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Vet Has Idea- Needs Refining- Help Vets W/ Pleading Va


SCID Vet

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Hey, everyone!

Tanks! for everyone for help with claims! (wink!)

My idea:

Hire someone local who does legal-type documentation- NOT an attorney (that is illegal!) but someone who is good making an argument. Maybe a legal student, a paralegal, or just a secretary with typing skills.

What do "you all" suggest, what kind of usual job would help a person be useful for this?

I live near a town with 60,000 people, so keep that in mind- not the big city.

Pleased, really, actually happy to find and meet you all via Hadit! Reading all your situations and issues reminds me I am not the only one, and that means somethin! (bad for you, sorry, but I am not alone!)

SCID vet

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Mike- this should not be as involved as you think-

The VA employees have a limited attention span-if a vet gives them more than a page or two for a claim- they can't handle it-

I dont do what you asked in your email to me-

This is what I suggest-

1. The BVA Remand- since it isnt posted at BVA site yet- they asked in your remand for the VARO to get something and/or do something-

If you yourself can get or do what they request- send that to VARO (copy of it) in support of your claim-

2. I suggest you file a claim like this:

To VARO etc-

I again request that my arachnoiditis be service connected as secondary to my HNP. If VA denies this part of my claim, please provide me with a clear statement of your medical rationale.

I also request Special Monthly Compensation under 38, USC 1114 for the "L" award or whatever award would be approriate for the neuropathic affect and extremity weaknesses (as documented in my medical records) that I suffer from as secondary to my service connected HNP.

VA has already conceded the neuropathic affect of my SC conditions to my bowels and bladder.It is most likely that a neuropathic condition would have severe effect to many neuron pathways.

Also I request a rating for the affects of VA prescribed medication for my SC conditions which I believe more likely than not caused or contributed to my recent hospitalization.

I request this as a secondary disability by direct service connection-the additional affects that these VA medications have had on my system, aggravating my current SC conditions.

(That is it for this one Unless you could ask your doctor for a statement that would suport any part of this claim or all of it and attach a copy of that statement.Tell them you are attaching it - then send them this claim)

Then I suggest you enclose this additional claim too-:

To VARO etc

This is a claim under Section 1151 , 38 USC.

Not only do I strongly believe that I have received additional disability due to improper medication and inappropriate VA prescribed dosages of that medication , I believe that I have suffered additional disability due to their side affects.I specifically refer to Oxycontin and MS Contin- as prescribed to me by VA.

I quote "OxyContin may interfere with your ability to do certain things that require your full attention. You should not drive a car, operate heavy machinery, or do other possibly dangerous activities while taking OxyContin." It has precluded my ability to work.

This is from :http://www.fda.gov/cder/drug/infopage/oxycontin/default.htm

and I ask VA to take note of this additional information from that web site as follows:

OxyContin Information:

FDA Strengthens Warnings for OxyContin

--------------------------------------------------------------------------------

FDA has strengthened the warnings and precautions sections in the labeling of OxyContin (oxycodone HCl controlled-release) Tablets, a narcotic drug approved for the treatment of moderate to severe pain.

In recent months, there have been numerous reports of OxyContin diversion and abuse in several states. Some of these reported cases have been associated with serious consequences including death. In an effort to educate health care providers about these risks, Purdue Pharmaceuticals, manufacturer of the product, has issued a warning in the form of a "Dear Healthcare Professional" letter. The "Dear Healthcare Professional" letter will be distributed widely to physicians, pharmacists, and other healthcare professionals.

U.S. General Accounting Office releases its report, “Prescription Drugs: OxyContin Abuse and Diversion and Efforts to Address the Problem." GAO Report. (1/22/2004)

OxyContin Talk Paper (7/25/2001)

OxyContin Questions and Answers (7/25/2001)

FDA Approval Letter (7/25/2001)

OxyContin Drug Label. Optional Format: PDF (7/25/2001)

Dear Healthcare Professional Letter (7/26/2001)

Prescription Drug Abuse. Article from FDA Consumer magazine, Sept-Oct, 2001

Consumer Education: Misuse of medicines.

Back to Top Drug Information

--------------------------------------------------------------------------------

FDA/Center for Drug Evaluation and Research

Last Updated: January 22, 2004

Originator: OTCOM/DLIS

HTML by PKS

I request also that the MS Contin, that VA prescribed, has also not only prohibited my ability to work but also could have contributed to my recent hospitalization and has led to additional problems that I have-

I am enclosing a print out from the Physician's desk Reference, available also at

http://www.pdrhealth.com/drug_info/rxdrugp...s/msc1277.shtml,

in support of this claim regarding to the side affects of MS Contin and I have highlighted what side affects I feel I have had due to this medication.

--------------------------------------------------------------------------------------

OK- I suggest that you print out and attach that http: and highlight anything with a colored magic marker that might pertain to you-

Yo could also access that FDA report for the Oxycontin and send them anything else at that site that might pertain to this.

I say keep it to a minimal amount of attachments-and put your name, address and c file number on whatever you send them-

PS- does the Remand account for the side affects of those two meds above as to your unemployability during the EED time frame- if VA was prescribing them then?

Also- you could go over the VA side affect thing that comes with those meds, and copy it and highlight that too if you have any of the side affects on their own med print outs.

I hope this helps- any others out there with suggestions?

Edited by Berta
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Dear Berta,

First, I am sorry I didnt see this post earlier.

Second, thanks very very much. I will:

1) keep it under two pages if humanly possible

2) Make each statement short, like you do

3) limit attachments rather than the "shotgun approach" I had conceived of

4) apologize now for what I asked in my email to you: sorry to say something inapropo. Seems like an honorable, workable idea though- really sharp vets (like you?) help not with representation, but with clarification and condensation of vet claims, particularly those with mental problems that limit their ability to express themselves (somewhat like me)

Having said the above, and being very grateful for your time and help, I am uncertain about a couple things:

1) The only issue on the Remand is EED for TDIU- 86-93. I do not see indications of your addressing this in your post. Are you saying I should use all you describe in this post, in THIS remand-response?

2) The only pills I took during that time 86-92 was doans pills and aspirin, and have no proof. Some examples of pain med (ie, T-4, motrin) in 1992-3. Suggestions?

3) The very recent hospitalization for stomach (last august) (probably from motrin OTC) (conceivably from MS and Oxy) really cannot be honestly alleged for MS or Oxy, because I was taking very old (prescribed!) VA ms contin and Oxy. (stuff I was prescribed 2-3 years earlier)(remember I am deathly afraid to see doctors, they never get the med situation right, and always re-write, (simplify, narrow, erode) the issue.

I didnt see the pertinence or would have told you sooner. In fact, the ER (last august) only tells me "If I were you, I'd lay off the motrin for awhile" (and I DID and it SO HELPED my stomach problems!) Nothing in writing, in ER, or inpatient notes. CT DID show irritation, but nobody says why in writing.

4)All the stuff you wrote in the post seems very helpful, if I want an increased rating for now, today.

Knowing how I am, do you think it better to print this, paste on wall (my way of not forgetting) and handle it after I submit the argument for EED TDIU? I am at the very end (off the end, actually) of time to respond to the EED TDIU issue.

5) Yesterday I submitted a post to you while you were posting, and it confuses the heck outta me how to make sense of this... I am sure bulletin boards are as easy to understand as engines and carburetors and transmissions are for me, but not today. I need some kind of primer. Suggestions? Has hadit got an "Idiot mode" so 99 percent of features are turned off, sort of like Winzip had? (just kidding, really)

6) I gotta say it again, reading about other vets problems has made me so much happier, I hope you know what i mean, sounds so stupid. I felt like I was the only one (had I thought about it I would know better) and find myself laughing when I normally wouldnt. I am saying thank you, Hadit.

Finally, though I do not think it proper to ask for you (Berta) or anyone else to write my argument for free, I do think it okay to ask:

Can you, Berta (or anyone else reading this) review the main argument points (pasted directly below) as these are what I have already composed my argument for the issue "earlier effective date for TDIU prior to November 24, 1993":

1) Summarize VA determined disability state now and in 1993, to establish continuity.

(no attach, no evidence, let them look it up)(takes too long to mail away for it)

2) Voc Rehab decision of "Serious employment handicap" supports same for TDIU.

(attached doc: 10 percent SC vet only gets into Ch31 rehab if has serious employment handicap)

3) CUE in portland VARO negates rating, permits VARO Boise determinations used.

(attachments of proof notices sent to wrong vet, attachments of Boise determinations)

4) Medical documents, firsthand witnesses, during 86-93 independently support claim for EED

(attachment of med documents, friend statements during time period in question)

5) Depression symptoms secondary to spinal cord problem as decided by VAin 1993- used as evidence of same during 1986-1993 voc rehab participation.

(attachment of med recs supporting depression, proximity to S/C caused issues, (attachment of homelessness, malnutrition, mental distress, make clear this is VA documents)

6) Informal claim solidifies (isnt actually required,strengthens claims) TDIU claim for 86-93.

(attach the three examples of informal claim for TDIU prior to 1986)

7) Issues supporting, but not required for approval of issue of EED TDIU

(attach any other issues I believe are pertinent and not distracting from EED TDIU claim) (catch all)

8) one sentence summary, ie, "All the evidence, the VA doc notes of disability, 38 CFR (chapter 31 approval) witness statements, my own testimony, VA med notes of depression, and the ACTUAL, EVENTUAL DECISIONS of the VA Rating board converge to stringently support, perhaps prove, I was unable to work during the period in question.

Whew.

Thoughts, Berta?

Anyone?

Thanks millions, or actually, hundreds of thousands, and also: helping me be free to sell lemonade on the streetcorner without having to fear losing deserved benefits (the 20 year rule)

As Fla_viking and I were discussing, the truth has so little to do with what happens- Just now I am imagining thousands of RO "Gilligans" working for a few VA "Skippers" and somehow the claim can be won, benefits can be kept, but it is so haphazard, so inconsistent, I often fear being in the public eye, being seen outside house, and most of all, being productive in some way. When I "walked" into a local City Planning meeting, made my suggestions, disclosed plan, the first thing said afterwards is (in accusative tone) "Youre not disabled, you just set the stage for the next 25 years of city planning, could get a job". Point is: People often act like they know more than they do. I know work cumulatively, day by day, makes neuro condition worse, know my ...juicy parts... are getting numb from being there... but to the (very knee jerk) public, I am just a dude with a bad limp.

After the 20 year rule happens (TDIU becoming permanent) then I can go outside whenever I am able, go "sit" in the park, sell lemonade, try whacky ideas to make money like:

Open garage door, put in big water bucket, charge people money to wash their own dog, use custom "dog hair dryer" (55 gallon clear plastic bag attached to outlet of dryer) (how my dog gets washed) (can you see this???) and... Be a free man again, first time since I signed up for Marines 28 years ago.

This (Berta) is why I get so carried away, and I think you are right. I tend to over do this last, final, remand step. If I dont win, I give up, will move to Canada, (I am thinking)(assuming I can keep my benefits)

Mike aka SCID vet

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Mike-no problem , maybe I was too short with you-

I would never accept money from a vet-

These S0s and vet reps make very good salaries-and if they would do better jobs wth all claims- I could retire from this type of volunteer work-

Veteran- if you need an Independent Medical Opinion at some point-

that would be where to "invest" your money----

But I could see having a high school student or someone type it up well for a fee-dont know what is a fair rate for that though-

OK- The 1151 claim is moot-

The other claim -you might need an independent doctor to determine for VA that you have two separate spinal conditions- then again- maybe the VA somehow considered that in the Diagnostic code-

by the IVD 5293 C & P exam has changed - probably since you last took it-

another one might be very helpful at this point-

I wonder if the doc who read that last MRI you got was a real doc-

A local VA doc here misread a CT scan my husband got and came in his room and said he had a brain tumor and they were sending him to Syracuse for brain surgery-(a SC PTSD 100% vet they tell this too-idiots)

I said Wait a minute! and I had the Syracuse VA neuro read the results from a fax -by phone -

a few minutes later the doc came in again and told Rod- I'm sorry -you had a stroke -I made a mistake - no tumor-

you are going to Syracuse for treatment of a stroke- no brain surgery needed.

Point is only a specialist can really interpret a CT or MRI properly.

On the TDIU EED- what you mentioned is all VERY GOOD.

The Remand points out exactly what VA needs to award the additional EED-

seems you have covered it-

I sure wish that remand was posted - they usually are 3 months behind at the BVA web site-

Your CUE claim-

1. it must be on a Final VA decision (one that you never appealed)

2. It must state the regs they broke and how they broke them

3. The outcome, but for their CUE, would manifestly change the outcome (IE more retro-or some advantage to the vet)-

Example- I will use my kid-

She applies for Chapter 35 educational VA benefits..She is almost 26 years old.

On the app she tells them she had 7 years military service

On the app she tells them her step dad was 100% P & T -SC.

She includes her DD 214, her Chapter 35 award letter, the veteran's award for 100% P & T.

VA tells her she is eligible for one month of Chapter 35 (it is almost one month before she turns 26)

OK_ lets say she never appealed that decision and only gets one month Chap 35.

Then lets say 2 years later she realises they were wrong.

She files a CUE claim.

1. she has a final VA decision

2. the reg they broke she attaches to her CUE claim and states within claim-

"although Chapter 35 awards are cut off at age 26 for most dependents, the fact that I had 7 years military service, per VA's own regs (enclosed) awards me 7 additional years of Chap 35."

3. the manifestly different outcome- 7 years of education benefits awarded in monthly VA check

OK- this CUE would succeed- as it was- we filed a NOD -and they reversed immediately-no CUE needed- but maybe this example along with others at my hadit blog will give you and others here ideas for what a CUE is.

Any decision within one year appeal period should be appealed- and cannot be cued.

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Dear Berta,

You are full of surprises. Your timing is impeccable.

1) SOs, VSOs, NSOs, get paid? Huh? Thats why I am "so tolerant" when they dont have time- I thought they volunteer? (to be fair, I sat in an DAV office one day, the calls-in had the secretary worn down, crying, before long, and the NSOs just swamped with nonstop new people, like (in LA) one call every ten to twenty seconds, half new people.

2) Independent Medical Opinion: Undoubtedly useful. As you will see below, as of today, I am too late, or maybe can sneak through if send off pleading, evidence, today (in a few hours) (its almost 3 am)

3) Thanks so much.

4) Actually I can type, apparently I cannot summarize, but the truth is, after 14 re-writes, it finally is more succinct, and I only (truthfully) had to exert some effort to stop explaining how bad they treated me, or how bad the situation was, and focus on the facts directly pertinent and supported by documents. Not quite as easy as it sounds, I understand theres this "benefit of the doubt" rule that if I say something, evidence in "equipose" (sounds like two dolphins having a dance contest) then what I say has merit, even without direct evidence (this causes me to over explain stuff in the pleading)

5)I actually specifically said I was not interested in the 1151 issue, in my pleading, so the VA can (hopefully?) feel comfortable admitting the fact that I was rather severely disabled by Voc Rehab, as the medical evidence doesnt state, but shows. I have long believed if it is a huge mistake committed, the VA doesnt want to approach it to pay one dollar. Same with iatrogenic disabilities: even the best VA doctors will not repeat or report what the original military doctor did- missed the right place to operate by six inches, AND he put that in writing. Why other doctors, hundreds of appointments, seeing his letter, won't report the fact? Honor among thieves, but its also like cops giving each other passes for speeding, and saying nothin

6) I am a bit surprised Rod didnt have ANOTHER stroke hearing all of that!

7) The PVA fella called (after bus. hours tonight, God Bless his soul!) and told me the local VA had decided they could not find the Voc Rehab file, so it may be too late to get the "any additional evidence you have submit it now" stuff in. Frightening. So much on the table.

8)

Berta said:

Your CUE claim-

A. it must be on a Final VA decision (one that you never appealed)

>>>>>>I never appealed it. Didnt know about it for years. They actually sent (plenty o evidence) ratings, notices, appointments, to a dude called "Charles Brown" and put the notices in my C file. (Amazing, Charlie Brown!)

B It must state the regs they broke and how they broke them

>>>>>>This is what I put in the argument, It would be fantastic if you could consider, shorten, complete, correct it:

"3) CUE of Portland VARO permits consideration of unanswered informal TDIU requests:

Due to the fact I was simultaneously engaged by VARO Boise in Ch 31 Voc Rehab, while the VARO Portland made claim decisions without examining me, instead sending appointments, notices, ratings, decisions, to someone else at the wrong address, evidence supporting TDIU was gained without my participation in claim process. (see attached # # #) Other evidence, of course, is also for application, is contained here in part. (See attached # # #)

Serendipitous, ironic, but a matter of record and most importantly, evidence of VA error, and harm caused by that same error. Had I been "in the loop" of Claim processing, all the evidence during Voc Rehab could have been applied, AND I could have specifically mentioned the primary disability instead of refusing treatment, meds, and concentrating instead on secondary problems, ie, depression, mental distress, homeless, hunger, malnutrition, and of course, unemployability- why else would I be IN Voc Rehab? (see attached # # #) Relevant: 38 CFR 3.103(a) (b 1,2)" >>>>>

(end. Berta continues here:

C. The outcome, but for their CUE, would manifestly change the outcome (IE more retro-or some advantage to the vet)

Berta, you are a genius! I see that I only somewhat covered number 3, in that an increased evaluation would also be permissable via CUE, but that subject scares me, since nobody measured my reflexes, or any of the rest to establish 5293 parameters. I feel I should leave it alone, let them consider extraschedular TDIU as they are intending. What do you think? (PS will be gone by 11 am pacific to copy and send this off

9) Berta, the time you took to explain an example CUE was very helpful. I feel.. a bit foolish, and embarassed, and stupid, since you could do it all in a sentence. The pleading I have here, as perfect as I can make it (short yet complete) is 3 and a half pages. (only two paragraphs for CUE, though)

I suppose you can see why I can type, yet needed someone to help make the pleading- Apparently it is beyond me to....get to the point fast... and still say it all! Surely I am not alone?

Thank, Thank, thank you so much!

:)

Mike aka "almost done with this thing, Whew"

'Tomorrow night Mike aka I will be "Drunk guy B) with relaxed smile on his face" ( I rarely drink)

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just chiming in yes berta is a genius B)

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Mike- the dates of the actual decisions should be stated in the CUE-

and the actual regulations that caused them to reach those decisions-which they broke-

A violation of their Duty to Assist is not a CUE-

but if it caused them to break any regulation -due to the violation of Duty to assist -that could be a CUE-

Equipoise- Benefit of Doubt- cannot be applied to CUE but it should be applied to any other claim for direct SC such as what you have pending-

Remember however- they weigh the evidence and they own the scale-

I have said here before -that -you know the famous Statue of Blind Justice ?

Well VA puts the vets and then their evidence on each side of her scales and then they kick her in the knee-on the vet's side -

My vet rep was astonished that I was not awarded in Sept due to Preponderance of medical evidence-

In my case they didn't even read it-but after I raised hell they sure did-

Technically the VA is supposed to grant if the evidence for and against the claim has equal merit-

But they can manipulate their negative stuff in a way that overrules a claim's good stuff-

More vets should fight for Benefit of Doubt decisions-

The best thing you can do is get out the old decisions-

They contain the regs they used-

It is those regs (aside from Duty to Assist) that you can file a Cue claim on-

Also at the CAVC web site there are CUE claims granted as well as at the BVA site-

It is often by carefully studying the examples of CUEs -even those that did not succeed, that a vet can get a handle on how a CUE claim might benefit them.

I am sorry this is so much work for a veteran to do----

For 2 years I studied Cardiology- and cerebral trauma-I am not a doctor-

Because I had to get up to the VA's medical expertise at VA Central Office-(Cardio Team)

What I mean is (this was before the internet had so much medical info)

I went to every library I could find-and read every single book I could find on Cardiology-

I even got permission from the VA to xerox some pages from their medical library-

Also I swiped a book on PTSD and Heart disease -written by a well know VA CArdiologist-

from the VA library- and sent the whole book in support of one of my claims-

to the VARO-

My long point here is that it is Knowledge- as TBird's motto says- that gives us the Power we need-

and Persistence-

No one will ever know your claim better then you-or be able to access the specific evidence you need-

After many Socs and SSOCs, and a DAV NSO who said I would Never succeed- I prevailed on the heart claim.Took three years-but I spent that time well waiting-

The CUE potential you might have will be found in those old decisions and the regs they used.

Check the Diagnostic codes very carefully-my blog has some CUE info too.

Edited by Berta
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