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  • 14 Questions about VA Disability Compensation Benefits Claims

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    When a Veteran starts considering whether or not to file a VA Disability Claim, there are a lot of questions that he or she tends to ask. Over the last 10 years, the following are the 14 most common basic questions I am asked about ...
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  • Can a 100 percent Disabled Veteran Work and Earn an Income?

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    You’ve just been rated 100% disabled by the Veterans Affairs. After the excitement of finally having the rating you deserve wears off, you start asking questions. One of the first questions that you might ask is this: It’s a legitimate question – rare is the Veteran that finds themselves sitting on the couch eating bon-bons … Continue reading

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    • So, my lawyer sent an IME w/ IMO and filed a supplemental claim solely for IU on March 20.

      It was closed on March 25, and va.gov just states claim closed and nothing more.

      Hopefully, I get good news.
    • Thanks for the responses. I am filing a new claim but will continue pushing the NOD. My new question is it stated in law or statute that if during the claims process the VA finds conditions that could possibly rate service connection that was not originally filed for, the VA will “invite” the veteran to file the claim on the claims form. Reason I ask is that my private DBQs, NEXUS letter, and even the VA nurse examiner's DBQs lists bilateral upper radiculopathy as present. If it is written in statute or official guidance it might qualify as a CUE. Just looking at all angles. 
    • Everyone needs to read our stories so they can try to avoid these screws by the va...
      Thank you, everyone contributes, good or bad, all of our stories will help others, and yes, they have been stated by others for ages, over and over, but we just get depressed, and the time turns into years as they screw us..

      Welcome to the department of Veterans Affairs!  I can honestly say, "been there, done that".  

      Even after winning my tdiu in 2017, it was back to the drawing board as VA hornswaggeld my effective date.  (but of course).  

      I finally won my tdiu effective date in Feb. 2020, 18 years after I first applied!!!  

      Here is how they managed to drag mine out 18 years:

      1.  They never adjuticated my decison until 2009, where they called it "moot".  

      2.  I appealed, said it was not moot because it could result in an earlier effective date and SMC S under Bradley vs Peake.  The judge agreed with me, and ordered VARO consider me for extra schedular TDIU, under 4.16 b.  

      3.  The VARO piddles with  the remand for 3 years, and hoped I wouldnt notice.  I noticed and raised cane until they adjuticated it.  (denied of course).  

      4.  Finally, after the baord denied again, I hired a lawyer, in 2014, and appealed to CAVC.   

      5.  The lawyer won a remand, got an IMO and I won tdiu in 2017.  But at the wrong effective date, even after 15 years.  

      6.  I hired another lawyer, Chris Attig, and appealed the effective date, and he won a remand for effective date.  Trip 2 to CAVC.  

      7.  Mr. Attig won a remand, and advised me to get another IMO.  

      8.  The board awarded my earlier effective date in Feb. 2020.  

           So, I do have advice fighting VA for TDIU, they fought and fought and I hung in there and won it all.  

      ADVICE:  Dont count on VA, they could easily throw your fax in the trash.  Follow up!  
    • "Keep in mind that due to the nature of the digestive system, VA would most likely combined your conditions and pay you at the higher rate to avoid pyramiding".    That is one of my main gripes.  They are only listing the GERD with hiatal hernia and ignoring the rest of my gastric issues such as the gastritis which I also had in service.  I included it in my 2007 request for increase and again in 2019.  The info from the civilian dr that stated I had the gastritis with H pylori was not even provided to the examiner in 2007, nor did he have my VA health records. The 2019 request was based on an EGD I had AT THE VA in Jan 2019.   I filed for an increase 6 Mar and they did an ACE on 27 Mar and downgraded to noncompensable on that date.  The only reason I was thinking CUE:  38 CFR § 3.326 - Under Examinations  it states (c) Provided that it is otherwise adequate for rating purposes, a statement from a private physician may be accepted for rating a claim without further examination".  
    • Enough has been said on this topic. This forum is not the proper forum for an attorney and former client to hash out their problems. Please take this offline
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Scott D

What Next

Question

I kind of got myself into a little jam. I need advice on what to do next.

I had a decision in 2005 where I was rated 0% for migraines. Information that the decision was based on was incorrect. The QTC group reporting the C&P stated incorrectly 3-4 per year instead on 3-4 per month. After an appeal the rating was increased to 10%, which I believe to be in error, an additional appeal was made that requested the whole slew of symptoms to be considered prostrating in nature and thus be rated 30%. An IMO stated that the attacks are prostrating in nature.

The decision came back denied in early 2007. I then filed a form 9 looking to take this to the BVA. After waiting awhile for information I called my VSO who stated if I had not heard anything, the process was still in the works. He confirmed this on multiple occasions.

Today I called the VA looking for a status and they state a form 9 was never filed, and the decision is now closed. I have passed the deadline for appeals.

What can be done?

I hope my information makes sense. I still do not have a complete grasp of the terms and conditions that go along with the VA appeals process.

Edited by Scott D

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He could say that he submitted it and that it may have been spoliated.. and he would like to use t he VA directive as means to keep his claim in open status.

I dont think they can deny it.

Scout, I am impressed.

He still can go after the original Fee Basis C&P exam. If he has a time line in the record or treatment record showing the frequency of headaches andd the exam showed a different frequency yhen the history of record wins. If the VA makes a determination based on false medical information it is still an error as long as the error causes the exact same criteria as the VA cue criteria.

An attorney may be needed but this is a winnable claim.

J

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I agree with the advise here but I strongly suggest using the "October Incident" as J Basser stated.

As VA Watchdog says- (they broke shreddergate story) even if the date of your I-9 doesnt fall within the dates they used in their VA Fast letter- still raise this issue with them and tell them what the Rep said.

I also feel that you should re-open and even file the CUE claim too-which could produce the proper EED for the retro-

their legal error-from what I see here is-

(assuming they used all pertinent evidence)is probably their failure to give you the proper diagnostic code- and

certainly they failed to apply the correct rating schedule.

Of course if they find the I-9 or allow you to re-submit it- that would make filing a CUE claim moot then-I think?

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I had the same thing happen to me. I made an appointment with my rep. who's office is in the Huntington RO building. He had my C-FILE on his desk when I arrived. You guessed it. the computer said I had not filed a form 9. The c-file said other wise. So I recovered my eed of two years on meniere's. As Pete said on another post you can make an appointment to see a counselor at the RO and it may be in your c-file. If so it can be corrected quickly.

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Here's a hypothetical question for this thread that may or may not apply in this situaiton -

When I was working my claim I sent everything to the DAV who put a cover letter on it and sent it to the VA. It wasn't until well in the process that I knew I could ask for a copy of what they sent to the VA. Some of the vet reps I used were happy to send me a copy and others acted like I was asking for something I didn't need.

What if a vet sends evidence (or in this case the I-9) to his vet rep with the understanding that they will get it to VA but the vet rep fails to do so?

What recourse does the veteran have with the VA in this case where it is the fault of his vet rep organization that failed to deliver the evidence and not the veteran himself?

Do the vet reps have any true accountability? Does the VA suspend deadlines if the vet acted in good faith and it was the vet rep who failed to deliver the evidence to the VA or is the vet hung out on a limb?

Thanks,

TS Snave

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TS, Berta can give you some interesting insight on the accountability of a Veterans Service officer.

They are accountable if they have accepted your POA.

You can sue them.

J

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    • So, my lawyer sent an IME w/ IMO and filed a supplemental claim solely for IU on March 20.

      It was closed on March 25, and va.gov just states claim closed and nothing more.

      Hopefully, I get good news.
    • Thanks for the responses. I am filing a new claim but will continue pushing the NOD. My new question is it stated in law or statute that if during the claims process the VA finds conditions that could possibly rate service connection that was not originally filed for, the VA will “invite” the veteran to file the claim on the claims form. Reason I ask is that my private DBQs, NEXUS letter, and even the VA nurse examiner's DBQs lists bilateral upper radiculopathy as present. If it is written in statute or official guidance it might qualify as a CUE. Just looking at all angles. 
    • Everyone needs to read our stories so they can try to avoid these screws by the va...
      Thank you, everyone contributes, good or bad, all of our stories will help others, and yes, they have been stated by others for ages, over and over, but we just get depressed, and the time turns into years as they screw us..

      Welcome to the department of Veterans Affairs!  I can honestly say, "been there, done that".  

      Even after winning my tdiu in 2017, it was back to the drawing board as VA hornswaggeld my effective date.  (but of course).  

      I finally won my tdiu effective date in Feb. 2020, 18 years after I first applied!!!  

      Here is how they managed to drag mine out 18 years:

      1.  They never adjuticated my decison until 2009, where they called it "moot".  

      2.  I appealed, said it was not moot because it could result in an earlier effective date and SMC S under Bradley vs Peake.  The judge agreed with me, and ordered VARO consider me for extra schedular TDIU, under 4.16 b.  

      3.  The VARO piddles with  the remand for 3 years, and hoped I wouldnt notice.  I noticed and raised cane until they adjuticated it.  (denied of course).  

      4.  Finally, after the baord denied again, I hired a lawyer, in 2014, and appealed to CAVC.   

      5.  The lawyer won a remand, got an IMO and I won tdiu in 2017.  But at the wrong effective date, even after 15 years.  

      6.  I hired another lawyer, Chris Attig, and appealed the effective date, and he won a remand for effective date.  Trip 2 to CAVC.  

      7.  Mr. Attig won a remand, and advised me to get another IMO.  

      8.  The board awarded my earlier effective date in Feb. 2020.  

           So, I do have advice fighting VA for TDIU, they fought and fought and I hung in there and won it all.  

      ADVICE:  Dont count on VA, they could easily throw your fax in the trash.  Follow up!  
    • "Keep in mind that due to the nature of the digestive system, VA would most likely combined your conditions and pay you at the higher rate to avoid pyramiding".    That is one of my main gripes.  They are only listing the GERD with hiatal hernia and ignoring the rest of my gastric issues such as the gastritis which I also had in service.  I included it in my 2007 request for increase and again in 2019.  The info from the civilian dr that stated I had the gastritis with H pylori was not even provided to the examiner in 2007, nor did he have my VA health records. The 2019 request was based on an EGD I had AT THE VA in Jan 2019.   I filed for an increase 6 Mar and they did an ACE on 27 Mar and downgraded to noncompensable on that date.  The only reason I was thinking CUE:  38 CFR § 3.326 - Under Examinations  it states (c) Provided that it is otherwise adequate for rating purposes, a statement from a private physician may be accepted for rating a claim without further examination".  
    • Enough has been said on this topic. This forum is not the proper forum for an attorney and former client to hash out their problems. Please take this offline
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