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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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  • Most Common VA Disabilities Claimed for Compensation:   

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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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    • 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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Ward868

SMC-S, Filing Procedure, and Back Pay

Question

100% p&t, since 2012... (ptsd)... I want to file for smc-s, but frankly, cant remember how to get the ball rolling... My c&p exam in 2011, clearly stated agoraphobia...Any suggestions, would be appreciated..Also, when approved, do you believe  retro will go back to 2012.. Thank you all, again, for your input, and advice... 

SEMPER FI

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Negatory, Loyal. Look at it like this. You have everything you need for SMC S but they fail to grant. In the new VBMS world, you have to go through a generated 526EZ claims portal (Janesville), to be read into the system. Face it. If you're going to Hell, you'll have to go through Janesville. You can thank Rep. Paul Ryan, the Speaker of the House for that. It's his home town. He made VA to put it there.

After they discover you're right, they grant SMC but probably effective the day the claim was filed. We're talking a horribly poor computer program. You must then file the 0958 NOD (Janesville, of course) asking for the EED for the system to "see" the NOD. That generates an auto reply saying they got it (eBennies or by USPS). A year or two later, you get in the queue for the OK corral DRO hearing/ Review to sort it all out. This is what is called a "reconsideration" by the VA. But remember, even then it can never be CUE because the seminal test for CUE is always a decision that is final and the suspense date for a substantive appeal has expired. SMC is awarded "at such time as the preponderance of the medical evidence dispositively proves the entitlement". As such, a failure to award it is a brain fart, not a CUE. The failure to grant the proper EED is not a CUE but merely a failure to read the regulation in a liberal nonadversarial fashion and if the evidence is in equipoise, the higher of the two ratings will be awarded.

CUE is a road less traveled for good reasons. Why go there when you can use the regs as written to accomplish the same thing using 2017 technology? Don't overthink it. VA law is horribly simpler now and does favor us if you learn how. I just saw a VSO using a 21-4138 form to file a new claim at the Vet Center last  week. With a ball point pen. I went in with a client to get their files. The VBMS system cannot read a 4138 even if it's typed. It's not "VBMS-friendly" with little boxes for the letters. As of now, there is no specific form to file for anything- even CUE -without using a 526 EZ. 

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in other words  we all must use the 21-526 ez  for it to be ''VBMS'' friendly filing claims for what ever reason.

21-526 EZ Gets you in to the new system?

Also? broncovet

It may be best to "not" file a Cue, but to file for SMC S.  That is what I did, but, if they dont backdate it, then CUE is a real possibility, because VA violated their own regulations by not adjuticating SMC S.  (According to the M21 Berta cited, the Veteran need not be "100 plus 60", because another real possibility is housebound in fact, reminding you that if a Vet is NOT working, then he wont be leaving the home "for work", as in Howell.)  

what about the SMC S criteria? Stated in the Regs

if vet was house bound infact not working and can't leave his home for work   then he should be awared TDIU P&T And if he has another s.c. disbility seperate and rated 60% sc  then he meets the SMC-S 1 Criteria   usually eed is date of claim

jmo

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Edited by Buck52

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Roger that, Buck. Anything you desire monetarily from VA, be it a dependency issue or a claim for increase currently requires a 526EZ to upload it into VBMS. I expect that will change just as it did when they came out with the 21-0958 for NODs. We already have the VA 9 for a substantive appeal but even that was optional up until the inauguration of the VBMS. That pretty much covers the three most important phases of a VA claim so it's a start. Eventually you'll be doing so on line like posting on Facebook. 

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A cue is a cue if the regulations are violated at the time.   A change in regulations, such as the mandantory 526 Form, TDIU form, or NOD form should  not hurt the Veteran if he became eligible for the applicable benefit BEFORE these forms were mandantory.  Cue is very specific in that the regulations would need to have been violated AT the time, not on todays regulations.  The VEteran can not be faulted for failing to be able to accurately predict that Senator Ryan would require a specific form be filed in the future, when no specific form was previously required.  

We dont have to retroactively file form 526 forms on benefits we have either already received, or, we feel we should have received.  

Of course, filing the applicable form 526, NOD form, etc, is a good thing.  But I dont see VA being able to stick an effective date denial for not filing the applicable form, when that form was not required in the past, when we may have became eligible for said benefits.  

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When I get to a DRO hearing, sometimes I spring a 526b on them to highlight an inferred claim. I can squeeze out an "informal" comment made at a C&P exam into a claim a lot of times. 

http://www.vba.va.gov/pubs/forms/VBA-21-526b-ARE.pdf

 There's a lot of tricks out there we can use. Never live in the same box. Think outside of it.

If you are within suspense dates, it isn't a CUE though. It's a mistake. Remember, CUE is a motion to revise a final decision. If it isn't final, it's far easier to change.

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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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