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To Nod Or Not?

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TiredCoastie

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Should I NOD or not? That's the big question right now. The problem is that there is some hope that the VA will increase my SC migraines from 0% to 50% and my SC knee arthritis from 0% to > 0 without having to appeal just based on this claim. My last claim was screwed up from stem to stearn - they even missed the informal claim date that the DAV established for me - with a little help from my outside neurologist who didn't read the DBQ form right and answered "no" where she should have answered "yes." My reconsideration claim was the first time I've submitted for an increase on my knee. So there's some prospect that they'll get at least part of this right this time...

What really may need to be appealed is the impact of the TIAs which began on active duty and my hearing loss. Because TIAs don't leave any lasting disability, that's going to be a hard battle to win until I actually have a stroke. Thanks to all, again, who've shared their history with this disability and the VA.

The hearing loss is the real kicker - I've been denied SC because there is an initial intake hearing test that shows some hearing loss. While my hearing loss increased in service and was never as bad as initially tested, as shown by a whole stack of hearing tests covering 24 years in uniform as well as the VA's initial audiology C&P right after I discharged, the VA has decided to disagree. And I'm wearing VA issued hearing aids. And the QTC audiologist was trying hard to help me out this last time. And one of the top ENTs in our area filled out the DBQ with the help of his Air Force O-4 intern. For fighting over principle at this point for what could be a very small percentage increase I could miss out on years of a much higher percentage increase which could come earlier.

I'm watching the calendar move by day-by-day without any movement on my request for reconsideration of my latest claim. My last claim was finalized on Dec 27, 2012, and I filed for reconsideration on April 11, 2013. According to eBenefits, my claim has rested in "gathering evidence" for a couple of months without any gathering of evidence activity other than the 5103 waiver request. Before that, it was inprocessed twice. Based on what the performance stats show for my RO, they aren't doing a lot of anything, particularly on claims less than a year old.

So, the probability of the RO coming up with and communicating a rating decision on or before December 27, 2013, at its present rate of speed seems pretty unlikely unless something changes pretty soon. There have been a lot of posts about the VA not honoring the initial claim date when a request for reconsideration is denied, so I'm concerned that I'll lose out on several years of backpay that would eventually make its way assuming I win the appeal.

Really could use some advice. Should I submit a NOD and put this reconsideration and increase claim into extreme slow motion? Or let it ride, hope for the best, take what I can get (if anything), and then go back through the process to resubmit a claim for the hearing loss and whatever else if they deny it again this time then slam a NOD as soon as it's denied the next time?

How come there isn't a service connection for the conditions and diseases caused by the VA disability system?

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TiredCoastie asked:

“How come there isn't a service connection for the conditions and diseases caused by the VA disability system? “

Because the VA would become either bankrupt or forced to take their thumbs out of their butts and do this stuff right. There is no accountability at all when they decide claims wrong or fail to read the evidence properly.

Those denials ensure job security, for VARO employees and for the reps from the Vet Orgs.

I swear if a vet or widow doesn't have PTSD when they file their claim, they sure might get it during the claims process...as the anxiety levels increase , and there sure is Trauma involved in reading some of their denials. I got a denial in 1996 that made me feel I had been put into a deep hole and would never climb out of it. It was a devastating remark in the denial about my husband who had died so he could not speak for himself. But I crawled out of that dark place and spoke for him, and fully overcame, with evidence, the VA's despicable and slanderous remark....they were fighting me on 2 fronts, 1151 and FTCA so I guess they were determined to undermine me and break my spirit and determination.

They almost did....for a few days ,and then I changed my entire VA modus operanda and it all got resolved.I think that remark they made in the initial denial could have caused suicidal ideation in any spouse of a deceased veteran.God knows how any vets have felt that way too,upon receipt of some bull crap denial.

“I'm watching the calendar move by day-by-day without any movement on my request for reconsideration of my latest claim. “

“There have been a lot of posts about the VA not honoring the initial claim date when a request for reconsideration is denied, so I'm concerned that I'll lose out on several years of backpay that would eventually make its way assuming I win the appeal. “

RIGHT!!!! That is why the NOD MUST be filed within the first year after the denial.

The VA farted around with my recon request, for almost 8 years, sending me responses from time to time, so absurd that I even had to ask them what regs they used to support their ridiculous statements, to continue the denial, but I filed my NOD within days of the year NOD deadline because I realised I had been suffering from an illusion,...... I had actually believed the VARO would read my legal evidence. It was A CUE claim.

They never did. Their responses never mentioned a single piece of legal evidence I had sent to them.

I asked the Nehmer VARO to address that pending claim issue before they addressed my AO IHD claim.

Nehmer Phila. VARO Awarded the CUE claim in the AO IHD award letter.

It took them mere weeks to do that.

The EED was 1988. That monetary award was higher then the IHD award. (but it is still wrong -I asked them to call CUE on that part of the award)

“Really could use some advice. Should I submit a NOD and put this reconsideration and increase claim into extreme slow motion? “

The VA is hoping you wont file the NOD in time.

There are BVA decisions that I posted here that were denials on Recon Requests, solely because the veterans (like I did for years) were strung out by the VA responses,thinking they VA would actually resolve the request before that NOD deadline.

My CUE was set for BVA transfer in 2011,but that never happened because someone at the Phila VARO knew VA case law, read my legal evidence, and awarded the claim.2012.(filed in 2004)

You might get lucky. Some vets have sure succeeded on Reconsideration Requests at the VARO level..

As I mentioned I had marked my calendar for that NOD deadline and filed it during the last week I had left.

If they pull something like that for my 2 pending claims, I will prepare the NOD and I-9 ASAP (unless I can get them to CUE themselves..as my first avenue of attack), and I will refuse to consider any DRO review,

and then I will feel confident that the BVA will award those claims.

Because the BVA can read.

The RO sent me response letters to my CUE during the NOD time frame.... have they sent anything to you at all after you filed this request?

Edited by Berta
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As I mentioned I had marked my calendar for that NOD deadline and filed it during the last week I had left.

If they pull something like that for my 2 pending claims, I will prepare the NOD and I-9 ASAP (unless I can get them to CUE themselves..as my first avenue of attack), and I will refuse to consider any DRO review,

and then I will feel confident that the BVA will award those claims.

Because my evidence for them is solid and because the BVA can read.

Thanks, Berta! That's kind of what I've been leaning toward. I've got until the very end of December, so there is time to see if something positive will develop. BUT, there's not a lot of time.

If I can get them to CUE themselves, I'll do it. Unfortunately, my IMO blew the migraine DBQ form and marked that I do not have debilitating migraines when all the rest of the evidence clearly said I did. It was one of those cascading error chains...she submitted the DBQ directly to the DAV so I could get the claim in quickly. So there is evidence that I've been flattened 2-3 days per month on average but there is also the doctor's inaccurate statement that I wasn't. In terms of the hearing loss, a CUE may be a possibility. And definitely a CUE with the missed month in the effective claim date.

Roger on the DRO review and go right to BVA.

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Ah, the infamous DBQs strike again! I have warned all the boys and girls at my site to avoid these things like the plague. They are great for assembling raw data on a disease/injury- admittedly. No one disputes that. For brain dead RO raters, this is a Godsend. It alleviates them of one of their Prime Directives- the duty to assist. The problem we've been enunciating since their inception is what Mr.Tired Coastie complains of here. You simply must be in charge. Anyone who lets another submit unreviewed medical material is asking for a front end dental rearrangement. As the DBQs still do not have a place to attach the IMO/nexus info, VA can logically deny it.

A classic example might be your civilian records you've accumulated over the decades. Simply handing these over in toto without searching through them to remove irrelevant information is essential. I counsel my Vets to remove anything about mental health if the claim does not concern it. Similarly, a claim for a MDD does not require submission of records regarding a weight cessation program. Once VA gets their hands on this stuff, it's impossible to remove or ameliorate the impact. We are all more than familiar with the ugly VA habit of dragging up extraneous history totally unrelated to the claim at hand.

It may mean an added delay of months to submit the old fashioned way but is that such a burden? From what we see and hear, the vast majority of the new Fully Developed Claims (FDCs) are simply a template to a denial sooner rather than later. To that I add "Haste makes Waste". VA has never been thorough when doing a claim. Speeding it up is asking for even less inspection for completeness. As they say in their disqualifier, "We'll rate on what you give us". Compound that with a service representative who misplaces half your filing. Assuredly, assembling it all yourself for them seems to be advisable. Nevertheless, review the records you submit for pertinence. Any IMO or nexus letter should be submitted separately and initially so it sits at the top of the center flap of the C-file.

You may think the new VBMS method assembles the C-file chronologically with all documents now filed in one convenient pile. Not. There is still a "left flap" for dependency issues and a "right" one for educational/VR&E. As I wrote in my book, the idea is to get the Brainiac 5s down there to keep tripping over your pertinent STRS and the nexus/IMO again and again until one of them says "Gee, Bob. Look at this. His MOS says he was a paratrooper. Maybe that's what screwed up his back."

Winning is predicated on a formula. Depart from it and you lose. Knowing the red flags of VA claims is no different than knowing them when filing an IRS tax return. Shoveling everything into the ebennies mail and pushing send will get it there (maybe) but you need to draw a good map. You're dealing with mental midgets.

Last but not least. Never abandon a claim. Ever. VA will use it against you some day. Once you file, if it was justified and supported by STRs, stand your ground.

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You pretty much nailed the issue, Asknod! They denied my claim pretty quickly when compared with how fast claims usually move. Now I'm sitting around waiting for them to do something...anything...and meanwhile, the clock ticks closer and closer to the appeal deadline.

I could blame the delay on the lack of focus on claims submitted less than a year ago. My RO seems to have turned all hands to on the overdue claims, which is hard to complain about. I was one of those vets once waiting and waiting for my initial claim to process and rate.

Thanks to reading your posts, Berta's, and some others, I'm convinced that I did not do enough for my claims when I submitted them. I should have drafted nexus letters "connecting the dots" between the conditions, diseases, test results, and treatments provided while on active duty to the disabilities of today. I should have done that for each major piece and didn't.

Trust me...I'll do that for the appeal.

And thanks to all of you, I'm much smarter in how to address this according to formula.

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I don't mean to be obnoxious or sell product but read my book. Ask Berta if she thinks it helps win a claim. I'm 41 -2 helping Vets as of last week. Of the 41, most have 100% or TDIU. I don't teach you how to file. There are thousands of DIYs out there that do that. I teach you how not to lose. The VA approves 15% of claims presented. If I was a VSO, I would hope for a win loss record of 6.45 Vets out of 43. Amazon has it as a download electronically for $3.99. It's like buying insurance when you go Down for Double in Blackjack.

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The book is Excellent, and as everyone can tell here, AskNod has a unique way of stating the nitty gritty of the VA and how to play their WWGs ( War of the Words games),

to our advantage as claimants.

Evidence is everything but even with the best evidence , presentation comes in second as securing the award.

This point AskNod made her bears repeating : (well everything he said does ! He wont steer anyone in the wrong direction....listen to his SVR shows too, in our archives)

"We are all more than familiar with the ugly VA habit of dragging up extraneous history totally unrelated to the claim at hand."

Claimants often do that too. They tell a story in support of their claim,full of extraneous stuff that only turns off the attention of the rater.

Or maybe VA will read it all and find in it something that VA then uses against them.

Real scenario:

The Vet Center I volunteered at in NJ called me up a few months after I moved to NY in 1988 ,to tell me one of the centers PTSD combat vets had died.

He left three small sons and a wife who they gave the DIC app to.

She wrote a long story attached to the DIC app. and sent it to the VA before asking anyone to help with it.

She made statements to VA that the veteran's drinking (he died of cirrosis of the liver) had started way before Vietnam.

But he always told me and the Vet Center vets that he started to drink to medicate Vietnam.

Her story was very negative about his abuse etc etc etc...and how he made the family suffer....

She wrote the story in anger,never thinking she had doomed her DIC claim.

There was more to this then the brief rendition here ....but my point is don't tell VA a story...develop a War Plan.

I am sure I posted here my War plan in 2003.for my AO DMII death claim.

I put a photo of my VARO in the middle of a sheet of paper ,then using military symbols, I doped out my plan of attack....

As I said before VA is NOT any enemy at all for vets.....Time is the Enemy....

Around the photo I briefly put statements of how I would advance the claim:

study every single medical record the veteran had. and then read the med recs again..... and again....

research every medical symbol or terminology in the med recs,

Tab and label important evidence in manila folders.

Prepare an NOD as the first avenue of attack by submitting with it probative evidence that overcame the wording in the first denial

Do same thing for subsequent SOCs, SSOCs,

Get copies of the C & P exams

Get IMOs.

Continue to support the claim at the BVA with more evidence.

NOD with probative Evidence.

Respond to every SOC SSOC with evidence

Get an IMO if needed

....stuff like that........ I had a plan of action.......and I followed through on this same type of plan for every subsequent claim I had.

Even for my FTCA case.No lawyer would help me and I am glad now I did it all myself.

I sure was angry and grief stricken when I prepared the SF 95.

Then I attached my chronological medical lay opinion, supported by tabbed and highlighted VA med recs, as to how VA caused my husband's death.

I also re opened the l151 claim he had filed ( I couldnt substitute myself as the claimant on that in those days), with the same chronology and lay statements.

As I mentioned here before I attached yard sale colored stickers (now I use legal Exhibit stickers) (Exhibit A,B,C, etc)to each piece of evidence and always included the evidence list ion the cover letter for all of my evidentary submissions.

I put my C file number on every single page I submitted along with a name/address sticker I get when I donate to vet orgs like the DAV.

When one is organized then they eliminate some of the stress involved in finding stuff they need.

I know this is all a pain in the butt to do and I put off filing my current claims because I didnt even want to think about dealing the VA again.

But when I developed a little war plan for those current claims, my focus stayed on being brief and I found the evidence I needed right away in old manila folders from my last claims.

SAVE EVERYTHING.

I found a folder labeled "Vogel, UnderSec- VA 1994"

It contained a letter the Undersecretary had sent to my husband, in response to a Congressional Inquiry.

At the time, it didnt help his claims at all.

But the former VA UnderSec,in that letter, had confirmed the evidence VA ignored in 2012 when they awarded my 2004 CUE claim.

It was one of the best pieces of evidence I had and luckily I had saved it. For the past 19 years.

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