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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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    • How to get your questions answered...


      All VA Claims questions should be posted on our forums. Read the forums without registering, to post you must register it’s free. Register for a free account.

      Tips on posting on the forums.

      Post a clear title like ‘Need help preparing PTSD claim’ or “VA med center won’t schedule my surgery” instead of ‘I have a question’.


      Knowledgable people who don’t have time to read all posts may skip yours if your need isn’t clear in the title. I don’t read all posts every login and will gravitate towards those I have more info on.


      Use paragraphs instead of one huge, rambling introduction or story. Again – You want to make it easy for others to help. If your question is buried in a monster paragraph there are fewer who will investigate to dig it out.


      Leading to:

      Post clear questions and then give background info on them.

      Examples:

      A. I was previously denied for apnea – Should I refile a claim?


      I was diagnosed with apnea in service and received a CPAP machine but claim was denied in 2008. Should I refile?



      B. I may have PTSD- how can I be sure?

      I was involved in traumatic incident on base in 1974 and have had nightmares ever since, but I did not go to mental health while enlisted. How can I get help?



      This gives members a starting point to ask clarifying questions like “Can you post the Reasons for Denial from your claim?” etc.

      Note:

      Your firsts posts on the board may be delayed before they show up, as they are reviewed, this process does not take long and the review requirement will be removed usually by the 6th post, though we reserve the right to keep anyone on moderator preview.

      This process allows us to remove spam and other junk posts before they hit the board. We want to keep the focus on VA Claims and this helps us do that.
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    • Mere speculation in your VA C and P exam

      M21-1, Part III, Subpart iv, Chapter 3, Section D – Examination Reports III.iv.3.D.2.r. Examiner Statements that an Opinion Would be Speculative Pay careful attention to any conclusion by the examiner that an opinion could not be provided without resorting to mere speculation (or any similar language to that effect). VA may only accept a medical examiner’s … Continue reading
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mobie16r

Clear And Unmistakeable Error

Question

is this a clear and unmistakeable error

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It definitely appears to me to be a CUE in the older denial.

But there is no NSC rating percentage for the PTSD on the denial rating sheet.

I am concerned about your use of 38 CFR 3.1 as the CUE.

And also the Duty to Assist regulations. DTA errors dont raise to level of CUE.

Did Dr Schuster or Dr Cobb specifically treat you for PTSD?

I feel ,although the listed your SMrs as evidence they failed to read them properly.

Did you actually get a VCAA Letter? It appears that you didn't.

Did they provide a response form with it if you did get one.

I had the same problem and it added years to my claim.

I received an improper VCAA letter and no response form. They denied saying I did not respond (to what they never sent to me)

I had a battle with my former vet reps who insisted (even up to their director's level) that my VCAA was proper.

I raised that issue right away on my I-9 asking BVA to remand due to the VCAA error.

By then however I had 3 IMOs as well. BVA agreed with me that the VCAA letter was deficient and prejidicial but I had mitigated the damages with probative evidence so it was no lionger an issue, they remanded for a 3rd VA C & P.

The opinion I got copy of was too speculative, I knocked it down and sent my rebuttal to the BVA. They agreed with me and sent me an award letter.

This claim was filed in 2003., the award letter came in 2009.And then I had to fight them for the money they owed me, which they coughed up in 2010.

Errors in VCAA letters can be critical and I mentioned this directly to Congresman Filner ( H VAC Chairman after VCAA enactment) many times by phone and mail.

Faulty VCAA letters have caused a great part of the backlog.

Did you vet rep do what my vet reps were too lazy to do....and ask for a proper VCAA letter? or at least give me support on my complaint?

I am not sure where the CUE lies here.

Did you ever have a C & P ....that is where the CUE might lie........the VCAA response could have generated a C & P exam. But it seems you didnt get a VCAA letter.....

Funny thing is,in my VCAA situation, a vet rep from a different locale was at the Vet rep office one day and I went inn and asked him to read my VCAA letter in my file.

He did and suddenly said Hey this isnt right at all !! By then I had filed a complaint on them with the OGC.And promptly notified their lawyer when I won that 2003 claim and a CUE claim they also told me didnt stand a chance. 3 ior 4 reps and the state director by then had documented to me that it was a legal VCAA letter. And it wasn't.

I think you have a valid case for CUE........but dont know how it should be shaped.

It must be a legal error. I will read over the downloads again and see if I can see something else in them to help.........

and others will chime in..........












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wait a minute...........I almost forgot where some legal errors are committed by VA......duh!

This might help:

http://www.google.com/url?sa=t&rct=j&q=&esrc=s&source=web&cd=4&ved=0CDQQFjAD&url=http%3A%2F%2Fwww.benefits.va.gov%2FWARMS%2Fdocs%2Fadmin21%2Fm21_1%2Fmr%2Fpart4%2Fsubptii%2Fch01%2Fpt04_sp02_ch01_secH.doc&ei=czHiU8XtH4WHogSd6YD4Cg&usg=AFQjCNEc4M5QKaYIjzn_fv1K_Weg962nIg&bvm=bv.72197243,d.cGU

Or google M21-1MR VCAA and go over the M21-1MR downloads carefully.

M21-1MR can take a lot of time to read but this is VA's interpretation of the regs in 38 CFR and many M21-1MR statements have legal citations right after the reference to include any precedent setting CAVC decisions.

I used a printout or two from M21-1MR for my CUE claim of 2003 and 2004 as well as for my recent CUE claims.

I could have asked them to CUE themselves on my 2003 claim regarding the VCAA, but didnt think of doing that.

The VCAA letter for survivors ,regarding DIC ,is different then for veterans.

That was one legal error they made, and the second was the lack of enclosing the response form.

VA's legal duty regarding the VCAA is spelled out clearly in M21-1MR.

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You better take notes when The Great Berta gives you advice. I can never seem to keep up.

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Thanks,Berta,

mobie

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Berta, I found a CUE,at the bva site ,where claim was granted, almost identical to mine,we was at the same place in Viet nam,but different times. when i filed my claim in march of 2000,the RO fell to apply 38cfr 3.156 © together with cfr 20.1403(a) 38 cfr3.310 (B), duty to assist act of 2000, 38 usca 4.6

1004548.txt

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    • How to get your questions answered...


      All VA Claims questions should be posted on our forums. Read the forums without registering, to post you must register it’s free. Register for a free account.

      Tips on posting on the forums.

      Post a clear title like ‘Need help preparing PTSD claim’ or “VA med center won’t schedule my surgery” instead of ‘I have a question’.


      Knowledgable people who don’t have time to read all posts may skip yours if your need isn’t clear in the title. I don’t read all posts every login and will gravitate towards those I have more info on.


      Use paragraphs instead of one huge, rambling introduction or story. Again – You want to make it easy for others to help. If your question is buried in a monster paragraph there are fewer who will investigate to dig it out.


      Leading to:

      Post clear questions and then give background info on them.

      Examples:

      A. I was previously denied for apnea – Should I refile a claim?


      I was diagnosed with apnea in service and received a CPAP machine but claim was denied in 2008. Should I refile?



      B. I may have PTSD- how can I be sure?

      I was involved in traumatic incident on base in 1974 and have had nightmares ever since, but I did not go to mental health while enlisted. How can I get help?



      This gives members a starting point to ask clarifying questions like “Can you post the Reasons for Denial from your claim?” etc.

      Note:

      Your firsts posts on the board may be delayed before they show up, as they are reviewed, this process does not take long and the review requirement will be removed usually by the 6th post, though we reserve the right to keep anyone on moderator preview.

      This process allows us to remove spam and other junk posts before they hit the board. We want to keep the focus on VA Claims and this helps us do that.
      • 0 replies
    • Exams that were being sent strictly to contractors before, due to VAMCs not being open, are starting to be routed back to VAMCs. This is going forward from last Friday- not sure if prior scheduled exams will be re-created for VAMC vs vendor.
      • 7 replies
    • Mere speculation in your VA C and P exam

      M21-1, Part III, Subpart iv, Chapter 3, Section D – Examination Reports III.iv.3.D.2.r. Examiner Statements that an Opinion Would be Speculative Pay careful attention to any conclusion by the examiner that an opinion could not be provided without resorting to mere speculation (or any similar language to that effect). VA may only accept a medical examiner’s … Continue reading
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      • 11 replies
    • It's time to ask for help from the community. If you can help with a gift it would be very appreciated.

      Fund HadIt.com Veteran to Veteran LLC


      Give a financial gift to help with the upkeep of HadIt.com. HadIt.com is NOT a non profit. Gifts are not tax deductible, they are just gifts. 
      • 11 replies
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