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VA asking questions on injury background. Warranted?


Scottish_Knight

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Greetings all,

I served from 1988 to 2009, roughly 18 of those 21 years were as an Army CID Special Agent.  In 2001, I was shot in the leg, which destroy the femur.  This occurred on a US military installation, however I was taken to a civilian hospital for the surgery and was later transferred to a MEDDAC.  The bullet traveled through the femur, so a rod was inserted with two lower and two upper screws.  I lost not only length in the leg (2cm) but my hamstring atrophied.  Since then, I've encountered continued pain in my knee and hip.  All was documented in my military medical records.  Often times, the pain would have me seek medical attention about 2 times per year, which again is documented.

I underwent surgery last year to remove one of the screws (all are now broken) that was pressing against a tendon causing extreme pain.  The surgeon explained the others will need be replaced and I will also need a hip replacement in the coming years.  The pain continues.

My VA exam was in 2009 and at that time the length difference in my legs was disclosed to me for the first time and as xrays were obtained, the screws were discovered to be broken.  The VA Rating Decision gave me 0%. 

Unknown to me was the appeal process.  Last year, I found someone who is helping me with the appeal.  I live in a remote part of southern Germany, so connection to other retirees and vets is nil.

This week, through my appeal representative, the VA has contacted me.  They want all the background information on the shooting.  They require the who, what, when, where, why, and how of this incident.  I am also to supply them with records I have that they don't.  First, they have a copy of my entire medical record.  How am I to know what they don't have?  Second, the Rating Decision states that this injury was service connected and in the line of duty, so why is the background information required?  Had I been shot while in Afghanistan would they be asking the same questions?

Perhaps I simply do not know exactly how the VA adjudicates the claims.  As this is not a presumptive matter, evidence of the injury must be presented.  They have that in the form of my military medical records.  Do the circumstances behind the shooting hold weight on determining the extent of either the injury or the level and percentage of my disability?  Does the background on an injury play some part of the adjudication process and awarded disability to which I am unaware?

Thank you in advance for any insight into this.

Edited by Scottish_Knight
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@Berta, good afternoon.

I don't have a ratings sheet.  When the decision was sent to me it arrived with some old forms and the decision, but no rating sheet with codes.  I am quite organised, so had it been sent, I'd have it.  Odd, that.

On the matter of PTSD.  Easy to say I don't suffer from it.  Could be denial.  Who knows.  This occured at my 13th year in the military.  I was a CID special agent and before I was allowed to return to work, I had to go through various forms of mental health evaluations.  CID did not want me walking around Germany with a loaded gun and mental health issues.  I'm fine and do appreciate your concern and idea on the topic.  It is sad what your husband must have had to endure.  The both of you for that matter.

Yes, this is a CUE matter, I full agree. As you've read, this is far beyond a 0%.  I will continue to say that even a now 50% rating is too low.  But in comparison to 0%, I'll take it.  Now the matter is the next step.  I've been writing to old colleagues to see if they recall me either limping or complaining about leg / hip pain.  If they do, I will ask for an MRF to document such.  I'm only asking for those between 2001 and 2009.   Not sure if that would be considered 'evidence' to the VA.  It's been a donkey's age for these people and they well might not remember.

To be honest and to me personally, it's a common sence matter.  How can one incur such an injury, carry the artefacts I now do, have the resulted leg length difference and end with a 0% disability rating.   Yet, my Tennis Elbow was given 10%!  That to me has been laughable since 2009!

Berta, what are my next steps?  Do we wait until I receive the VA documents at the end of February before I consider my course of action?

Again, thank you for your assistance!


 

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With the doctor in Augsburg, this past October, we did numerous mobility tests, to which he concluded I am severely limited.  I'll need to wait and read exactly what he wrote, but he expressed as much to me."

I am thinking you should apply for TDIU Total Disability due to Unemployability (paid at 100% rate).

That would give you full CRDP payment.

But I am assuming you are not employed and that your SCs, with the new award will be rated at 60% or more

It would help tremendously to see the doctor's letter and the new decision.

The doctor might well be willing to give you an IMO/IME ( hopefully not too costly) that would support a TDIU finding.

I also assume you do not get Social Security Disability- but if so , it would have to be solely for the same VA disabilities, with no NSCs added.

To clarify the TDIU potential:

"Total disability ratings for compensation may be assigned, in circumstances where the schedular rating is less than total, when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities provided that, if there is only one such disability, this disability shall be ratable at 60 percent or more, and that, if there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more with sufficient additional disability to bring the combined rating to 70 percent or more. See 38 C.F.R. § 4.16(a)."

And see this to explain that CRDP and TDIU can be awarded with no offset to the veteran-   full concurrent receipt.
 

Edited by Berta
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@Berta, good afternoon.  No, I am employed.  Self-employed.  Between 2012 and 2018, I worked for two companies here in Germany.  Both were rather physically demanding and took a large toll on me.  A subsequent surgery on my leg/hip in 2017 showed me it was time for a less physical job. 

I need to know where to go from here.  The VA sent their decision in November.  Again, this will take roughly 3 months to arrive.  The VA expect 10 days.  I'm concerned about time limitations.  The VA will expect, I'd assume, that I will wish to counter this and 90 days later, might be too late.

I wanted an appeal to the initial decision.  That was not done.  It was treated like a new claim by the DAV.  It would seem to me I'd want to do an appeal to the BVA.  I have no new evidence to provide.  It sounds rather mundane, but I'd like to express my view on this.  Again, 10% for Tennis Elbow, which was listed as chronic, but my leg not.  Between 2001 and 2009, I was constantly seeing medical experts on the pain in my leg and hip and is documented in my medical file.  That is chronic.  To overlook the artefacts in my leg.  That the femur was destroyed and my leg shortened due to the injury.  Etc.  Someone needs to hear these arguments and consider it.  It has been 100% overlooked or ignored.

Is a BVA hearing the best route? 
Do I have the DAV handle this or someone else?
I've heard mention of the CCK Law Firm in Rhode Island.  Do I involve them?

I feel waiting for the letter from November and the second letter from 15 Jan is going to put me out of the time limitations.

Thank you.

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I think your only option regarding the older denial is a CUE claim or a re open of the older claim under 3.156-not sure- but someone suggested that here and they would know.

"I feel waiting for the letter from November and the second letter from 15 Jan is going to put me out of the time limitations."

You said in this thread:

 

"Now, after my recent email back to them expressing my dissatisfaction with 'no disagreement filed', here is their response:"

And that information should state the time limits for appeals etc etc.on the most recent decision.

We have considerable info here on appeals and this will help:

https://benefits.va.gov/benefits/appeals.asp

 

DAV gave you the info you need to continue the claim you recently got a decision on,if you disagree with anything in th decision.

I suggest that you ask the DAV for a copy of their file on you, as it might contain the rating sheet for the older award. They might even have a copy of the decision you are waiting for.

But not much can be done until you get the newer decision and the January 15th letter -

your C file might have the older rating sheet.Have you ever requested it from the VA?

I am having problems with my PC access to the satellite due to the weather up here.

We have hardly seen the sun for over a month.

I know others here can advise you on the new appeals process because they have used it.

The newest decision will reveal if you need to appeal. And help determine if a CUE claim should be filed on the older decision  ( we would need the 2009 rating sheet however for that.)

 

 

 

 

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This is the form you nee to request a copy of your C file, from the VA Regional Office you deal with.

Unfortunately it can take many months to get a copy of a C file.

 

https://www.va.gov/vaforms/va/pdf/va3288.pdf

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Thank you @Bertaand @broncovet.  I'll ge the form completed and sent.

Today, as recommended from a friend and retiree, I contacted the CCK law firm in the US (Rhode Island, I think).  I had a chat with them and provided as much detail as possible.  There is nothing the can do.   I was informed the only hope is a CUE appeal, as you've mentioned many times here Berta.  Sadly, the CCK do not do CUE appeals.  They recommended the DAV (actually, the recommended a few alternatives, but I'll stick with the DAV.

Berta, is there anything specific I need to tell the DAV?  Again, I have no new evidence or material.  I'd like to hpoe they know what they're doing.  They got me sorted with a new claim, at least, albeit not the route I wanted, but it's something.  Advise?

Thank you.

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2 hours ago, Scottish_Knight said:

I was informed the only hope is a CUE

The first thing you need to understand is I can see your SSN on your post. It is best to make a copy of it and then redact/white out it on the copy then scan it and post it. Next you must get familiar with 38 CFR Part 3 and part 4. These are the regulations that the VA use to govern veteran’s disability claims and rating percentages. The more you know the better chance you have in winning your claims.  Next, whenever VA makes a decision, the veteran has 365 days, one year to file an NOD (Notice of Disagreement).  Next, whenever VA makes a decision, after ten (10) working days, the veteran can call VA and have them email them a copy of that rating decision.  I hope you can follow all this.

The questions are when did VA make their decision?  When did VA mail you their decision?

To back-up a wee bit, the VA rating was mailed to me on 25 November 2020.

You have until November 2021 to file a NOD on this decision. You can call VA and ask them to email you this decision. In stead of filing a CUE claim you can simply file a NOD. Compare the evidence VA used to make their decision and the evidence you had in your records back in 2009 and if you can prove by medical evidence that you had the same evidence and symptoms you can file a timely NOD and ask for an EED( Earlier Effective Date) back to 2009. Filing a CUE claim and filing a timely NOD can result/warrant the veteran the exact same benefits except filing a NOD is a lot and I mean a lot easier. With filing a CUE claim the veteran loses the benefit of doubt and filing a timely NOD the veteran keeps his benefit of doubt. You post different dates, so I am not sure when VA made their decision but keep in mind that the NOD time frame begins when the VA mail the veteran their letter and not the effective date.

Edited by pacmanx1
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You may not have PTSD but if the symptoms you have with your leg and hip bothers you in any way, you may want to consider filing a claim for depression. Keep in mind that filing a claim for depression does not mean that you are crazy, it just means you may have some type of anxiety about your limitations.

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"Berta, is there anything specific I need to tell the DAV?"

They should consider the recent award and then look over the 2009 decision and write the CUE for you, if they feel it contains a legal error, to your detriment.

They would need to see the older rating sheet and compare the diagnostic codes they used with the established medical evidence VA had at that time.

It would probably  involve a Fenderson Rating.

That type of rating  is searchable here.

The DAV got the same basic training I got on Veterans Benefits from NVLSP.

They would certainly know what a CUE is ( I hope) and of course we have a large CUE forum here.

I have no idea if the VA made a CUE in 2009-

I am basing my opinion on what I see here.

But many CUEs are common sense.

If a veteran receives an SC award on anything the VA had previously denied, as not SC, even if the past rating was "0",obviously the award meant the disability got worse and was in fact service connectable from the the git-go and the "0" might have been incorrect, causing a detrimental past decision.

 

 

Edited by Berta
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This is a brief assessment of Myler V Derwinski-

I posted a link to the actual case, in this thread th other day:

 

"In 1953, this veteran was entitled, on the basis of evidence then
before the Board, to a rating “of at least moderate degree” (38 C.F.R. 4.17(2) (1945)) of disability for the “through and through” gunshot wound to muscle group XIII. The failure to assign such a rating was a clear and unmistakable error. Moreover, in 1953, as in the present, when there were injuries to more than one muscle group in the same anatomical area, the ratings were not merely combined. Instead, 38 C.F.R. ù 4.16(1) (1945) (currently 38 C.F.R. 4.55(a) (1991)) provided that in the event of injuries to muscle groups in the same anatomical regions “the rating for the major group affected will be elevated from moderate to moderately
severe . . . according to the severity of the aggregate impairment of
function of the extremity.” A moderate degree of disability of both a posterior thigh injury, muscle group XIII, and an anterior thigh injury, muscle group XIV, each was awarded a 10% rating. However, the same schedule provided that the elevation of the rating of the injury to either muscle group from “moderate” to “moderately severe” degree of disability resulted in an award of 30%. Schedule for Rating Disabilities, Diagnostic Code 5313, 5314Next Hit (1945) (currently 38 C.F.R. ù 4.73, Diagnostic Code 5313, 5314 (1991))."

++++++++++++++

https://veteranclaims.net/2009/03/21/myler-vderwinski-no-90-1098-cue-456-472/

The Case ends with this:

"CONCLUSION
In its decision of August 18, 1988, the BVA properly applied the
regulations to the facts of this case and awarded this veteran a
disability rating of 30%. The failure of the rating board to have done
the same thing in its rating of November 24, 1953, was “clear and
unmistakable error”. 38 C.F.R. ù 3.105(a). Therefore, we REVERSE the
BVA decision of June 7, 1990, which upheld the VA’s denial of “clear and
unmistakable error” and we REMAND with instructions that the veteran’s
rating of 30% be given “the same effect as if the . . . decision had been
made on [November 24, 1953].” 38 C.F.R. ù 3.105(a) (1991).
It is so ordered."

A major Victory!!!!!!   Lots of retro $$$.

I am sure the DAV is aware of Myler V. Derwinski.

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And it seems the codes they used in Myler should have been coded on the 2009 rating sheet, in your case ,and probably were the same codes.

I filed two or 3 successful CUEs regarding a rating sheet of my dead husband , and the rating sheet was dated 1998- so the VA must have had a rating sheet prepared somewhere and the DAV might be able to access it  in your case, a lot faster than waiting for your C file.

Myler contains legal citations for the regulations VA broke.

I don't see my favorate Regulation there but they ( Myler's lawyer)might have used it as well:

38 CFR 4.6.

 

 

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Berta, you are such an allstar VA expert. 

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So are you John!

I am always glad to see you here.

Here is a recent  example of a veteran with a "0" rating who successfully won a CUE at the BVA.:

https://www.va.gov/vetapp20/files1/a20000148.txt

In part:

"FINDINGS OF FACT 1.The July 2012 rating decision inaccurately applied law and regulation that is undebatable error, and had the RO not committed this error, the outcome would have manifestly changed, thereby granting a 10 percent disability rating for the cervical spine disability, based on the record and law that existed at the time of the July 2012 rating decision.

2. The RO correctly applied law and regulation in the assignment of a non-compensable disability rating for migraine headaches in the July 2012 rating.

3. Given the Board’s finding of CUE in the July 2012 rating decision, which should have granted a 10 percent disability rating for the cervical spine disability, the appeal of an effective date, earlier than October 11, 2016, for a 10 percent rating disability for a cervical spine disability, is moot."

In VA lingo, it seems to be an odd decision.-at first read- due to 3 separate issues-----....I believe the retro went back to 2012 for the cervical spine disability, and it appears a CUE on something was not properly filed- but in any event it shows that even a "0" SC disability rating can be successfully cued.

There are more like this at the BVA but we are getting an ice storm and ice affects my sat dish until it melts-

Nothing is impossible- it just all can take lots of time and work.

 

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Unfortunately this '0' SC vet with a GSW did not succeed in his CUE.

https://www.va.gov/vetapp17/files3/1714981.txt

Denials at BVA give as much help as awards do, in understanding CUE.

BVA has consistently said that CUE depends on many factors at time of the CUE,.meaning medical records and all other evidence VA had in their possession.

It is sort of like the Watergate question-

"What did VA know and when did they know it."

The veteran's attorney raised the Muscular involvement regulations as I mentioned here re: Myler V. Derwinski but no muscular involvement was found.

The BVA  denial is correct based on all the evidence of record.

The DAV could possibly shape a CUE for this vet here, based on all evidence of record, as we have limited info here on the established medical and claims record.

 

Edited by Berta
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Good afternoon @Berta, @broncovet, et al.,

To begin with, I contacted the VA today.  I spoke with two very help lads.  I was on the hunt for the Diagnostic Codes from 2009.  Perhaps not in accordance with VA rules, but one of the VA reps did email (encrypted) the 2020 Diagnostic Codes.  The sheet indicates 5313 for the muscle group XIII and 5253 for the femur fracture.  I contacted the VA subsequently and asked again for the 2009 sheet.  It cannot be faxed and I need to ask for it in writing.   Hit and miss.  I emailed the DAV to ascertain if they might have a copy of the old sheet.

I have also spent the past 24 hours reading, reading and reading.  So long as my shop need be closed due to...  something, I don't recall. 😂

Broncovet has a fantastic and helpful write-up from 2015 about what a CUE is and isn't.  More importantly, one has a single chance to make a CUE appeal.  That is a last step.  Cheers, broncovet!

So, where do I go from here?  I have read through 38 CFR.  I have read Myler.  I have read, perhaps too much to the point I have no clue what my next step should be.  It would seem there is little chance of having a chat about the 2009 decision.  The VA's RO carries more weight than one would think possible.

Do I ask for a HLR or NOD?  After 11 years, is it even possible.  Do I ask to appeal to the BVA and a Hearing?  In addition, I understand that I can request an informal phone call to identify specific issues.  Is that true?

I have no new evidence.  Except, and I've no clue if the VA would consider it evidence.  I've contacted old colleagues.  They've offered to write letters stating they've witnessed my limp and complaints of pain in my leg and hip (between 2001 and 2009).  Is that evidence?  Do they carry weight?  I've received two letters thus far and will obtain two more in the coming days.  I could, have 6-8 letters in the coming weeks.

I know I've written this countless of times, but I fail to understand how a service member is shot in the leg, has a rod inserted inside the bone with four screws, leg is shorted by nearly one full inch and is awarded a 0% disability rating, yet Tennis Elbow is given 10%!  It makes absolutely no sence.  In reading 38 CFR, Part 4, I cannot help but feel someone was asleep at the wheel.  Yet, I cannot argue against how the rating was weighed and measured?  Even if I feel it was completely inaccurate.  The physical exam was not thorough.  I was given no mobility tests. 

This has really taken my blood to boil of late. 

The DAV is still willing to assist me, but I'm clueless as to what route to tell them I wish to take.  I don't wish to give up. 

Thoughts?

Thank you.

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I replied to that yesterday .

I suggested that you ask them (DAV)to consider a CUE claim,on the 2009 decision  but as I mentioned a lot will depend on the rating sheet. That s where the legal error occurred, if one occurred and they also need to consider 38 CFR 4.6 

They can read the posts here as a quest if they have questions about a potential CUE in your case.

Just give them the link.

https://community.hadit.com/topic/72994-va-asking-questions-on-injury-background-warranted/page/10/

They should be well versed in CUE.

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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."

Also I am sure they know that CUE is not a "one shot deal"-vet reps used to say that to scare vets out of filing CUE claims.

The BVA denies many CUE claims  but dismisses many of them "without prejudice" meaning, if the CUE is prepared a better way (usually denials are caused when a vet does not properly cite what regulations the VA broke.)the VA will accept the new CUE and the vet might succeed.

And also due to a letter I sent to former Secretary Shulkin they should be aware that a CUE can be filed at any time , even on a decision you received 'yesterday' been there done that with great results.It is here in M21-1MR under a search.

I regret I have no further info I can give you-

We have lots of CUE info in our CUE forum here.

DAV will determine the next step-on the pending claim .... make sure they know of the buddy letters.

Edited by Berta
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2 hours ago, Berta said:

I replied to that yesterday .

I suggested that you ask them (DAV)to consider a CUE claim,on the 2009 decision  but as I mentioned a lot will depend on the rating sheet. That s where the legal error occurred, if one occurred and they also need to consider 38 CFR 4.6 

They can read the posts here as a quest if they have questions about a potential CUE in your case.

Just give them the link.

https://community.hadit.com/topic/72994-va-asking-questions-on-injury-background-warranted/page/10/

They should be well versed in CUE.

No disrespect Berta.  There is an absolute boat load of information and it's rather confusing, especially when one attempts to absorb it all quickly.  My concern was with going through a CUE based appeal route as my next step and skipping others, if it was not in my favour, all is done.  It would seem perhaps not.

I've heard back from the DAV and they were able to locate my 2009 Rating Decision and I have a copy. The Diagnostic Code from 2009 for my leg (only one entry) was 5255.  I've looked briefly at 38 CFR 4.71a.  Since the break to the bone is neither malunion nor nonunion, it would seem it's a done deal.  Correct?

I also discovered this, tonight:

4.56 Muscle Disabilities:

(1) Slight disability of muscles—(i) Type of injury. Simple wound of muscle without debridement or infection.   I think not.
(2) Moderate disability of muscles—(i) Type of injury. Through and through or deep penetrating wound of short track from a single bullet, small shell or shrapnel fragment, without explosive effect of high velocity missile, residuals of debridement, or prolonged infection.     Without explosive?  Again, not.
(3) Moderately severe disability of muscles—(i) Type of injury. Through and through or deep penetrating wound by small high velocity missile or large low-velocity missile, with debridement, prolonged infection, or sloughing of soft parts, and intermuscular scarring.   No debridement or prolonged infection.  Not.
(4) Severe disability of muscles—(i) Type of injury. Through and through or deep penetrating wound due to high-velocity missile, or large or multiple low velocity missiles, or with shattering bone fracture or open comminuted fracture with extensive debridement, prolonged infection, or sloughing of soft parts, intermuscular binding and scarring.  Femur was shattered, but no extensive debridement.

The DAV is asking me where I feel the CUE might be.  I need to find a law or regulation the VA failed in.  I believe this is what is driving me mad.  One thing contradicts another. 

Seems to matter little, as the Code used by the VA in 2009 is unmistakeable.

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