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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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Question

Berta told me about Footnote One Nehmer yesterday and I had not heard about that although I do know about Nehmer.  And yes my husband was rated for Ischemic heart disease before it was added to the presumptive list. And his death certificate signed by his GP at VA saying long term heart disease.  It was rated as secondary to diabetes (which was rated 20% initially) and was already a presumptive condition. He had applied for both at that time - about 2003 or 2004.  He was rated 30% initially for his heart even though he had had a quadruple bypass (Dec 2000) with neurological complications, extensive scar tissue from many previous heart attacks that had to be cleaned out before the bypass could proceed in surgery.  He had a TIA on the operating table and post pump syndrome from being on the heart lung machine so long (due to the cleanup) for surgery.  He was told by his heart specialist he could no longer work at what he was skilled to do. He was granted SS Disability as a result 9 months later.  

He filed his first VA claim a couple years later when his buddy finally persuaded him to do it.  He had been diagnosed with Type II Diabetes in 1997.  They didn't address any of the neurological stuff (from the heart surgery) as I recall at all or the post pump syndrome (which usually goes away rather quickly but was a problem for at least a couple years for Don).  The lower left ventricle of his heart was dead already before surgery from previous attacks we didn't know about - silent due to diabetes.  And his ejection fraction was 25 before and right after surgery and then came up to 30-35.  It bounced around some over the years but was usually 30-40. He had an echocardiogram every year which approximated it. After 2 hospitalizations for Congestive Heart Failure over the next few years, they finally rated him 60% heart and 40% diabetes (when he became insulin dependant.  Shortly after starting insulin  - a few months -  Don was put on an insulin pump because he was needing so much insulin and put him on the U500 insulin which is very closely monitored because of being so very strong) and VA rated him for 10% each leg for Peripheral Neuropathy.  Don also claimed PTSD, which should have been granted, as we had a few years worth of records already from a private practice psychologist the VA had recommended whose report said he had it and it was from VietNam (non-combat).  But Va's C&P psychologist or psyciatrist said he wasn't sure of that origin. He agreed Don had it. They asked us to prove Don's stressors.  We searched for months for other guys Don remembered being there, found one but couldn't prove the stressors.  They never contacted us when the requirement to prove stressors was lifted to re-evaluate his claim.

In 2006 they rated  him TDIU and his heart 100% by itself in the same decision with effective dates a few months apart???  Makes no sense to me since the TDIU was then dropped due to the 100% rating.  That was his last rating - 2006. He developed kidney failure late 2010 with a hospitalization of a few weeks for Congestive Heart Failure because the kidneys weren't removing the fluid with normal types of hospital treatment. He was treated by a team consisting of his heart specialist,  his GP who had admitted him, and the new Nephrology group the GP brought in. All Private Practice doctors and hospital. They finally tried something rather bold, I'm told, that started the fluid draining.  After discharge, at home, he had a few weeks of digital monitoring of his stats, reports I had to give them on weight and output amounts etc. and nurse visits and was told to prepare for dialysis.

About that time his doctor at VA called, alarmed, at his rapid decline in kidney function. That is in the medical records at VA along with numerous notations of him being on dialysis and having a port in his abdomen for it, every time he went in for a 6 month checkup.

As you know, Berta, we asked about rating his kidney failure (which his doctors say was from diabetes making it another secondary condition of diabetes and so service connected..) and 3 different VSOs in 3 locations each said we couldn't go above 100%. I didn't know about these kind of forums then.  And only discovered the blog I reference below, by accident.  We also asked his doctors at VA and they didn't know either.  But one of them (unbeknownst to us) requested payment from VA for the 'dialysis treatment plan' and they agreed to pay for supplies, treatment, bi-monthly clinic followups with the 'team' (nephrologist, nurse, dietician, social worker). They also covered delivery of supplies to our home bi-monthly (huge amount of heavy bags of fluid and much more.).  He had started dialysis April 2011 and they began paying April 2013 and continued until his death Dec 6, 2015.  In March 2015 I saw a blog about Special Monthly Compensation and about rating conditions beyond the 100% level. I asked for an analysis of Don's case and the attorney agreed requesting Don's C-File from VA in March. It didn't arrive until late Aug 2015.  The analysis  wasn't quite finished when he died.  A & A was definitely something he qualified for as well and I have many statements from friends, relatives, our pastor etc as well as notes in VA's files and doctor statements about it. But that's another story.

I don't know if Nehmer affects anything I've said here or not.  Does anyone else?  Berta?  And we were not ever contacted by VA or NVLSP about it.  Maybe because he was already 100%? 

I did apply for DIC and Accrued benefits within the year following his death and was granted DIC and denied accrued because they said there weren't any.  They never checked his C file or medical records or Treasury to discover anything really. I had thought the attorney would represent me in an appeal but he's decided not to.

My DIC was granted at the higher level due to Don having been 100% for over 8 years.  I'm not sure what you thought I interpreted wrong about that Berta.  

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Berta,

I called VVA and left voicemail for the person in Benefits they said I should talk to.  I'm not sure they know much about SMC since our VSO didn't.  But we'll see.

One thing I noticed is that you thought the total percentage of disability was 160 but others have said it's 150...would you check that please because 160 falls into the automatic referral for SMC but 150 doesn't I don't think so is that a problem with the CUE?

I noticed that in the list of Evidence considered on the DRO decision there is no mention of SS Disability documents which we did submit. And they would have established a lot of problems from the heart condition and that it was deemed enough to approve permanent disability for him effective 12/2000 when he had the quadruple bypass. He was 53 years old and it continued without further qualification until the age of retirement when it converted automatically to SS retirement. So that is a very important set of documents to have reviewed.  So I went through the whole C-File today (988 pages) and found it in the last 25 pages - they didn't look far enough probably. But they don't even say they reviewed the C-File which is an error isn't it?They say also that they did consider medical records of several doctors involved at that time. Well, not very well as there are several pages referring to the multiple issues still affecting our life and his employment that are dated in 2005 which were more current and should carry more weight...but they missed those. I printed the ones I'm referring to just in case I need them.  I am attaching the DRO decision as I printed it off the C-File so I'm sure what pages belong to it and am attaching it here.  

ALSO - the last 2 documents in the C-File concern me. I am attaching them in one scan but they are separate issues. One is about Nehmer and it's not filled out correctly...I marked it up as to what I mean (it's just a copy).  

The other document is the request documentation for requesting the C-file by the attorney on our behalf so he could review it and possibly represent our claim for Renal Failure and Housebound and/or A & A.  But would you look at it and see what I wrote - does it make sense to you?

I'm so thankful for your help Berta.  

Scan0018.pdf

Scan0019.pdf

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Berta, I just saw your other posting asking about the decision changing the heart to 100%.  I think I do, but let me look in the morning for sure.  So many decisions were made in a few months time that year and it gets confusing...the one I scanned in from the C-File a while ago happened to be in the C-File but the others or most weren't in there.  I tried to look up the decisions on e-benefits but they don't let me see any of my husband's now...just my history.  I thought it was strange, too, that the one that does mention deciding not to refer for SMC consideration is the one that takes the heart to 60%.  

One other question I keep meaning to ask...should I immediately file the Substitution form and NOD?  No I think when I file NOD I have to have my case ready with it don't I...but substitution...I did fill it out last year and have it but it didn't get included by my mistake...but I marked it on the 21-534EZ form (wrote it in and checked it) and included language in my cover letter to be clearly desiring to do substitution. But they didn't take that as the same because they didn't rule on it.

I'm going to bed...It's 4:00am ...again.  My thinking is getting fuzzier now. :) 

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I dont see any accrued potential other than 2 possible CUEs  that the award letters would reveal.

You stated

“I noticed that in the list of Evidence considered on the DRO decision there is no mention of SS Disability documents which we did submit. And they would have established a lot of problems from the heart condition and that it was deemed enough to approve permanent disability for him effective 12/2000 when he had the quadruple bypass. He was 53 years old and it continued without further qualification until the age of retirement when it converted automatically to SS retirement”.

That holds CUE # 1.

It appears to me that they combined the CAD ratings with the DMII ratings for the TDIU which they changed to a 100% award.

If you have proof ( such as the SSA authorization form ) or any other statem,ents in the original claims or SOCs, or your DIC 526 claim, any proof whatsoever that he was receiving SSDI solely for his heart condition and the VA failed to acknowledge and consider those records that is a CUE.

.This is a draft for  CUE # 1. Please fill out the dates.

CUE # 1

This is a claim of CUE (clear and unmistakable error) under auspices of 38 USC 5109, in the enclosed decision( copy) dated August 14, 2006,that resulted from a DRO review at your VARO.

I have also enclosed copies of past VARO decisions made on  -----(put dates here) that also contain the same CUE.

The VA was aware that the veteran received SSDI beginning in  (date 2000?) solely for his service connected heart disease. Those records were critical to a proper award in the above decisions, regarding his CAD,

Due to his service in the Vietnam War. His DMII rating due to Agent Orange is a separate condition.

The CUE occurred because VA failed to attain or consider his SSDI records.

This is a violation of 38 CFR 4.1 et al, specifically 38 CFR 4.6:

“ 4.6 Evaluation of evidence.

The element of the weight to be accorded the character of the veteran's service is but one factor entering into the considerations of the rating boards in arriving at determinations of the evaluation of disability. Every element in any way affecting the probative value to be assigned to the evidence in each individual claim must be thoroughly and conscientiously studied by each member of the rating board in the light of the established policies of the Department of Veterans Affairs to the end that decisions will be equitable and just as contemplated by the requirements of the law.

https://www.law.cornell.edu/cfr/text/38/4.6” § 4.6 Evaluation of evidence.

The element of the weight to be accorded the character of the veteran's service is but one factor entering into the considerations of the rating boards in arriving at determinations of the evaluation of disability. Every element in any way affecting the probative value to be assigned to the evidence in each individual claim must be thoroughly and conscientiously studied by each member of the rating board in the light of the established policies of the Department of Veterans Affairs to the end that decisions will be equitable and just as contemplated by the requirements of the law.

https://www.law.cornell.edu/cfr/text/38/4.6

The error had a manifested and altered outcome for the veteran and for me, his surviving spouse because the 70% rating had been incorrect for the IHD, as well as the 100% rating, that appears to have been combined with the DMII rating in the August  14 , 2006.The veteran went on to SSA retirement benefits in ( date) .Prior to that he was in receipt of SSDI, as enclosed.

The veteran’s SSDI award for his heart disease (enclosed) is dated (    ). The VA received notice of this award from the veteran in ( date)

I have enclosed a copy of the signed authorization form dated (           )which was in VA’s possession since   (date)   

--------------------------------------------------------------------------------------------------------------------------------------------------

(the date you first sent this information  to them and better yet on the 21-22 in his C file-make a copy of that as well for them.)

Also I am not sure if the VA still sends authorizations forms to claimants . I will ask the members here.

If you have the above dates and proof that VA was aware of the SSDI award prior to his SSA retirement award

and if the SSDI was solely for his Heart disease, you have a valid CUE her. One of my situations was the same.

The VA lied to both of my state Senators and also to my Congressman, that although they had my husband's signed authorization for in the C file, and could have decided his PTSD claim in his lifetime, they told my congressional/representatives that VA had refused to send them his SSDI records.

It was a lie. I called SSA in Baltimore only to find out they had never even attempted to get them. I didnt find that out until after his death.VA got the records and awarded 100% SC for PTSD posthumously.

They want us widows to be uninformed of VA regulations.I found that none of my past reps (DAV/State of NY) had a clue on DIC or accrued benefits.They had the same training I had from NVLSP but are often unwilling to help widows at all.

I do suggest that if you file these CUEs ( CUE # 2 for retro SMC ) will be prepared when you show us those above dates and  the proof they had of the SSDI award)

do obtain a vet rep or service officer and ask them to support the CUEs this is only a draft.

I had to read the thread many many times because there is so much here.

This stuff is disgraceful but reflects the way widows are treated by VA and by their VSOs and vet reps..

An SSDI award is not "binding" on the VA but is in essense an independent medical opinion, and they have to consider any SSDI award ,if they are aware that any veteran did attain SSDI that regarded their SC disability.

I dont think most vet reps and VSOs know that.It is basic VA case law.

 

 

 

 

 

 

 

Edited by Berta

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Maybe this will help----

At some point your husband filled out the 21-8940 TDIU form.

Under # 18 or # 19 on some TDIU forms, they ask if you (the veteran) expect to receive disability retirement.

On the last TDIU form I ever filled out, I expanded under a "more info" area or an attached statement, that the veteran is in receipt of SSDI and has been since ( date) for ( their main SC disability).

If the form box was checked Yes I think that would have triggered VA to ask what type of disability it is.

Does the TDIU form show Yes was checked?

 

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Berta, I found the 21-8940 form but it is not in the C-file although the letter from VVA saying it is attached (Submitted with the letter) is in the file. To answer your question, he marked No.  There's really no reference to SS Disability in these questions and I'm sure he thought they meant GM's disability retirement which the answer would be no. And the following question asks about workers comp benefits which goes hand in hand with a production workers thinking of disability payments coming either through the company's retirement plan or workers comp.  He was a union man through and through.  Also the handwriting on the form isn't his or mine.  The signature is his. Usually (about always) it was my job to fill forms out for him because he didn't like his handwriting. This may have been done by the VSO as she did them for the claims for us. Anyway, does that cause a problem? 

I figured out the Freedom Act request form I posted asking you what it was appealing...it's the last document on the C-file and the rest of the documents that precede and follow it are the first ones in the file and I saw them a little while ago. So that's all good.  The Nehmer form is still wrong but maybe it doesn't matter?

I'll submit this part and then do a separate response to the CUE's posting.  Then it's not so long in one big answer and it separates subjects a little too. Like you said there is so much to keep straight. 

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      G.     Also, the only SS docs in the C-File are the ones where I outline his conditions and behaviors in answer to the many questions on the intake paperwork for that SS claim.  There’s 4 pages of handwritten (including along margins due to space shortage)  that I doubt anyone is going to wade through but it’s filled with problems he was having.  Should I type it all out and attach it to the handwritten forms?
      H.      We submitted the whole SS file but can’t prove it.  We even wrote a letter to our Congressman to help us get a particular letter sent to us by SS along with their decision listing a myriad of restrictions to employment they concluded for him.  I couldn’t find it and neither could SS but the Congressman did try for us. I have those communications too, but don’t want to drown them in paperwork with this claim.  Any thoughts?
      Again, thank you Berta. I did try the other people you suggested without success.   
      And thank you to everyone here who has helped  me or does going forward!  
    • By DonH
      ALS Variant?
       
      I'm a Vet Wife. I post on behalf of my husband, I'm his note taker at doctor's appointments and consults.  I'm his support system and all around cheerleader. Lord knows we have had our VA battles. All these years after Vietnam, the onset of my husband's emerging illnesses, obviously percolating internally has emerged  one after another. We've seen subtle signs and some not so subtle. But didn't; know what those sign meant. The VA didn't do a very good job of educating the older veterans about what to be aware of regarding SC disabilities,
      My veteran husband's a Purple Heart Vietnam Veteran  served in US Marine Corps. My husband  has several service connected disabilities. My husband diagnosed with Monomelic Amyotrophy recently; it is a Motor neuron (MND) disease that is the umbrella covering all type Motor neuron diseases and variants. To which ALS/ Amyotrophic Lateral Sclerosis and variants falling under the same umbrella as being classified as Motor Neuron Disease (MND). As exhibited in cases of muscle loss: Monomelic Atrophy.
      ALS causes degeneration of nerve cells in the brain and spinal cord that leads to muscle weakness, muscle atrophy, and spontaneous muscle activity. The VA Doctors pondered whether my husband had ALS or MS. Yet, the Neuromuscular Head Physician conceded that my husband's illnesses was an ALS variant because his illness fell under the umbrella of Motor Neuron Diseases as did ALS......is a Motor Neuron disease. ???? We don't know how VA will decide.
      Other complicating issues:
      *Spinal issue (S Curve of spine)
      *Multi focal motor neuropathy associate with Diabetes 2 is a part of the mix/entwined as well. 
       
      However, most severely is the inability of identifying the exact reason for the monomelic atrophy.
      Although it was hoped a more exact finding will be determined when all results of updated blood tests were in.
      On May 2017: *Blood test are in; determination that no immune diseases are present
      Possible treatment of an intravenous treatment once every three months or medications with steroids would be beneficial. No effective treatment available.
       
      MMA
      Diagnosis. 
      Inflammatory Arthritis is Part of the neuropathy (Special kind of neuropathy)
      As well as severe spine problems. Very rare complicated illnesses intersecting and exacerbating primary and/or secondary with veteran's service connected disabilities.
       
      Monomeric atrophy......Veteran has lost the use of his right hand and right forearm weakened and wasting away.
      One limb atrophy
      See notes…..described as one limb muscle atrophy
       
      Spinal cord (S curve of spinal cord) compression on top on addition the monomeric
       
      Toxic agent like Agent Orange could more likely than not" a contributor for neuropathy.
       
      Immune diseases (no)
       
      Deterioration. Of bones on vertebra
      Spondylosis...inflammatory arthritis 
      Acts like spinal cord injury 
       
      (Findings of EMG) EMG to confirm the diagnosis ( Neuromuscular VA Physician at Michael E. DeBakey VA Medical Center, Houston, Texas)
      Table of Rated Disabilities
      Disability
      Rating
      Decision
      Related To
      Peripheral Neuropathy, Left Lower Extremity
        Not Service Connected
      Denied as…. early as 2011… Yet, D to pinpoint as severe symptomatic complexities of Monomelic Amyotrophy variant of ALS in 2017….should be cued.
      Peripheral Neuropathy, Right Lower Extremity
        Not Service Connected
      Denied as…. early as 2011…  Yet, ID to pinpoint as severe symptomatic complexities of Monomelic Amyotrophy variant of ALS in 2017….should be cued
      Agent Orange - Vietnam
      Neuropathy, Left Upper Extremity
        Not Service Connected
      Denied as…. early as 2011…  Yet, ID to pinpoint as severe symptomatic complexities of Monomelic Amyotrophy variant of ALS in 2017….should be cued
      Bilateral Hearing Loss (claimed as diminished hearing)
      0%
      Service Connected
        Tinnitus (claimed as ringing in both ears)
      10%
      Service Connected
        headaches
        Not Service Connected
        depression
        Not Service Connected
        skeletal arthritis aching of the joints (unspecified)
        Not Service Connected
      Arthritis denied as…. early as 2015…  Yet, ID to pinpoint as being symptomatic complexity of Monomelic Amyotrophy variant of ALS in 2017….should be cued
      post traumatic stress disorder (PTSD, also claimed as depression and anxiety)
      30%
      Service Connected
      PTSD - Combat
      Hypertension
      0%
      Service Connected
        Neuropathy, Right Upper Extremity
         
      Rectal carcinoma claimed as rectal cancer, a soft tissue cancer)
        Not Service Connected
      Agent Orange - Vietnam
      Still on since  12/11/14 appeal
      Remand 5/15
      scar, shrapnel right knee
      10%
      Service Connected
        09/18/2013
      diabetes mellitus type II
      10%
      Service Connected
      Agent Orange - Vietnam
      07/06/2015
      prostate cancer
      100%
      Service Connected
      Agent Orange - Vietnam
      07/06/2015
      erectile dysfunction
      0%
      Service Connected
        07/06/2015
       
      Neuropathy, Right Upper Extremity Denied as…. early as 2011…  Yet.ID to pinpoint as severe symptomatic complexities of MonomelicAmyotrophy variant of ALS in 2017….should be cued Agent Orange – Vietnam
       
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