diabetes Diabetes

[SLEDGE]

Update,

My buddy has won his 100% and back pay to 1989, the year that I first helped him file a claim.

But he is messed up pretty bad from not getting the proper diagnosis from the Navy and then the VA.

He had it- then not, he had it- then not etc.

He is now recovering from the loss of one foot lost due to complications.

His new lawyer says he will get millions from the pending lawsuit and the VA is trying to 'LET'S MAKE A DEAL' frequently.

He just tells them he has a lawyer and to take their proposals to her.

They have turned down some large settlements so far and they keep getting bigger.

His case has so much medical stupidity in it that the NAVY is also talking to his lawyer.

More updates as they become available, giggle-giggle.

sledge

[frosty69]

Berta

thanks a lot,

yes, I tried for service-connected, I don't think I qualify for pension, have to much income, for pension benefits, by NSC, do you mean non service connected, and if so how would I file for that, have no clue how to file for that. the claim is still active, as I just filed for a earlier effective date in 2004, as that is when I found out about. right below is my orginal letter, that i have been denied. I can't remember if the year past, without me appealing it, i will have to check my papers. I have to it tomorrow, as I just got back from having a upper GI, at the VA a couple off hours ago, so feel a little tired, but thanks again for the help, if you have any other comments, I would gladly listen.

8/22/2004

VA File Number

Earlier effective date for Diabetes

Please consider this communication as a formal claim.

To Whom It May Concern:

I was going through copies of medical files that I received from the Fargo VA medical center. On one of the pages it states that I was diagnosed per file in 1994 for diabetics. It says I had elevated triglycerides back to 1992-1993. It said I was diet controlled from January 1994 to January 2003. But the trouble is, no one told me. In light of this evidence, I feel that I should file for a earlier effective date, back to 1994 for my Diabetes, being I didn’t know anything about this diagnose until just the other day. I feel the VARO, in Fargo, ND should have been aware of this diagnose, at this earlier date, and taken this into account when I was awarded service connected diabetes, in January of 2003, instead of trying to hide the facts, as that is how it looks to me.

I certify that the information, I have given is true to the best of my knowledge and belief.

Thank you,

[Guest allanopie]

What Is VA Pension?

http://www.vba.va.gov/bln/21/milsvc/Docs/Pensoneg.doc

http://www.vba.va.gov/bln/21/milsvc/benfacts.htm

http://www.warms.vba.va.gov/regs/38CFR/BOOKB/PART3/S3_23.DOC

§3.3 Pension.(a) Pension for veterans.

(1) Service pension; Spanish-American War. A benefit payable monthly by the Department of Veterans Affairs because of service in the Spanish-American War. Basic entitlement exists if a veteran:

(i) Had 70 (or 90) days or more active service during the Spanish-American War; or

(ii) Was discharged or released from such service for a disability adjudged service connected without benefit of presumptive provisions of law, or at the time of discharge had such a service-connected disability, shown by official service records, which in medical judgment would have justified a discharge for disability. (Authority: 38 U.S.C. 1512)

(2) Section 306 pension. A benefit payable monthly by the Department of Veterans Affairs because of nonservice-connected disability or age. Basic entitlement exists if a veteran:

(i) Served 90 days or more in either the Mexican border period, World War I, World War II, the Korean conflict, or the Vietnam era, or served an aggregate of 90 days or more in separate periods of service during the same or during different war periods, including service during the Spanish-American War (Pub. L. 87-101, 75 Stat. 218; Pub. L. 90-77, 81 Stat. 178; Pub. L. 92-198, 85 Stat. 663); or

(ii) Served continuously for a period of 90 consecutive days or more and such period ended during the Mexican border period or World War I, or began or ended during World War II, the Korean conflict or the Vietnam era (Pub. L. 87-101, 75 Stat. 218; Pub. L. 88-664, 78 Stat. 1094; Pub. L. 90-77, 81 Stat. 178; Pub. L. 91-588, 84 Stat. 1580; Pub. L. 92-198, 85 Stat. 663; Pub. L. 94-169, 89 Stat. 1013; Pub. L. 95-204, 91 Stat. 1455); or

(iii) Was discharged or released from such wartime service, before having served 90 days, for a disability adjudged service connected without the benefit of presumptive provisions of law, or at the time of discharge had such a service-connected disability, shown by official service records, which in medical judgment would have justified a discharge for disability; and

(iv) Is permanently and totally disabled (a) from nonservice-connected disability not due to the veteran's own willful misconduct or vicious habits, or ( B) by reason of having attained the age of 65 years or by reason of having become unemployable after age 65; and

(v) (a) Is in receipt of section 306 pension; or

( B) Has an application for pension pending on December 31, 1978, or

© meets the age or disability requirements for such pension on December 31, 1978, and files a claim within 1 year of that date and also within 1 year after meeting the age or disability requirements.

(vi) Meets the income and net worth requirements of 38 U.S.C. 1521 and 1522 as in effect on December 31, 1978, and all other provisions of title 38, United States Code, in effect on December 31, 1978, applicable to section 306 pension.Note: The pension provisions of Title 38 United States Code, as in effect on December 31, 1978, are available in any VA regional office.

(3) Improved pension; Pub. L. 95-588 (92 Stat. 2497). A benefit payable by the Department of Veterans Affairs to veterans of a period or periods of war because of nonservice-connected disability or age. The qualifying periods of war for this benefit are the Mexican border period, World War I, World War II, the Korean conflict, the Vietnam era and the Persian Gulf War. Payments are made monthly unless the amount of the annual benefit is less than 4 percent of the maximum annual rate payable to a veteran under 38 U.S.C. 1521( B) , in which case payments may be made less frequently than monthly. Basic entitlement exists if a veteran:

(i) Served in the active military naval or air service for 90 days or more during a period of war (38 U.S.C. 1521(j)); or

(ii) Served in the active military, naval or air service during a period of war and was discharged or released from such service for a disability adjudged service-connected without presumptive provisions of law, or at time of discharge had such a service-connected disability, shown by official service records, which in medical judgment would have justified a discharge for disability (38 U.S.C. 1521(j)); or

(iii) Served in the active military naval or air service for a period of 90 consecutive days or more and such period began or ended during a period of war (38 U.S.C. 1521(j)); or

(iv) Served in the active military, naval or air service for an aggregate of 90 days or more in two or more separate periods of service during more than one period of war (38 U.S.C. 1521(j)); and

(v) Meets the net worth requirements under §3.274 and does not have an annual income in excess of the applicable maximum annual pension rate specified in §3.23; and

(vi) (A) Is age 65 or older; or

( B) Is permanently and totally disabled from nonservice-connected disability not due to the veteran's own willful misconduct. For purposes of this paragraph, a veteran is considered permanently and totally disabled if the veteran is any of the following:

(1) A patient in a nursing home for long-term care because of disability; or

(2) Disabled, as determined by the Commissioner of Social Security for purposes of any benefits administered by the Commissioner; or

(3) Unemployable as a result of disability reasonably certain to continue throughout the life of the person; or

(4) Suffering from:

(i) Any disability which is sufficient to render it impossible for the average person to follow a substantially gainful occupation, but only if it is reasonably certain that such disability will continue throughout the life of the person; or

(ii) Any disease or disorder determined by VA to be of such a nature or extent as to justify a determination that persons suffering from that disease or disorder are permanently and totally disabled. (Authority: 38 U.S.C. 1502(a), 1513, 1521, 1522)

( B) Pension for survivors.

(1) Indian war death pension. A monthly benefit payable by the Department of Veterans Affairs to the surviving spouse or child of a deceased veteran of an Indian war. Basic entitlement exists if a veteran had qualifying service as specified in 38 U.S.C. 1511. Indian war death pension rates are set forth in 38 U.S.C. 1534 and 1535.

(2) Spanish-American War death pension. A monthly benefit payable by the Department of Veterans Affairs to the surviving spouse or child of a deceased veteran of the Spanish-American War, if the veteran:

(i) Had 90 days or more active service during the Spanish-American War; or

(ii) Was discharged or released from such service for a disability service-connected without benefit of presumptive provisions of law, or at time of discharge had such a service-connected disability, as shown by official service records, which in medical judgment would have justified a discharge for disability. (Authority: 38 U.S.C. 1536, 1537)

(3) Section 306 death pension. A monthly benefit payable by the Department of Veterans Affairs to a surviving spouse or child because of a veteran's nonservice-connected death. Basic entitlement exists if:

(i) The veteran (as defined in §3.1(d) and (d)(2)) had qualifying service as specified in paragraph (a)(2)(i), (ii), or (iii) of this section; or

(ii) The veteran was, at time of death, receiving or entitled to receive compensation or retired pay for service-connected disability based on wartime service; and

(iii) The surviving spouse or child (A) was in receipt of section 306 pension on December 31, 1978, or ( B) had a claim for pension pending on that date, or © filed a claim for pension after that date but within 1 year after the veteran's death, if the veteran died before January 1, 1979; and

(iv) The surviving spouse or child meets the income and net worth requirements of 38 U.S.C. 1541, 1542 or 1543 as in effect on December 31, 1978, and all other provisions of title 38, United States Code in effect on December 31, 1978, applicable to section 306 pension.

Note: The pension provisions of title 38, United States Code, as in effect on December 31, 1978, are available in any VA regional office.)

(4) Improved death pension, Public Law 95-588. A benefit payable by the Department of Veterans Affairs to a veteran's surviving spouse or child because of the veteran's nonservice-connected death. Payments are made monthly unless the amount of the annual benefit is less than 4 percent of the maximum annual rate payable to a veteran under 38 U.S.C. 1521( B) , in which case payments may be made less frequently than monthly. Basic entitlement exists if:

(i) The veteran (as defined in §3.1(d) and (d)(2)) had qualifying service as specified in paragraph (a)(3)(i), (ii), (iii), or (iv) of this section (38 U.S.C. 1541(a)); or

(ii) The veteran was, at time of death, receiving or entitled to receive compensation or retired pay for a service-connected disability based on service during a period of war. (The qualifying periods of war are specified in paragraph (a)(3) of this section.) (38 U.S.C. 1541(a)); and

(iii) The surviving spouse or child meets the net worth requirements of §3.274 and has an annual income not in excess of the applicable maximum annual pension rate specified in §§3.23 and 3.24. (Authority: 38 U.S.C. 1541 and 542).

[44 FR 45931, Aug. 6, 1979, as amended at 56 FR 25044, June 3, 1991; 56 FR 19579, Apr. 29, 1991; 56 FR 22910, May 17, 1991; 56 FR 57985, Nov. 15, 1991; 68 FR 34541, June 10, 2003]

Cross references: Section 306 pension. See §3.1(u). Improved pension. See §3.1(w). Improved pension rates. See §3.23. Improved pension rates; surviving children. See §3.24. Frequency of payment of improved pension. See §3.30. Relationship of net worth to pension entitlement. See §3.274.

Supplement Highlights reference: 57(1)

******************************************************************************

§3.342 Permanent and total disability ratings for pension purposes.

(a) General. Permanent total disability ratings for pension purposes are authorized for disabling conditions not the result of the veteran's own willful misconduct whether or not they are service connected. (Authority: 38 U.S.C. 1502(a))

( B) Criteria. In addition to the criteria for determining total disability and permanency of total disability contained in §3.340, the following special considerations apply in pension cases:

(1) Permanent total disability pension ratings will be authorized for congenital, developmental, hereditary or familial conditions, provided the other requirements for entitlement are met.

(2) The permanence of total disability will be established as of the earliest date consistent with the evidence in the case. Active pulmonary tuberculosis not otherwise established as permanently and totally disabling will be presumed so after 6 months' hospitalization without improvement. The same principle may be applied with other types of disabilities requiring hospitalization for indefinite periods. The need for hospitalization for periods shorter or longer than 6 months may be a proper basis for determining permanence. Where, in application of this principle, it is necessary to employ a waiting period to determine permanence of totality of disability and a report received at the end of such period shows the veteran's condition is unimproved, permanence may be established as of the date of entrance into the hospital. Similarly, when active pulmonary tuberculosis is improved after 6 months' hospitalization but still diagnosed as active after 12 months' hospitalization permanence will also be established as of the date of entrance into the hospital. In other cases the rating will be effective the date the evidence establishes permanence.

(3) Special consideration must be given the question of permanence in the case of veterans under 40 years of age. For such veterans, permanence of total disability requires a finding that the end result of treatment and adjustment to residual handicaps (rehabilitation) will be permanent disability of the required degree precluding more than marginal employment. Severe diseases and injuries, including multiple fractures or the amputation of a single extremity, should not be taken to establish permanent and total disability until it is shown that the veteran after treatment and convalescence, has been unable to secure or follow employment because of the disability and through no fault of the veteran.

(4) The following shall not be considered as evidence of employability:

(i) Employment as a member-employer or similar employment obtained only in competition with disabled persons.

(ii) Participation in, or the receipt of a distribution of funds as a result of participation in, a therapeutic or rehabilitation activity under 38 U.S.C. 1718. (Authority: 38 U.S.C. 1718(f))

(5) The authority granted the Secretary under 38 U.S.C. 1502(a)(2) to classify as permanent and total those diseases and disorders, the nature and extent of which, in the Secretary judgment, will justify such determination, will be exercised under §3.321( B) .

© Temporary program of vocational rehabilitation training for certain pension recipients.

(1) When a veteran under age 45 is awarded disability pension during the period beginning on February 1, 1985, and ending on December 31, 1995, the Vocational Rehabilitation and Employment Division will be notified so that an evaluation may be made, as provided in §21.6050, to determine that veteran's potential for rehabilitation.

(2) If a veteran secures employment within the scope of a vocational goal identified in his or her individualized written vocational rehabilitation plan, or in a related field which requires reasonably developed skills and the use of some or all of the training or services furnished the veteran under such plan, not later than one year after eligibility to counseling under §21.6040( B) (1) of this chapter expires, the veteran's permanent and total evaluation for pension purposes shall not be terminated by reason of the veteran's capacity to engage in such employment until the veteran has maintained that employment for a period of not less than 12 consecutive months. (Authority: 38 U.S.C. 1524©)

[26 FR 1586, Feb. 24, 1961, as amended at 26 FR 9674, Oct. 13, 1961; 29 FR 3624, Mar. 21, 1964: 39 FR 14944, Apr. 18, 1974; 46 FR 47541, Sept. 29, 1981; 50 FR 52775, Dec. 26, 1985; 53 FR 23235, June 21, 1988; 55 FR 17271, Apr. 24, 1990; 56 FR 25044, June 3, 1991; 56 FR 65851, Dec. 19, 1991; 58 FR 32445, June 10, 1993; 66 FR 44053, Aug. 22, 2001]

Supplement Highlights reference: 8(2c).

Edited March 17, 2006 by allanopie

[frosty69]

I didn't figure I qualified for a pension, maybe a couple of years ago, I would of qualified, but to late now. the yearly income to qualify for pension sure is low, for a veteran and spouse a little over 13,000, not very much, especially if you own your own house. just the 100% income is double that figure, and I have other disability income, and so does my wife.

[Guest Berta]

" It said I was diet controlled from January 1994 to January 2003. But the trouble is, no one told me. In light of this "

It seems that they are saying that the DMII was controlled enough not to get a rating.

Did they rate it at all? If seems at the very least they owe you 10% retro-or whatever the rating was as NSC.You could have fit into the higher ratings too-did they from the date of diagnosis, actually give you any oral antiglycemic meds?(from Jan 1994 to Jan 2003) --- if they did-that would be in 20% criteria for retro-

Hyperlipedimia (elevated Trigylcerides) is also service connectable as secondary to DMII.

Did the 'controlled' diet actually lower your cholestrol readings?

I like your letter-you said a lot in a brief statement.If you haven't mailed yet -I would throw in the fact that this is claimed under the Nehmer Court Order and it's retroactive provisions.

One question- are you filing this as a Notice of Disagreement?

Has less than one year passed from the actual award on the DMII?

I would state that it is a NOD if that is the case.

Otherwise it is basis for a CUE claim.

If the decision was never appealed and is past the year from award date-

if so let me know and I can shape the CUE claim for you.

7913 Diabetes mellitus

Requiring more than one daily injection of insulin, restricted diet,

and regulation of activities (avoidance of strenuous occupational

and recreational activities) with episodes of ketoacidosis or

hypoglycemic reactions requiring at least three hospitalizations per

year or weekly visits to a diabetic care provider, plus either

progressive loss of weight and strength or complications that

would be compensable if separately evaluated 100

Requiring insulin, restricted diet, and regulation of activities with

episodes of ketoacidosis or hypoglycemic reactions requiring one

or two hospitalizations per year or twice a month visits to a diabetic

care provider, plus complications that would not be compensable

if separately evaluated 60

Requiring insulin, restricted diet, and regulation of activities 40

Requiring insulin and restricted diet, or; oral hypoglycemic agent

and restricted diet 20

Manageable by restricted diet only 10

[Alex]

`If you filed a valid claim for S/C diabetes after the Nehmer case came out, then your effective date will be made rtroactive that claim.

Alex

[frosty69]

Berta:

No the diabetes wasn't rated until Jan of 2003, when I got 20% as that is when I started taking pills for diabetes, then I think it was in end of 2003 or early 2004, I found out that a Veteran could get copies of his medical files from the VA, then I found the medical note about diabetes from 1994 and the other from 1992. so in 2004, is when I filed for a EED for the diabetes back to 1994. 1994 to 2003, no pills, just diet control, trouble is they never told me I had diabetes back then. I remember around 2002, my VA primary care doctor told me I should try and lose weight, as i was borderline diabetic, so basically they were lying to me for at least 9 years. I know I should of been getting the 10% from 1994, or maybe before. I will have to look at my medical files better, trouble is don't know what to look for. I just can't see how the VA can say it was diet control, when they never told me nothing.

Did they rate it at all? If seems at the very least they owe you 10% retro-or whatever the rating was as NSC.You could have fit into the higher ratings too-did they from the date of diagnosis, actually give you any oral antiglycemic meds?(from Jan 1994 to Jan 2003) --- if they did-that would be in 20% criteria for retro-

No didn't get rated until 2003, then got 20%, started take metformin.

Hyperlipedimia (elevated Trigylcerides) is also service connectable as secondary to DMII.

Did the 'controlled' diet actually lower your cholestrol readings?

I was told my cholestrol was under 200, don't know about the bad cholestrol reading

I like your letter-you said a lot in a brief statement.If you haven't mailed yet -I would throw in the fact that this is claimed under the Nehmer Court Order and it's retroactive provisions.

Yes, this letter was mailed over a year ago, and was denied, and have appeal a couple of times already, but they keep saying I have no new and material evidence, and I keep telling them, what would be the use, as they don't look at the evidence at all, as the medical paper that says 1994, that should be enough proof right there.

One question- are you filing this as a Notice of Disagreement?

yes filed a NOD

Has less than one year passed from the actual award on the DMII?

nO 3 YEARS HAS PASSED SINCE jAN OF 2003

I would state that it is a NOD if that is the case.

Otherwise it is basis for a CUE claim.

If the decision was never appealed and is past the year from award date-

if so let me know and I can shape the CUE claim for you.

HAVE APPEALed , but keep get turned down for no new evidence, and if you feel i have a CUE claim, would welcome any help.