following topics: Topic Topic Name See Page 33 General Information on Entitlement to Benefits Under 38 U.S.C. 1151 2-G-2 34 Determining Entitlement to Benefits Under 38 U.S.C. 1151 2-G-8 35 Preparing a Rating Decision Involving a Claim for Benefits Under 38 U.S.C. 1151 2-G-11 33. General Information on Entitlement to Benefits Under 38 U.S.C. 1151 Introduction This topic contains general information on entitlement to benefits under 38 U.S.C. 1151, including information on · benefits under 38 U.S.C. 1151 · qualifying disability or death under 38 U.S.C. 1151 · determining whether additional disability exists · establishing that VA fault was the proximate cause of disability or death · the definitions of express consent and implied consent · establishing that an event was not reasonably foreseeable · entitlement to compensation under 38 U.S.C. 1151 vs. service connection · considering direct and presumptive service connection · obtaining independent medical evidence and medical opinions, and · additional disability or death resulting from treatment or care in a non-VA facility under VA contract. Change Date September 5, 2008 Continued on next page 33. General Information on Entitlement to Benefits Under 38 U.S.C. 1151, Continued a. Benefits Under 38 U.S.C. 1151 38 U.S.C. 1151 provides for the payment of compensation for additional disability or death that is · not the result of the veteran’s willful misconduct, and · attributable to - hospital care, medical or surgical treatment, or examination furnished the veteran under any law administered by the Secretary, either by a VA employee or in a VA facility as defined in 38 U.S.C. 1701(3)(A) - participation in vocational rehabilitation training under 38 U.S.C. Chapter 31, or - participation in compensated work therapy (CWT). Award benefits for qualifying additional disability or death under 38 U.S.C. 1151 in the same manner as if the disability or death were service-connected (SC). Note: Per VAOPGCPREC 8-97, compensation may be paid for disability that is secondary to disability for which compensation is payable under 38 U.S.C. 1151. Reference: For more information on entitlement to compensation or DIC under the provisions of 38 U.S.C. 1151, see 38 CFR 3.361. Continued on next page 33. General Information on Entitlement to Benefits Under 38 U.S.C. 1151, Continued b. Qualifying Disability or Death Under 38 U.S.C. 1151 In order to meet the qualifications of 38 U.S.C. 1151, the proximate cause of additional disability or death must be · carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA in furnishing the hospital care, medical or surgical treatment, or examination · an event not reasonably foreseeable, or · the provision of - training and rehabilitation by VA or one of its service providers as part of an approved rehabilitation program under 38 U.S.C. Chapter 31, or - a CWT program. Notes: · The eligibility requirement that fault on the part of the VA be found, or that death or disability be the result of an unforeseeable event, applies only to claims received on or after October 1, 1997. · Eligibility based on participation in a CWT program is restricted to claims that were pending or received on or after November 1, 2000. · Evidence showing that a veteran received VA medical care, treatment, or examination, and that the veteran has an additional disability or died, does not establish proximate cause. Reference: For more information on proximate cause, see 38 CFR 3.361(d). c. Determining Whether Additional Disability Exists To determine whether a veteran has incurred additional disability under 38 U.S.C. 1151, compare the veteran’s condition immediately before the beginning of the VA medical care, training, or CWT program on which the claim is based to his/her condition afterwards. Note: Each body part should be compared separately. Reference: For more information on determining whether a veteran has incurred additional disability, see 38 CFR 3.361(b). Continued on next page 33. General Information on Entitlement to Benefits Under 38 U.S.C. 1151, Continued d. Establishing Fault on the Part of VA To establish that fault on the part of VA in furnishing medical care, treatment or examination was the proximate cause of a veteran’s disability or death, the evidence must show that · the medical care, treatment, or examination caused the additional disability or death, and · VA - failed to exercise the degree of care that would have been expected of a reasonable health-care provider, or - furnished the care without the veteran’s or veteran’s representative’s informed consent. e. Definitions: Express Consent and Implied Consent Express consent is consent that has been clearly stated either orally or in writing. Implied consent is consent that may be inferred from the circumstances in the case. Example: If a veteran requires emergency care to preserve life or prevent serious impairment to health, and the veteran or his/her representative is unable to consent orally or in writing, then consent is implied. f. Establishing That an Event Was Not Reasonably Foreseeable An event is considered “not reasonably foreseeable” if it is not the type of risk that would be disclosed as part of the informed consent procedures shown in 38 CFR 17.32. The incident need not be completely unimaginable, but it must be one that a reasonable health-care provider would not consider an ordinary risk of the treatment provided. Continued on next page 33. General Information on Entitlement to Benefits Under 38 U.S.C. 1151, Continued g. Entitlement to Compensation Under 38 U.S.C. 1151 vs. Service Connection Although compensation or DIC is payable under 38 U.S.C. 1151 as if the additional disability or death were SC, the additional disability or death is not actually SC. h. Considering Direct and Presumptive Service Connection Do not put direct service connection at issue if the only issue raised is compensation under 38 U.S.C. 1151, and the disability is clearly one that arose many years after service or coincident with treatment. Note: Undertake development and consider awarding service connection on a presumptive basis if the disability in question arose within the applicable presumptive period following release from active duty. i. Obtaining Independent Medical Evidence and Medical Opinions To clarify whether the care, treatment, or examination at issue resulted in additional disability or death, it may be necessary to obtain · a medical opinion from a VA medical facility as shown in M21-1MR, Part III, Subpart iv, 3.A.9 · independent medical evidence, such as - a medical statement provided by a regional office (RO) rating specialist who is a qualified medical professional, such as a physician, physician’s assistant, or registered nurse, and not a signatory to the rating, or - information from a medical treatise, such as The Merck Manual of Diagnosis and Therapy, Cecil Textbook of Medicine, or Physician’s Desk Reference (PDR), and/or · an independent medical opinion under 38 CFR 3.328, but only when warranted by the medical complexity or controversy involved in the case. Reference: For more information on obtaining independent medical opinions under 38 CFR 3.328, see M21-1MR, Part III, Subpart iv, 3.A.9.f through i. Continued on next page 33. General Information on Entitlement to Benefits Under 38 U.S.C. 1151, Continued j. Disability or Death Resulting From Treatment or Care in a Non-VA Facility Under VA Contract Hospital care, for the purposes of establishing entitlement to compensation under 38 U.S.C. 1151, does not include treatment or care provided in a non-VA facility under VA contract. VA treatment or examination resulting in additional disability or death coincident with a veteran’s residence in a contracted non-VA facility might result in eligibility under 38 U.S.C. 1151. Reference: For more information, see 38 CFR 3.361(f). 34. Determining Entitlement to Benefits Under 38 U.S.C. 1151 Introduction This topic contains information on considering entitlement to benefits under 38 U.S.C. 1151, including information on · disability resulting from - an examination - an act of omission - a premature discharge - medication, and/or - vocational rehabilitation training or a CWT program, and · disability resulting from veteran’s failure to follow medical instructions. Change Date September 5, 2008 a. Considering Compensation for Disability Resulting From an Examination 38 U.S.C. 1151 authorizes compensation for disability resulting from a veteran’s “having submitted to an examination” under any law administered by VA. Note: The U.S. Court of Appeals for Veterans Claims (CAVC) has interpreted this portion of the statute to mean that compensation is payable only for injuries that result from the examination itself, not from the process of reporting for the examination. Example: A veteran injured by another patient while awaiting the start of his/her scheduled VA examination would not qualify for compensation for residuals of that injury under 38 U.S.C. 1151. Reference: For more information on compensation for a disability resulting from VA examination, see Sweitzer v. Brown, 5 Vet. App. 503 (1993). Continued on next page 34. Determining Entitlement to Benefits Under 38 U.S.C. 1151, Continued b. Considering Compensation for Disability Resulting From an Act of Omission Entitlement to compensation under 38 U.S.C. 1151 may be based on acts of omission as well as acts of commission. A veteran may be entitled to benefits under 38 U.S.C. 1151 if VA failed to perform one of the following actions: · timely diagnose or properly treat a disability, thereby causing increased disability or death, and/or · obtain informed consent from the veteran or the veteran’s representative prior to treatment. Note: The natural progression, that is, worsening, of a disease or injury may be the basis of eligibility under 38 U.S.C. 1151 only if it is attributable to VA’s failure to timely diagnose or properly treat the disease or injury. References: For more information on · informed consent, see 38 CFR 17.34, and · the natural progression of a disease or injury, see 38 CFR 3.361©(2). c. Considering Compensation for Disability Resulting From Premature Discharge Compensation may be payable under 38 U.S.C. 1151 when a physician determines that a patient should be discharged from a hospital after a period of treatment, but the patient claims that the discharge · was too early, and · lead to a relapse and worsening of the disability. Consider whether the timing of the discharge aggravated the disability beyond the level of natural progression (that is, worsening). Notes: · Development should include a request for a medical certificate indicating that the - veteran’s condition at discharge was not stable, and - discharge was premature. · A medical opinion may be necessary in such a case. Continued on next page 34. Determining Entitlement to Benefits Under 38 U.S.C. 1151, Continued d. Considering Compensation for Disability Resulting From Medication Compensation is payable under 38 U.S.C. 1151 for any disability caused by medication that was prescribed by VA and taken or administered as prescribed, if the disability was directly due to · fault on the part of the VA, or · an incident that could not have been reasonably foreseen. Example: Compensation is payable under 38 U.S.C. 1151 if · VA prescribed a medication at ten times the proper dosage, and · additional permanent disability or death resulted from the erroneous prescription. e. Considering Compensation for Disability Resulting From Vocational Rehabilitation Training or a CWT Program Compensation may be payable under 38 U.S.C. 1151 for disability resulting from the veteran’s participation in an essential activity or function of vocational rehabilitation training or a CWT program. It need not be shown that VA approved the specific activity that resulted in disability, as long as the activity is considered a necessary component of the training or work therapy VA authorized. Reference: For more information, see 38 CFR 3.361(d)(3). f. Disability Resulting From Veteran’s Failure to Follow Instructions In some cases, the evidence will show that, following VA treatment or surgery, the veteran · failed to follow post-treatment medical instructions, and · incurred or aggravated a disability that would not have developed had he/she followed instructions. In such cases, this failure may constitute an intercurrent cause, thereby precluding payment of benefits under 38 U.S.C. 1151. 35. Preparing a Rating Decision Involving a Claim for Benefits Under 38 U.S.C. 1151 Introduction This topic contains information on preparing a rating decision involving a claim for benefits under 38 U.S.C.1151, including information on · determining entitlement to benefits for an additional disability · determining the additional degree of disability · preparing the Reasons for Decision · making uncorroborated conclusions in the rating decision · combining the disability ratings of qualifying disabilities under 38 U.S.C. 1151 and SC disabilities · possible eligibility for ancillary benefits · ancillary benefits not available by reason of a qualifying disability under 38 U.S.C. 1151, and · obtaining an advisory opinion. Change Date September 5, 2008 a. Determining Entitlement to Benefits for Additional Disability Establish entitlement to benefits for an additional disability under 38 U.S.C. 1151, if the evidence shows aggravation of a nonservice-connected (NSC), pre-existing condition as a result of · VA medical treatment or examination · a course of vocational rehabilitation, or · a CWT program. Continued on next page 35. Preparing a Rating Decision Involving a Claim for Benefits Under 38 U.S.C. 1151, Continued b. Determining the Additional Degree of Disability Follow the steps in the table below to determine the additional degree of disability for which benefits are payable under 38 U.S.C. 1151. Step Action 1 Determine the current level of disability (expressed as a percentage) based on all the symptoms and findings. 2 Determine the level of disability prior to the treatment or examination, vocational rehabilitation, or participation in CWT that resulted in additional disability. 3 Subtract the percentage of disability reached in step 2 from the percentage of disability reached in step 1. Notes: · If the percentage of disability in step 1 is 100 , do not subtract the percentage of disability in step 2, even if it is also 100. · If a percentage of disability cannot be determined in step 2, no subtraction may be made. Reference: For more information on rating a disability for which compensation is payable under 38 U.S.C. 1151 as if it were SC, see VAOPGCPREC 4-2001. c. Preparing the Reasons for Decision Provide an adequate discussion of the factual bases for the claim in the Reasons for Decision section of the rating decision. Indicate whatever surgery, treatment, or therapy was provided. If VA treatment is found to have been erroneous, resulting in an additional disability, discuss such fault as the basis of an award of benefits under 38 U.S.C. 1151. Continued on next page 35. Preparing a Rating Decision Involving a Claim for Benefits Under 38 U.S.C. 1151, Continued d. Making Uncorroborated Conclusions in the Rating Decision Do not make uncorroborated conclusions in the rating decision that a relationship between the treatment, surgery, or medication provided and the claimed disability does not exist. Example: Without corroborating medical evidence, a Rating Veterans Service Representative (RVSR) may not simply state that · the evidence does not show a myelogram caused a claimant’s tinnitus, or · it is unlikely that the veteran’s medications caused a claimed side effect. Reference: For information on evaluating medical evidence for a rating decision, see M21-1MR, Part III, Subpart iv, 5.5. e. Combining the Disability Ratings of Qualifying Disabilities Under 38 U.S.C. 1151 and SC Disabilities Combine the disability rating(s) assigned to disabilities for which compensation is payable under 38 U.S.C. 1151 with the disability ratings assigned to SC disabilities, as if the former were service-connected. If two or more disabilities (at least one being a qualifying disability under 38 U.S.C. 1151) are rated 0 percent disabling but interfere with the veteran’s employability, the assignment of a 10 percent disability rating under 38 CFR 3.324 is acceptable. Note: 38 U.S.C. 1151 disabilities may serve as the basis of an individual unemployability (IU) award. f. Possible Eligibility for Ancillary Benefits A veteran with a qualifying disability under 38 U.S.C. 1151 may also be eligible for · a clothing allowance · specially adapted housing benefits, including a special housing adaptation grant, and · an automobile or adaptive equipment benefits. Reference: For more information on ancillary benefits, see · M21-1MR, Part IX, Subpart i · M21-1MR, Part III, Subpart iv, 6.B.3, and · M21-1MR, Part IV, Subpart iii, 3.G.39.d. Continued on next page 35. Preparing a Rating Decision Involving a Claim for Benefits Under 38 U.S.C. 1151, Continued g. Ancillary Benefits Not Available by Reason of a Qualifying Disability Under 38 U.S.C. 1151 The following ancillary benefits are not available by reason of a qualifying disability under 38 U.S.C. 1151: · Service Disabled Veteran (RH) Insurance · the Civilian Health and Medical Program of VA (CHAMPVA) · waiver of the loan guaranty funding fee · 38 U.S.C. Chapter 31 education benefits · 38 U.S.C. Chapter 35 education benefits · the 10-point Civil Service Preference · the special allowances under 38 U.S.C. 1312(a) and Public Law (PL) 87-377, Section 156, Restored Entitlement Program for Survivors (REPS) · SC burial allowance, and · loan guaranty benefits for a surviving spouse. h. Obtaining an Advisory Opinion Submit unusually difficult cases involving claims for compensation under 38 U.S.C. 1151 to VA Central Office (CO) (211B) for an advisory opinion. Reference: For more information on CO guidance and advisory opinions, see M21-1MR, Part III, Subpart vi, 1. Where any veteran shall have suffered an injury, or an aggravation of an injury, as the result of hospitalization, [or] medical or surgical treatment, . . . and such injury or aggravation results in additional disability to . . . such veteran, disability . . . compensation . . . shall be awarded in the same manner as if such disability, [or] aggravation . . . were service-connected. 38 U.S.C. § 1151 (1996). Thus, an additional disability resulting from aggravation of an injury by VA medical treatment is to be compensated as though it were a service-connected disability. As with a service-connected disability resulting from service aggravation of a pre-existing disease or injury, section 1151 compensation should be paid for only the “additional disability,” i.e., the degree of disability over and above the degree of disability existing before the aggravation by medical treatment. As with a service-connected aggravation, that additional disability need not necessarily be of compensable degree in itself. 5. In this case, the Board of Veterans' Appeals found that the veteran suffered aggravation of an injury as the result of VA treatment and granted entitlement to section 1151 compensation for the resulting additional disability. Section 1151 requires that compensation be awarded as if the additional disability were service connected. If a disability were service connected as aggravated by service, then sections 3.322(a) and 4.22 would require that the degree of disability, if ascertainable, at the time of entrance into service be deducted from the current degree of disability to determine the rate at which compensation should be paid, unless the disability is totally disabling. We find nothing in the language of sections 1151, 3.322(a), or 4.22 or in their histories to indicate an intent not to apply the same general rule and exception in the case of a disability compensated under section 1151 on the basis of its aggravation by VA treatment. The reference in sections 3.322(a) and 4.22 to “cases involving aggravation by active service” might seem to limit the application of those regulations to cases of actual service connection based on aggravation. However, section 1151’s mandate to compensate additional disability “in the same manner as if . . . service-connected” means that rules applicable to service-connected disabilities must be applied to disabilities compensated under section 1151. 6. Under sections 3.322(a) and 4.22, no deduction is to be made “if the disability is total.” To the extent of any ambiguity in this language, we interpret it to mean that no deduction will be made if the disability after aggravation is total. This exception to the general rule is an exception to the principle that service connection for aggravation of a disability includes only the degree by which the disability increased in severity during service. Our examination of the regulations’ histories has failed to disclose the rationale for, or policy behind, this exception. Therefore, we have no basis for concluding that the exception should not be applied when rating disabilities compensated under section 1151 based on aggravation. We recognize that diseases or injuries aggravated by service can differ from injuries aggravated as a result of VA treatment in that disease or injury pre-existing service is unlikely to be anywhere near totally disabling, whereas it is not at all unlikely that an injury for which a veteran receives VA treatment is totally disabling. Nevertheless, because we are unable to discern an express policy or rationale behind the exception in sections 3.322(a) and 4.22 for total disabilities, we conclude that the exception applies to rating disabilities compensable under section 1151 based on aggravation. HELD: Sections 3.322(a) and 4.22 of title 38, Code of Federal Regulations, require that, in rating disabilities aggravated by service, the degree of disability existing at the time of entrance into service, if ascertainable, be deducted from the present degree of disability unless the present degree of disability is total, in which case no deduction is made. These provisions apply to the rating of disabilities compensated under 38 U.S.C. § 1151, which, before its amendment effective October 1, 1997, authorized compensation for additional disability resulting from injury or aggravation of an injury as a result of Department of Veterans Affairs hospitalization, medical or surgical treatment, examination, or pursuit of a course of vocational rehabilitation, in the same manner as if the additional disability were service connected. OG Pres Op 4-2001
  7. I retired from the Post Office 4 years ago due to Chronic Fatigue Syndrome. It was a regular retirement. I left on my doctor's advice because I could not do the job and the stress was making my CFS worse. I filed for SSDI and that was granted for CFS, as well as other issues. Since that time, My rating of 60% disabled for Chronic Fatigue Syndrome has been in effect for more than 20 years and I am 63 years old. I think I should file for Permanent & Total and or TDIU, but am hesitant on doing so. I tried to write up the paper work today, but it is so difficult to relive that time in my life. I should also add that my VA doctor has written up letters over the 20 years with the same restrictions the entire time and stated that my disability and these restrictions were permanent and no endpoint was defined. I was accommodated in my position until about 2007. At that time, things changed and they no longer wished to accommodate me, as well as others. They didn't want anyone there that had any type of restriction. After more than 17 years in a bid and being accommodated for that long, the bid was abolished and it took more than 3 years to get a bid and an accomodation. In that accomodation, I was told it was an accommodation of last resort and could be changed at any time. They also abolished the occupational code, so I took a bid that I thought I had a chance that I could do. It turned out that I was unable to do the bid and realized that I would have to start the whole process over again to find a job I could do and get accommodated. That is why I retired. I feel paralyzed and am not sure if filing this is the right thing to do or if I should just keep the 60% and let the rest lie. I cannot risk my 60% rating. My Chronic Fatigue Syndrome and restrictions are what lead to my retirement. SSDI decision addressed the fact that I can no longer even do sedentary work. The stress of even thinking about and following through on another VA claim is taking its toll. I think that is why I have waffled on making this decision. Your thoughts are appreciated. Thanks for your time.
  8. I recently joined the forum though I've been reading it for awhile but was afraid to join before my claim was approved. I got a call from the local VA office the day after Thanksgiving and was told that my claim was done and I'd be getting a large deposit into my bank account. This was from my initial claim from 2009 for CFS which was approved at the BVA. I did hire a lawyer but didn't think I had much chance of even getting service connected due to the length of time I'd been out of service and the issue - CFS related to vaccines I was given for my laboratory research position while in service. I did have a nexus letter from a private doctor and two letters that my VA neurologist wrote (for private disability) that said I could only work 3-4 hours per day due to my cfs. My C and P was very favorable also. The C and P dr had done her homework, reading my files and the statement for TDIU that I'd sent to the lawyer days before the C and P exam. She even did the correct dbq (for CFS) when the paperwork requested the wrong infectious disease dbq. Just wanted to share my story of a successful claim to give others hope for positive outcomes too. Tracy
  9. Hello, This was originally sent to wrong Forum Topic.. Sorry about that!! Please give me your thoughts on the following situations. I am one of a few veterans that meet every once and a while to discuss our particulars pending claims. One veteran in the group has a VSO assigned and submitted, what he thought was a well-supported request for increase and Individual unemployability. As evidence, he submitted prescriptions showing that his back pain required more than 6 weeks of time off from work due to his pain episodes, as well as a 21-4192 form from his employer reducing his employment to on call (from $2500 to $600 a month) specifically due his associated back conditions and his frequent absence from work. He stated that his VSO informed him that at a minimum, his currently 40% back condition should be increased to 60% due to the doctor´s prescription that supports his 6 weeks of incapacitating episodes and that that may provide enough for him to get IU, but was not sure how the VA would consider his last 12 months of income which was above the earning level. The veteran is currently 70% combined. The veteran meets the minimum rating requirement for IU and wanted to file because he cannot be seated for more than a few minutes before excruciating muscle spasms or lower back and extremities pain kicks in. During our group meeting, he appears to always be in wincing due to some kind of pain. He informed me that his claim was closed and thought that it was denied because his AB8 letter in Ebenefits did not show a change. He stated that his VSO has not yet returned his call to explain what his decision letter stated. I informed him to wait on the decision letter to see what it says, because one of my past claims were closed with no change in the ab8 letter updated because of a deferred rating (The rater required me getting an explanation from one of my treating doctor before he rated the claim). Can someone from this Forum think of any past experience that you may have had with this type of situation that may have cause that VA to deny an increase out right? Despite me reading several post on this Forum that states "the ab8 letter should show new rating once the claim shows completed", I personally believe that he should not dwell on the AB8 letter not being changed simply because the claim is closed. any of your thoughts would be appreciated.. Add
  10. Here's how you build it. We began this from the ground up. First the combat medals for 1154(b) combat presumption (PH and CIB)and then the c-file before it accidentally got shredded during the adjudication. Remember, Butch filed in 1970 and hadn't been back until we reopened this spring. We got TDIU but the evidence shows he's entitled to far more-be it via CUE or just inferred claims never adjudicated. Berta, Theresa and I discussed this on the Wednesday show with Jerrel and John but I thought Hadit members might enjoy the nuts and bolts of how we got there. It's my belief that Butch Long and his wife may be needing a financial planner soon. How VA approaches this after we confront them will speak volumes about the "nonadversarial" process they claim to adhere to. To be honest, I have no idea how many ratings at what percent he is entitled to. At "severe" for 9 MGs, I'd have to say he may get 100% from 1970. We shall see. I'm trying to talk him into getting an eBennies account to watch VA TV. They declined. They don't have internet. http://asknod.org/2016/01/01/cova-myler-v-derwinski-retained-shell-fragments/ Happy New Year to you all. I am so proud of all of you for fighting for your promised benefits. Clear prop.
  11. Hello, Please give me your thoughts on the following situations. I am one of a few veterans that meet every once and a while to discuss our particulars pending claims. One veteran in the group has a VSO assigned and submitted, what he thought was a well-supported request for increase and Individual unemployability. As evidence, he submitted prescriptions showing that his back pain required more than 6 weeks of time off from work due to his pain episodes, as well as a 21-4192 form from his employer reducing his employment to on call (from $2500 to $600 a month) specifically due his associated back conditions and his frequent absence from work. He stated that his VSO informed him that at a minimum, his currently 40% back condition should be increased to 60% due to the doctor´s prescription that supports his 6 weeks of incapacitating episodes and that that may provide enough for him to get IU, but was not sure how the VA would consider his last 12 months of income which was above the earning level. The veteran is currently 70% combined. The veteran meets the minimum rating requirement for IU and wanted to file because he cannot be seated for more than a few minutes before excruciating muscle spasms or lower back and extremities pain kicks in. During our group meeting, he appears to always be in wincing due to some kind of pain. He informed me that his claim was closed and thought that it was denied because his AB8 letter in Ebenefits did not show a change. He stated that his VSO has not yet returned his call to explain what his decision letter stated. I informed him to wait on the decision letter to see what it says, because one of my past claims were closed with no change in the ab8 letter updated because of a deferred rating (The rater required me getting an explanation from one of my treating doctor before he rated the claim). Can someone from this Forum think of any past experience that you may have had with this type of situation that may have cause that VA to deny an increase out right? Despite me reading several post on this Forum that states "the ab8 letter should show new rating once the claim shows completed", I personally believe that he should not dwell on the AB8 letter not being changed simply because the claim is closed. any of your thoughts would be appreciated..
  12. I am now 70% schedular and 100% TDIU p&t. I am appealing for an EED. Subsequent to my filing date, my Navy veteran son attended and graduated from 4 year college under post 9/11 GI Bill. If I prevail and receive an EED, would my child be eligible for Chapter 35 Benefits also? Am I wrong for even thinking about this? I can't help but think it smacks of double-dipping. TIA.
  13. My husband, also a Vet, recently had a BVA appeal for increased major depressive disorder and TDIU. The BVA granted the MDD increase to 70% from the initial rating through the entire rating period and remanded the TDIU back to the RO for consideration with the new MDD rating. This increase to 70% for his MDD now puts him at 100% total rating and will be getting backpay to 2009. We know that it can take forever for the backpay to process, especially considering how large of a sum it will be so while we're hoping for it to be on the shorter side of time, we are not holding our breath. Our question is this: could he start getting his increased monthly comp amount before the backpay hits or do they always process both at the same time so we'll likely either see the backpay first or at the same time? Thanks!
  14. If you have a SC RATING at 90%combined and Awarded the Extra Scheduler for TDIU P& T because you can't work because of it...and later years later you file a new claim ...what rating would you need from this new claim to get you up to the stand alone 100%? Using VA Math I came up with a 50% more rating to reach the 100% but that sure seems like a higher rating to me but maybe not? 90%& 50%is a 98% rating correct? and then they boost you up to the 100% so with my 90 % combined SC Rating you need a 70% rating to be qualified for HB...So that 70% rating would put you up to160 Anybody know? Thanks ..........................Buck
  15. Today I received my BVA decision in the BBE. I have been working my own claim since 2006 -- yep, almost 10 years. I filed for IU in 2008, even though my ratings were in the VA hamster wheel. The RO has continued to grant and increase in small doses -- essentially obfuscating the effective date. I continued to appeal those decisions. Finally, the my case came before the BVA, and the BVA ordered the effective dates to 2006 in the "order" section. One other issue was remanded back to AMC/RO for further development. HOWEVER, on the issue of TDIU -- under the "conclusions of law" section it states; "Resolving doubt in the favor of the veteran, the criteria for TDIU has been met". In another section on specific issues: TDIU (after five pages of findings of fact and case law), the final statement says "Resolving doubt in the favor of the veteran, TDIU is warranted." However, the TDIU is not mentioned in the "ORDER" section, nor is it mentioned in the "REMAND" section. From what I have seen, anything that is sent back to the AMC/RO that is not either in the remand or order sections are flat out denied by the RO. Anytime the BVA implies anything, the RO assumes they have free reign to just ignore or deny. I am honestly unsure how to proceed since this is neither a grant, remand, or denial.. In order for it to be a grant it has to be noted in the "order" section of the BVA decision. One cannot appeal a remand because it is not a final decision, and this is not a remand anyway. With the appeal clock ticking away (roughly 90 days left), I figured I would wait and see if the RO would issue a decision, but now I am uncertain that would happen before the appeal period ends. Would anyone have an idea how to address this? Would sending a letter to the board with a motion to reconsider (i.e. make a decision either way) be the wise thing to do? Very confused on this one. Edit: my apologies if I posted in the wrong category (appeals, etc).
  16. After +40years I was made aware of my SCD TBI w/stroke(MRI scan), and after +40 years of being forced between jobs ~every 1-2years. Took 40months and counting (for accurate retro date). I have only a "summary of case" letter (explaining how lawyer got paid directly from VA) that stated a rating decision was made some 6weeks ago RE my case that awarded me fr40%---To-70% TBI and I was awarded 100% TDIU from just 4-months ago. Obviously the retro date (EED) is wrong, HOWEVER, I have a question about what the EED "might" be: The residuals of TBI include "...impaired awareness of disability..." under Neurobehavioral effects. FWIW, I was NOT aware of the effects TBI on my life for over +40-years. Didn't even know I had one. Only after worsening MDD did I approach VA for mental health help in 2011. After an MRI and a full Psych Eval, PLUS my request for my C-File, did I find out that I had had a moderate TBI in 1972. QUESTION: HOW CAN I BE HELD RESPONSIBLE FOR THE ORIGINAL CLAIM DATE?M21-1MR, Part V, Subpart ii, Chapter 1, Section B dictates that "...VA may award the disability pension retroactively for up to a period of one year before the date of claim, but not earlier than the date of permanent and total disability, if all the following conditions are met: • The veteran files a claim for a retroactive award within one year from the date the veteran became permanently and totally disabled. ...plus more... SOOOoo... QUESTION: How the Hail am I supposed to actually KNOW that not only am I totally disabled but ALSO THAT I KNOW that I had had a SC TBI in 1972?Now I am trying to understand what constitutes a "Clear and Unmistakable Error" (CUE) That being said, I originally filed a claim in Sept. 2012, and I am sure my lawyer will want to get that date adjudicated as an EDD much earlier. MY BIGGEST QUESTION deals with the possibility of a retro-EED of either a year earlier than that OR a retro-EED back to 2006 when I actually lost my last employment forever? (see #2 above). I do NOT look at my TBI "lack of awareness" lightly! I went over 40 years without knowing about my TBI and only approached the VA for mental health (MDD) help FIVE years after being permanently unemployed at the time. I did NOT even know that I "might" have any VA benefits or anything else. I always knew I had had a motorcycle accident and landed on my head, but the military kept ignoring my pleas for help (refused full psych evals FOUR times) and sent me away. During those 4-decades I lost my job every `2-years, even though I managed to get 3-college degrees (PhD the highest). Consequently I have little to no savings/equity. SO... are there ANY grounds for a CUE determination in my case? If so to what date, my last employment or -1year of claim filing?
  17. A very interesting read. The Washington Pencil Necks, are always looking to cut VA Benefits, especially TDIU. Ever wonder how many of them, served on active duty or saw combat? Semper Fi HHRG-114-VR00-Wstate-dePlanqueI-20150715AmerLeg2015TDIU.pdf
  18. Here's a claim I began way back in 2012. I frequently consulted with Carlie on it regarding a number of facets including CUE and earlier effective dates. I can only wish she was here to share in Butch's success. As most know, we cannot claim any ownership of these claims for fear of prosecution by the OGC for representing Veterans without suitable credentials. I am in the process of obtaining mine but in the interim, I cannot own it. This was a long time coming. Let this be the reason every one of you set your sails and ventures forth on the claims path-for yourself or for your fellow Veterans. Theresa could not encapsulate or enunciate the reason any more clearly- never leave a Veteran behind. Period. You represent three percent of the American populace yet you defended 97%. Rejoice in it. If injured in the process, you signed a contract that indemnifies you and provides for your welfare. Do not be ashamed to put in a claim for something promised by those who hired you. My friend Butch suffered needless delay for 46 years because numerous VSOs, friends and acquaintances said they would "take care of it". In the end, his daughter, born while he was in Vietnam, approached me and asked me if I had the mettle. She admonished me not to promise something I had no intention of honoring. Many others had already done that. I made that promise and yesterday it came to pass. We got his c-file We didn't shotgun a claim into the wind and see what stuck. We never even filed until we could see what they did in 1970. I suppose we could have gotten him an earlier effective date of 2012 if we had been willing to begin shooting holes in the dark early on. We preferred to build a claim that would stand the test of numerous appeals. Butch's claim has just begun. 1970 is the prize. His $33,000 in retro is VA chump change. Follow us through this win and NOD/ Appeal and learn how. You win at this poker game with evidence. I cannot begin to emphasize that concept. You never win because you're morally right or deserving. You win because your evidence is unequivocal. Justice may be elusive but when you are right, you prevail-even if the evidence doesn't surface for 46 years. It took that long just to get Butch's Combat Infantry Badge and Purple Heart. Once that was accomplished, the evidence could not be disputed. A combat presumption is the gold standard, Many of you have this and do not understand the significance of it. No American who would risk his life for America should ever have his testimony called into question. If you are willing to die for America, it suffices to say you are a credible witness. I did it backwards and got my combat medal after I won. Had I done it with the medal in advance, it would have been child's play. Nobody was there to tell me. I had no mentors in 1989 and 1994. None of us did back then. Ladies and Gentlemen Veterans, I give you Butch Long- our latest member of the P&T club- an exclusive membership of 255,000 TDIU Veterans who have made the grade. http://asknod.org/2015/12/23/lz-cork-success-after-46-years/ Never in my 26 years of fiddle farting around with this crap have I ever been so honored to have a neighbor like Butch that I could help. He has lived a stone's throw from me for years and I had no clue. Our Vietnam Band of Brothers grows smaller with each passing day. Theresa's Hadit ideal created a Godsend for us here and gave us the gift of a virtual Town Hall to share our knowledge. I beg of you to pay your wins forward as Carlie and Theresa have. I'm the FNG in this with barely 20 years under my belt. Follow our footsteps and make a difference for those who come after us. In the last 8 years, I have watched as many said they would help after their big win. Many promise.I continue to watch and wait for some of them to honor that promise. Your knowledge is the next generation of Veterans law. Without you, it evaporates. Don't let it require each new generation to learn it all over again. Merry Christmas from all of us at asknod and Hadit. Remember too that it is more blessed to share your knowledge than to use us as a Wikipedia and never leave your footprint. Fifteen minutes of Facebook fame is nothing to helping even one Veteran achieve service connection for life. Pay it forward because you can. Because it is the right thing to do. And to all my Vietnam Brethren- Welcome home with Honor, gentlemen.
  19. I have a C&P scheduled today for TDIU...and I am so stressed out I am sick. This is my second evaluation for PTSD and Kidney problems as it was on appeal. I am currently 70% combined and SSDI has me rated 100% for PTSD..<service connected .....and a back injury that is not service connected. My question is what do I need to do this time to not sabotage myself? The last C& P I had a young lady spend not more than 6 min with me and I explained what day to day life was like for me.....I requested the copy of the C&P report and she recommended no increase because she put on the report that since I was able to watch some TV...I was still employable. My appeal goes all the way back to 2010 when I first applied for TDIU. Would I be better to put down on paper what day to day life is like for me and give it to examiner when I go in today? I am rated for agoraphobia lumped into my PTSD, I have panic attacks, literally get sick in bathroom or get cramps so bad I have to use restrooms when I go out in public, I no longer drive as my wife does. I yell at my daughters and wife all the time, I do not sleep due to nightmares, and when I am not I frequently checking doors and windows. Started to drink in the last three years....so I dont have to feel. I have great fear of being targeted by people/terrorist because I am a veteran and fly a flag out in my front yard....I know it not rational. Ashamed and do not like to be identified as a veteran, I feel betrayed by my country to have went to Iraq and watched my buddy's get killed, have my life torn to nothing and all for what......the president hands it back over to the terrorist.
  20. I was recently re-evaluated for PC and my new rating will be 90%. My disability ratings are 60% for loss of sphincter muscle control, 40% urinary incontinence, 30% HL, 20% DM II, 10% tinnitus. I want to have my gastro doc write a letter stating that I am unemployable due to the sphincter issue. Any ideas how it should read? I have sent a letter of disagreement to the VA.
  21. I recently got my re-evaluation for PC and I will be rated at 90% total. I am rated 60% for loss of sphincter control, 40% urinary issues, 30% HL, 20% DM II,10% tinnitus. I am going to ask my Gastro doc to write a letter stating that I can not work due to the sphincter issue. My question is. Is there a specific way the letter should be written i.e. verbiage?
  22. The Crazy one here, look we share we learn. In recent years, policymakers have examined the interaction of two federal programs that provide benefits to military personnel with service-connected disabilities. In September 2009, the Government Accountability Office issued a report recommending that the Social Security Administration (SSA) increase its outreach and collaboration with the Department of Veterans Affairs (VA) to improve access to Social Security disability benefits for military personnel wounded since October 2001 in operations in Afghanistan and Iraq (GAO 2009). Also in 2009, both houses of Congress introduced legislation known as the BRAVE Act1 that would certify veterans judged by the VA to have total disability (that is, having a combined rating of 100%2 or a rating of individual unemployability [IU]) as meeting the medical requirements of the disability programs administered by SSA. Essentially, a veteran with a rating of total disability would not have to undergo the medical portions of SSA’s disability determination to be eligible to receive Social Security disability benefits. The veteran would have to be insured for disability in order to qualify for Disability Insurance (DI) worker benefits and could not be engaged in substantial gainful activity (SGA). https://www.ssa.gov/policy/docs/ssb/v74n3/ssb-v74n3.pdf
  23. Hello everyone Navy and Army Vet. I just wanted some advice on TDIU 70% PTSD 10% for a wrist fracture 0% for right calcineal spur with pes planus 0% for pes planus (claimed as left foot condition) 0% temporomandibular joint disease (TMD) with bruxism, myalgia and disc displacement Currently was denied for tinnitus and headaches. My main questions are 1) If I apply for TDIU, will my current claims for increase and appeals continue its process and will I be able to get a rating for the increases and appeals while under TDIU? 2) If I achieve my 100 % schedular through all my service connected conditions will my TDIU drop? 3) If I do get TDIU and I get my appeals approved will I get backed pay on my appeals back from 2009? I am also receiving SSD. Thanks for the help.
  24. You get your RO decision. The VA awards benefits but gave your claim a haircut and "forgot" about your other claims. What do you do? File a Cue? You shoot yourself in the foot, tho I agree that makes sense, that its error for them to "forget" to adjuticate your claim. Unfortunately, in many cases it amounts to a "deemed denial". OUCH! Now, here comes Ingram, where they say, "not so fast". Chris Attig did not mention this, but I would like to know what happens when a later decision adjuticates that "forgotten" claim. Here is what he says about Ingram, and your claim haircut.: Heads you lose – tails the VA wins: Ingram & the informal VA Claim Chris Attig 1 If the VA ignores one of your claims for years, and never issues a decision it, can you get an Earlier Effective Date when they finally do address the claim? This is one question that the Ingram case looks at. I want to explain a portion of the Ingram case to you below. First, let me tell you why I’m talking about this case in the first place. The Court of Appeals for Veterans Claims issues a couple dozen or so precedential opinions each year. Many of these decisions have big impacts, and so they get more coverage in the Veterans Law Community. There are, however, a series of CAVC decisions that got “lost in the shuffle”, but that provide a lot of POWER to Veterans in their Regional Office Appeals and BVA Hearings. I intend to look at 8 of these case over the next 2 months. Today, I’d like to take a look at Ingram v. Nicholson, Cause No. 03-2196 (May 23, 2007). Facts of the Ingram case.The Veteran filed a claim for service-connection and non-service connected pension in May 1986. The medical condition for which he sought service- connection was related to the removal of his right lung at a VAMC in April 1985. In August 1986, the VA denied the claim for non-service connected pension, but did not comment on the service-connected disability compensation. The Veteran did not appeal this decision. On April 15, 1992, the Veteran filed a claim for service-connection of complications related to the April 1985 surgery. The Veteran argued that his entitlement was based on the legal theory that allows service-connection for injuries resulting from medical negligence. Ultimately, the VA granted service connection on this theory, but assigned an effective date of April 15, 1992. The BVA, on appeal, refused to assign the Veteran an Effective Date earlier than April 1992, arguing that the May 1986 claim was not a claim for service-connection because it did not argue medical negligence as the legal theory for service-connection. Translation: the BVA told the Vet that a formal claim only relates back to an informal claim if both argue the same exact basis of service-connection. Mr. Ingram appealed his VA claim to the Court of Appeals for Veterans Claims, and asked the CAVC to assign an earlier effective date – specifically May 1986. His argument was that the May 1986 claim was an informal claim for service-connection of the lung condition, regardless of the legal theory asserted for service connection. He argued that because the VA did not deny the claim outright, that it was still pending. The VA argued that the August 1986 Ratings Decision denied the Veteran’s May 1986 claim for disability compensation – sub silentio. The Court ultimately sided with the Veteran, concluding that: “…a reasonably raised claim remains pending until there is either a recognition of the substance of the claim in an RO decision from which a claimant could deduce that the claim was adjudicated or an explicit adjudication of a subsequent ‘claim’ for the same disability.” That language, by the way, is HUGE!! In many of your VA Claims and appeals, you have a reasonably raised claim that the VA failed to consider…and you only need to show the VA that the claim is still pending to get a decision. Far too many Veterans wrongly use “CUE claims” for this, and end up shooting their claim in the foot. Now, the Ingram case is much more complex – and means a lot more when it comes to TDIU and CUE claims. But for one limited purpose, its holding is clear: if the VA has not issued a decision that recognizes the SUBSTANCE of a Veteran’s claim, then that claim is pending until a Ratings Decision is issued that explicitly adjudicates the disability. In fact, in a later case, the CAVC said that it narrowly construes theIngram case to “…stand for the proposition that, where an RO decision discusses a claim in terms sufficient to put the claimant on notice that it was being considered and rejected, then it constitutes a denial of that claim even if the formal adjudicative language does not ‘specifically’ deny that claim.” The Ingram case cut at the heart of a VA Process that STILL happens. I call this “Claim Trimming” (this is an ALF-specific term…you won’t hear anyone else use it). How does “Claim Trimming” Work?Basically, the VA uses Claim Trimming to promote laziness at the VARO Ratings and Appeal teams. They use “Claim Trimming” to keep government expenditures down – at the cost of disabled Veterans. Here’s how they do it. You file a claim for service connection of “Condition X”, “Condition Y”, and “Condition Z”. The VA Ratings Decision addresses only Condition X and Condition Y. It is silent about Condition Z. If you file a Notice of Disagreement (NOD) challenging the denial of Condition Z, then the VA treats it as a “new claim” and assigns the date of the NOD as the claim date for effective date purposes. Alternatively, if you later file a claim for Condition Z after the NOD period has applied, they will argue that it has been finally denied and you need to reopen it, or they will treat that subsequent claim as the effective date (as they did in Ingram.) Either way, the VA wins – they will always want to assign the later effective date and pay you LESS. Until now, that is. You now have the information – and the Power – to beat the VA at “Claim Trimming”. (As an aside, read how a Veteran beat the VA at this game at his DRO hearing in one of our DRO Case Studies) How do Veterans beat the VA at “Claim Trimming”?Two ways come to mind right out of the gate. To really beat the VA at this game, you are going to need a copy of your VA C-File. First, when you arguing for an earlier effective date based on an informal VA claim that was filed, formalized, but never explicitly denied (i.e., still pending) by the VA, pull the Ingram holding out and argue it requires an earlier effective date – the date the VA received the original, unadjudicated and pending claim. Second, whenever a condition is service-connected through a VA Ratings Decision, comb through your C-File for the earliest reference to that medical condition. If it is referenced in an earlier decision but not explicitly adjudicated, it’s time to study Ingram and argue that the original claim was pending and not finally adjudicated. Ingram and the New Regulations regarding Formal Benefit Claims.Now, the VA has proposed a new regulation that addresses – tangentially – informal VA claims. You’ve been reading about these new regulations in the news lately – they VA is proposing to require that Veterans use specific forms to file their formal claims. Most folks – including the big VSOs – are hollering about the inevitable part of these regulation changes. It is the 21st Century, and the VA is going to win any fight that is fought on the battleground of “digitizing the VA Claims Process”. That’s some real simple smoke the VA Bureaucrats can blow up the proverbial asses of Congress and the Judiciary. It sounds great, too, doesn’t it: “Our regulations have a rational basis of bringing the VA Claims Process into the 21st Century” . But here’s what these new regs are REALLY about: undercutting Ingram. Without Ingram, the VA can ignore your claim until you get really precise and really vocal about it. Even if you do, the VA can grant you the least amount of past-due benefits possible, arguing that the VA’s word is final – even if they never say the word.
  25. For all you guys on TDIU don't forget to send in your Employment Question sheets to the VARO. I send about two a year just to make sure they know I am not working. I have to keep sending these forms in until I am 71 if I live that long. The VA still has a hook in me. John
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