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  • 14 Questions about VA Disability Compensation Benefits Claims

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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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Lemuel

Need attorney for Wyoming or California

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For those considering referring an attorney, I'm going to try a unique approach if they approve.  "Professional Inattentive Blindness";  My case covers over 48 years of treatment.  So the question is, "How could so many get it wrong?"   That question has been very troubling to me because I had enough training as a hospital corpsman First Class in the Navy to have spoke up for myself as well.  And should have been more convincing.

I'm attaching an audio that is 58 minutes long given to a Baha'i gathering.  There is only 10 minutes of it on "inattentive blindness" approximately 24 minutes into the audio.  Sorry, I don't know how to edit it down to those 10 minutes, and I haven't found the studies he references yet. 

It is an entertaining audio by the music conductor, Tom Price.  (Not the Trump appointee)  I first heard it traveling with a friend who likes to listen to his speeches while traveling.  Took me awhile to find it and sort it out from the others I heard on that 8 hour trip.  It is entertaining as well as informative.

I think many who are in Medical Malpractice claims will find it beneficial to give to their attorneys and insure their "expert witnesses" are aware of it. 

price_creating_new_mind_1.mp3

For those who find Tom Price a good listen, he has other talks about the Baha'i religion presented to Baha'i gatherings and recorded on audio that can be found on the link in this word document:

Tom Price.docx

 

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The method by which you get attorney fees paid is the EAJA, and it works fairly well and consistent with Veterans claims cases.  The key to getting EAJA fees, IMHO, is when you hire an attorney.  

You are unlikely to get EAJA fees awarded if you hire an attorney at other times.  That is, you will likely have to pay your own attorney fees if you hire an attorney before you go to BVA.  This may be worth it tho, becausee attorney represented claimants win way more often than VSO or pro se claimants.  Source:  BVA chairmans report.  https://www.bva.va.gov/Chairman_Annual_Rpts.asp

EAJA fees are consistently awarded when the Veteran APPEALS AT THE CAVC A BOARD DECISION AND WINS AT LEAST A REMAND.  

So, if you want your attorney fees paid here is the method.  

Get denied at the BVA.  Within 60 days, get an attorney to represent you at the CAVC.  If you win or get a remand at the CAVC, chances are very very good EAJA will pay your fees.  

Source:  Personal experience where I had been represented by an attorney at the CAVC TWICE, both times I got a JMR (Joint motion for remand, which is when VA consents to a remand realizing its inevitable) and my attorney fees paid by EAJA.  

Edited by broncovet

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  • I have a BVA decision.  Partial grant, TDIU back to July 2009.  Partial remand to consider back to first application date October 1987.  Partial denial of tinnitus back to July 1974 from October 1987.  I never claimed specifically tinnitus.  My claim was for loss of hearing (hearing problems which were written down by the clerk as hearing loss) in July of 1974.  Tinnitus was granted in October 1987 on a review of the record by an RO.  I believe it should have been granted back to the first claim for hearing as hearing is a system.  Part of the difficulty hearing is tinnitus and part a high frequency hearing loss.

Also denied was compensation for the wrist because I didn't say specifically the thumb.  My contention is that the wrist and the hand are a system.  The surgery fused the proximal phalange o the thumb to the carpal bones (used to be greater and lesser multangular but names have changed.) It is a combination loss of use.  The thumb and wrist.  Dorsal flexion of the wrist is not compensable under the schedule but the loss of use of the thumb which wouldn't be a loss if I had full wrist dorsa flexion.  Both claimed in 1974 as "residuals of wrist surgery" to repair an injury.  A net 10% increase in back pay.

Do you think an attorney could get a favorable decision?  My current Rhode Island VA accredited attorney doesn't want to spend the time doing it because of the difficulty.  Because I didn't specifically claim the items which I claim are inclusive in the claim and should be granted under CUE.

The adjudicator in Hawaii who did my 1974 claim did a thorough investigation of my accident injuries for "in the line of duty, not due to misconduct."  And granted 0% for hearing, 0% for wrist injury residuals, and 0% for residuals of facial inury and surgery.  No examinations were done.  It turns out that in 1985 I was diagnosed with traumatic brain disease, 8045-9304, and rated at 30%.  My employment record shows that I had continuing problems following discharge.  My contention is that this is a CUE by the adjudicator for not following relative 38 CFR (one of the first 4 of chapter 4) articles.  But because I had no examination I have only the 1969 inpatient records and a couple of 1969 and 1970 Enlisted performance records to prove CUE.  Can it be done?

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    • By Lemuel
      I have a BVA decision.  Partial grant, TDIU back to July 2009.  Partial remand to consider back to first application date October 1987.  Partial denial of tinnitus back to July 1974 from October 1987.  I never claimed specifically tinnitus.  My claim was for loss of hearing (hearing problems which were written down by the clerk as hearing loss) in July of 1974.  Tinnitus was granted in October 1987 on a review of the record by an RO.  I believe it should have been granted back to the first claim for hearing as hearing is a system.  Part of the difficulty hearing is tinnitus and part a high frequency hearing loss. Also denied was compensation for the wrist because I didn't say specifically the thumb.  My contention is that the wrist and the hand are a system.  The surgery fused the proximal phalange of the thumb to the carpal bones (used to be greater and lesser multangular but names have changed.) It is a combination loss of use.  The thumb and wrist.  Dorsa flexion of the wrist is not compensable under the schedule but the loss of use of the thumb which wouldn't be a loss if I had full wrist dorsa flexion.  Both claimed in 1974 as "residuals of wrist surgery" to repair an injury.  A net 10% increase in back pay.
      Do you think an attorney could get a favorable decision?  My current Rhode Island VA accredited attorney doesn't want to spend the time doing it because of the difficulty.  Because I didn't specifically claim the items which I claim are inclusive in the claim and should be granted under CUE.
      The adjudicator in Hawaii who did my 1974 claim did a thorough investigation of my accident injuries for "in the line of duty, not due to misconduct."  And granted 0% for hearing, 0% for wrist injury residuals, and 0% for residuals of facial injury and surgery.  No examinations were done.  It turns out that in 1985 I was diagnosed with traumatic brain disease, 8045-9304, and rated at 30%.  My employment record shows that I had continuing problems following discharge.  My contention is that this is a CUE by the adjudicator for not following relative 38 CFR  articles 4.1; 4.2;4.3; 4.6; especially 4.10; & 4.13; .  But because I had no examination I have only the 1969 inpatient records and a couple of 1969 and 1970 Enlisted performance records to prove CUE.  Can it be done?
    • By Lemuel
      Are you a potential class representative for a class action re: deceptive practices that have denied veterans compensation?
      Cerebral Malaria victim who had hospital summary of rehabilitation instead of acute phase and not stated as rehab summary inserted in military health record leaving VA physicians and adjudicators to believe the case of malaria was mild.
      TBI victim who has others complain that you are "drifty", unable to concentrate, frequent loss of train of thought, motor vehicle accidents and frequent near accidents, etc. indicating partial or complex partial seizures that have gone undiagnosed.  Self denial is usually indicative that you have become anosognosic.  Study done in late 1980s and early 1990s found EEGs with sharp temporal lobe tracings were "psychogenic" instead of indicative of temporal lobe seizures.
      Artillery man or Gunner's mate who has had a rough time after military service compared to others with induction test scores in the same range?
      Need representatives of classes to reopen 1988 class action based upon recent NIH studies.
      I began writing letters to the Secretary, Congressman, Senators and Regional VA Centers in 1986 after being diagnosed with a "subtle" traumatic brain injury. 
      In PTSD groups, I noticed many individuals had the same symptoms I had and when questioned they fell into 3 categories, some in more than 1.  TBI, p. falciparum malaria, and heavy artillery or naval guns firing more than a few hundred rounds.  These categories have been confirmed by recent NIH studies with regards to organic brain syndromes.
      I believe the categories above, which often result in anosognosia, permanent as opposed to transient from intoxication, often result in suicide.  (getting the keys from someone who has had too much to drink) Anosognosia is not being able to recognize a dysfunction as opposed to denying it to protect one's ego.
      I filed a court case in U S District Court, Central District of California on March 3, 1988 Case no.  88-6276 with other veterans as a class action and am submitting a petition to reopen the case based on recent NIH studies that have confirmed out allegations at that time.  The hope is to get veterans compensated at least back to March 3, 1988 for TBIs as well as cerebral malaria victims compensated from that date or the date of their onset whichever is later.
      Needed are new representatives of the classes, individuals with TBIs, cerebral malaria and exposure to gunfire who have not kept up in earned income with their counterparts who are within 10 points of their primary induction test scores.  (proof of disabling effect) I have lost contact with the former class representatives.
      I am in the process of an SF-95 medical malpractice tort claim for failure to diagnose and treat partial and complex partial seizures.  The case will be filed in Wyoming within 6 months of August 28, 2017.  I will attempt to have the Central District of California Court case transferred to Wyoming and Joined with the Wyoming filing.
      Anyone wishing to join the effort please contact me at lembray@gmail.com.  Also needed is an attorney to take up the case either in Wyoming or California.
       
    • By Victor Ray
      I have come to learn my medical evidence was withheld all my life due to "ANTICIPATION OF LITIGATION", from what I gather, and the VA used a couple FOIA EXCEPTIONS OR EXEMPTIONS in withholding them. I am asking why the VA would anticipate me suing them before I even got discharged? Just asking. Thanks
      Victor Ray
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    • 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
    • Peggy toll free 1000 last week, told me that, my claim or case BVA Granted is at the RO waiting on someone to sign off ,She said your in step 5 going into step 6 . That's good, right.?
      • 7 replies
    • I took a look at your documents and am trying to interpret what happened. A summary of what happened would have helped, but I hope I am interpreting your intentions correctly:


      2003 asthma denied because they said you didn't have 'chronic' asthma diagnosis


      2018 Asthma/COPD granted 30% effective Feb 2015 based on FEV-1 of 60% and inhalational anti-inflamatory medication.

      "...granted SC for your asthma with COPD w/dypsnea because your STRs show you were diagnosed with asthma during your military service in 1995.


      First, check the date of your 2018 award letter. If it is WITHIN one year, file a notice of disagreement about the effective date. 

      If it is AFTER one year, that means your claim has became final. If you would like to try to get an earlier effective date, then CUE or new and material evidence are possible avenues. 

       

      I assume your 2003 denial was due to not finding "chronic" or continued symptoms noted per 38 CFR 3.303(b). In 2013, the Federal Circuit court (Walker v. Shinseki) changed they way they use the term "chronic" and requires the VA to use 3.303(a) for anything not listed under 3.307 and 3.309. You probably had a nexus and benefit of the doubt on your side when you won SC.

      It might be possible for you to CUE the effective date back to 2003 or earlier. You'll need to familiarize yourself with the restrictions of CUE. It has to be based on the evidence in the record and laws in effect at the time the decision was made. Avoid trying to argue on how they weighed a decision, but instead focus on the evidence/laws to prove they were not followed or the evidence was never considered. It's an uphill fight. I would start by recommending you look carefully at your service treatment records and locate every instance where you reported breathing issues, asthma diagnosis, or respiratory treatment (albuterol, steroids, etc...). CUE is not easy and it helps to do your homework before you file.

      Another option would be to file for an increased rating, but to do that you would need to meet the criteria for 60%. If you don't meet criteria for a 60% rating, just ensure you still meet the criteria for 30% (using daily inhaled steroid inhalers is adequate) because they are likely to deny your request for increase. You could attempt to request an earlier effective date that way.

       

      Does this help?
    • Thanks for that. So do you have a specific answer or experience with it bouncing between the two?
    • Tinnitus comes in two forms: subjective and objective. In subjective tinnitus, only the sufferer will hear the ringing in their own ears. In objective tinnitus, the sound can be heard by a doctor who is examining the ear canals. Objective tinnitus is extremely rare, while subjective tinnitus is by far the most common form of the disorder.

      The sounds of tinnitus may vary with the person experiencing it. Some will hear a ringing, while others will hear a buzzing. At times people may hear a chirping or whistling sound. These sounds may be constant or intermittent. They may also vary in volume and are generally more obtrusive when the sufferer is in a quiet environment. Many tinnitus sufferers find their symptoms are at their worst when they’re trying to fall asleep.

      ...................Buck
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