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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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Vync

Asthma "likelihood Of Improvement"

Question

In 2009, I was awarded a 60% asthma rating for meeting "intermittent (at least three per year) courses of systemic (oral or parenteral) corticosteroids" criteria. Since then, I have met or exceeded the number of treatments each year. The award letter included the following statement:

"Please note: Since there is a likelihood of improvement, the assigned evaluation is not considered permanent and is subject to a future review examination."

How long does one need to continue meeting this criteria in order for the "likelihood of improvement" to no longer be a factor? Would an IMO be sufficient? If so, how should it be worded?

Edited by Vync

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Vync,

I would think this issue would be like most others. I think you could get ahead of the curve by getting an IMO, submitting a statement in support of claim as a fully developed claim and requesting re-evaluation. Hopefully, the VARO would do a desk-top review and simply make the change to "permanent" status. They may ask for a C&P, but with an IMO on file this shouldn't be a huge hurdle. Again, my speculation but I could see where your IMO might save you this worry down the road.

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Absent any substantial, marked improvement after five years, your 60% rating will become permanent ( but not protected). This means VA won't drag you in every two years for an ongoing dog and pony show to see if the asthma has resolved. VA regulations state this succinctly. After twenty years it is considered a protected rating and cannot be rescinded absent fraudulent actions to attain it. The five year rule has been known to be abused but is written to protect Vets. To do it, VA will have to come up with two (2) examinations that clearly show sustained improvement and not just a flash in the pan. I have read of Vets who got a C&P with less than 6 months to the 20 year mark who got reductions. These gentlemen admittedly no longer suffered as extensively from their maladies for which they were rated on a percentage basis, but it still seems like a cheap shot. VA is not your BFF. I don't care what your VSO tells you. If they can engineer a reduction legally, they will.

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In talking with Broncovet and a couple of other folks, the 5 year rule makes sense. In two years I will reach the 20 year mark for straight out SC of my asthma. I just had my DRO review and submitted a solid set of evidence to justify continuing the 60% rating, which also included recent PFT's qualifying in that range. Now to wait and see what happens...

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Expect a C&P exam between now and then for their opportunity to bushwack you. Keep your medical hx/dr. visits up to snuff to prove your condition is chronic rather than acute. I see your posted SC @ 90%? Not TDIU? Danger, Danger Will Robinson.

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

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