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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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  • 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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    • Howdy all,

      The VA DRO denied my claim for an earlier effective date for my sleep apnea. They originally denied it in 2008 but granted it in Nov 2019 secondary to my GERD. I was rated for GERD in 2001. So I had it in 2008. I have attached the 2008 denial, 2018 approval, and the NOD SOC. All of my medical files and the medical articles and VA Citations referenced were in existence in or before Jan 2008. The only new items were the NEXUS letter from Dr Bash and a few extra buddy letters. The original denial states that my medical records show no diagnosis or treatment and only isolated complaints of symptoms. The denial does not even list my wife's or my lay statements as evidence reviewed. I have symptoms listed numerous times in my SMRs:

      a. Medical visit dated 24 Feb 76 for problem sleeping and depression.
      b. Physical exam dated 24 Jan 79 listed frequent/severe headaches" dizziness, and
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      c. Physical exam dated 07 Nov 83 listed frequent/severe headaches.
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      So could you all take a look and let me know what you think.

      Redacted VA NOD SOC 04-09-2020.pdf
      VA 2008 Denial of OSA Redacted.pdf
      VA Claim Decision Ltr 08 Nov 2018 Redacted.PDF
      • 3 replies
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thomasc

Va Rater Asks Examiners Opinion?

Question

So I was reading over my C&Ps report and the VA rater is asking the C&P examiner to provide "an opinion as to whether or not the veterans service connected disabilities render the veteran unable to secure or maintain substantially gainful employment." Does this seem like a question the VA rater should be answering the C&P examiner according to new FL 13-13?

I have attached a Page from C&P, take a look at highlighted area, Thanks.

post-15800-0-52425000-1391812639_thumb.j

Edited by thomasc

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On the DBQ questionnaire the Examiner was not as thorough as the VA wanted. So they need more medical notes or evidence to verify you meeting the IU criteria. No big deal, just that some examiners are very detailed, and others just vaguely list a little here and a little there. Remember when it comes to those ignorant Raters, they want all the Dots connected so that they don't have to lift a finger, WTH. Good luck and keep us posted bud

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I just don't understand how a VA rater can determine if a veteran is able to "secure or maintain substantially gainful employment," and now they're asking C&P examiners to do this?

What is the standard for determining "substantially gainful employment?" and where can I find it?

Edited by thomasc

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The VA raters can do anything they want. Some even ask Examiners leading questions about a claim, siome change disgnosis, They have run the entire gambit as we have seen here at Hadit. That is what they do,. Non adveraarial of course.

J

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jbasser don't forget the downplaying of conditions. Where medical records state moderate conditions and you get rated for mild. I imagine if they are asking for this you are going to need a independent medical opinion stating that with your conditions you are not able to secure or maintain gainful employment. However, per regulations:

§4.18 Unemployability.

A veteran may be considered as unemployable upon termination of employment which was provided on account of disability, or in which special consideration was given on account of the same, when it is satisfactorily shown that he or she is unable to secure further employment. With amputations, sequelae of fractures and other residuals of traumatism shown to be of static character, a showing of continuous unemployability from date of incurrence, or the date the condition reached the stabilized level, is a general requirement in order to establish the fact that present unemployability is the result of the disability. However, consideration is to be given to the circumstances of employment in individual claims, and, if the employment was only occasional, intermittent, tryout or unsuccessful, or eventually terminated on account of the disability, present unemployability may be attributed to the static disability. Where unemployability for pension previously has been established on the basis of combined service-connected and nonservice-connected disabilities and the service-connected disability or disabilities have increased in severity, §4.16 is for consideration

Also:

§4.16 Total disability ratings for compensation based on unemployability of the individual.

(a) Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities: Provided That, if there is only one such disability, this disability shall be ratable at 60 percent or more, and that, if there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. For the above purpose of one 60 percent disability, or one 40 percent disability in combination, the following will be considered as one disability: (1) Disabilities of one or both upper extremities, or of one or both lower extremities, including the bilateral factor, if applicable, (2) disabilities resulting from common etiology or a single accident, (3) disabilities affecting a single body system, e.g. orthopedic, digestive, respiratory, cardiovascular-renal, neuropsychiatric, (4) multiple injuries incurred in action, or (5) multiple disabilities incurred as a prisoner of war. It is provided further that the existence or degree of nonservice-connected disabilities or previous unemployability status will be disregarded where the percentages referred to in this paragraph for the service-connected disability or disabilities are met and in the judgment of the rating agency such service-connected disabilities render the veteran unemployable. Marginal employment shall not be considered substantially gainful employment. For purposes of this section, marginal employment generally shall be deemed to exist when a veteran's earned annual income does not exceed the amount established by the U.S. Department of Commerce, Bureau of the Census, as the poverty threshold for one person. Marginal employment may also be held to exist, on a facts found basis (includes but is not limited to employment in a protected environment such as a family business or sheltered workshop), when earned annual income exceeds the poverty threshold. Consideration shall be given in all claims to the nature of the employment and the reason for termination.

Anyways you might have looked at this but I think it is a good reference point. They are supposed to look at every when considering unemployability. Service connected conditions and non-service connected conditions. Just my opinion but a functional capacity test might be beneficial .

I find it convenient that in the DBQ it asks for this type of opinion and it was not thoroughly completed and answered not surprising though. thomasc, this is just my two cents, maybe this would be helpful.

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DBQ's should be dropped by VA as they only note a condition and not an examiners opinion. They stacked it in favor of the VBA.

J

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