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

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Navy Vet's Wife

Looking for VA Disability Attorney in Indianapolis Area

Question

Well, we have been fighting the VA for 7+ years now and just received a denial from BVA on all conditions on appeal. We are looking for a highly recommended attorney to take it to the next level of appeal for us, but don't know where to start with finding a good attorney.

Our VSO has been the American Legion, but they have not helped us. 

My husband is a Persian Gulf War Veteran- with numerous conditions (all of which are on the presumed list) and the VA continues to deny. 

I have managed to get him to 80% all on my own and through the advice I have read over the years here. I don't want to just give up after this long fight, and want to see it to the end. But now I need help.

If anyone is familiar with Indy and have an attorney that did a great job for you, please share!

Thank you in advance everyone! Not going down without a fight!

Navy Vet Wife

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Good afternoon,

I have scanned and redacted the BVA decision for my husband's case. A few of the issues that stand out to me are as follows:

1) We did not file claiming the motor vehicle accident he had is what caused TBI and headaches,  they are the ones that came back with that years ago and said they found in his records he had an MVA and possible TBI. We had filed for headaches due to Gulf War .

2) In between the time the original appeal was filed and it was see by the judge, the VA had granted for the left foot sprain  (separate from the left foot injury they were commenting about in report) we only filed for 1 left foot sprain and never 2 conditions associated with the ankle. The VA somewhere in the 7 years duplicated the conditions on ebenefits list of conditions filed for. 

3) Also in between the time of filing appeal and being seen by judge, the VA corrected the fact they stopped paying for the 'inability to sleep' condition when they granted the OSA condition. 

4) We had uploaded many studies with his claim to support various conditions and the judge comments in this notice- they see the studies, but they are not about my husband and do not list his name and that my husband nor I are medical professionals qualified to make such a nexus.  This statement to me is shocking- what do you think studies are for- to base decisions, diagnoses, approve medicines and in the area of law----   decide cases! Just as the decision references numerous times all the cases (aka = to study) is references. None of those cases have my husbands name on them- yet the VA has based their decision on it. Also- the judge, the raters, etc are not medical professionals and they are determining medical conditions. In the DBQ exams, the examiner will include various other medical reasons that his condition filed for- is not service related- and they say it is based on medical literature. None of that literature is about my husband or has his name on it-----   See where I am going with this? I do not find that statement and foundation for deciding this case- logical by any standard.

I can also upload my original appeal if you would like to review it. I appreciate any assistance you may give us. I do not want to lose 7 years of time we have put into this fight. We were able to get his case advanced on the docket due to financial hardship and that is why it was reviewed so quickly.

Thank you in advance to everyone on here that has responded to my original question and for all of the suggestions. WE will definitely be following the advice provided here. 

With gratitude,

Navy Vets Wife

BVA Decision Redacted[16020].pdf

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I read over the decision carefully and unfortunately the BVA is right as to not accepting any internet treatices,abstracts,  or studies etc- because medical determinations must be made by a doctor.Many of these denied conditions would need either a service nexus or a valid independent medical opinion.Or both.

The bad part of this is that, if you appeal to the US CAVC, you will hear from lawyers. But No additional evidence can be added to the claims.

I try to make suggestions here that I have had personal experience in.

When I filed a FTCA /1151 case for the wrongful death of my husband, no lawyer would help me and in those days it was  impossible to find an IMO/IME doctor.

I did all of the legal and medical work myself. I won.

Years later, when my daughter insisted I re open the DIC claim, I put it off for months, but every time she called me ( she was in the Military than, she insisted I re open for Diabetes mellitus, due to my husband's AO exposure in Vietnam.)

He had never been diagnosed or treated for VA for DMII.Then again he had been improperly treated for IHD, TIAs ,stroke, HBP- the substance of my FTCA case.

I prepared after realizing she was correct, and after studying the medical records over and over again, focusing not on what they conceded as malpractice but on possible DMII.

I was convinced that my claim was strong.My former vet reps had no faith in it to succeed.

Although I had proven the deadly  malpractice myself - I had dealt with the OGC- and they can read- I knew this time I would surely need an IMO because the RO refiused at first to even re open my DIC claim and then committed a critical VCAA error. By then I was enrolled at AMU and being the first civilian in a warfare school was not easy-and the homework was voluminous -so  I emailed Dr Bash, told him the claim was for direct SC, (although it was a malpracticed condition, and told him a bit of my evidence) He emailed back, if you have that, this is a good case, or words to that affect.

I sent him a detailed cover letter  ,with the med recs, and his fee referring to specific VA records that warranted a DMII death, to include the autopsy .Of course I felt it was 'as likely as not' with the prior malpractice, that the DMII was left undiagnosed and untreated, but VAdoes not care about our personal opinions.Within a week, he had the IMO done- by the time the BVA got my case, I had 2 IMOs from him, and also a freebee brief IMO that corroborated Dr. Bash's opinions. I had even ordered a 4 thcardio opinion, but I didnt need it.  The BVA noted I had asked for remand because of the VCAA violation but said the evidence warranted an award so that error was Moot.

My point is the medical evidence I prepared for the FTCA case contained no internet abstracts I can recall.It was solely based on the VA medical records. I proved two VAMCs took "acts" or Omissions of Acts" that caused my husband's untimely death.I proved the Syracuse VA tried to up the malpractice that began at the Bath NY VAMC.They failed.

My evidence was solely VA medical evidence. I studied a lot of medical literature on the net and in law libraries, but I built a documented timeline of VA medical records that supported what I had learned about Endocrinology and how my husband's diabetes mellitus had been malpracticed on and was a contributing factor to his death.

Along with the initial IMO from Dr Bash, for this claim I did send them some internet medical abstracts-they denied saying just about what they said to you- but they never even mentioned the IMO.

These claims need IMO/IMES, but they also need, in some cases, a nexus.

IMO/IME doctors would need copies of all of his military service records and his medical records.

The decision mentions a CUE or maybe more than one,I assume is at the RO level? I hope you have read over all the CUE info here.

I am a successful cue claimant- but I followed the CUE criteria to the letter for all of those CUEs.

They depend on legal errors, not medical errors, and on the established records at time of the alledged CUE decision. There are thousands of CUE decisions at the BVA. Most that were denied did not comply with CUE criteria. Maybe you will be successful with those CUES but they are not easy to succeed in.

 

 

 

 

 

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Berta posted:

Quote

the BVA is right as to not accepting any internet treatices,abstracts,  or studies etc- because medical determinations must be made by a doctor.Many of these denied conditions would need either a service nexus or a valid independent medical opinion.Or both.

The bad part of this is that, if you appeal to the US CAVC, you will hear from lawyers. But No additional evidence can be added to the claims.

Well, Yes, BUT, if the attorney can find a legal error, then a remand is likely or possible and you get to add "new evidence" when the CAVC remands it to BVA.  EVEN Tho, I did not have sufficent evidence to win at the BVA level the first time, the Board made a legal error that enabled me to submit new evidence, upon remand, in order to win.    That is exactly what happened to me.  

My lawyer "won" a JMR (Joint Motion for Remand) because she identified a legal error.  Then, my attorney hired a IMO (Voc rehab specialist), and then the claim was sent back to BVA for readjutication.  It was enough, and the BVA granted TDIU.  

But, Berta is correct in that the CAVC will review the case using the evidence that was available to the Board.  Of course, if the CAVC finds error because the Board did not give a "reasons and bases) for considering an IMO, then you are in.  

In your case, you have to show YOUR issue is related to a primary condition OR is directly related to service.  The Board has to consider ALL methods of service connection..primary, secondary, presumptive, etc., and not necessarily "just" the method you applied for.  

It is not a requirement that the VEteran be an expert on VA law when he applies.  He may apply as secondary, not understanding, for example, that his is a presumtpive condition.  Its remandable error for the VA NOT to consider at least those 3 methods to SC.  

In other words, if you applied as a secondary condition, but there was evidence in the file that you had met the Caluza elements (current diagnosis, in service event and nexus) then your claim should be granted even if you were confused about primary secondary or presumptive.  

    If they required EVERY VET to understand the entire 38 CFR's when they apply in order to get benefits, very few would ever get benefits.   The VA is supposed to know their own regulations, and, they are supposed to comply with regulations.  The Vet does not have to know them.  

    It is helpful, however, to know them when you appeal.  You need to bring up that VA violated regulations in denying you, because they dont always catch it.  And, if you dont raise that issue, they can hold that against you.  

Edited by broncovet

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Berta and Broncovet,

Thank you very much for the time you have taken to read the decision and to write your responses, I can't thank you enough.

I had a meeting by phone with an attorney- RMS law, that responded to my post as well. He feels we have a few good opportunities to get the case reopened by the BVA. 

I talked to my husband about it this evening, and right now- he is just wore down and feels defeated and done. I know we only have 120 days to take action or it is forever closed. I will give him a little longer to think about it, but right now he done arguing with the VA and all of the waiting and denials.

I will follow up here if he changes his mind.

Thank you once again for help!

Navy Vets Wife

Edited by Navy Vet's Wife

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Navy Vets Wife

There is a saying that we veterans have; we get on this hampster wheel called VA Disability claim, and we just spin our wheels. The VA delays, and denies, remands, using every little trick in their bag to frustrate and make the veteran throw in the towel. They do Not have the best interests of the veterans in mind. Quite the contrary, the more they can deny or at least low-ball on earned benefits, the better their own personal records for evaluation. They have metrics on how many claims they process, so volume on cases handled are important. It is a lot faster to deny that to justify approvals. You have to convince your husband that he has to hang in there and keep fighting. That saying we have is "you can't let the b.....ds win." You and he can win your claim if you keep on trying. Please keep on trying.

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