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  1. Hi all I have a scheduled hearing in Washington, DC with a member of the BVA on a remand issues including and earlier effective date for IU. I got retoractive pay from 1/2004. My claim for TDIU was put in in 1994. My arguement is that my service connected diabilities prevented me from working gain-ful employment back in 1994 not 2004. I think if the VARO would have went by thier law under title 38 CFR my effective date should be 1994. My question is has anyone had one of these hearing in DC and if so what do i need to expect?
  2. Back in December 2004 I went to my Local hospital emergency room about 3 times. I filed the claims with my local VAMC and in April 2005 I received a letter from the Salem Va. VAMC saying that my claims for payments for my Emergency visits had been denied. I have had 5 C&P exams in the lasr 2 months and is currently awaiting to be rated on them. This week I recieved letters again from the Salem Va. VAMC saying that the calims from 2004 has now been authorized for payment. Is it possible that my current VA claims could have something to do with this reversal. I also have an Appeal for TDIU on file.
  3. I called the 800# for VA, and was told that my claim for TDIU was denied and that all ratings are to stay at present rating. I am planning on continueing my appeal, is this the time for writing a NOD notice of disagreement? After the writing of the NOD what's next? What is it called when you ask for someone else to review your case? Do I ask for that in the NOD letter? What is the quickest way to get to the BVA? I appreciate any and all comments. Steve
  4. I was just denied for TDIU, and the VA's reson was that my last employer stated that I had missed no time from work, I worked 2 (two) hours per day that was compensated with a free apartment, and during that 2 hours I did routine maintenance and made a whole $400-450 per MONTH for a family of four! The VA reasons that since I left such a wonderful job I am able to maintain gainful employment. I quit a full year before moving, and my wife took over for me. I have my IRS tax papers to prove it...if that would be considered proof. They didn't address my failing Vocational Rehab because of my missing classes and being terminated from the program. They didn't address the side effects that I stated from the medications, or secondary anxiety/ depression...the only problem is that I have anxiety all over my VA medical records, as well as Bipolar Disorder, but not reconized by the VA as secondary I'm working on trying to make that happen. I guess they think I like being piss poor, and the black sheep of da family?! I'd rather be working cause this is just to dang hard! Steve
  5. If a veteran recieves 100% TDIU P & T and his wife and children recieve Chapter 35 benefits, then the veteran dies proven to be SC, do the benefits for the wife and children stop pending an award of SC DIC? Does the wife than have to file for survivors benefits?(not an 1151 Claim) Jangrin
  6. http://www.va.gov/vetapp06/files2/0603319.txt "FINDING OF FACT In reducing the veteran's disability evaluation for schizophrenic reaction from 100 percent to 70 percent effective May 1, 1970, the RO did not apply the correct law as it existed at the time of the February 1970 determination; as a result, the February 1970 rating decision is fatally flawed." This recent one is interesting too- the CUE regarding the physical disability was denied but the CUE claim triggered a remand for TDIU: ORDER The January 1969 rating decision, which reduced the evaluation of encephalitis residuals from 100 percent to 30 percent, effective November 25, 1968, was not clearly and unmistakably erroneous, and the appeal is denied. REMAND VA has not satisfied the notice requirements for the claim of entitlement to an earlier effective date for the grant of a TDIU. Prior to the award of a TDIU, the veteran was not provided a duty to notify letter for the issue of entitlement to a TDIU. A December 2003 duty to notify letter identifies the issue of an earlier effective date for TDIU, but notifies the veteran of what the evidence must show for an increase rating. Furthermore, although the record also contains a etc From: http://www.va.gov/vetapp06/files3/0614115.txt
  7. I am 80% rated service connected. I submitted a claim for increase for my back and hearing loss. The question is: If at the conclusion of the process and I am not rated 100% schedular, say I am 90%, and ask for an increase to 100% based on "extra-schedular rating" will this benefit me or not. I am retired Army and if I receive the 100% extra-schedular will I then receive 100% disability pay along with my 100% retired pay or will I just shoot myself in the foot? Or is it treated the same as TDIU which is not a benefit for 20+ year retirees until 2008?
  8. x x x This chapter was previously M27-1, Part I, Chapter 3. It was redesignated as M21-1, Part VII, Chapter 5 in April 2000 due to a reorganization. The content of this chapter was not changed. 5.08 LETTERS a. Veteran's Letter VLET. The BDN system is able to produce frequently used form letters that are batched and mailed each night from the data processing centers. Use this system to the fullest extent. The letters are produced from the following seven different categories that are displayed on the VO1 (Letters Selection) screen: (1) Commissary and Exchange Privileges (veteran); (2) Civil Service Preference; (3) Education Entitlement; (4) Education Award Data; (5) Compensation and Pension Award (veteran); (6) DIC/Pension (widow/er-child-parent); [and] (7) Service. b. Commissary and Exchange Privileges Letters (1) Requests for Commissary and Exchange Privileges letters will receive prompt attention. Upon receipt of the request, verify eligibility information from the BDN or the claims file. If indicated, issue the appropriate letter. All VSDs and appropriate subordinate locations will stock DD Form 1172, Application for Uniformed Services Identification and Privilege Card, a copy of which will be provided with each commissary privilege letter issued. (2) Issue a Commissary and Exchange Privileges letter for the eligible veteran, his or her spouse, or dependent child. To be eligible for this certification, a veteran must have been honorably discharged from the Armed Forces and have a service-connected disability (or disabilities) rated at 100 percent disabling including individual unemployability. Temporary 100 percent evaluations under paragraph 28, 29 or 30 of the Schedule for Rating Disabilities or ratings of 100 percent based on the following diagnostic codes do not qualify a veteran for this certification: 5001 6300 6724 7110 7619 8008 5012 6301 6731 7331 7627 8009 5051 6302 6732 7343 7709 8012 5052 6306 6814 7505 7710 8021 5053 6311 6819 7514 7711 5054 6317 7000 7525 7712 5055 6515 7005 7528 7811 5056 6721 7015 7531 7914 5327 6722 7016 7617 8002 6010 6723 7017 7618 8007 However, there may be exceptions. (3) VLET will not issue a commissary privileges letter when the above diagnostic codes with a 100 percent evaluation are encountered. The possibility exists, in certain situations, that entitlement does exist even though the codes are present. (4) These codes are used when the rating board wishes to assign a 100 percent evaluation for a limited time, usually for 1 year or less. Based on an examination at the end of the period, the rating board may decide to assign a 100 percent rating but not for the limited period of 1 year or less. In some cases, the rating board may continue to use one or more of the above diagnostic codes and add another code or codes to show the basis for the current evaluation. Because the diagnostic codes in the above list are an absolute bar, VLET would not issue the commissary privileges letter. When these situations occur, VSD personnel must check the claims folder to determine the eligibility before issuing the letter locally. Resolve questions of doubt with the rating board. (a) Issue FL 27-656 to honorably discharged veterans who are 100 percent disabled and for whom future examinations are scheduled (per VA Form 21-6796, Rating Decision, and/or VA Form 21-6789, Deferred or Confirmed Rating Decision). (b) Issue FL 27-656a to honorably discharged veterans who are rated 100 percent disabled and for whom no future examinations are scheduled (per VA Form 21-6796 and/or VA Form 21-6789). © Issue FL 27-656b to the unremarried surviving spouse of a veteran who had a service-connected disability rated at 100 percent disabling (not including temporary ratings under paragraph 28, 29 or 30). The effect of the letter is to transfer the veteran's eligibility to his or her surviving spouse (i.e., if the veteran were eligible prior to his or her death, the surviving spouse would be subsequently eligible). (d) Issue FL 27-656c if the surviving spouse applying for the benefit had previously been entitled, had lost the privileges due to marriage, and had the subsequent remarriage end in divorce or death of the spouse. (5) Congressional Medal of Honor recipients, military retirees and their dependents, surviving spouses of persons who died on active duty and their dependents (regardless of their relationship to the deceased member), and other dependents of persons killed on active duty are also entitled to commissary and exchange privileges. In order to be issued identification cards, Congressional Medal of Honor recipients must identify themselves and present proof of the award to the local card-issuing official. Military retirees must present their retirement orders. Dependents must show proof of relationship in addition to the member's retirement orders or report of casualty.
  9. http://www.nvlsp.org/ NVLSP has altered their site and it is good! The new AO Blue Water US CAVC stuff is there. Vet reps- Most vet reps get instructions at seminars -they also in most case have to pass the NVLSP BAsic Training Test. I passed my test and got my Certificate in Oct 1997. Look at how the regs have changed since then. Many vet reps who had taken this test even with a few years ago- have to keep up with the latest developments in VA case law and the Schedule of Ratings criteria- Many do not have internet access on their PCS- or if they do , they dont know how to search- What I learned in 1997 is probably all forgotten because I bet my test was on regs that have all changed- I think we need to check out vet reps to see how on the ball they are before we even sign a POA. If a vet rep does not have interenet or hard copy acces to 38 CFR and M21-1 I do not see how they can possible be affective vet reps. ALL the forms in their computers are at the BVA web site- I am beginning to think that this is the only program they ever access all day long- the forms -21-8940, 21-4138, 21-526 etc etc- and then they can type , with the vet sitting there, into the form- but to me that is not the best way to file a claim-in a fast 30 minute interview with a claimant- another thing- A vet rep had a heck of a time finding a 21-8940 one day when I had appt with my POA- He came into the office to ask his boss (my former as of last week) my vet rep where the TDIU forms were- My vet rep did not click on his forms programs but started to go through manila files in a big cabinet to look for a blank TDIU form. Cripes -I could have brought one from my house-for them to use- my point is- I attach TDIU apps to many many NODs- I think my 3 1/2 with the form is getting worn out- It has bothered me for a long time that a vet org had two vet reps looking for one of these forms in their office- I donated the VBM to them and my former vet rep never opened it-but my new vet rep studies it.and tells vets to read it if they need info from it. You might get the best vet rep in town- but even the most sincerest vet rep- without the tools we use here at hadit- and updated info on regs and disabilities- is not capable of giving much good claims help- I started to write down documented errors my former vet rep made- sounds like they (my POA) sure might want to know- what a LIST! Much I tried to overlook because he said he was new- he wasn't new- he just thought he would remember the Seminar and the NVLSP course and that does not help him many years after all that occurred. For what he told me about a DRO review- he should have been canned- at least I knew better and did not follow that advise. But I wonder how many other claimants he told it to------- I think we have to check them out as to what access they have to current info etc - I dont think my former vet rep even knows what the VCAA was all about-
  10. Can someone tell me what some of this means. I got this in the mail 2 days ago. Order Entitlement to service connection for headaches as secondary to service-connected hypertensive cardiovascular disease is granted. Remand The board remands the veteran's claim of entitlement to TDIU. This decision grants secondary service connection for headaches. The issue of TDIU is enextricably intertwined with the issue of the assignment of a disability rating for the veteran's now serviced-connected headaches. Thus, the issue of TDIU must be remanded to be re-adjudicated at the same time that a disability rating is assigned for the veteran's headaches. Accordingly, the case is Remanded for the following action: 1. Provide the veteran with VCAA notice that is compliant with the current notice requirements as to the establishment of disability ratings and effective dates. 2. After assigning a disability rating for the veteran's headaches, readjudicate the veteran's claim for entitlement to a TDIU. If such action does not resolve the claim, a Supplemental Statement of the Case should be issued to the veteran and her representative. An appropriate period of time should be allowed for response. Thereafter, this claim should be returned to this Board for furthur appellate review, if in order. I do not understand about the remand or remanded things. I do not understand about the TDIU and what they are saying about it. Please help.
  11. Yesterday I found out that 20 year retiree I have been helping the last year and half was awarded 60% with Individual Unemployability (IU) effective back to Feb. 2, 2005! Over $40,000.00 retro! Now we just need the DoD to get their act together with Concurrent receipt for IU veterans! Two 100% awards in a week. Good new for veterans! Vike 17
  12. Well, I haven't been on lately due to being out of town for death in family with no internet access. I've been checking my bank account every couple days to see if any money had fallen into it from heaven. NO. Here's the current status. I filed an appeal and DeNovoReview back on May 15th to save my 1 year time table, two weeks later, I got a letter from my primary care doc stating "not feasible employment" or something to that effect. Ver batim what the Team should be looking for. This was in a report to the Voc Rehab counselor. She subsequently called up the contractor that was trying to get me a job, and told him it was no longer necessary. This happened on June 1st. Drove straight from the VA to the VARO, Roanoke Virginia, and gave said paperwork to counselor, she made a few copies for me, I then walked 70 feet down the hall and handed it to one of the reps at the VARO to add to my file, time and date stamped. I call the VARO this afternoon, to find out the status of my claim.... "well three days ago, we sent a request for a C&P to the VA". He didn't know or wouldn't say what it was for, and when I asked him about the letter I already had from 2 VA Docs and 1 MSW at the Vet Center, saying I was unemployable, permanently, he stated I don't know anything about that, just that you should get a letter this week scheduling your appointment. I suppose when I get back on Monday I'm going to have to make some more manuevers. I'm going to see the Voc Rehab lady, and get a copy of the letter she wrote. She told me that once it was in their hands, it should be pretty quick. I know she wrote it, because it closes up another case for her. Then I will hand deliver that letter to the office down the hall, then contact my Senators office with a copy of the letter and ask what the hold up and another exam is for. I've gone throught the Voc Rehab process and been deemed unemployable. Acoording to 38 CFR, once that is done, it should be permanent and total, TDIU. I'm at 70% now, and this crap is really steaming me up. I realize this is a rant, but I'll never understand how or why the VA can take a situation that is in black and white and easy for them to make and find a way to drag it out. I suppose they want to wait til October so they don't take the hit on this fiscal year for all the back pay.
  13. Hello, I'm new here and hoping for some advice. Receiving TDIU and working very occasionally (a few times a year) for a hospital, as well as a bit of self employment doing homebirths. I recently got a call from the VSO that they need me to fill out an employment form for VA, or my benefits will be cut, then got the same form from the rep agency in Oakland. First question for you all; how do I report my self earnings, or, how do I account for my expenses that I put down on the schedule C at tax time? The form asks for gross income, and I feel this is just a way to take away my IU. There is no way I am, or could, work again full time. Next, I got a letter from Oakland saying I needed another exam to confirm my conditions, or something like that! As far as I know, I've got P & T status, got an ID and base privileges, etc. Whats up? Anybody else being messed with like this????? Please help, as I've got to respond ASAP, or forgo the groceries... :)
  14. I received my decision from the Detroit RO today and it reads as my DAV people said, 100% P&T, retro to April of 2004. The schedular totaled out to 94% so TDIU was sort of a given. I filed a NOD for HBP a while ago with the information Berta posted and I feel it is still a secondary condition to DMII but I withdrew it because of the decision of TDIU. Thanks to everyone on this board, just to name a few, T-Bird, Berta, John999 and the rest of the family. I will stay around to help with the experience I went through, though my expertise is DMII and secondaries. The head DAV regional SO has asked me to go to school to be a voulnteer Chapter SO and I have accepted. God Bless you all and Thanks from my family. Terry Sturgis
  15. Berta or anyone. I got my award letter today and I am qualified for I.U as far as the numbers are concerned. They didnt include forms to apply for I.U but I know I can get them easily enough. My question has to do with the following. In the part of the letter where they are explaining their decision point by point, when they come to number 8 "Entitlement to individual unemployability" It reads " the issue of whether or not the veteran is entitled to Individual Unemployability is deferred for the following: veteran's claim assistance letter. Anybody know specifically what is meant by "veterans claims assistance letter" ????? I have been SSDI for heart problems the VA agrees are DM11 caused, so I havent worked in four years. Seems like the I.U should be a slam dunk but this terminology "veterans claims assistance letter" has me confused. I also thought I'd read that when you are at a certain disability level as they have granted, they are required to suggest what other help you may be qualified for (as in I.U) but no mention or forms other than the number 8 refferred above. Thanks
  16. Dear Veterans, I had an idea while writing another post. I wrote to Veterans Coalition the suggestions below. For those of you unaware, SMEAC is a (I think ARMY) method of breaking a problem into parts (such as a wartime objective). I am no wordsmith, if I were, it would take a third as many words to state my idea. Anyone whom feels they can summarize the concept, please do so, and run with it as you see fit. Semper Fi. Dear Vet Coalition. Thanks for being there! First, let me explain this suggestion in S.M.E.A.C. form: The Situation is: Vets using up their lifetimes in claim processing, simultaneously clogging the entitlement, compensation, treatment, systems with unnecessary repetitions of appointments. Often, for decades, we pay for our Service Connected disability med treatment, because the VA is so slow or unable to acknowledge its failures in claim processing. By the time we actually receive compensation, the money is worth a third to a tenth what is originally was worth- in 10-25 years. TRUST ME THERE IS MORE TO THIS. Next: The Mission is: To help right-honorable veterans get what compensation they deserve under law, while the monies still have value, and usefulness. I expect the cost savings will roughly equate to the benefits paid out for the USA. Execution of the mission: Start a task force that holds sway with the VA rating board, for vets to write to with a short description of what the VA keeps overlooking, and basic evidence to prove it. Each task force panel will contain one doctor, one disabled veteran receiving VA compensation, one NSO from one of the claim-processing organizations, ie, DAV. They vote on support for the vets claim, a VA representative familiar with claim processing. I believe they should only need to spend 20 minutes on each claim- they can either a: vote for support and grant of claim b: for no opinion of the claim. It is okay for the VA representative to look from his usual, suspicious, and "If not sure, deny the claim" standpoint. A simple majority rules. Support for the vets claim is passed to the rating board, as if from a higher VA authority, ie, the Secretary. Panel members are sworn to act in accord with the facts, the law, showing no favoritism nor inclination to spare the USA, VA, or military the truth. In my opinion, the rating board should have no means to deny the claim, but as a disabled vet, losing the meat (Salad days) of my life to claim processing, I cannot speak with detachment on this one point. Administration: If the vets claim is a: repeatedly denied by VA rating board, BVA, b: Regardless well founded, grounded, and based on fact, and pertinent, THEN the benefit is ordered "Granted" regardless of prior VA decisions to deny IF the task force panel decides so. Control: This task force will not be permanent, perhaps five years. It will have a sunset clause and a poison pill clause- if the group determines it is creating injustices, it may order itself disassembled panel by panel. The task force should be done catching up the system in five years, and then disbanded. I leave it to you whether any "precedential" aspects are for consideration. Frankly, it seems problematic to me. The following is a non-SMEAC letter describing the above suggestion, and includes a real-life example of how it would work: Create a task force whom has sway with the VA rating board. Ask vets to write, in X number words or less, what the VA is missing, overlooking, erring, about, repeatedly, in their disability compensation claims. I suggest a limit of some kind on the evidence also, to help the vet pick and narrow his assertions. If like me, most vets, over decades of claim processing a single valid issue, want to prove every tiny detail, to corral the VA. This is just unnecessary, and confusing, for vets AND the VA claim system. (This is part of the problem, actually, but another subject) The objective is to reduce the backlog, and give relief to disabled veterans who have unpopular disabilities, as the law will provide, but the VA is reticent to admit the severity of their error and the injury. Speaking for myself, I dont want to SUE the VA for their grevious errors, I just want the "Someday" to arrive when the sun comes up, and I have finished my VA claim for spinal cord disease and dysfunction. Honestly, the VA claim system ruins mens (and womens) lives, by twisting people unable to admit weakness into persons having to learn to beg.. Respectfully, sincerely, I HATE WHAT THE VA DOES TO MEN'S SOULS. It's UNSAT. Example, real, of self: in 1980, on one page of paper a doctor writes his findings while and after operating, in the military, at Bethesda, he opened my back up, and found extensive scarring (a spinal cord disease called arachnoiditis) even though he errantly operated inches away from the original injury. He wrote: "Appears the wrong level approached" "adhesions" (adhesions is an older term for the more specific "arachnoiditis") Later, another doctor AGAIN OPERATING IN THE WRONG PLACE sees "Adhesions and scarring" thus supporting this progressive, incurable, spinal cord disease. Seems the VA doesnt like to admit error in order to take advantage of a rare opportunity for the truth to be revealed... A bit like not wanting to admit a doctor accidently cutting me with a scalpel was how I discovered I was a hemopheliac. (making up an example) If I have a permanent spinal cord disease in 1980, do I have still have a permanent spinal cord disease during the period in question (1986-1993)? When the VA FINALLY (after over 15 years of claim processing) in 1996 admitted the issue, granted 100 percent TDIU they want me to hop in a time machine and go back for more evidence- BUT THEY HAVENT ACKNOWLEDGED THE EVIDENCE ALREADY SO CLEAR AND ABSOLUTE! The evidence shows a permanent, progressive, spinal cord disease, and VA specialists detail the cause inservice.. but the ADMIN VA fails to make the connection VA DOCTORS make! So, I would argue to your task force panel: "If the VA decided I was unemployable in 1986-1993, does the present day VA agree I was unemployable from 1986-1993?" (See how deliciously clear this argument is? ) (too bad the VA cannot hear it) I love my country, but realize now, SOMEONE has to fight the system- employees of VA are NOT suited, positioned, or able, to point out the flaws in the system- WE VETERANS MUST ACT. I once got a speeding ticket, and the cop says "I don't like this part of the job, it seems wrong to me" and I said "Why dont you try to change it?" and the cop says (sober as all hell) "Thats not my job sir, it is YOUR job". It is the same here, so I write the Vet Coalition with my remedy. Thanks for being there. Otherwise, I will consider my job completed, if you write back indicating you read this email. Sincerely, Mike
  17. Disgust Over IU Problem Tom Philpott | June 23, 2006 Readers of Tom Philpott’s Military Update column sound off. Former Rating Specialist Attests to ‘IU’ Problem Regarding your column on the Department of Veterans Affairs’ lax oversight of disability ratings for Individual Unemployability (IU), I can say from first-hand experience it has been a poorly kept secret for many years. I worked for the VA from 1973 to 1988, spending four of those years as rating specialist and four more as supervisory claims examiner. While I was a rating specialist, the VA conducted a nationwide review of IU cases. As I recall, it found that a third of cases were decided correctly, a third were questionable or lacking sufficiently developed evidence, and a third contained “clear and unmistakable error.” An example of a clear error was a 60-plus WWII veteran who worked his whole life in a physical job and retired due to a job-related injury after he was 60. He had static combat-related wounds that combined to a rating of 60 percent disabled. He had been placed on IU with nothing more than his application. He had not even claimed his service-connected injuries had in any way made him unable to work. Many years ago the adjudication officer of the Seattle VA Regional Office had made it policy that veterans with qualifying percentages would get IU when they retired at any age, and without any examination to see if their service-related condition had worsened to cause them to be unable to work. By the late 1970s, the WWII generation of rating specialists were retiring and being replaced by Vietnam-era veterans. We all knew that the former practice was not permitted by VA regulation, so we did not do that. Your article indicates that 79 percent of new IU ratings go to veterans over age 60. So it sounds like that long-ago discredited policy has resurfaced. When I left the VA in 1988 the Court of Veteran’s Appeals was just being organized. Friends who continued to work at the VA said the court imposed huge procedural burdens on the rating process. Cases that were clear-cut and required only a short rating narrative to support findings became pages long to comply with court requirements. Case after case was remanded for further paperwork. The court’s effect on the rating process should be studied. Congress gets involved periodically too and enacts “VA Medicine.” That means making causal connections between medical conditions that are not supported by science but favored by veterans’ groups. The VA employees I knew were competent and hardworking. The problem is a rating schedule that has not been scrutinized for half a century, "medicine" influenced by powerful political forces and a legal review system that dramatically burdens the whole process. ROBERT CARPENTER Bremerton, Wash. The GAO recommendation that VA tighten its oversight of the IU rating is long overdue. While working as a Vocational Rehabilitation and Employment Officer, I complained about IU decisions for several years. In extreme cases, veterans said they had been prompted by their service officers to make these claims and to abandon jobs and rehabilitation programs to support their claims. This occurred following a determination by the vocational rehabilitation staff that the veteran is "employable" and that the opportunity for rehabilitation to a suitable job is feasible. While working as a Vocational Rehabilitation and Employment Officer, I complained about IU decisions for several years. In extreme cases, veterans said they had been prompted by their service officers to make these claims and to abandon jobs and rehabilitation programs to support their claims. This occurred following a determination by the vocational rehabilitation staff that the veteran is "employable" and that the opportunity for rehabilitation to a suitable job is feasible. M. FARMER
  18. I have heard the topic of Five Years of Service Connection for TDIU or 100% bandied about as if it has some significance. What is the significance of be SC for Five Years at a certain rate such as IU?
  19. Thanks to Eveyone for all the help and answers to my post. I orignally applied in 9/03 got a 10% nonsense rating. Filed a DRO with the help of HADIT. Nov got to the DRO and changed to 80% with TDIU back to original claim date with NO ADDITIONAL INFORMAION! Now my question is this permanent? Under DECISIONS it says Entitlement to individual unemployability, basic eligibility to Depentents Educational Assistance under 38 U.S.C. chapter 35...you were determine to be permanently disabled due to S/C disease with multiple complications. Now, you have been determined to be totally disabled on the basis of individual unemployability. We are scheduling you for a review examination during Sep 2008. They also enclcosed a brochure on Title 38 and dependent coverage and ChampVA and applictions. I am confused. I never got the award letter for the 80% just a SOC that said I needed to complete the TDIU and send additional evidence. Well they must have crossed in the mail becuase this is dated before the date of my addiional evidence was received. Will I still get an award letter for the 80% and what was or wan't awarded? Thanks to ALL and BERTA!! SE
  20. one 40 percent disability in combination, the following will be considered as one disability: (1) Disabilities of one or both upper extremities, or of one or both lower extremities, including the bilateral factor, if applicable, (2) disabilities resulting from common etiology or a single accident I need help understanding the above. I need 40% for one disability to file. Does the above mean if all the ratings in both my arms come to 40% I can file? What does disabilities resulting from a common etiology or single accident? I am at 50% all service connected for the same accident but for different body parts. I have claims pending, it is possible I will reach 70%, but not 70 or 40 for one disability. Need some answers quick, my PCP wants to take me out of work and I have to decide this week :{ I'm so tired of waiting on the VA to do whats right!
  21. Date: July 14, 1995 VAOPGCPREC 20-95 From: General Counsel (022) Subj: Medical Records Review Prior to Rating Examinations To: Under Secretary for Benefits (20) QUESTION PRESENTED: Under what circumstances must an examiner review a veteran's medical records prior to conducting a rating examination for compensation and pension purposes? COMMENTS: 1. The statutory duty to assist in 38 U.S.C. SS 5107(a) requires that the Secretary of Veterans Affairs assist a claimant in "developing the facts pertinent to the claim," provided that the claim is well grounded. The statute does not specify the types of assistance required. The United States Court of Veterans Appeals (CVA) has held in numerous cases that the Department of Veterans Affairs' (VA) statutory duty to assist a claimant may, under appropriate circumstances, include a duty to conduct a thorough and contemporaneous medical examination. See Green v. Derwinski, 1 Vet. App. 121, 124 (1991); Caffrey v. Brown, 6 Vet. App. 377, 381 (1994). Further, the CVA has in many such cases remanded claims with instructions to provide, pursuant to the duty to assist, an examination which "takes into account the records of [the claimant's] prior medical treatment, so that the evaluation of the claimed disability will be a fully informed one." E.g., Green, 1 Vet. App. at 124. The CVA's precedents do not, however, clearly indicate whether VA examiners must review claimants' prior medical records in all cases in which VA conducts an examination for compensation and pension purposes. 2. Section 501(a)(3) of title 38, United States Code, authorizes the Secretary to prescribe all rules and regulations necessary or appropriate to conducting medical examinations. Although the Secretary has issued regulations governing the provision of medical examinations (see 38 C.F.R. SSSS 3.326 and 3.327), those regulations do not address whether, and under what circumstances, a VA examiner must review a claimant's prior medical records before examining the claimant. VA regulations at 38 C.F.R. SS 4.1, issued as part of VA's schedule for rating disabilities, state that "t is . . . essential, both in the examination and in the evaluation of disability, that each disability be viewed in relation to its history." Although each disability examined must be viewed in relation to its history, section 4.1 does not mandate any particular source for that history. For example, section 4.1 does not require that the history be obtained from the examiner's review of prior medical records as opposed to the oral report of the person examined or summaries provided by the rating board requesting the examination. 3. VA regulations at 38 C.F.R. SS 4.2 provide, with respect to review of examination reports by rating boards, that "if the report does not contain sufficient detail, it is incumbent upon the rating board to return the report as inadequate for evaluation purposes." The regulations do not, however, provide specific criteria for determining whether an examination report is adequate for rating purposes. A provision in the Veterans Benefits Administration's (VBA) Adjudication Procedure Manual discusses some considerations in determining whether a report is adequate. The manual requires that a report "include a brief medical and industrial history from the date of discharge, or last examination," but does not expressly require that the report be based upon review of a claimant's prior medical records. VBA Adjudication Procedure Manual M21-1, part VI, para. 1.09a., change 30 (8-19-94). That manual further provides that "[c]laims folders will not routinely accompany requests for examination to the examining facility," but that "[e]xceptional circumstances may warrant claims folder review by the examiner, e.g., POW exams, BVA remands, etc." Id. at para. 1.01g. A Veterans Health Administration (VHA) manual similarly provides that: <Page 2> Claims folders will not be forwarded to the VA health care facility or clinic with requests for examination except when the claim is for service connection for post-traumatic stress disorder or when the Board of Veterans Appeals or the Rating Board request the claim folder be made available to the examining physician. . . . Claims folders will not routinely be requested for review prior to or during examination. VHA Operations Manual M-1, part I, para. 20.05a. and b. (7-6-93). 4. The CVA decisions directing that VA examiners review a claimant's prior medical records before conducting an examination have generally relied upon language in Green v. Derwinski, 1 Vet. App. 121 (1991). In Green, the Board of Veterans' Appeals (Board) had denied a claim for service connection for residuals of poliomyelitis, based in part on the fact that a VA neurological examination had not revealed any chronic residuals of the poliomyelitis which was diagnosed during the claimant's military service. Id. at 122-23. On review of that decision, the CVA found that the Board had erred in relying upon the VA neurological examination as evidence against the claim. The CVA noted that the VA examination report was equivocal as to whether certain neurological findings could be attributable to residuals of poliomyelitis. Id. at 123. Further, the CVA noted that the VA examiner had stated that review of the claimant's prior medical records might "`clarify the diagnostic doubt'." Id. at 123. In view of the inconclusive nature of the examination report relied on by the Board and the examiner's suggestion for review of the claimant's prior medical records, the CVA stated that "fulfillment of the statutory duty to assist here includes the conduct of a thorough and contemporaneous medical examination, one which takes into account the records of prior medical treatment, so that the evaluation of the claimed disability will be a fully informed one." Id. at 124 (emphasis added). The CVA further quoted the requirement of 38 C.F.R. SS 4.2 that VA rating boards return examination reports which are "inadequate" for evaluation purposes. Id. at 124. 5. The CVA's conclusion in Green with respect to the requirements of the duty to assist was expressly limited to the particular circumstances of that case and was apparently based in part on the fact that the VA examiner had expressly suggested that review of prior medical records would be helpful. See also Abernathy v. Principi, 3 Vet. App. 461, 463-65 (1992) (where VA examiner deferred diagnosis because claims folder was unavailable and stated that it "seems prudent" to review folder prior to reaching diagnosis, CVA remanded for completion of examination report). Green cannot reasonably be read as holding that VA examiners must review a veteran's prior medical records in all cases where a VA examination is conducted. In several subsequent cases, the CVA has, in a variety of circumstances, relied upon Green in requiring new VA examinations involving review of prior medical records. Although those cases indicate that the requirement for records review by VA medical examiners is not limited to situations where an examiner recommends such review, they do not, in our view, establish that such records review is required in all circumstances, nor do they suggest a legal basis for such a broad and absolute requirement. Rather, review of those cases, in the context of applicable law and precedent, suggests that the necessity for pre-examination records review must be determined according to the facts of each individual case. The cases suggest certain circumstances, in addition to those identified in Green, under which the duty to assist will require pre-examination review of prior medical records. 6. In Wilson v. Derwinski, 2 Vet. App. 16 (1991), the veteran asserted that his then-current back disability was related to a back injury in service several years earlier. After his initial VA examination, the veteran submitted private medical records reflecting treatment for back pain over a number of years after service. The CVA held that the VA examination was deficient in failing to address whether the current back disability was related to the in-service injury and stated that "[i]n this case, the `fulfillment of the statutory duty to assist . . . includes the conduct of a thorough and contemporaneous medical examination, one which takes into account the records of prior medical treatment'." Id. at 21 (emphasis added) (quoting Green, 1 Vet. App. at 124). Although the CVA's holding was expressly limited to the facts of that case, Wilson might be viewed as indicating that when an examiner is required to assess whether a current disability is related to a previously-noted disability, the examiner must review the records of prior medical treatment in order to have an informed basis for that determination. See generally Stanton v. Brown, 5 Vet. App. 563, 569 (1993) (remand for VA examination to determine whether <Page 3> veteran had current back disability and, if so, whether it resulted from back injury noted in service; Green quoted); Moore v. Derwinski, 1 Vet. App. 401, 405 (1991) (VA examination report failed to address possible relationship between service-connected trench feet and subsequent development of degenerative arthritis of heels); Green, 1 Vet. App. at 124. 7. In Fanning v. Brown, 4 Vet. App. 225, 230 (1993), the claimant had raised a claim for secondary service-connection for a psychiatric disability claimed to have resulted from his service-connected physical disabilities, and VA failed to develop and adjudicate that claim. The CVA, citing Green, held that, "n this instance," VA was required to provide a psychiatric examination taking into account prior medical records to determine whether the claimant had a psychiatric disability and whether any such disability was related to his service-connected disabilities. Id. at 230. This case appears to suggest that review of prior medical records may be necessary when an examiner is required to assess whether a claimed current disability was proximately caused by a previously-diagnosed service-connected disability. See generally EF v. Derwinski, 1 Vet. App. 324, 326 (1991) (remand for examination to determine whether psychiatric condition was secondary to service-connected physical disability; Green quoted). 8. In Shoemaker v. Derwinski, 3 Vet. App. 248 (1992), which involved a claim for an increased rating for a service-connected psychiatric disability, the veteran had been diagnosed with numerous different psychiatric disorders at various times. The CVA remanded the case and instructed VA to conduct an examination for purposes of reconciling the numerous diagnoses. Id. at 254-55. The court stated that the examiner must have the veteran's "full medical record" prior to making an evaluation. Id. at 255. Although the CVA again did not purport to establish any rule of general applicability, this case appears to suggest that when an examiner is required to assess and reconcile conflicting prior diagnoses, review of the pertinent prior medical records may be necessary. See generally Waddell v. Brown, 5 Vet. App. 454, 456-57 (1993) (remand to determine degree of impairment attributable to various disorders; Green quoted); EF, 1 Vet. App. at 326 (examination required to determine what mental disorder was in issue; Green quoted). 9. In Tucker v. Derwinski, 2 Vet. App. 201 (1992), a VA regional office had reduced the veteran's disability rating based on the findings on a VA examination. The regional office had observed that "`the claims folder was not reviewed by the examiner and the history reported by the veteran is [not] reliable.'" Id. at 202. Noting that the claims folder had not been reviewed by the examiner, the CVA concluded that the VA examination did not provide an adequate basis for reducing the veteran's disability rating. Id. at 203. This case appears to suggest that when an examiner is required to evaluate whether a disability has improved since a prior date, the examiner must review the claimant's prior medical records. But compare Schafrath v. Derwinski, 1 Vet. App. 589, 594-96 (1991) (Although the CVA stated that "[w]hether or not a disability has improved cannot be determined without reference to prior records detailing the history of the condition," it held that the Board had erred in not considering such history, not that the VA examination report was inadequate for failing to consider it.). However, we note that, under the facts presented in Tucker, the claims folder apparently was the only reliable source of medical history. 10. In Ardison v. Brown, 6 Vet. App. 405 (1994), the claimant sought an increased rating for his service-connected foot disability (tinea pedis), which was subject to alternating periods of recurrence and remission. The CVA noted that the VA examination in that case had been performed during an inactive stage of the disability, id. at 408, and, after quoting Green, the court held that the VA examination "was not adequate, given appellant's prior history of remission and recurrence of tinea pedis." Id. at 407. The CVA ordered a new VA examination during the active stage of the claimant's disease. Id. at 408. Although the CVA did not specifically state that the VA examiner would be required to review the claimant's prior medical records in conducting the examination on remand, Ardison may be construed as suggesting that, when the disability at issue is one which is subject to periods of remission or inactivity, the examiner should review the pertinent prior medical records to determine whether the current examination accurately reflects the severity of the disability during the active stages of the disability. 11. In Proscelle v. Derwinski, 2 Vet. App. 629, 632 (1992), the CVA held that the claimant had submitted a well-grounded claim for an increased rating for residuals of his service-connected maxillary fracture, but noted that the <Page 4> record before VA contained no evidence of the then-current severity of that condition. The CVA held that VA was required to provide an examination to determine the current level of the veteran's disability and stated that the "examiner should have the veteran's full claims file available for review." Id. at 632. The rationale for requiring the veteran's full claims file to be forwarded to the examiner for purposes of evaluating the veteran's current level of disability was apparently to assist in evaluating the extent to which the veteran's nonservice-connected conditions may have caused or contributed to the current service-connected maxillary disability. Id. at 632. The CVA did not purport to establish a generally-applicable rule requiring review of claims folders in connection with VA examinations in claims for increased ratings. Rather, the holding was expressly limited to the requirements of the duty to assist "in this case." Id. at 632. 12. In Crawford v. Brown, 5 Vet. App. 33 (1993), the claimant sought an increased rating for a service-connected psychiatric disability and was examined by a VA physician who did not review the claimant's prior medical records. The CVA concluded, without explanation, that the evidence before the Board was "inadequate" and remanded the case with instruction to conduct a new examination "which takes into account the records of prior medical treatment, so that the evaluation of the veteran's disability will be a fully informed one." Id. at 36 (emphasis in original); see also Del Rosario v. Principi, 3 Vet. App. 555, 557 (1992) (claim for increased rating for coronary artery disease remanded for a "thorough medical examination which takes into account the records of prior medical treatment"). In neither Crawford nor Del Rosario did the CVA explain the necessity of review of prior medical records, other than by the passing reference in Crawford to making a fully informed decision. However, we may surmise that the court believed that review of medical history was significant in these increased rating cases so that the current state of the conditions could be viewed in the context of the progression of the disabilities at earlier stages. 13. In Roberts v. Derwinski, 2 Vet. App. 387 (1992), VA had denied the veteran's claim for nonservice-connected pension based on a VA examination conducted without review of any of the veteran's private medical records. The CVA indicated that the Board erred in denying the claim "without stating a legal basis for its denial in view of the veteran's entire medical history" and, citing Green, remanded the claim with instruc-tions to provide a medical examination "which takes into account prior medical records." 2 Vet. App. at 390. In Martin v. Brown, 4 Vet. App. 136, 139 (1993), which involved a claim for an increased disability rating based on individual unemployability, the VA medical examiner "did not have the benefit of the veteran's past medical records." The CVA held that the record before the Board was "inadequate" and, citing Green, remanded the case with instructions to provide a new VA examination, "including a review of all past medical records." 4 Vet. App. at 140. The rationale for requiring review of prior medical records in order to determine whether a claimant is currently permanently and totally disabled or totally dis-abled based on individual unemployability is not clear from the CVA's opinions. In Martin, however, it appears that the "past medical records" referred to by the CVA included then-current reports of private medical treatment which the claim-ant was receiving on a monthly basis. 4 Vet. App. at 139. Those records presumably could be pertinent to the examiner's assessment of the claimant's then-current disability levels. 14. In Culver v. Derwinski, 3 Vet. App. 292 (1992), the claimant sought service connection for post-traumatic stress disorder, gastric ulcer disease, and a right-shoulder disorder, and an increased rating for otitis externa. The CVA, citing Green, remanded the first three claims with instructions to conduct a new medical examination which takes into -account the claimant's prior medical records. Culver, 3 Vet. App. at 299-300. The court did not explain why review of prior medical records was necessary. With respect to the otitis externa claim, the CVA stated that the VA examination failed to include a review of all the veteran's medical records, in violation of the duty to assist, but that the error was harmless because the examination had found no current manifestations of the claimed disability. Id. at 299; see also Irby v. Brown, 6 Vet. App. 132, 135-36 (1994) (failure to obtain medical examination which took into account records of prior evaluation and treatment was harmless where there was a plausible basis for the Board's conclusion that the criteria for diagnosis of the claimed condition were not met). The fact that a failure to conduct an adequate medical examination may constitute harmless error is not helpful for purposes of guiding VBA's actions with respect to furnishing records to examiners, since the harmlessness of the failure would not be apparent until after adjudication of the claim is completed. <Page 5> 15. The holdings in most of the above-referenced CVA opinions, including Green and Wilson, the cases most often cited by the CVA on this issue, are expressly limited to the facts of those particular cases and do not purport to establish a generally applicable rule requiring review of prior medical records in connection with all VA compensation and pension examinations. See, e.g., Green, 1 Vet. App. at 124 ("here"); Wilson, 2 Vet. App. at 21 ("n this case"); Fanning, 4 Vet. App. at 230 ("n this instance"). Certain decisions of the CVA citing Green and Wilson appear to assume that those cases established a generally applicable rule to be applied without regard to the circumstances of the particular case. See Culver, 3 Vet. App. at 299-300. In this regard, the CVA has on occasion employed broad language suggestive of a rule that examinations pursuant to the duty to assist must include review of prior medical records. See, e.g., Caffrey, 6 Vet. App. at 381 ("The medical examination must consider the records of prior medical examinations and treatment in order to assure a fully informed examination."); Waddell, 5 Vet. App. at 456 ("The duty to assist `includes the conduct of a thorough and contemporaneous medical examination, one which takes into account the records of prior medical treatment . . . .'" (quoting Green)); Martin, 4 Vet. App. at 139-40 (similar to Waddell). Those statements, however, were made in the context of summarizing the holdings in Green and similar cases. The CVA merely restated or quoted the pertinent language from Green and did not purport to consider or decide independently the question of whether a VA examiner must review a veteran's prior medical records in all cases in which a VA examination is conducted. In none of the referenced decisions did the CVA provide any discussion or legal analysis to support such a broad rule, and nothing in the opinions indicates that that particular question was actually presented to or decided by the CVA. Accordingly, we do not believe that the CVA's seemingly broad characterization of Green and similar cases can reasonably be construed to establish a requirement for review of prior medical records in all cases in which a VA examination is conducted. Further, even if the referenced decisions reflected a belief that prior CVA precedents established a broad rule requiring pre-examination records review in connection with all compensation and pension examinations, we do not believe that those opinions would themselves constitute precedential authority establishing such a rule. See, e.g., United States v. Daniels, 902 F.2d 1238, 1241 (7th Cir.), cert. denied, 498 U.S. 981 (1990) ("Judicial assumptions concerning, judicial allusions to, and judicial discussions of issues that are not contested are not holdings." (citations omitted)); In re Stegall, 865 F.2d 140, 142 (7th Cir. 1989) ("A point of law merely assumed in an opinion, not discussed, is not authoritative." (citations omitted)). 16. The CVA decisions discussed above indicate that review of a claimant's prior medical records will often be necessary in order to provide an adequate basis for an examiner's opinions and conclusions. The types of claims in which such review may be necessary include those raising issues concerning: the possible relationship between current disability and previously noted disability, see Wilson, 2 Vet. App. at 21; Green, 1 Vet. App. at 123-24; secondary service connection, see Fanning, 4 Vet. App. at 230; the possible effect of nonservice-connected conditions on a service-connected condition, see Proscelle, 2 Vet. App. at 632; the progression or improvement of a condition since a prior rating, see Crawford, 5 Vet. App. at 36; Del Rosario, 3 Vet. App. at 557; Tucker, 2 Vet. App. at 202-03; but see Schafrath, 1 Vet. App. at 594-96; conditions of fluctuating severity, see Ardison, 6 Vet. App. at 407-08; reconciliation of differing diagnoses, see Shoemaker, 3 Vet. App. at 254-55; and, private medical records which may be pertinent to assessment of the current level of disability, see Martin, 4 Vet. App. at 139-40. Further, in most instances, the language used by the CVA indicates the court's understanding that records would actually be reviewed by, rather than merely made available to, the examiner. Compare, e.g., Wilson, 2 Vet. App. at 21 (records of prior medical treatment to be "take[n] into account"); Green, 1 Vet. App. at 124 (same); and Martin, 4 Vet. App. at 140 (examination to "includ[e] a review of all past medical records") with Shoemaker, 3 Vet. App. at 255 ("examiner must have the full medical record"); and Proscelle, 2 Vet. App. at 632 (claims folder to be "available for review" by examiner). These decisions do not, however, establish that review of medical records will be required in all circumstances where a rating examination is conducted pursuant to the duty to assist. In view of the nature of the statutory duty to assist and the role of examinations in the VA claims-adjudication process, we believe that the necessity for review of prior medical records as part of a VA examination will depend upon the facts of the particular case and, specifically, upon the nature of the issues the examination is required to address. 17. In requiring VA examiners to review a claimant's prior medical records, the CVA has relied primarily upon the duty to assist stated in 38 U.S.C. SS 5107(a). Section 5107(a) provides that, once a claimant has submitted a <Page 6> well-grounded claim, VA is required to assist the claimant "in developing the facts pertinent to the claim." (Emphasis added.) The CVA has indicated that the duty to assist under section 5107(a) is not unlimited, nor is it a license for a "fishing expedition," but that it requires only development of evidence which is relevant to the claim. Counts v. Brown, 6 Vet. App. 473, 476 (1994); Gobber v. Derwinski, 2 Vet. App. 470, 472 (1992); Godwin v. Derwinski, 1 Vet. App. 419, 425 (1991). In Counts, 6 Vet. App. at 476, the CVA stated that section 5107(a) does not require VA to seek to obtain documents which are not demonstrably relevant to the claim. These precedents suggest that 38 U.S.C. SS 5107(a) requires only such actions as would assist in obtaining or developing evidence relevant to a claim. 18. In ordering examinations pursuant to the duty to assist in Green and other cases, the CVA stated that pre-examination review of the claimant's prior medical records was necessary in order to ensure that the examinations were "fully informed" examinations. E.g., Green, 1 Vet. App. at 124. As is apparent from the above discussion, it appears that review of the prior medical records was necessary in most of those cases to enable the examiner to address fully and fairly the particular issue which the examiner was required to consider. In Green, for example, where a VA examination was conducted for purposes of determining whether the claimant had chronic residuals of a previously diagnosed disease, review of the prior medical records identifying the disease and its effects was considered necessary to provide a factual basis for that determination. Id. at 123-24. In this context, the requirement for pre-examination records review might be appropriate under the theory that an examination carried out pursuant to the duty to assist must be conducted in a manner designed to facilitate, to the extent feasible, the development of the evidence necessary to adjudicate the claim fully and fairly. This theory, which might be viewed as implicit in the statutory duty to assist, is reflected in the requirement at 38 C.F.R. SS 4.2 that examination reports contain sufficient findings and detail to support the examiner's conclusions and to provide an adequate basis for evaluation of the claim. 19. It does not necessarily follow, however, that review of a veteran's prior medical records will be required in all cases in order to provide the necessary basis for an examiner's evaluation of the claimant's disabilities. Rather, there may be circumstances where the scope of the examination required by the duty to assist will be limited in such a way that review of a claimant's prior medical records would not materially assist the examiner in making the necessary determinations. Your opinion request suggests, as an example, that review of prior medical records may be of no assistance when the examiner is asked only to determine whether the veteran has lost the use of a hand, inasmuch as that determination is based solely on actual remaining function and not on a comparison of present functioning to past functioning. We do not believe that the duty to assist would require review of prior medical records when such review would not assist the examiner in making the necessary determinations. 20. In addition, if review of a veteran's prior medical records would not materially assist the examiner in evaluating the veteran's condition or responding to the examination request, then the examination report presumably would not be "inadequate" for rating purposes under 38 C.F.R. SS 4.2 simply because it was not based upon review of the prior medical records. Whether an examination report is adequate for rating purposes will generally depend upon the facts of the particular case and, specifically, upon the nature of the information needed to adjudicate the claim. 21. When an examination is required under the duty to assist, the function of the examination is to develop "pertinent" evidence which will provide the necessary basis for evaluation of the claim. This purpose is reflected in the legislative history of the Veterans' Judicial Review Act, Pub. L. No. 100-687, Div. A, SS 103(a)(1), 102 Stat. 4105, 4106 (1988), which created the statutory duty to assist. In discussing the types of assistance VA traditionally provided under its pre-existing regulatory policy of assisting claimants, see 38 C.F.R. SS 3.103(a), the House Committee on Veterans' Affairs stated: <Page 7> When necessary, a medical examination is scheduled with a VA or consulting physician at Government expense. The physician records the claimant's medical and social/industrial history, as well as all clinical findings, which provide an objective base for later evaluation by a rating board or Board of Veterans' Appeals. The physician does not provide conclusions as to the merits of the claim. H.R. Rep. No. 963, 100th Cong., 2d Sess. 13-14, reprinted in 1988 U.S.C.C.A.N. 5782, 5795. Because compensation and pension examinations are provided for the purpose of developing the evidence necessary for adjudicators to evaluate the claim, the scope of the examination will generally depend upon the facts of the particular case and upon what sort of evidence is needed in order to facilitate a full and fair evaluation of the claim. When, for example, the evidence needed to adjudicate a claim includes a physician's evaluation of the possible relationship between a prior disability and a current disability, the physician will need to review pertinent prior medical records in order to provide a fully informed evaluation. On the other hand, where the necessary evidence to be developed through examination is limited to matters which do not implicate the claimant's prior medical history, then the examiner will not need to review the prior medical records in order to provide the required evaluation. 22. Finally, we note that the opinion request refers to the need for review of a veteran's claims folder prior to examination. The pertinent CVA precedents generally do not require that a claimant's entire claims folder be transmitted to or reviewed by an examiner prior to an examination. Rather, Green, 1 Vet. App. at 124, and similar cases stated that the examiner was required to review the claimant's "records of prior medical treatment." In only two cases, Proscelle, 2 Vet. App. at 632, and Tucker, 2 Vet App. at 202, was the claims folder referenced. We believe that, where review of record by an examiner is required, the requirement may generally be met by transmitting to the examiner copies of all pertinent medical records. Transmittal of the entire claims folder or of medical records pertaining entirely to unrelated conditions would not generally be required. 23. In light of the foregoing discussion, revisions to VBA Manual M21-1 and VHA Manual M-1 appear to be necessary. HELD: Pursuant to the statutory duty under 38 U.S.C. SS 5107(a) to assist a claimant in the development of facts pertinent to a claim, and the decisions of the Court of Veterans Appeals interpreting that duty, a Department of Veterans Affairs examiner must review a claimant's prior medical records when such review is necessary to ensure a fully informed examination or to provide an adequate basis for the examiner's findings and conclusions. However, such review may not be necessary in all cases. The determination as to whether review of prior medical records is necessary in a particular case depends largely upon the scope of the examination and the nature of the findings and conclusions the examiner is requested to provide. Mary Lou Keener
  22. U.S. DEPARTMENT OF VETERANS AFFAIRS FOR INFORMATION ON APPLICATION PROCEDURES CALL TOLL-FREE 1 (800) 827-1000 Non-service connected veterans may also be entitled to many of the same VA benefits. More information may be obtained by calling the above toll-free number. EVALUATION VA BENEFITS FOR SERVICE CONNECTED VETERANS 0% and greater Home Loan Guaranty Certificate of Eligibility. Service Disabled Veterans Life Insurance. Must apply within 2 years from initial notice of service connection of a disability. CALL (800) 669-8477 FOR MORE INFORMATION ABOUT: Waiver of National Service Life Insurance premiums. National Service Life Insurance total disability income provisions. Outpatient treatment for: (1) service connected condition, and (2) for all medical conditions if enrolled in VA healthcare program. Co-payment for treatment may apply for non-service connected conditions. Travel allowance for scheduled appointments for care of the service connected condition at the VA Medical Centers and VA Out-Patient Clinics. Eligibility based on veteran's family income. Medical treatment in non-VA facilities for service connected condition with a fee basis card issued to the veteran by the authorizing VA Medical Center. Certain restrictions apply. 10 Point Civil Service Preference. (10 points added to Civil Service test score.) Clothing allowance for veterans who use or wear a prosthetic or orthopedic appliance (artificial limb, braces, wheelchair) or use prescribed medications for a skin condition which tend to wear, tear, or soil clothing. Temporary increased total evaluation with payment at the 100% rate based on hospitalization for a service connected disability necessitating at least one month of convalescence or immobilization by cast, without surgery of one major joint or more. Dental treatment for: (1) service connected dental condition, OR (2) follow-up dental treatment which has begun while hospitalized at a VA Medical Center, OR any former Prisoner of War with 90 consecutive days, or more, of confinement. Some restrictions may apply based on availability of services. 10% and greater All of the above and: Vocational Rehabilitation which includes full medical and dental. (Chapter 31) Funding fees waived for Home Loan Guaranty. 30% and greater All of the above and: Additional compensation for dependents. (Spouse, children, dependent parents) Non-competitive Civil Service appointment. Affirmative action in employment. Travel allowance for scheduled appointments for care of all medical conditions (except dental) at VA Medical Centers and VA Out-Patient Clinics. Additional allowance for a spouse who is a patient in a nursing home. (Either helpless, blind, or so nearly helpless as to require the aid and attendance of another person). 40% and greater All of the above and: Automobile Assistance. (One-time payment up to $5,500). Veteran must have service connected loss of one or both hands or feet, or permanent loss of use, or permanent impairment of vision of both eyes. Special Adaptive Automobile Equipment. Veteran must have service connected ankylosis (immobility) of one or both knees, or one or both hips. 50% and greater All of the above and: Medical treatment for any condition (except dental). Enrollment in VA health care program is encouraged but not required for treatment of a service connected condition. No co-payments for treatment at VA Medical Centers and Out-Patient Clinics. Includes prescriptions written by a non-VA physician providing care under an authorized fee basis agreement with the VA Medical Center. (NOTE: Prescriptions written by non-VA physicians may be filled through the VA pharmacy for any (1) WW1 veteran OR (2) veteran entitled to Aid and Attendance or Housebound benefits regardless of evaluation percentage. A co-payment will be charged if the prescription is not for a service connected disability.) No co-payments on Prescription Drugs for service connected disabilities. Medical treatment in non-VA facilities for any medical condition with a fee basis card issued to the veteran by the authorizing VA Medical Center. 60% to 90% with Individual Unemployability and greater All of the above and: [*] Increased compensation, payable at the 100% rate, based on Individual Unemployability. [*] Dental treatment. Permanent and Total Evaluation Either 100% OR 60% to 90% with Individual Unemployability All of the above and: [*] Educational Assistance for Dependents. (Chapter 35) [*] Civilian Health and Medical Program For Dependents/Survivors. (CHAMPVA). [*] Commissary and Exchange privileges. (Department of Defense) [*] Specially Adapted Homes. Grant up to $38,000. Building, buying or remodeling adaptive homes or paying indebtedness on existing home. Veteran must be entitled to compensation for permanent and total service connected disability due to: (1) loss or loss of use of both lower extremities or disability which includes (a) blindness in both eyes, having only light perception, plus ( B) loss or loss of use of one lower extremity OR loss or loss of use of one lower extremity together with (a) residuals of organic disease or injury, or ( :) the loss or loss of use of one upper extremity which so affects the function of balance or propulsion as to preclude locomotion without using braces, canes, crutches, or wheelchair. [*] Specially Adapted Homes. Grant up to $6,500. Handicap adaptations to a veteran's residence or to acquire a residence which already has been adapted with special features for the veterans disability. Veteran must be entitled to compensation for permanent and total service connected disability due to: blindness in both eyes with 5/200 visual acuity or less, OR anatomical loss or loss of use of both hands. [*] Veterans Mortgage Life Insurance. Decreasing term mortgage insurance up to $90,000 for veterans who have received a Specially Adapted Housing grant and have an existing mortgage. 100% Permanent and Total Evaluation All of the above and: [*] Emergency treatment in non-VA facilities if VA facilities are not available.
  23. I wrote the Institute of Medicine to give my opinion of the fact that they are doing a study for the VDBC regarding TDIU and many other compensation issues. They have been communicating with me in a serious manner. I hope some others will email them. You can get their email address from VAwatchdog.org. The Institute seems oblivious to the uses that the VDBC is going to use their findings to hurt vets. Maybe they just don't care and want the check, but they did write me back three times to explain their position.
  24. I am filling out the TDIU forms and have a few questions on a few areas. First, my relevant info. I was med boarded out of the army in Nov 2005 for my knee. I was given a lump sum disability severance of a little over $40K. My main problem now is my back. Problems with it began in service. It got very bad in Feb this year. Had Lumbar diskectomy surgery in April(now wish I hadn't done it). Its worse now than before. My first claim on everything including the back is currently at the rating board. I had the C&P for my back in early Jan before it got really bad but I have sent every bit of med records and documentation in including written letters by me and my wife. I have not worked since I got out. Anyways, on to my questions. Section II block 14. Date you became too disabled to work? I was put out of the army on disability for my knee. Though technically, my back didnt get severe enough to not BE ABLE to work in February. So should I put the date I was discharged or when my back got bad? Section II block 15A. What is the most you have ever earned in one year? Well, last year my total was almost $90K but half of that was the disability severance. Do I put the total or just what my regular pay was? Section III schooling Im really confused by this one. I dropped out of HS in the middle of my Junior year and got my GED. I have just completed my very first semester of college(had to do the second half of the semester from home due to disability) So for (highest year completed) would I have to circle High school sophmore year or is one semester of college enough to consider it completing one year of college? Or since I got my GED is it considered completing 4 years of High school? I know, I probably just confused everyone reading this. Its hard to think straight sometimes on these pain meds. Also in the schooling section, it asks if you have had any other education or training before or after you were too disabled to work. Should I put military training in there? Lastly, is there a site somewhere with detailed info regarding the TDIU form? Thanks alot for any help it is greatly appreciated.
  25. John, I'm not very computer savy and I could not answer on your question off the private post so I am making a new post here. Your question was how long did it take to get the 100% TDIU, P&T. I guess the easy answer is the retro goes back to August 2004. I started with DMII, Tinnitus and added PN after discovering the HADIT board. First lower body then upper body PN. I am lucky that my wife has a good job with health insurance that helped us survive till the award. I dismissed a NOD for HBP as my SO said we have achieved the desired goal and any further claims might screw up my decision. I kinda disagree as the TDIU is P&T. The HBP was diagnosed before DMII and that is why the VA is denieing it. I belive you have posted that the same thing is happening to you with PN. I hope I have answered what you asked. I have donated to T-Bird when I won some of my other claims and times were tight so I will not forget her now that I've won the big prize. Take Care! Terry Sturgis
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