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  • Trouble Remembering? This helped me.

    I have memory problems and as some of you may know I highly recommend Evernote and have for years. Though I've found that writing helps me remember more. I ran across Tom's videos on youtube, I'm a bit geeky and I also use an IPad so if you take notes on your IPad or you are thinking of going paperless check it out. I'm really happy with it, I use it with a program called Noteshelf 2.

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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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  • Most Common VA Disabilities Claimed for Compensation:   

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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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Teac

Smc When Rated 100% And Tdiu Under Bradley V Peake

Question

Those who are smart concerning SMS' s do you know....

Lets say a veteran has a TDIU rationg for a back injury.

Then at a later date is awarded a 100% rating for a totally different issue, so because he can't be rated 100% schedular and TDIU at the same time the TDIU is revoked. The same veteran has a seperate single 60% rating, and is awarded SMC L 1/2 or Aid & Attendance. The same veteran has additional ratings that alone combine to 60%. Under Bradley V peake TDIU can still be Considered due to the possible award of SMC...

So Now lets say the veteran is rated 100% with SMC L 1/2 ( a 100% rating and a seperate combined rating of 60%)

For SMC purposes only he is entitled to TDIU for a different problem ( TDIU awarded based on a seperate and additoinal rating of 60%)

( this would be like haveing two seperate 100% ratings and a seperate combined rating of 60%)

The question: Based on Bradley v Peake would this veteran be authorized any additonal SMC's above L 1/2

http://www4.va.gov/v...es3/1027802.txt

VA General Counsel had issued a precedent opinion holding that a

claim for TDIU may not be considered when a schedular 100-percent

rating is already in effect. See VAOPGCPREC 6-99 (June 7, 1999).

That is, the issue was essentially moot. However, the opinion

was withdrawn in November 2009 after the United States Court of

Appeals for Veterans Claims (Court) determined that there was an

exception to the opinion when it decided Bradley v. Peake,

22 Vet. App. 280 (2008). The Court held that there could be a

situation where a veteran has a schedular total rating for a

particular service-connected disability, and could establish a

TDIU rating for another service-connected disability in order to

qualify for special monthly compensation (SMC) under 38 U.S.C.

§ 1114(s) by having an "additional" disability of 60 percent or

more ("housebound" rate). See 38 U.S.C.A. § 1114(s) (West 2002

& Supp. 2010). Therefore, the TDIU issue is potentially not

moot.

Edited by Teac

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This is an old thread

but what if a veteran is rated 2 100% one IU And another one 100%scheduler 

IU is for hearing loss 

100 %scheduler is for Depression 

Do they revoke the IU? And make this veteran 100% and would he meet the SMC S Criteria? 

What if the Veteran was IU useing the extra scheduler at 90% combined rating  and is given the IU with P&T

This same veteran comes down with another seperate rating ...say for  a 70% PTSD rating...ok do they add that to his IU WITH P&T and revoke his IU? and give the SMC S? 

IF THIS HAPPENS  IS THE VETERAN CONSIDERED TO BE 100% SCHEDULER AS A 100% FINAL DEGREE RATING???

Anyone?

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I would bet that any of us who put in a HB claim who have TDIU plus 60% are going to be called in for C&P exam for HB. The VA is going to ignore the statutory nature of entitlement and make the vet go through the C&P and then very likely deny it. If you ask for the HB as a statutory benefit and the VA calls you in for an HB exam what should the veterans do?

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I would bet that any of us who put in a HB claim who have TDIU plus 60% are going to be called in for C&P exam for HB. The VA is going to ignore the statutory nature of entitlement and make the vet go through the C&P and then very likely deny it. If you ask for the HB as a statutory benefit and the VA calls you in for an HB exam what should the veterans do?

There is no valid reason to have a C/P Exam based on a statutory award of HB... it would just be a waste of time, money if the va required all claims under bradledy v peake to undergo additional exams.

Keep in mind if that was the case than anyone rated 100% statutory with the additional 60% would have to under go an exam as well.

I don't think the va is going to add to their workload unless it is necessary. Of course the va employee doesn't always make decisions that are logical.

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The thing is the people at the VARO are so stupid they will just see "claim for HB" and probably ignore the law and schedule the exam. However, I am still sending in my statutory claim for HB before they change the law.

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My point, exactly. The VARO sent my husband a form for his physician to complete, plus two copies of the form authorizing release of medical information to the VA. There may or may not be a C & P, but even by the forms we received, it's clear the VARO intends to ignore statutory entitlement to SMC(s).

We explained the basis for statutory entitlement, plus copies of the decisions, as I said under my post in FAQ's. The VARO's response did not discuss statutory entitlement, although they did list the Court decisions I printed and sent as evidence. Evidence not discussed is evidence not considered.

Let me ask again here -- the VARO's refusal to change the 100% schedular to TDIU was not made through a formal "Rating Decision," and therefore, there were no reasons and bases provided for this statement (as premature as it was since it was contained in a VCAA notice!). Instead, that statement was contained in the first paragraph of the letter after the salutation. They said, "Our records indicate that you are already receiving a 100% combined disability rating. Therefore, the issue of individual unemployability will not be considered."

Although not a Rating Decision, the words written clearly indicate the opinion is final, therefore, is it a CUE?

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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.

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

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

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

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