Jump to content
VA Disability Claims Community Forums - HadIt.com Veterans
  • veterans-crisis-line.jpg
    The Veterans Crisis Line can help even if you’re not enrolled in VA benefits or health care.

    CHAT NOW

  • question-001.jpeg

    Have Questions? Get Answers.

    Tips on posting on the forums.

    1. 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.
       
    2. Knowledgeable 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.
       
    3. Use paragraphs instead of one massive, 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 too:

    exclamation-point.pngPost straightforward questions and then post background information.
     
     
    Examples:
     
    • Question A. I was previously denied for apnea – Should I refile a claim?
      • Adding Background information in your post will help members understand what information you are looking for so they can assist you in finding it.
    Rephrase the question: I was diagnosed with apnea in service and received a CPAP machine, but the claim was denied in 2008. Should I refile?
     
    • Question B. I may have PTSD- how can I be sure?
      • See how the details below give us a better understanding of what you’re claiming.
    Rephrase the question: I was involved in a 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 of your claim?”
     
    Note:
     
    • Your first posts on the board may be delayed before they appear as they are reviewed. This process does not take long.
    • Your first posts on the board may be delayed before they appear as they are reviewed. The review requirement will usually be removed by the 6th post. However, we reserve the right to keep anyone on moderator preview.
    • This process allows us to remove spam and other junk posts before hitting the board. We want to keep the focus on VA Claims, and this helps us do that.
  • Most Common VA Disabilities Claimed for Compensation:   

    tinnitus-005.pngptsd-005.pnglumbosacral-005.pngscars-005.pnglimitation-flexion-knee-005.pngdiabetes-005.pnglimitation-motion-ankle-005.pngparalysis-005.pngdegenerative-arthitis-spine-005.pngtbi-traumatic-brain-injury-005.png

  • VA Watchdog

  • Can a 100 percent Disabled Veteran Work and Earn an Income?

    employment 2.jpeg

    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

  • 0

Would This Be New And Material Evidence?


kate7772

Question

Husband was recently awarded 50% mental health. We feel it should have been 70% and would like to reopen/reconsider. I know we need new and material evidence to do so. There are many symptoms in my husband's VA treatment notes that are in the 70% range but were never included in his very incomplete C&P exam. When asked. rater said they did consider the treatment notes but if so they sure missed a ton of references to all these symptoms. One of the symptoms is suicidal ideation. This is and continues to be an ongoing problem. But, since they said they considered the records, we likely cannot try to reopen with this. However, recently my husband's mental health nurse practitioner referred him to a suicide prevention therapist due to the fact that much of the treatment so far has been borderline helpful at most. He does not have an active plan but the thought is always there. So, would this referral be considered new and material evidence to reopen the claim and at that time we can refer to all the other overlooked symptoms also?

Thanks

Kate

Link to comment
Share on other sites

Recommended Posts

  • 0

New and Material evidence, in the eyes of the VA, the BVA and the CAVC consists of evidence (new) that has never seen the light of day. Material evidence can consist of evidence submitted earlier that is probative of the new evidence submitted. The metric is simple. It has to be new but can be submitted in conjunction with older evidence that would help to explain the probity of the new evidence. Material in a legal sense means it’s related to the subject (claim) you are filing.

With that said, NM&E can be a new IMO/IME that you have obtained that shows the correlation between your present condition and relates to service connection. It cannot be an update that describes the current progress of your disease/injury. The NM&E must specifically help tie the current disease/injury to the event in service which you claim was the cause.

Many of you will file what you believe is NM&E that isn't material and VA will reject it as redundant or simply immaterial. VA will make a determination on the NM&E aspect first and then determine the credibility of it afterwards.

Edited by asknod (see edit history)
Link to comment
Share on other sites

  • 0

This MH decision is recent so you are still within the appeal period Kate.

This is not a re open situation at all, as I understand it.

I think I suggested somewhere here that since your husband won his Bad Water USMC claim ,that ratin might garner him TDIU if and when he can no longer work.

I know you dont want to get another costly IMO but because the MH issue is NOT PTSD, an IMO could be used to try to obtain a higher MH rating.

Alex is always right on the mark.

Re opens can also be sending them something that corroborates something they rejected .

This is important for anyone here who intends to re -open a claim denied in the past.

For example, say VA rejects a Buddy statement (which might not have been properly prepared)

An additional buddy statement from someone else, properly prepared with contact info and details etc etc etc, same unit, same time and place, would give credence to the original statement that they may or may not revisit.

A widows claim I posted here a few years ago was a re=open of her DIC denial.

She sent the VA one single piece of evidence. It was an article about an unusual form of cancer centered within a small population of people in a small Korean village.

This rare cancer had caused an exorbitantly large amount of cancer diagnoses in the village, the same type of cancer her husband died from.

She had also proved via his 201 personnel file that he had served in very close proximity to this village.

His whereabouts of his service was documented and established in his 201 file.

The article was new and material evidence, BVA ordered a posthumous C & P exam or VACO opinion, I forget which, and the claim was awarded.

To get back to Kate

I feel you should await the rating for the Camp Lejuene claim and see how VA totally up the 2 separate ratings.

Edited by Berta (see edit history)
  • Like 1
Link to comment
Share on other sites

  • 0

This MH decision is recent so you are still within the appeal period Kate.

This is not a re open situation at all, as I understand it.

I think I suggested somewhere here that since your husband won his Bad Water USMC claim ,that ratin might garner him TDIU if and when he can no longer work.

I know you dont want to get another costly IMO but because the MH issue is NOT PTSD, an IMO could be used to try to obtain a higher MH rating.

Alex is always right on the mark.

Re opens can also be sending them something that corroborates something they rejected .

This is important for anyone here who intends to re -open a claim denied in the past.

For example, say VA rejects a Buddy statement (which might not have been properly prepared)

An additional buddy statement from someone else, properly prepared with contact info and details etc etc etc, same unit, same time and place, would give credence to the original statement that they may or may not revisit.

A widows claim I posted here a few years ago was a re=open of her DIC denial.

She sent the VA one single piece of evidence. It was an article about an unusual form of cancer centered within a small population of people in a small Korean village.

This rare cancer had caused an exorbitantly large amount of cancer diagnoses in the village, the same type of cancer her husband died from.

She had also proved via his 201 personnel file that he had served in very close proximity to this village.

His whereabouts of his service was documented and established in his 201 file.

The article was new and material evidence, BVA ordered a posthumous C & P exam or VACO opinion, I forget which, and the claim was awarded.

To get back to Kate

I feel you should await the rating for the Camp Lejuene claim and see how VA totally up the 2 separate ratings.

We already have the rating for the Lejeune claim. 80% for kidney, 50% for adjustment disorder and 10 for tinnitus.

So the referral for suicide prevention is not new and material in relation to why it should have been a higher rating? The fact that they did not include it or other symptoms in the C&P?

It says in the award letter that a higher rating is not warranted unless the evidence shows.......and then goes on to list the symptoms and problems it must show. The medical treatment shows most of what they mention but they were never addressed I think largely due to the crappy C&P.

My thinking was new on the recent referral to suicide prevention counseling which points to the fact that he has symptoms that they list as necessary for next higher rating. And of course material since it is their statement that it is an important symptom to have been rated higher.

Edited by kate7772 (see edit history)
Link to comment
Share on other sites

  • 0

Kate,

I agree with Berta. Since you are still within the one year appeal period, the MH claim is not a reopen issue at this time. You stated the award letter stated "a higher rating is not warranted unless the evidence shows........and then goes on to list the symptoms and problems it must show." However, the C & P failed to include the suicidal ideation or address all of his MH symptoms which would have been necessary for the higher rating.

Does your husband's MH records, especially a DBQ, that were provided to the RO for his MH claim show he had the required symptoms for the higher rating? If your answer is yes and there is no doubt the records show he meets the requirements for the higher rating, file a NOD based on his MH doctor's records. If the answer is no, I believe you will need a DBQ (showing the required symptoms for the higher rating) from your husband's VA MH doctor or an IMO from a private MH doctor to overcome the bad C & P. JMO

Georgiapapa.

  • Like 1
Link to comment
Share on other sites

  • 0

Kate: What NOD & Berta said. If memory serves, N & M Evidence is only addressed as an appeal "REQUIREMENT" if you choose the VARO DRO Review or Hearing option. Any time after your decision and during your appellant period up to and including being transfered to the BVA, any receipt of N & M Evidence by your VARO is covered by VA regulation in regards to an Automatic VARO Review of your claim by a Senior Rater or actual DRO but giving "Deference" to the original rater's decision.

If you don't agree with rating decision and have N & M Evidence, file your NOD and send in the evidence. You might luck out and get a VARO Auto Review awarded well before a DRO Hearing is on deck (2-4yrs) let alone a BVA Hearing (5= yrs).

Meanwhile back at the ranch, get hot on the IU Claim. At 50% your not eligible for a scheduler filing but it's time to get your ducks in a row. File for VA Vocational Rehab and get a VA Vocational Councilor's expert opinion as to your husband's SC Conditions precluding him from successfully completing a Voc Rehab Program. You may end up getting the 70 down the road but you might qualify for the Extra-Scheduler rating much sooner.

Semper Fi

Gastone

Link to comment
Share on other sites

  • 0

Kate: What NOD & Berta said. If memory serves, N & M Evidence is only addressed as an appeal "REQUIREMENT" if you choose the VARO DRO Review or Hearing option. Any time after your decision and during your appellant period up to and including being transfered to the BVA, any receipt of N & M Evidence by your VARO is covered by VA regulation in regards to an Automatic VARO Review of your claim by a Senior Rater or actual DRO but giving "Deference" to the original rater's decision.

If you don't agree with rating decision and have N & M Evidence, file your NOD and send in the evidence. You might luck out and get a VARO Auto Review awarded well before a DRO Hearing is on deck (2-4yrs) let alone a BVA Hearing (5= yrs).

Meanwhile back at the ranch, get hot on the IU Claim. At 50% your not eligible for a scheduler filing but it's time to get your ducks in a row. File for VA Vocational Rehab and get a VA Vocational Councilor's expert opinion as to your husband's SC Conditions precluding him from successfully completing a Voc Rehab Program. You may end up getting the 70 down the road but you might qualify for the Extra-Scheduler rating much sooner.

Semper Fi

Gastone

His total rating is 90%. He would likely file for the TDIU on his kidney disease which is 80% and the reason he is unable to continue working. We were just hoping for the 70% for the adjustment disorder to bring it to scheduler.

Link to comment
Share on other sites

  • 0

Kate,

I agree with Berta. Since you are still within the one year appeal period, the MH claim is not a reopen issue at this time. You stated the award letter stated "a higher rating is not warranted unless the evidence shows........and then goes on to list the symptoms and problems it must show." However, the C & P failed to include the suicidal ideation or address all of his MH symptoms which would have been necessary for the higher rating.

Does your husband's MH records, especially a DBQ, that were provided to the RO for his MH claim show he had the required symptoms for the higher rating? If your answer is yes and there is no doubt the records show he meets the requirements for the higher rating, file a NOD based on his MH doctor's records. If the answer is no, I believe you will need a DBQ (showing the required symptoms for the higher rating) from your husband's VA MH doctor or an IMO from a private MH doctor to overcome the bad C & P. JMO

Georgiapapa.

He did not have a DBQ, just the C&P. This is what happened. We filed for PTSD and the kidney disease among other things. All were denied which, looking back was right because it was filed badly by the VSO we used at the time. We sent no evidence or anything. After the denial, my husband filed for reopen/reconsideration of the PTSD. We didn't file at the time for the kidney disease because we were waiting for a IMO. Once we received that, we filed a NOD for the kidney disease and requested a DRO. Filed the reconsideration for PTSD in May of 2014 and the NOD for the kidneys in Sept 2014. In November 2014 he had his C&P for PTSD, which was horrible. The examiner decided he did not have Ptsd without really questioning him much and also indicated he was overstating his symptoms. His reasoning was that since we have had a successful marriage for 40+ years and he held jobs throughout most of that time, he couldn't have PTSD. My husband's symptoms were severe and becoming more so. He did say my husband had an adjustment disorder due to the kidney disease and indicated a 50% level of disability. Since the kidney disease was not yet service connected, the adjustment disorder was denied. By this time I had gone from annoyed by everything to damn well mad. So, I emailed Allison Hickey and told her my husband was diagnosed by a clinical psychologist at the VA and had been undergoing treatment at the VA for over a year. So, how can this C&P examiner decide not?

To her credit, ms. hickey got right on it and within a couple days we had calls from several offices and within another couple weeks a new C&P had been scheduled. This C&P was subsequently canceled and we got a call from a senior rater saying they would award the adjustment disorder based on the original diagnosis in the c&p. They would also award the kidney disease and schedule a C&P to determine severity for rating. That took place and the award quickly followed. But, it doesn't seem that they really delved into the treatment records (which have many references to all the symptoms. The c&p examiner did not state any.

Link to comment
Share on other sites

  • 0

Kate: You have to watch that "HOPE" thing. Be proactive, file for IU YESTERDAY. No reason to rely on "Hoping the VA sees the error of their way regarding the rating %. If your husband is Unemployable due to his SC conditions, the reason you aren't filing for IU is?????? Work with what you actually have now, not what you HOPE to have in the next 11 months.

As always it comes down to your informed decisions and what your comfortable with. On your husbands recent award, was an "Inferred IU Claim" listed?

Semper Fi

Gastone

Link to comment
Share on other sites

  • 0

Kate: You have to watch that "HOPE" thing. Be proactive, file for IU YESTERDAY. No reason to rely on "Hoping the VA sees the error of their way regarding the rating %. If your husband is Unemployable due to his SC conditions, the reason you aren't filing for IU is?????? Work with what you actually have now, not what you HOPE to have in the next 11 months.

As always it comes down to your informed decisions and what your comfortable with. On your husbands recent award, was an "Inferred IU Claim" listed?

Semper Fi

Gastone

No inferred IU. Not sure why. The kidney C&P doctor did say " ability to work is limited due to edema".

Only thing in packet was a form for rehabilitation.

Going to visit DAV tomorrow. If he files for TDIU with the kidney disease and also. nod for the mental issue, would the NOD delay the TDIU claim?

Link to comment
Share on other sites

  • 0

I agree with Gastone, file for the TDIU now.

Just curious as to what your husband's VA clinical psychologist thought about your husband's diagnosis being changed from PTSD to adjustment disorder by a VA examiner who had never seen your husband prior to his C & P exam.

Is your husband still being treated by the VA clinical psychologist for PTSD or adjustment disorder? I don't know if there are similarities for treatment of PTSD and treatment of adjustment disorder but if your husband is not treated for adjustment disorder, it may be difficult for him to request an increase in his rating for adjustment disorder in the future.

You could still file an appeal for the PTSD citing the facts that the senior rater apparently ignored the original PTSD diagnosis by the VA clinical psychologist and treatment records showing your husband had most of the symptoms listed in the 70% PTSD rating requirements. However, would you possibly be jeopardizing your husband's current 50% rating for adjustment disorder if you appeal and ask for it to be changed to PTSD? To a certain degree, your husband has more options with an adjustment disorder diagnosis over the PTSD since he could seek treatment and request an IMO from a private non-VA psychologist. Depending on your VA psychologist's willingness to treat your husband's MH condition as an adjustment disorder and prepare treatment records which could be used in the future to support a rating increase request, you may have to seek treatment for adjustment disorder at a private non-VA psychologist.

Link to comment
Share on other sites

  • 0

I agree with Gastone, file for the TDIU now.

Just curious as to what your husband's VA clinical psychologist thought about your husband's diagnosis being changed from PTSD to adjustment disorder by a VA examiner who had never seen your husband prior to his C & P exam.

Is your husband still being treated by the VA clinical psychologist for PTSD or adjustment disorder? I don't know if there are similarities for treatment of PTSD and treatment of adjustment disorder but if your husband is not treated for adjustment disorder, it may be difficult for him to request an increase in his rating for adjustment disorder in the future.

You could still file an appeal for the PTSD citing the facts that the senior rater apparently ignored the original PTSD diagnosis by the VA clinical psychologist and treatment records showing your husband had most of the symptoms listed in the 70% PTSD rating requirements. However, would you possibly be jeopardizing your husband's current 50% rating for adjustment disorder if you appeal and ask for it to be changed to PTSD? To a certain degree, your husband has more options with an adjustment disorder diagnosis over the PTSD since he could seek treatment and request an IMO from a private non-VA psychologist. Depending on your VA psychologist's willingness to treat your husband's MH condition as an adjustment disorder and prepare treatment records which could be used in the future to support a rating increase request, you may have to seek treatment for adjustment disorder at a private non-VA psychologist.

The clinical psychologist who diagnosed him at the VAMC was not his regular treatment person. He was referred for a diagnosis by his nurse practitioner. Since beginning treatment, his treatment team has consisted of weekly/bi-monthly visits with a clinical mental health nurse practitioner, weekly sessions with a sicial worker specializing in PTSD therapy. As of this month, he is seeing a social worker for depression monthly and a suicide prevention therapist and a psychiatrist.

Would it be acceptable to see an outside psychologist? I thought mental health had to be done at the VA.

Link to comment
Share on other sites

  • 0

Kate: Even if the "Inferred IU claim" was listed in his last award, it wouldn't be an official claim until you actually filed it yourself. Don"t sweat the "possible wait time," VA claims have 1 speed, SLOW. Unless the VA has all of a sudden started taking Roids, NOD DRO Reviews (review only no hearing req) were taking 1+ yrs and my 6/14 DRO Hearing took 4+ yrs.

I was 90% with inferred claim early 12, filed IU claim immediately. At time of filing I was about 4+ months into Voc Rehab trying to get a VA Job, didn't work out. IU Denial was NOD'd immediately 09/13.

My 1st NOD (9/10) DRO Hearing request was finally held 6/14. My 9/13 IU NOD was awarded at same hearing and DRO said the Voc Rehab Denial letter was the best evidence for verifying Unemployability. He said a large number of Vets that meet the SC requirements to file for IU are really just unemployed or underemployed. A VA Vocational Rehab Councilor's determination that your SC conditions currently preclude you from successfully completing the Rehab Program seals the Deal.

Semper Fi

Gastone

Link to comment
Share on other sites

  • 0

Kate,

PTSD has to be diagnosed by a VA psychiatrist or VA psycholigist (GS-13 PhD level). All other mental health conditions can be diagnosed by a VA or private psychiatrist or psychologist. All mental health conditions, including PTSD, can be treated by VA or private psychologists or psychiatrists. If I am wrong on this, I am sure others will correct me.

GP

Link to comment
Share on other sites

  • 0

Talked with DAV today about coming in the file for TDIU and a NOD for percentage on mental health claim.

They said there is a thirty day thing where we can request a conference with the rater and explain why we think the rating is wrong. DAV said they would be there also. Just needs to be done within thirty days of award.

Anyone ever done this?

Thanks

Kate

Link to comment
Share on other sites

  • 0

Sounds like a DRO where you can go before the Decision Review Officer and you can provide medical evidence, give testimony and argue why a decision should be changed.

This would be an opportunity for you or your rep to point out the medical records showing your husband had most of the symptoms required for the MH 70% rating and also argue for the TDIU rating citing evidence showing your husband's service connected conditions prevent him from seeking or maintaining substantially gainful employment. If possible, you should try to get letters or DBQs from his doctors stating his conditions prevent him from seeking or maintaining substantially gainful employment. If a condition is unlikely to improve, the doctor should state this fact. JMO

Link to comment
Share on other sites

  • 0

Kate: the "30 day thing" sounds like the old "Request for Reconsideration." Even though there is no official VA "RFR" at the VARO level, it would make since that if your VSO-Rep is on the stick, he would trot across or down the hall to discuss the decision with the Rater that made it. This is definately not the same thing as a DRO reviewing your Denial. Just don't get lulled into thinking the Rater is going to change the SC%. Might happen but I doubt it. Never read any "RFR success stories."

Taking into consideration that each VARO Rating Dept is made up of ?? number of Claims Raters + ?? number of Senior Raters + last but not least ?? number of actual DROs that can pass judgment on your Award/Denial, you have to ask yourself, do you feel lucky, well do you? Now Berta or NOD might be able to help here but I think it only makes since that our initial award/denial decisions by Reg claims raters are overseen by the Senior Raters. That being said, what are the chances that based on the evidence of record, a SC% error was made? I know, everyone talks about the VA Low Balling the ratings and it probably does happen. I choose, lacking solid stats, that the low balling is the exception rather than the rule.

Semper Fi

Gastone

Link to comment
Share on other sites

  • 0

Talked with our VSO today and they did a reconsideration of the mental health claim stating an inadequate C&P. The VSO said that there are two main components of the C&P that are used when rating and the C&P examiner only completed one of them. VSO walked it to the VA regional office and it is already showing up in eBenefits as under review. VSO mentioned something about SEP. Anyone know what that term is?

Hopefully they will agree to a new C&P. VSO said it is difficult to get a new C&P but due to the incompleteness of this one they think it will be granted.

Kate

Link to comment
Share on other sites

  • 0

Kate: I see that "HOPE" thing in there but no mention of your VSO filing your IU Claim. Are You doing face to face with VSO or telephone only? Do yourself a favor, at least establish a IU filing date by starting a claim on your E-Ben site's on-line VONAP. You have 1 yr from the Start date to actually hit the "FILE" button but at least your IU Retro Date would be locked in. Or then again there is "DOOR 2," await the potential positive outcome of your VSO's "Request For Reconsideration."

Spend some time reading Berta's and asknod's posts and opinions regarding "RfR" at the VARO level.

E Ben Note: I was awarded IU 6/2014 and my account is just now showing my claims as closed since early 01/15. No SC % or IU awards listed. The VA has never been accused of speed or thoroughness when it comes to supplying Vets with Real-time Claims info. Maybe your VSO has some Magic Dust or the "Under Review" is the pre-decision status from a few months ago. Did it list your original claim as Appeal Available?

Semper Fi

Gastone

Link to comment
Share on other sites

Join the conversation

You can post now and register later. If you have an account, sign in now to post with your account.
Note: Your post will require moderator approval before it will be visible.

Guest
Answer this question...

×   Pasted as rich text.   Paste as plain text instead

  Only 75 emoji are allowed.

×   Your link has been automatically embedded.   Display as a link instead

×   Your previous content has been restored.   Clear editor

×   You cannot paste images directly. Upload or insert images from URL.

×
×
  • Create New...

Important Information

{terms] and Guidelines