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  1. so............... I WON MY CLAIM! sorry i had to get that out one more time. i am now 100% p&t. but my eed is december 2019 instead of the original claim date. i am trying to figure out what i need to do. should i file cue? should i just file a supplemental and ask for correction without cue? should i do something i am not even thinking of that you guys know better? reason i think cue is because in my letter, the judge specially says my original claim was 2013 and dx was 2008. it seems the vro clearly ignored this. also, they didnt even use the latest appeal date. i reopened the original 2008 claim back in 2013, but was denied and appealed multiple times and the last appeal was in 2019. Ill have to go through my c-file to get exact dates but this seems a big miss to me but maybe they are getting me on loop hole here because I didn’t reopen the original claim from 2008 until 2013, after the appeal window had closed. Any help or advice of course. Thanks guys for everything. I couldn’t have gotten here without your wisdom and encouragement! **EDIT TO INCLUDE PREVIOUS DENIALS FOR CONVENIENCE** here is the original denial: here is the the reopened claim denial: Denial for HLR: Denial for first CUE: Law Jude Decision.pdf decision-letter_osa_4-20-21.pdf
  2. I recently had a HLR and when I checked it, it said that it was closed but now it's back open and it says they found an error. I wanted to find out does anyone know how long it takes to get results after they change your case to this status.
  3. Request to Reinstallation for Sleep Apnea and Low back condition claims Back in January 2021, I received via mail a CD containing information to be used before the Board of Veteran Affairs for the MDD condition. I discovered VFW submitted a document on Jul/2011 where he withdraws the claims for Sleep Apnea and Low Back condition. This was the first time I learned about this document. For the claim of Sleep Apnea, I hand-delivered favorable IMO to the Hearing officer in 2010 and at the time they had also an IMO for the Low Back Condition(2008) along with a full medical report from the same doctor. After reviewing the CD and my paperwork, I asked the VA via phone on Feb/2021 about communications between July and September 2011. The VA representative emailed me a document dated 8/1/2011(attached) with multiple issues on it and an indication of; “We also withdrew all other issues on appeal as per your Veterans of Foreign Veterans letter dated and received July 2011". I kept working on the claims throughout the years; these were done in two different RO and to all effects VA indicated that they were working on these claims as presented in their communications on Feb/2012 and Jun/2012. Interestingly, for the latter communications, VA does not indicate a withdrawal of appeals nor that my claim is “reopened”. Finally, on Apr/2013, VA use different wording like “denied the reopening” since “Evidence no show event, Evidence not new. Claim not reopened. Not Substantive”. While still, VA did not evaluate IMO on the record. Out of frustration, I did not further pursue these claims; until I received the CD in January 2021, and realize that my claims for Sleep Apnea and Low back claims were withdrawn without my consent in 2011. Significantly, the VFW letter offers a conditional appeal, where indicates: (1) “As longer his appeals for increase in the other conditions…”, (2) “He would be satisfied with the decision made,” (3) “This withdraw does not mean…” Additionally, there’s an undated additional handwritten note in the printed proposal that indicated another “conversation” with the veteran. As I learned under Warren v. McDonald, docket no. 15-0641 (Sep 14, 2016) it is, held: An appellant or his/her representative may withdraw an appeal, but unless the withdrawal is on the record at, it must be in writing. A withdrawal “is only effective where withdrawal is explicit, unambiguous, and done with a full understanding of the consequences of such action on the part of the claimant.” I tried to get a hold of the VFW trough 12 emails (for 2 months) and multiples calls without success. I did change the VSO. Also, I wrote a letter detailing the events to the VA. Now the VA wants the request in a Form (20-0995). This form explicitly indicates that is to be used for “New and relevant evidence to submit for VA to consider”. I request that my claims of Sleep Apnea (2008) and Low back(2005) be reinstated at their original claim date since they were worked continuously since their inception and there was evidence that were not evaluated. As today My sleep apnea is worse indicated in a VA Study in 2019 and had Spinal Fusion in Kentucky (2015). I appreciate any help you can provide.
  4. This one is a doozy... Below are recently written summaries of my situation that I have sent to various VSOs and firms doing pro-bono work. I have already applied to the NLSVP for help with my discharge upgrade through the Navy, but that is likely to take a year or more before I will even hear back from them. I also just applied to the Yale NVCLR after running across their recent success with the Army discharge review boards. I have decided to go with the DAV for my VSO, but I want to be as thorough with this as I possibly can. Questions that I have- How do I proceed without screwing myself? I have been unemployed for a year now and while I would love for every single avenue to be explored, at this point 9+ years later I just any help I can get. What is the best way to collect and present character statements? I plan on contact anyone I can on social media from my unit to vouch for both my time in service and my time post discharge, but I don't want to put too much effort in a potential "small" category of importance. I know of others in my unit who were also ADSEPd following our deployment for misconduct in similar circumstances, many with differing outcomes- Are these potentially relevant to my case if I can get permission to cite their discharges? What would be the potential bars from getting backpay on my original 2012 claim that was closed? I missed my C&P exams, but I never knew they were scheduled in the first place.- Also, in light of the recent Federal circuit decision , to what degree was the VA obligated to notify me of the new evidence they received in 2014 at my new address? In order to register an account on e-benefits, I had to fill out a survey that included a soft credit check and questions regarding my past addresses. They knew, or were able to on demand pull and verify, every single address I've lived at since getting out, but up until two weeks ago my mail was going to the WRONG address I enlisted from? Hell, even the email addresses listed on my VA profile were my parents! None of the contact information in the VA systems I've come across has been even remotely accurate... This is a lot, but I feel as if there are a lot of things at play in my situation. I can post redacted copies of what I have or clarify further on anything needed. Thank you in advance for reading. -tfy ------------------------------------------------------------------------------------------------------------------------------------------- START HERE FOR BACKGROUND INFO Subject: New Service Records Discovered by VA- 2012 Claim Good Afternoon Mr. XXXX, I was ADSEP'd (Administratively Separated) with an OTH (General-Under Other Than Honorable Conditions) in 2012 for smoking marijuana to self-treat PTSD following a combat deployment. SARPs (on base Substance Abuse Rehab Program) diagnosed me with Adjustment Disorder w/Depressed mood and Alcohol dependency, but I completed the program and fought the ADSEP by taking a board review. While the board recommended to retain me suspend the discharge recommendation with a conditional OTH in the event of further misconduct, my unit deployed before the board could convene and contrary to everything I had been told up until that moment, I received a 10-day letter with ~5 days left on it informing me that the reviewing authority upheld the boards characterization of service but rejected their retention recommendation. It demolished me and I have seemingly never recovered. Thankfully, my parents pushed me to file a claim through the American Legion in XXXXXX when I initially got home, but I moved all around in the interim, was told it was a fat chance in hell to overturn drug pop discharges (2012) and that I was by default ineligible by my command/others. Unable to stay at home because of my PTSD, I moved out of state and never received any further correspondence from the VA which led to missing C&P exams. The initial compensation claim was filed on X-XX-2012 and I was granted service connection for treatment purposes only for Adjustment Disorder w/Depressed Mood, which I did NOT claim. I did claim PTSD, left knee, right knee, back problems- all of which were denied service connection. Under REASONS FOR DECISION for Service Connection for PTSD, my decision letter states that they conceded my stressor (Combat Action Ribbon), but that my service records do not contain complaints, treatment, or diagnosis for that condition, and I did not attend my VA examination- as well as “Therefore, medical evidence that could have been useful to support your claim was not available to us.” In addition to my SARPs diagnosis of Adj Disorder w/depressed mood (an ACUTE disorder), there are records of me being seen at the Naval hospital on Lejeune for night sweats, a PTSD symptom, but I am unsure if that was included in the original compensation decision evidence. Fast forward to a few months ago and I discover I can be seen for free at a Vet Center, where treatment leads me to eventually contacting a VSO with the XXXXXXX. The VSO found a few files in my record that I have never seen in my life. After days of making calls to the VBA and VHA, I go from being emphatically told by the VBA eligibility department I am ineligible due to my Discharge Characterization- to registered with free VA healthcare on the same phone call earlier this month. Fast forward to last week, I receive a letter from VHA Member Services informing me that they have determined I am ineligible to enroll in VA healthcare due to the VBA determination letter I’ve copied/pasted below. THIS DIRECTLY CONFLICTS WITH THE 2013 VBA DETERMINATION LETTER CITED AS EVIDENCE. I made a million calls to the VA, and eventually get a call back and am told yesterday that my Characterization of Service Review claim was pulled by the VA XXXXXXX Regional Office and that there appear to be a few issues with my claims. The VA received more records from the service branch in 2014, a year after my original claims were Closed, but the claims were never reopened/examined, and nothing was done. The records were service records and medical records mixed together. The wording of the 2012 VBA decision letter (made by a different Regional Office than I currently reside in) are “conflicting” and confusing the VA Reviewers, which was the reason given to me why the XXXXXX office “has” my characterization of service claim. Today, I received a letter from the DVA Evidence Intake Center informing me that I have 60 days to provide evidence that helps with their decision concerning my eligibility for VA benefits. I do not even know where to begin. I have been in a pretty bad spot mentally, physically, and spiritually essentially since deployment, so to discover that I could have been getting help all this time is both infuriating and crushing. The VA Reviewer I spoke to at XXXXXXX said they would mail me a copy of the files the VA received from DoD in 2014 and that I need to go through everything with a fine-tooth comb and possibly consider getting representation. (I just got these yesterday, they seem to be similar to records I have from e-benefits and some that I kept from time in the service, but I cannot confirm 100% as they will not disclose to me what the newly discovered medical records pertain to) See the 2013 Character of discharge determinations copy/pasted below, I’ve XX’d out dates but can provide them as well as scanned copies of what I’ve received along with my original ADSEP package that I got a copy of before being discharged (potential conflict from my commands processing, they crossed through a required field on my ADSEP checklist for a CO’s letter of referral to the VA and wrote NA- told me I was SOL in no uncertain terms). ------------------------------------------------------------------------------------------------------------------------------------------------------------------ Updates- "While the board recommended to retain me with a conditional OTH in the event of further misconduct, my unit deployed before the board could convene and contrary to everything I had been told up until that moment, I received a 10-day letter with ~5 days left on it informing me that the reviewing authority upheld the boards characterization of service but rejected their retention recommendation." I called the Administrative Law section at the LSSS-E (covers Camp Lejeune, where I was ADSEP'd) today and learned that my OTH was actually Suspended, which is different than a recommendation to retain. DID find supporting documents in my "milconnectrecordpull" that were also present in the newly discovered records that the VA did not previously consider (they received them in 2014, a year after my original claims were CLOSED) These included my ADSEP package and board findings, INCLUDING a Minority Report filed by a board member in support of a higher characterization of service on the grounds that it was an isolated incident- THIS WAS NOT considered in my original claims, but I was still previously granted Honorable for VA purposes (in 2013) ALSO included the order from the CO of my Units Remain Behind Element recommending that I be retained in response to the boards finding to suspend my discharge, a recommendation that was IGNORED- resulting in my discharge with an OTH. ------------------------------------------------------------------------------------------------------------------------------------------- The linked album contains a redacted copy of the 2013 rating decision on my 2012 claim that was closed. ------------------------------------------------------------------------------------------------------------------------------------------- Character of Discharge letters from 2012 CoD ISSUE: Character of discharge. ADMINISTRATIVE DECISION EVIDENCE: DD Form 214 Facts and Circumstances from the Service Department DECISION: The claimant's service from XXXXXX to XXXXXX was under other than honorable conditions. The claimant is entitled to receive VA benefits based upon this period of service. The claimant is eligible for health care and, related benefits authorized under Chapter 17 of Title 38, United States Code, for any disability or disabilities incurred or aggravated in line of duty during active service. REASONS AND BASES: 38'USC §101(2); 38 CFR 3.12(a) 38 CFR 3.12(d) 38 CFR 3.360 The claimant entered active duty in the U.S. XXXXXXX. The Facts and circumstances furnished by the service department show that after the Veteran returned from his tour station in Afghanistan, the claimant tested positive for TCH 35 (marijuana) and subsequently charged with misconduct due illegal drug use. It also states that despite the Veteran's good conduct (awarded Good Conduct medal in XXXX), favorable character appraisal by his command, involvement in highly dangerous combat activities such as Mojave Viper and lack of evidence showing pattern of misconduct the board decided to appoint the claimant an other than honorable discharge: This appears to have been an isolated incident. The Facts and Circumstances state that the Veteran was made the poor choice of turning to an illegal drug and alcohol to cope with his mental health issues derived after his tour in Afghanistan. Prior to this incident the claimant had not used any illegal substance or had any pattern of behavioral health issues. Furthermore, there is no pattern of misconduct that can be established With out restoring to mere speculation. With several mental health studies being done that have linked alcoholism & drug use as a coping mechanism to deal with untreated mental health issues such as anxiety, adjustment disorder & PTSD the claimant's testimony is considered probable. In view of the evidence of record it is determined that this offense does not constitute willful and persistent misconduct. (Signed as Concurred and Approved on 8/21/2013) ------------------------------------------------------------------------------------------------------------------------------------------------------------------ As well as this letter Dear XXXXXX, We made a decision regarding your discharge from military service. Every effort was made to see that your claim received complete consideration. This letter tells you what we decided, how we reached our decision and what evidence we used to reach our decision. We have also included information on what you can do if you don't agree with our decision, and who to contact if you have questions or need assistance. What We Decided We decided that your military service for the period XXXXX through XXXXX is honorable for VA purposes. You and your dependents are eligible for any VA benefits for this period of military service. How Did We Make Our Decision? The evidence shows that your service from XXXXX to XXXX was under other than honorable conditions. You are entitled to receive VA benefits based upon this period of service. You are eligible for health care and related benefits authorized under Chapter 17 of Title 38, United States Code, for any disability or disabilities incurred or aggravated in line of duty during active service. Evidence Used to Decide Your Claim In making our decision, we used the following evidence: DD Form 214 Facts and Circumstances from the Service Department
  5. So I am getting juggled a bit between VSO since my awesome last one retired so would appreciate the proper route to take. I was just rated at at 50% Pes Planus with Plantar Fasciitis under 5276. This was a supplemental claim for only pes planus that was filed on 02/01/21 with a decision made on 03/12/21. After speaking with a VSO, who read me the decision letter and raters notes, he said there is no doubt the 50% for pronounced pes planus was justified, but was not sure why they arbitrarily added plantar fasciitis to the decision. I mentioned to the VSO that effective 02/04/21, a diagnostic code of 5269 - Plantar Fasciitis was added to the schedule of ratings - musculoskeletal system and if it was possible that they combined them under diagnostic code 5676, because that was how it was always done before and the rater did not read or know about the new diagnostic code. He said that could be the reason. Just to note, I was diagnosed at the VA with bilateral pes planus in 2017 and given insoles. I was again seen by the VA for foot pain and bilateral pes planus was again affirmed in 2018 with a different set of insoles. This last January I again went in with foot pain where pes planus was again affirmed, had another set of insoles cast, and was diagnosed for the first time with bilateral plantar fasciitis and given steroid injections in each foot. Ultimately I am looking to get the plantar fasciitis rated separately from the pes planus under the new diagnostic code of 5269, which due to the severity and being bilateral would be at 30%. In fact, my VSO had already submitted an intent to file for bilateral plantar fasciitis, arthritis of both great toes, patellar tendinosis of both knees, arthritis of both knees, and ITB syndrome as being secondary to the pes planus once it was service-connected. The history of my pes planus dates back to my final physical and I have been receiving treatment for it since 2017 in the form of insoles when it was originally diagnosed with the VA. It was only this last year that I was diagnosed with plantar fasciitis as a result of the pes planus. So what route do I take on this supplemental claim? I feel like a High level Review won't allow me to submit the VA medical records showing that I have been treated unsuccessfully for pes planus since 2017. Is that something I can bring up in the phone conversation with the reviewer to get the plantar fasciitis rated separately under 5269? I am not submitting any new evidence so to speak, but literally VA medical records that were already in the system for years. The other question is, does the new diagnostic rating for plantar fasciitis even apply to me? I filed on 02/01/21 and the new rating schedule went into effect on 02/04/21. I want to fight this decision because I am already rated at 70% with CAD, DMII, and Tinnitus. Getting the plantar fasciitis rated separately would be the difference between an 86% rating rounding up to 90% and 92% rounding down to 90%. This does not include the issues secondary to the pes planus like the arthritis and tendinosis that are under my current intent to file.
  6. CUE =BVA - retro to 1985 for PTSD There are over 2,000 CUE decisions at the BVA for 2020. Many of them were denied and those cases reveal why they were denied. But persistence pays off: This vet would not give up- the case shows the rigamorale he went through. "ORDER The Veteran’s motion to revise the March 2007 rating decision that granted service connection for posttraumatic stress disorder (PTSD), effective October 7, 2005, on the grounds of clear and unmistakable error (CUE) is granted, and an effective date of April 9, 1985, but no earlier, for the award of service connection for PTSD, is assigned. " https://www.va.gov/vetapp20/files10/20067868.txt This case involved not only CUE but 38 CFR 3.156. Also the veteran appealed to the Court ( CAVC twice and apparently had a lawyer at that point who successfully represented him at the BVA for the CUE. The veteran at some point reopened his claim in 2005 and gained a 70% rating in 2007 (retro back to 2005) The BVA stated: "Here, there is no question that the award of service connection in 2007 was based, at least in part, on the confirmation of the Veteran’s stressors completed through CURR research. So, it is clear in this case that the effective date provisions of 3.156(c)(3) were applicable. " This vet Also had problems getting his stressors verified- problems that probably came from the VA itself-that is why it pays to do all you can to get a stressor verified via JSRRC and/or buddy statements. VA will lie about contacting CURR, when sometimes they never do that. It took 22 YEARS for that to occur in this veteran's case. Still the veteran knew that was wrong- and he proved with his lawyer that hi original 1985 claim for "delayed stress" ( PTSD was still new then and many vets with a PTSD diagnosis I met when I worked at a Vet Center, didnt really know what PTSD was, but they all had been diagnosed with it -from the Vietnam War.) My husband's 1983 award was for service connected "nervous condition"" subsequently changed to PTSD, when PTSD formally went into the regulations. In this case the original claim for "delayed stress" was clearly an established fact that the veteran had PTSD fro the Vietnam War. In many cases ( such as a recent CUE question here) a re opened claim can only generate a potential valid CUE on the original claim, only when there is no doubt that the original claimed disability was exactly the same as the re opened awarded disability. The only good thing VA ever did for my husband was diagnose him with PTSD immediately when he tried to choke a loan officer at the VA. The Director,a VA psychologist, as I mentioned before, gave him a buddy statement, because my husband revealed one stressor to him and the psychologist- was called to the same scene at the Perfume River, Vietnam to treat Marines who were obviously seriously affected by the "volunteer job" they had to do.It was horrible. He was awarded within a few months after that for SC PTSD. 30% SC. Even with treatment for years for the PTSD here in NY, he was awarded 100% P & T posthumously for SC PTSD because PTSD can get worse over the years. Severe stressors never go away. I hope this case above will help someone out there who thinks they have CUE and/or 3.156 potential. Any vet rep or VSO who can read, would be able to understand what a valid CUE is by reading this case, and be able to determine if you should file or re open in that regard. My last post on CUE here yesterday will also help any POA rep ,VSO , or claimant understand what a CUE is and how a re -open can gain a better EED, as explained in that post and in this very recent BVA award.
  7. I've been awarded 100% via TDIU (70% bipolar & 30% asthma) and I seek back pay to 1997 when I submitted my first claim for bipolar disorder. In my C file the C&P examiner states he found and lists symptoms of my mental disorder in a 1983 inpatient report of when I was hospitalized for two weeks in a psychiatric ward. Is that sufficient for a CUE claim for the start date of my disability pay?
  8. In August 2020, I filed a HLR for heart attack and was just called by a DRO. The DRO indicated the decision was in error because it was based solely on the wrong condition (atrial fibrillation) and did not address the heart attack at all. They will go over everything, including the strong "more likely than not" IMO from my non-VA board certified doctor. They said they would try to grant based off of the evidence of record. Of course, if granted, I would get another heart C&P for rating purposed. Should know something within the next couple of weeks.
  9. I've got a question concerning my ratings code sheet. The info enclosed below is depicted on all three of my Ratings Code Sheet (Original - 2013; IU - 2019 & PTSD RFE 2020). Does this mean that I'm service-connected for Sinusitis at 0% or is this just a VARO mistake (maybe a CUE)? Is there any additional action that I should or could take? Thanks in advance.
  10. https://www.va.gov/vetapp20/files1/20000710.txt There are 1954 BVA decisions regarding CUE in 2020 alone. Many were denied, some were re-file-able, "without prejudice "( meaning the claimant needs to perfect the CUE and re file it) and CUE is NOT a one shot deal, as many reps etc try to say, and some certainly were awarded.
  11. hello, i was told to look into something called smc l. i dont know if i qualify or not. i was given a 100% permanent and total rating in 2015. here are my ailments. biploar disorder 70% Asthma due to jet fuel exposure 60% cystic acne due to jet fuel exposure 30% carpal, allergies, tinnitus each at 10% i also get ssdi 100% and they require me to use my sister to manage my finances. my sister also basically serves as my caregiver. without her i dont believe i can function. she does everything for me from finances, to taking me to appts, to reminding me and sometimes helping me clean. and more. would i be able to apply for smc-l and if so how would i go about doing it. i overheard a family member discussing it with my sister and mom the other day. and it sounds very helpful. thank you
  12. I warn y'all that there's a lotta dates on this one but by the end hopefully y'all understand once I'm done. I have duplicate PTSD C&P Exams scheduled for 11/10/2020 (which I just had) and 11/16/2020. The C&P Exam on 11/10 indicated it was an "Initial PTSD" as that's what the paperwork indicated when I got it from LHI. The upcoming C&P Exam on 11/16/2020 is being done by the VA via VideoConnect. I initially contacted LHI and asked them if they would clarify/verify the PTSD Exam (whether Initial or Review). I literally found out on the day of the 11/10 PTSD would be a "Review Exam" while at the C&P Exam shortly after I sat down with the Examiner. The day after I was scheduled for the LHI PTSD C&P Exam I get a call from the VA indicating that they were calling to schedule my routine future exam. I was like you're joking right. I told the VA Rep that I have an "Initial PTSD C&P" Exam with LHI scheduled for 11/10/2020. The VA Rep says that she can't see this in her system and that I would have to attend this routine future exam. It gets scheduled on 11/16/2020. As a CYA effort -- I then do an IRIS Request and I also call the White House Veterans Hotline to have a documentation trail should the VA come back later and tries to delete the above referenced info. I called the (800) 827-1000 number requesting to speak to the Waco VARO to get some clarity on the above, but to no avail. Here are a few other thing to note: I have held the 70% PTSD rating since 07/23/2010. The rating codesheet for this at that time was listed as “Static”. I got 100% IU in April 2019. When I got my updated ratings codesheet my PTSD was no longer considered “Static. It depicted a future exam date October 2020. Is this typical for the VA to do stuff like this. Is there anything else that I could have do and/or should do? Thanks in advance
  13. Got my HLR call Saturday. Yes, Saturday. Hard to believe that someone in the VA is working on Saturday. Good thing the phone displayed VA or I wouldn't have bothered to answer it. I submitted my HLR back on 2 June 2020. Her call was on 24 October 2020. 144 days. The VA will definitely not make their goal of 125 days to the decision on this one. I am not sure what she had looked at in my case, if anything. She wanted to know what I was disagreeing with. I explained to her about the CUE I had filed, all the trouble I had getting VA to accept it. I explained to her how the VA had requested C&P exams when all I was trying to do was get the VA to look into a CUE. I explained to her how since the VA had done C&P exams the rater had put in the effort to communicate with the examiner twice to reduce a rating from 40% to 20%, yet the examiner couldn't find my SSA grant. I explained to her about the SSA records in my C-file, how I had about 20 pages of someone else's records in the middle of my records. I told her maybe this is part of why someone didn't approve it sooner. I told her it looked to me like someone dropped the paper files and didn't have enough sense to separate the two files. I told her about the latest denial where the rater looked into the SSA records and found a denial but didn't look up the grant of benefits that is in the SSA records. I explained to her that I hadn't worked since June 2000. I told her about the VR&E denial based on my doctors statements. I told her how the raters kept denying me stating other evidence in my records showed I wasn't unemployable. I explained to her how the raters kept saying I quit my job, but M21-1 says that doesn't have any affect on the decision. She seemed very sympathetic. She said she would take care of me. Well, it will be very interesting to see if she does. I had a prior call from a lady at the Roanoke VA, she thought I was going to get approved. In just a few weeks I got the denial. I had written to my congressman about all this crap. I got a reply back from the congressman's office but it was the same BS from the VA. I sent back to the congressman's office quite a few pages of all the documentation showing the VA crap. I think this was sent by the congressman to the VA Secretary Wilkie. I have no idea if this is at all related to the call or not.
  14. Updated as of 2020-08-27 (at the bottom of my original post) How long does a higher level review/CUE take? I initially called the 1-800 number and they said supplemental reviews are supposed to take less than 125 days, but they were not certain about higher level reviews. The agent speculated they could take a year or longer. This post was changed to track my claim as it made it's way through the VA system. This may help other veterans understand some of the inner workings of what goes on behind the scenes. Why am I calling this HLR/CUE and not just CUE or HLR? At the time the claims were submitted, other members have indicated filing their CUE claims as regular letters. With the overhaul to the VA claims and appeals process in early 2019, they have became sticklers for filing on certain forms. Unfortunately, there is no mandatory form for a CUE claim. With HLR and CUE being mostly similar, aside from the restrictions of CUE, I wanted to cover my bases and not cause any delays with them having to come back and ask me to use a specific form. HLR/CUE timeline 2019-09-20 Mailed to VA certified mail w/return receipt 2019-09-23 Claim received 2019-10-08 Not yet posted to va.gov. Called 1-800-827-1000. ETA March 2020. 2019-10-17 Moved you evidence gathering, review, and decision as of 2019-10-15. ETA November 4, 2019 2019-10-22 Moved to initial review as of 2019-10-03. ETA March 30, 2020 2019-10-24 Requested records 2019-10-29 va.gov status unchanged. Development letter sent. Called 1-800-827-1000. Claim is in the national work queue and being worked by Houston VARO. The development letter was the typical "we got your claim and are working on it". They sent a request to the Birmingham VAMC for medical treatment records from 1995-1999. Called the VAMC's Release of Information Office and they have 20 business days to complete the request. 2019-11-25 Called 1-800-827-1000. Status still unchanged, but the suspense date of the medical treatment records request has expired. VA agent sent IRIS request. Called the VAMC's Release of Information Office. Paper copies were mailed via USPS certified mail to the Evidence Intake Center in Janesville, WI. They were nice enough to provide the USPS tracking number. 2019-11-29 Certified mail tracking shows package was received by the Evidence Intake Center in Janesville, WI. 2019-12-11 Called 1-800-827-1000. Paper copies have been scanned in to PDF. Waiting to be picked up by a VARO. 2019-12-12 Called 1-800-827-1000. The call center agent (Donald) sent an IRIS request to inform the VARO that the claims are ready to proceed. 2019-12-20 Moved you evidence gathering, review, and decision as of 2019-12-19. ETA January 23, 2020. 2019-12-27 No change to va.gov status. Only change is ETA of May 27, 2020, which is five months out. Called 1-800-827-1000 and was given a strange status. First, they said they were waiting on more medical records from the VAMC from December 20, 2019 through January 20, 2020, which doesn't make much sense. I called back later in the day and was told something different. Called my POA VSO. They said the VA sent me a letter asking if I had any additional evidence to add. The VSO said the ETA is probably out so far because they are waiting for a response from someone outside of the VA system (i.e. me). 2019-12-30 Checked va.gov and noticed it says they sent me a development letter and items need attention. Called 1-800-827-1000 and they said a letter was not sent out and they are not waiting on anything from me. My claim is still at the VARO and assigned to a VSR. They found a note indicating that the recent second request for VAMC medical records was in error. They said they have seen this happen before where it triggers the ETA date to be pushed out automatically. In this case, it cost me about six to seven weeks of unnecessary delay. 2020-01-03 Checked va.gov and no change. Called 1-800-827-1000. The call center rep said it was confusing and transferred me to someone else who could help tell me what is going on. Talked with a friendly lady who said that on 2020-01-02, the person developing the claim sent a message to the quality department asking if the claim should have been submitted on 21-526EZ or 20-0995 (supplemental claim form). Fortunately, earlier today, @Dustoff 11 posted the exact information from M21-1 indicating that no specific form is required. I provided that to the lady and she sent a message to the VARO to let them know exactly where it is. No clue if they have actually processed my request and were just double-checking or if they still need to do it. At least I was able to help them to help me, I hope. 2020-01-07 Well how about this. I received a letter in the mail from the VA yesterday which was dated 2019-12-20 requesting additional evidence (treatment records). Called 1-800-827-1000 and let them know this is for CUE and no new evidence could be added. They did say the request to revise is assigned to a rater, so that's promising. M21-1, Part III, Subpart iv, Chapter 2, Section B - Revision of Decisions III.iv.2.B.4.d. Considering Requests for Revision Based on CUE 2020-01-09 One week has passed since VARO asked about how to proceed regarding filing using a specific form. Called 1-800-827-1000. They said it is now awaiting a decision. Estimated completion date was moved from May 2020 to February 12, 2020, which is an improvement. 2020-01-17 No change on va.gov. Called 1-800-827-1000. They said it was status 499 (National Work Queue), not assigned to an individual and waiting to be picked up. As of 1/8, it is still "Ready for decision". Estimated completion date still February 12, 2020. 2020-01-21 There was a change on va.gov, but it is a bit different than what I have seen previously. The estimated completion date is still February 12, 2020 and the last status was January 8th, but now it also includes three new lines talking about "We closed the notice for Request 1", "We closed the notice for Request 2", and "We closed the notice for Request 3", all dated Jan 8. This was not there last Friday. I'll take it as a good sign that something is happening. I called 1-800-827-1000 to see what these three things are. They said that these indicators were normal, part of what they are doing while clearing things off their checklist. I called my VSO and they confirmed it is "ready for decision", where it has been for the past two weeks. They checked to see if a letter was generated, but one has not been created yet. I also found the answer to my question (sort of) about the "We closed the notice for Request #". I just clicked on the "Files" header at the top. And it showed more information about each request. It's more than what the agent on the phone provided, but it still doesn't give much transparency. For example, "Recent treatment for claimed conditions" was probably the request from the VARO to the VAMC for my medical records. However, because it was CUE, the request was probably not needed because they merely needed to check my claims file. 2020-01-23 I had to call 1-800-827-1000 to check on something unrelated, so I asked them to give me a status update. The decision was made yesterday and is presently waiting for final review (i.e. approval). Once that is done, it will move to notiification. At that point, a decision letter should be inserted into the system and become visible to my VSO so I don't have to wait for it to arrive in the mail. 2020-01-24 Friday afternoon and I checked va.gov and there was a change. Or was there? it was in step 3 yesterday and is still there today. Maybe sometimes between then and now, it was moved to step 4, but then moved back to step 3. The only visible change is the estimated completion date being pushed out by two days. No big deal. I'd rather they take a couple of extra days to get it right (I just hope they get it right). To satisfy my curiosity, I called 1-800-827-1000 to find out if that was what really happened. The first agent I spoke with was clueless and said they could not tell me anything more than what I saw on va.gov. They transferred me to a "technician", who provided a little more info, but was rather rude and made me feel like I was preventing him from leaving for the day. He said the decision was completed and they are in the process of generating the formal notification letter. He said it should be in step 4 Preparation for notification, but indicated that va.gov and ebenefits may not reflect the current status in realtime. Either way, the estimated completion date was still January 30, 2020, what I can see in va.gov. 2020-01-27 I guess someone at the VA was working over the weekend. Finally reached step 4: Preparation for notification and the estimated completion date was moved one day earlier to January 29, 2020. 2020-01-27 Decided to check va.gov before leaving for the day. This confirms what I was told earlier today! Tomorrow, I will ask my VSO to print a copy of the rating decision. 2020-01-28 Picked up rating decision from VSO. As expected, won one, lost one, but the one I lost will be appealed. They made the exact same mistake as in the original claim. 2020-08-27 HLR update and a recap My HLR was received by the VA on April 10, 2020 and has been sitting idle in the national work queue. Today, I received a call from the DRO to perform the informal conference regarding the TMJ errors. He went over the details of the evidence he is allowed to consider (all evidence of record prior to when the decision was made in early 2000). In this case, the VA did a C&P dental TMJ exam in November 1997, but they misplaced the notes and brought me back about a month later for a second exam. When the rating decision was made in early 2000, they only used the material from the second exam. About 8 or 9 years ago, I requested a copy of my claims folder and received it a huge box. I scanned hundreds of pages, front and back, into my computer and organized them. When I had a heart attack in April 2019, I was out of work for several months to recover. I spent a good bit of that time going back over the documents looking for anything which might qualify as a CUE. As a result, I found the misplaced first C&P exam notes. I put together CUE motion and sent it to the VA in Sep 2019 for two issues. In Jan 2020, I won one, but lost the other. I took my time re-reviewing everything and filed the HLR in April 2020. The DRO was able to see my copy of the first C&P exam notes from my packet, but needed to confirm that they were actually in VBMS already. Being handwritten, he had to go page by page and eventually found it. The document was jammed into a packet of 50+ scanned pages that were date stamped as being received by the VARO in March 1999. He felt that when the decision was made in early 2000, the adjudicator probably was looking for transcribed findings placed on a formal C&P exam worksheet, not a handwritten progress note. However, because the first exam was so thorough, he is able to use it's contents. He said DeLuca (4.40 and 4.45) definitely applies because numerous requirements of limitation of motion have been well documented. The first exam would indeed yield a 30% initial rating, but the second exam would only yield a 20% rating. Based on his findings, he feels that I should probably get awarded the 30% because had the material not been misplaced in error, the second exam would have never occurred. He confirmed that CUE definitely did occur. He has to write up the rating narrative and will pass it on for review, claim approval, and any retro approval. The decision letter might be available in a couple of weeks. Due to the other CUE I won in Jan 2000, I was increased to 50% as of 1995. I should be increased to at least 60% from 1995 through 2008 or 2009. The entire conversation lasted almost 90 minutes. I also asked him how HLR's are assigned from the National Work Queue. He said they they are assigned centrally. He saw I had my other HLR in the queue, but he is not allowed to request it. He said the HLRs are assigned to his individual work queue. For example, he may have 7 or 8 assigned to him at any given time. If he finishes up two in one day, two more are automatically assigned at the end of his individual work queue. This news is a great relief, but as always, I will believe it when I see it. Crossing my fingers...
  15. On 09/25/2013 I submitted a claim for tinnitus. Received a VA letter dated 06/09/2014 informed me that the VA could not find my complete service treatment records could not be located and therefore unavailable for review. all efforts to obtain Has been exhausted based on these facts the VA determined that further attempts to obtain these records would be unsuccessful if these records are received at a later date the decision will be reconsidered. if a different decision results, that decision will be effective the date of this pending claim. (09/25/2013) Well I was denied for tinnitus. So on 06/29/2016 I submitted a new claim For tinnitus Evidence on record Shows they used my service treatment records. Subsequently I was Granted service connection at 10% effective date May 11, 2016. So by them saying that the effective date of this pending claim on September 25, 2013 should they go back to 2013 for my backpay instead of May 11, 2016. Am I reading this right is that correct all answers will be helpful thank you very much
  16. Hello!! I wish I would have found this site before, because WHAT.A.NIGHTMARE the VA disability process is. Bear with me as I try to explain my thinking: Okay, so I have had GERD listed as a condition at 0% rating, but, after fighting for an increase, it was given on 1-28-2019 (and as such, I cannot see when the 0% was given). However, even in the notes from endoscopy AND the dr noted epigastric distress, dysphagia, constant pyrosis (heartburn), shoulder pain-ALL things that should get a better increase to 30%. I submitted a claim for increase May 8th, 2019. It was quickly denied, stating not proper forms. Resubmitted with proper forms but still denied July 2019. Took a break from trying, went through my VA files, gathered evidence of all previous endoscopies, VA doctor's notes, medication lists, and resubmitted. Denied on 4-2020. So, now I have for a higher level review. They received that in September, and now I wait. My question is-I did not know that I could do a CUE form to have the date for GERD go back farther than the date given for 2019. While I do not think I could get earlier than 2019 for the 30%, I believe I could get the 10% rating. I have a endoscopy dated all the way back from Oct. 2006 stating that there is "esophagitisis" and "intermitten small sliding type hiatal hernia" with notes stating that I was complaining of heartburn and shoulder pain as well. Additionally, from an endoscopy from April 22, 2010, it states the reason for the edoscopy was "epigastric pain" and showed "moderate amount of gastroesophageal reflux and intermittent small sliding type hiatial hernia". So, my question: how long does a Higher Level Review decision take? Also, once a higher level review takes place, and they do grant the increase from 2019 from 10%-30%, is it too late to do a CUE for 10% from at least 2010? Can I do a CUE as the same time as a higher level review, if I am not looking for the 30% in 2010, just the 10%? Does any of this make sense? ANY help/guidance with this would be appreciated. Had I realized there was this website, I would have come here first!!!....
  17. I was checking va.gov after receiving the mostly favorable results of an HLR for an earlier effective date claim for migraines where VA called CUE on themselves. I say mostly favorable because the effective date claim went back to 2006. The CUE was instead awarded exactly one year back from the date of the intent to file in March 2019 back to March 2018. That's when I noticed a new claim for increase on va.gov for TBI that I did not submit. That's where it says under evidence gathering "Request 1- 930 rating not addressed see claim notes" I spoke to a VA rep who says that it's an internal review and was about pyramiding TBI and PTSD. I've been mislead by the phone reps before though... Can anyone make sense of this? Edit- in the HLR rating decision code sheet it says "REVIEWER NOTE: pyramiding under DC 8045 is outside the scope of the current HLR for earlier effective date for migraine." Could be a clue...
  18. The CUE I submitted last year was denied in January. I submitted a HLR asserting a CUE contention that the VA failed to properly apply functional loss/impairment per 4.40 and 4.45 and award a rating higher than 10%. The HLR denied CUE occurred, again relied solely on the maximum ROM, but made no mention of my contentions that functional loss/impairment per 4.40 and 4.45 were not properly applied. Initial exam This exam was a crap shoot, but at least they were able to confirm it was in the record. A reasonable person would have used objective math to divide 35 mm by 2 resulting in 17.5 mm to award a 30% rating. If the examiner did not objectively mean "midway", he would have not stated it. At minimum, it provides more proof of functional loss/impairment. Second exam (a month later) The bold text is quoted from the C&P section describing the extent of functional impairment due to loss of motion. Consideration of functional loss/impairment at 29 mm which would awarded a 20% rating. The VA sternly used their own internal policy in M29-1 as a means to recently deny a S-DVI life insurance waiver. Because they did that, I should be able to use it in reverse as CUE by showing they failed to follow their own current policy in M21-1: Part III, Subpart iv, Chapter 6, Section C - Completing the Rating Decision Narrative, Clear and Unmistakable Error that requires the VA to do the following for CUE's and HLRs: 1. Explain the persuasiveness of evidence Nope, didn't happen. 2. Address all pertinent evidence and all of the claimants contentions Nope, 4.40 and 4.45 ignored. They also ignored a radiologist's findings stating I could not open fully unless doing it with my hands. 3. The reason for denial should be based on a review of the available facts and how they relate to the statutory and regulatory requirements Nope, 4.40 and 4.45 ignored. The VA still has yet to properly address my evidence-based contentions that 4.40 and 4.45 were not properly applied, which include: 1. Anatomical damage to parts of the system. 2. Inability, due to damage, to perform the normal working movements of the body with normal excursion, strength, speed, coordination and endurance. 3. Pain, supported by adequate pathology and evidenced by the visible behavior of the claimant undertaking the motion. 4. Impaired ability to execute skilled movements smoothly. 5. Pain on movement. 6. Disturbance of locomotion. DeLuca/4.40 and 4.45 cannot be diluted with Mitchell v. Shinseki (2011) because it was not in effect. I just checked M21-1 and CUE submissions still do not require a specific form. Would engaging my Congressional representative's office be beneficial? Any advice or assistance is greatly appreciated.
  19. I need some help with my effective date, I applied for Migraine increase on Feb 19, 2019. VA denied it. Recently looked in c-file and the C& P exam results were favorable, it was done at a VA facility by VA doctor neurologist. In the decision letter dated Jun 20, 2019, rater never gave a reason on why the exam results were disregarded. I got an independent medical opinion and filed a supplemental claim on April 10, 2020. Another C&P exam was conducted on june 24, 2020. Va approved the claim and gave an effective date of jun 24, 2020. I believe that I can claim CUE here as the effective date should have been Feb 19 2019 since the claim was continuously pursued and rater never gave a proper explanation of why VA doctor's opinion was disregarded and if it was rated properly, I would have got 100% on May 16, 2019 when I was rated for cervical strain. and my 100% effective4 date would have been May 16, 2019 instead of Jun 24, 2020. Do you think I have a case here? Any help is appreciated and I can send you all the decision letters if you need to look at them.
  20. How do I submit a CUE claim. What form do I use
  21. Today, I received a call from a VA Insurance Center supervisor regarding a HLR/CUE I submitted earlier this year. Despite one of their departmental attorneys discussing it with me in May for more than two hours over the phone, I never received a decision letter. They could see where the my documentation was received, but for "unknown reasons" a task was never generated to work it. We briefly discussed the details. They said they were familiar with CUE, but said it applies to compensation claims, not life insurance decisions. They said there was no requirement for them to fill out the long-form decision letter that responds in detail to each of the points I raised in my submission. I explained I needed that in order to properly formulate an appeal to the BVA. I even found a BVA decision regarding S-DVI which mentioned CUE, so it must apply there too: https://www.va.gov/vetapp04/files2/0414424.txt
  22. I wanted to send out an update on my CUE claim. As I suspected from the process and response, I received a denial decision letter today. They denial almost verbatim regurgitated the same statements from the original denial in 1999. It's like the reviewer simply read the original denial, retyped it and said too bad without addressing the issue of probative values and presumption of sound condition. My question is for next step, should I go through the process of Higher Level Review to see what they say before going to the Board of Appeals to exhaust every option before hand. Any thoughts would be greatly appreciated. Best, Randy
  23. It was pointed out to me that I should file a CUE because my final rating decision although at 100% is not "permanent. They left it open for future exams. The person who suggested it just got his P&T rating and no further exams by claiming M-21-1, III.iv.3.B.2.c & d. Basically, because he was over the age of 55. My rating is for 100% for leukemia (CLL) (I know the rating criteria has been updated) and I'm over 55. Looking at the M21-1 and I feel I match four criteria listed. My question would be if the disability Rating Schedule says "perhaps" I will get reexamined in the future thinking I'm going to get cured, would that rating decision take precedent over the M21-1, or 38 CFR? I feel my condition is "static" and I have been getting worse for the past seven years and seven months, I'm over 55, the disability is permanent in character and I'm not likely going to improve, and the evaluation (rating) is the minimum for the DC. This disability is permanent and I'm not going to be cured. There is no cure. I do realize with treatment I could go into remission some day (perhaps) and I'll understand a reevaluation if that occurs. Thoughts?
  24. My thanks go out to everyone here on hadit.com! In September 2019, I filed two CUE claims. One was granted and the other was denied, but will be appealed. In 1995, I filed a claim for rhinitis/sinusitis (38 CFR 4.97 DC 6501/6522) and it was granted on appeal in 2000 due to aggravation of pre-existing disability. 30% was awarded, but it was reduced by 10% to 20% due to the C&P examiner's opinion: “OPINION: In my opinion, the veteran obviously had allergic problems before entering the service which got worse while he was in the service…” After fighting for five years, I was elated and took the VSO's advice not to rock the boat. In 2009, I found hadit.com and began educating myself. I always felt something was not quite right and began researching this issue. I was still worried about rocking the boat, but in 2019 I finally got the courage to move forward after having a heart attack and realizing life is short. I performed extensive research and filed the CUE claim in September 2019. Because of the ridiculously strict CUE rules, I was required to use laws in effect at the time the rating decision was made, which were found in old copies of the Federal Register. Another challenge was boiling it down to just the facts, removing emotional factors, and presenting the error from the perspective of a reasonable person (i.e. 8th grade reading level, if that). The VA failed to properly apply this pivotal law from 1961: Two key factors apply: 1. VA must determine the level of disability existing at the time of entrance into active service 2. If the VA cannot determine the level of disability existing at the time of entrance into active service in terms of the rating schedule, they are not allowed to reduce the rating. I then looked up the rating criteria in effect in 2000: My entrance exam was "normal". The C&P found polyps to justify the 30% rating. Can "normal" be ascertained in terms of the rating schedule? No. Other than including a copy of the evidence, relevant laws in effect at the time, and showing how the VA failed to follow the laws when making the decision, this summarizes the entire situation: After the VA received my CUE packet, it took them 127 days to complete the request. Six weeks were wasted by the VA requesting copies of relevant medical records from the VAMC, despite those records already being present in my claims file. Considering the fact that my claims file was partially scrambled and even contained other veterans documents, I kind of don't blame them for re-requesting the records so they have them contiguously. One week was wasted by someone at the VARO asking if a CUE needed to be submitted on a specific form (as of today, not required per M21-1). As for my other CUE, it was for TMJ and failing properly apply DeLuca and ROM laws. The rating decision contained even less detail than the original decision. In effect, they made the exact same error again, so I will be appealing.
  25. Did the VA make the same CUE twice? Please offer your opinion. In my CUE, I asserted the VA failed to apply: 38 CFR 4.40 Functional Loss 4.45 The Joints Key provisions of the DeLuca ruling (painful motion = functional loss = limited motion) Here is the rating decision denying CUE: The VA acknowledges that a loud click was heard and painful motion started at 29 mm (falls in the criteria for a 20% rating) Again, the VA failed to apply: 38 CFR 4.40 Functional Loss 4.45 The Joints Key provisions of the DeLuca ruling (painful motion = functional loss = limited motion) Do you agree that the VA again failed to apply these laws? Should I have been granted a 20% rating? I wanted to ask about something else I am considering adding. In Nov 1997, I had a C&P exam which was lost, but I later found it in my claims file. It is never mentioned - ever. What's great is in the second C&P exam, the doctor stated material from the first exam was "misplaced". Key factors: 1. C&P examiner stated (in exam #2) that this material from exam #1 was misplaced (that's a CUE just by itself) 2. Dictionary definition of "midway" is "halfway" 3. Simple math: 35 mm divided by .5 (half) is 17.5 mm. 4. The DeLuca factors would confirm limited motion began at 17.5 mm. Would a reasonable person to come to the conclusion that limited motion began at 17.5 mm? Or would this be considered weighing of the evidence? I tend to disagree because this evidence was never weighed by the VA. Also, my interpretation uses objective facts (35 mm, midway meaning halfway, and common math). There is no attempt to weigh evidence. Thoughts?
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