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Updated Timelines


Indy_CV62_OS

Question

Not necessarily a question but this is my first post here.  Let's begin with my timeline so far:

2005: Initial Claim
2006: Denied
2007: Reconsideration Denied....I gave up
Aug 2013: Submit new claim
2014: Denied; Filed NOD got SSOC
Feb 2016: DRO Hearing; Phila.
Sep 2017: Granted 60% Combined...Filed NOD
Nov 2017: Filed Form 9

The average time to get an Appeal Certified is about 623 days or about 1 year and 9 months
The average time to get a Hearing from Certification is 519 days or about 1 year and 5 months
The time it takes to reach completion of Legacy Appeal Process is 683 days or about 5 to 6 months after the Hearing

As of this post, the average number of decisions dispatched per week is 1729

I am currently researching Congressional Hearing from April 2015 regarding the Phila. & Oakland RO Whistleblowers.  I do not yet know what kind of Forum this is.  From the forum I used to belong to, you could get your pee pee slapped for even hinting at problems at VA.  I'm very thorough with my research and I hold nothing back.  I'm extremely passionate about the abuses to Veterans and I will always call a spade. a spade.  I am apolitical; I have no horse in that game and I was taught very well by George Carlin since the mid 1970's.  If this will be a problem here, just tell me and I will leave.

Ray

 

 

Edited by Indy_CV62_OS (see edit history)
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I have filed a Writ.  It was denied, just like "virtually all of them".  However, prior to the denial of the Writ, the VARO submitted a "response" to my allegations in the writ, the VARO agreed there was a "list of actions" the VARO needed to take.  

One of those "actions" the VARO themselves identified that they needed to take was to adjuticate TDIU (which they had not done in the 7 years prior!)

Probably less than 3 months after the Writ denial, I received a 100 percent P and T rating.  They "adjuticated" TDIU as "moot" with my 100 percent P and T.  

Is this coincidence?  I think not.   Alex explained that VA is petrified of a Writ Award.

Alex has filed at least one writ also, and he has not, to my knowledge,  ever got a writ awarded, just like the rest of us.   

A writ is a good tool.  I do think you need to do your best when you file it, but the message it sends to the VARO is: 

Quote

Im not putting up with your BS anymore.

You do need to "paper" the writ.  For example, send an IRIS email, or a letter (certified) that you have not yet received a decision on your collapsed lung claim in XX years.  

The court wont allow a writ to be used as an alternative to an advance on the docket.  You have to have "no other alternative", which means you TRIED alternatives, and you need to document that you tried.  

I think the important thing in a writ is to motivate the judge to ask the VARO for a "response".  That is key.  

The judge does not have to ask the VARO to a response to your allegations.  He can simply deny your writ as its without merit, especially if you did not persue alternatives..such as writing to VARO, email them through IRIS, re apply, etc., etc.  

You need to show that your writ is the last resort, and "paper" it to prove that.  

Example: 

Quote

 

  "Even tho the Veteran sent in 3 seperate TDIU application forms, on seperate occassions, sent IRIS emails on 4/2 2018, 5/4 2018, and 7/4 2018, the VARO has failed to respond and adjuticate or even acknowledge that the TDIU is in progress."

     Therefore, since the VARO has repeatedly ignored the Veterans alternative means, the Vetren requests the court intervene and demand that TDIU be adjuticated in a prompt manner.  The RO's lack of response to at least 5 requests from the Veteran, indicates they have no intention of compliance except by this writ."

 

The above quote is  my own words paraphrasing my own writ.  The writ was a success, even tho it was denied, because it accomplished its purpose:  Forcing a decision on TDIU that had gone on unadjuticated for 7 full years.  Notice I did not put the "time issue" in there. 

    The courts dont want to put a time limit on what is too long a time for VA to adjuticate.  (Even tho they should do just that!!).  Knowing this, I tried to show there lack of response, not that "the VA took too long to adjuticate".  

     You see, the court has not defined how long "too long" is.  5 years?  10 years?  How long is too long.  The VA has a pat answer:   

Quote

 

"Gee, Mr. Veteran, were very sorry it took so long to process your claim. Since each Veterans claim is different, the VA has so many variables beyond their control that a precise time limit can not be determined.  For example,  Isnt that backlog awful?  The VA has no control over how long it takes (a third party) to send in their requested records.  While this has to be necessarily frustrating to the Veteran, and we share his frustration, blah, blah, blah, the writ needs to be denied."

 

 

 

The above rhetoric is, again, paraphrasing VA's response.  They pretend to the court they realy care about the Veteran, and there are just things beyond VA's control that delays claims.  Its all a lie, but the court buys their lie every time.  

    In summary, you want to do a good job with the Writ, but dont expect it to be awarded.  Expect the VA to pretty much say,

"Ok, yea, you are right, Mr. Vet.  We need to adjuticate TDIU.  We processing that right now, and it will be out soon.  

"So, as you can see, your honor, we have taken care of the problem, so the writ needs to be denied as it is now moot, as we promise to fix the problem right away."  

This crapola is the rhetoric VA uses to motivate the judge to deny  the writ.  

    The judge "looks the other way" even tho he knows the VA statements are lies.  You see, if what the VA said were true, they would have already fixed the problem and no writ would be needed.  Instead, they just keep ignoring the Vet, hoping he will die or get tired of fighting and give up.  

    

 

Edited by broncovet
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Hey Ray this may help.

Customer Service

Currently, the Board is generally distributing cases to Veterans Law Judges (VLJs) for adjudication with docket dates up to April 2017.
Login to Vets.gov to view the status of your case!
 
As for how messed up the VA can be, people on here are pretty open about their experiences and will give you help.  We do not talk politics here.  We want to hear if you had a bad day or had a great day.  I have gotten nothing but support at the times I needed it and some tough love when needed.  
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''Indy_CV62_OS Quoted''

''I do not yet know what kind of Forum this is.''

This form is a form for Veterans helping Veterans win their deserved benefits and help anything VA Related. a brotherhood of U.S. Veterans

  Our boss and creator of Hadit.com Is Thereasa  Aldrich , Bettter Known a Tbird

Her Mission

 ''Leave No One Behind Not on A Desert Trail''

''Not on a Jungle Trail''

''Not on a Paper Trail ''

 

Welcome to hadit.

 

Buck52

       

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Hello @Indy_CV62_OS, you will find that people here are very honest about the VA.  It is a mess and veterans are not treated fairly all of the time.  That said I hope you can gain some knowledge here in fighting your case.  I have been to the BVA three times but have never gone to the CVA.  Some members have.  Good luck and God bless.

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If a veteran gets denied in the past, and than subsequently is awarded for the exact same thing-they should consider that the older decision might contain a clear and unmistakable error: (CUE)

This claim in the link shows what I mean:

https://community.hadit.com/topic/73840-3156-va-error-cue-instead-1992-eed/

Others have used 38 CFR 3.156 for better EEDs.

 

 

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I think I should have added that EEDs are determined by the date of claim as well as established medical evidence in VA's possession.

I have a CUE filed on an award letter with the wrong EED.

The VA decided the EED of my husband's HBP ( under 1151)was August 1992. That is when he had a  1151 stroke. The available documented VA medical evidence showed HBP for 4 years prior to the stroke.

That evidence was within in his VA medical records and opined on by a VACO cardio doctor for my FTCA claim.It was a contributing factor to his death.

VA said I will get the actual C & P next week. Cant wait.

I hope the signature is legible and I might have a hard time finding who paid this "doctor"who I dont think is any doctor at all. 


"I am currently researching Congressional Hearing from April 2015 regarding the Phila. & Oakland RO Whistleblowers."

 

I am a whistle blower .The OAWB was shocked at some of the evidence I sent to them.Maybe by all of it-

from an investigation I had been doing for over twenty years.

I am still shocked by it myself. I told the guy I dealt with at OAWB that I dont need any whistle blower protection because I dont work for the VA ( did in the past as a Volunteer)

and because the VA already did to me and my dead  husband ( death by VA) all they could possibly do to hurt us.

Fortunately all of that travail , however , has helped me to help veterans and their survivors.

 

 

 

 

 

 

 

 

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1 hour ago, Berta said:

If a veteran gets denied in the past, and than subsequently is awarded for the exact same thing-they should consider that the older decision might contain a clear and unmistakable error: (CUE)

This claim in the link shows what I mean:

https://community.hadit.com/topic/73840-3156-va-error-cue-instead-1992-eed/

Others have used 38 CFR 3.156 for better EEDs.

 

 

Hi Berta...

Nice to meet you and I'm hoping to stick around.  I talked to my Lawyer about CUE and he had felt that in 2005, I was missing the Nexus, even though I had a letter from the VA Psychiatrist in Phila. that connected my Panic/Anxiety Disorder to the collapsed lungs I had during Active Duty.  Perhaps I may seek out another Legal opinion.  Actually, I was Disabled coming out with a Medical Review Board that spelled everything out, nice and clean.  In hindsight, I should have followed through with the claim, however, I wanted to get the hell away from all of it.  BTW, I have Radio experience if it's ever needed.

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3 hours ago, vetquest said:

Hello @Indy_CV62_OS, you will find that people here are very honest about the VA.  It is a mess and veterans are not treated fairly all of the time.  That said I hope you can gain some knowledge here in fighting your case.  I have been to the BVA three times but have never gone to the CVA.  Some members have.  Good luck and God bless.

Semper Fi Vetquest...Thank you for that.  It looks like I belong here because of Berta being a Whistleblower and her experience with the VA.  Look...I believe that most of the rank and file VA employees want to do the right thing.  As I've seen in other places: Grant if you can, deny if you must.  It's the leadership and the relocation expenses and bonuses.  We EARNED the benefits.

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@Berta Sent email to Lawyer about CUE.  We may have discussed it in the past but my original claim in 2005 has the same disabilities that I had claimed in 2013 and was granted 50% SC.  I'm also going to look into Writ of Mandamus.  Would have to find an Attorney that would do it on contingency basis.  I will update as soon as I talk with the Lawyer.  Right now, I've sent in new evidence to raise Asthma 10% within the last month.  DRO would have to send a SSOC before Certifying my Appeal.  This will no doubt cost me more wait time but I want my case Rated correctly and I'm willing to wait them out.

I really appreciate the guidance and for allowing me here to interact with all of the other Vets.  Thank you!

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Welcome to hadit.  Yes, Im very familiar with "the other board" where you are not allowed to say ANYTHING negative about VA.  That is why I came here, in part (about 10 years ago).  

Is this lawyer that you have already retained, or is the Cue about a new lawyer you have not yet employed yet?  I will be interested in hearing his response.  

I use CUE very sparingly..pretty much because it "raises the standard of review", and only file CUE when other roads wont work.  For example, if you just file a simple NOD, then you keep the "benefit of the doubt", and that alone, can be a deal maker/ deal breaker.  

I would also be interested in what you are filing a Writ about.  I personally filed a Writ Pro Se.  Except for Alex, few Vets have filed a Writ, at least on this board.  

You said you filed a NOD.  Was this about the effective date, or the disability percentage or both?  The main reason to file a CUE is to secure an earlier effective date.  And, the fact they awarded a benefit you applied for earlier which they denied strongly suggest cue in the earlier decision.  However, if you submitted new and material evidence (38 CFR 3.156 b or 3.156 c), then a cue may not be necessary, that is, if this is in progress.  

 

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5 minutes ago, broncovet said:

Welcome to hadit.  Yes, Im very familiar with "the other board" where you are not allowed to say ANYTHING negative about VA.  That is why I came here, in part (about 10 years ago).  

Is this lawyer that you have already retained, or is the Cue about a new lawyer you have not yet employed yet?  I will be interested in hearing his response.  

I use CUE very sparingly..pretty much because it "raises the standard of review", and only file CUE when other roads wont work.  For example, if you just file a simple NOD, then you keep the "benefit of the doubt", and that alone, can be a deal maker/ deal breaker.  

I would also be interested in what you are filing a Writ about.  I personally filed a Writ Pro Se.  Except for Alex, few Vets have filed a Writ, at least on this board.  

You said you filed a NOD.  Was this about the effective date, or the disability percentage or both?  The main reason to file a CUE is to secure an earlier effective date.  And, the fact they awarded a benefit you applied for earlier which they denied strongly suggest cue in the earlier decision.  However, if you submitted new and material evidence (38 CFR 3.156 b or 3.156 c), then a cue may not be necessary, that is, if this is in progress.  

 

Thanks Bronco.  The Lawyer I already have and I'll speak with him this week.  The NOD was for percentage.  I just looked back at rating decision of 2006 and they denied Panic/Anxiety due to Collapsed Lungs, on Active Duty because "there was no diagnosis for Panic/Anxiety while in Service".  Just because they didn't understand Panic/Anxiety or PTSD in the early 80's should not be my burden.  The Rating Decision also notes some missed appointments which could be a problem but I was a mess at that time.  Family doc had me on 10 mg Valium 4x and 2 mg Xanax every 4 hours.  Just to keep the panic attacks down a bit.

I think that what the lawyer will say is to wait out the Appeal Certification and then get a docket number.  I'm probably jumping all over the place but in a nutshell...my medical records from the Medical Review Board show the Asthma DNEPTE, both collapsed lungs DNEPTE and Chronic Chest Pain DNEPTE.  Just because I didn't claim the disability at Separation does not mean they did not exist.  The Rater in 2006, I feel, dropped the ball.  I had given them clear evidence from a Board Certified VA Psychiatrist that spelled out the disability, the service connection and the Nexus.  Then 2013, I file a new claim with the same disability; panic/anxiety.  They Granted 50% for it.  So how does the Rater in 2006 get away with not Rating it then?

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Since you were MEBed out with a disability I cannot imagine why your initial claim was denied???????

You dont need an attorney to file a Mandamus writ but they are 99% of the time , denied.

If you do file one, then lawyers will contact you- but as soon as they hear it is a writ, they wont offer to help.

The US CAVC web site shows what I mean, as to how many writs go no where. There are better ways to address VA errors.

"We may have discussed it in the past but my original claim in 2005 has the same disabilities that I had claimed in 2013 and was granted 50% SC.  "

Can you scan and attach here that decision and their evidence list?

Cover your C file # , name, address, prior to scanning it.

  "I talked to my Lawyer about CUE and he had felt that in 2005, I was missing the Nexus, even though I had a letter from the VA Psychiatrist in Phila. that connected my Panic/Anxiety Disorder to the collapsed lungs I had during Active Duty.  "

Do you have any ratable residuals from the collapsed lung?

Did the VA have a copy of that letter?

What is the breakdown of the 60% you have now?

 

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3 hours ago, Berta said:

Since you were MEBed out with a disability I cannot imagine why your initial claim was denied???????

You dont need an attorney to file a Mandamus writ but they are 99% of the time , denied.

If you do file one, then lawyers will contact you- but as soon as they hear it is a writ, they wont offer to help.

The US CAVC web site shows what I mean, as to how many writs go no where. There are better ways to address VA errors.

"We may have discussed it in the past but my original claim in 2005 has the same disabilities that I had claimed in 2013 and was granted 50% SC.  "

Can you scan and attach here that decision and their evidence list?

Cover your C file # , name, address, prior to scanning it.

  "I talked to my Lawyer about CUE and he had felt that in 2005, I was missing the Nexus, even though I had a letter from the VA Psychiatrist in Phila. that connected my Panic/Anxiety Disorder to the collapsed lungs I had during Active Duty.  "

Do you have any ratable residuals from the collapsed lung?

Did the VA have a copy of that letter?

What is the breakdown of the 60% you have now?

 

I need to cool my jets.  It seems that a Writ is last resort.  I am Rated combined 60%; 50 for panic/anxiety and 10 for asthma.  I'm also getting SSDI so I probably need to allow the Appeal process to run it's course before I go and run through the jungle with a machete'.  I will scan the Rating Decision and post it.  What I have to do is to keep in mind that right now, my case is at Philly and it's with a new DRO.  They could Grant the Appeal and it would be up to me to keep pushing. 

What knocks me out is that they refuse to Rate the collapsed lungs. 

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"  I am Rated combined 60%; 50 for panic/anxiety and 10 for asthma.  I'm also getting SSDI"

Were you Mebbed for the panic anxiety  disorder?

Were you mebbed for the asthma?

If so, how could VA deny in the past?

If you get SSDI solely for one of or both of those two disabilities, this is excellent evidence for TDIU.

Is VA aware of that SSA award? When were they aware of it?

"I need to cool my jets." Yes, this stuff can get us into a frenzy.

But I think you are anticipating some potential VA landmines-I learned to do that myself.

It is unfortunate to say this and some of the Best people I know work for the VA, but many of us hard core claimants have learned to expect lousy decisions, that are not based on established evidence or fact.

 

 

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37 minutes ago, Berta said:

"  I am Rated combined 60%; 50 for panic/anxiety and 10 for asthma.  I'm also getting SSDI"

Were you Mebbed for the panic anxiety  disorder?

Were you mebbed for the asthma?

If so, how could VA deny in the past?

If you get SSDI solely for one of or both of those two disabilities, this is excellent evidence for TDIU.

Is VA aware of that SSA award? When were they aware of it?

"I need to cool my jets." Yes, this stuff can get us into a frenzy.

But I think you are anticipating some potential VA landmines-I learned to do that myself.

It is unfortunate to say this and some of the Best people I know work for the VA, but many of us hard core claimants have learned to expect lousy decisions, that are not based on established evidence or fact.

 

 

Hi @Berta...I was MEB'd for Asthma, DNEPTE, Status Post Spontaneous Pnemothorax (collapsed lung) times Two, DNEPTE and Post-Thoracotomy Syndrome, DNEPTE.  In Service, they knew nothing about Panic/Anxiety or they willfully ignored it.  Case in point: First collapsed lung, Right, they could not provide a reason.  After spending 10 days at Portsmouth Naval Hospital I was sent home for 30 day leave.  First night home, started feeling twinges of pain in my chest.  Could not breathe.  Drove myself to local ER....ran in, recognized the nurse, Eileen, told her can't breathe.  Gave her the papers from the hospital.  They threw me on a gurney and gave me shot in the ass.  Within a few minutes, I was breathing better.  I was all confused.  How does a needle in the ass make the chest better?  They told me it was a Panic Attack.

Doing research in the last 5 years, I believe the collapsed lungs may have been caused by the fire bldg. at Great Mistakes.  They made us take off the Mark IV mask and feel our way out.  Something nasty in that smoke.  The Chemical Attack bldg., we nicknamed it Suzy Q.  I found out that they used CS Gas.  Same drill.  This is what I suspect caused both lungs to collapse while at A School in Damneck, VA.

SSDI is for Panic/Anxiety and severe scoliosis and multiple herniated discs.  The VA was given all copies of that.

I'm going to follow protocol.  I must allow the DRO in Philly the chance to either Grant or Certify the Appeal.  My opinion is that the VA does not want to take ownership of caring for me from what happened in Basic with the smoke and the gas.  If my case goes to DC, I will go to the Hearing with my Lawyer, armed to the teeth with everything I got.  If the Board does not Grant, then I go after them for Disability all the way back to 1986 because I was entitled to that at Separation.  Then I will go after them for CUE because the Rater in 2006 screwed the pooch.

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 Something did trigger the VA to SC the panic/anxiety, that they denied regarding the 2005 claim.

"I talked to my Lawyer about CUE and he had felt that in 2005, I was missing the Nexus, even though I had a letter from the VA Psychiatrist in Phila. that connected my Panic/Anxiety Disorder to the collapsed lungs I had during Active Duty. "

Did the VA have that letter before they denied?

Is it in the 2006 denial evidence list?

Or maybe it was this ?

 "Drove myself to local ER....ran in, recognized the nurse, Eileen, told her can't breathe."......  

"They told me it was a Panic Attack"

These are two critical things your lawyer needs to consider if a CUE can be filed when they first denied, or filed on the Reconsideration denial.

CUE rests on what is in VA's possession at time of the alledged CUE.

I didnt even have to make that point or quote the regulations for that , in my SMC CUE.

They had evidence of my husband's 1151 stroke, and evidence noted on the rating sheet of his past 100% P & T SC PTSD award yet they failed to consider SMC.

My most recent CUE was under 38 CFR 4.6 - no need there to rattle off any more regulations for that one either :

They had medical evidence in VA's possession,since 1998, that I sent to them again, denied and than awarded in less than a month under CUE.

Obviously you didnt get panic attacks by going to a C & P exam. But they gave you C & P dates as the EED.

The only way I foresee a better retro EED is under CUE.

But your lawyer will have access to all of the info regarding the points I made.

Apparently the VA finds no residuals of the lung collapse.Or never gave you a C & P for that.

 

"Doing research in the last 5 years, I believe the collapsed lungs may have been caused by the fire bldg. at Great Mistakes.  They made us take off the Mark IV mask and feel our way out.  Something nasty in that smoke.  The Chemical Attack bldg., we nicknamed it Suzy Q.  I found out that they used CS Gas.  Same drill.  This is what I suspect caused both lungs to collapse while at A School in Damneck, VA."

Did you ever attempt to find anyone in your unit who experienced the "Suzy Q" situation.

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The Military still uses CS gas . I could not find anything at the BVA that showed a claim based on CS exposure.

It might not have any relationship to the collapsed lung- 

I think every vet here has had the gas chamber drill-maybe more than one, even my daughter did.

 

 

This was the only article I could find that mentiones long term affects on CS on the respiratory system:

 

CS‐induced respiratory illness during military training

Unexpected respiratory risks linked to tear gas exposures were discovered in epidemiological studies by the U.S. Army, analyzing health effects in more than 6000 army recruits exposed to CS in chambers during gas mask–confidence training. This relatively young and healthy population developed a high risk of presenting with acute respiratory illness in the time after CS exposure, with increasing risk at higher exposure concentrations.3536 Exposure levels considered for many years safe and necessary for training were determined to far exceed the National Institute for Occupational and Safety and Health and Occupational Safety and Health Administration safety levels.37 These findings led to immediate measures limiting exposure concentrations and times, improving decontamination procedures, and imposing frequent hygiene and health monitoring. Measures of respiratory illness included throat pain, cough, bronchitis, nasopharyngitis, sinusitis, and other indications. CS exposures were also associated with an increase in respiratory infections, including influenza. Follow‐up studies demonstrated that lowering CS exposures during training effectively reduced the risk for respiratory illness.38 Whether these lower concentrations are also safe for diverse civilian populations remains unclear. Follow‐up epidemiological studies in military populations would represent a unique opportunity to identify potential long‐term health effects of tear gas exposures.”

https://www.ncbi.nlm.nih.gov/pmc/articles/PMC5096012/

 

This study was published in 2016.

It certainly could compound asthma, maybe even cause asthma and maybe this is why the VA SCed the asthma you have because it was part of the MEB anyhow.

With a full review of your STRS and subsequent medical records, and the rationale of the past denials, a lawyer would be able to spot CUE right away if one occurred. 

They would need to look for any NSC rating percent for what is now SC , and compare those percentages to the Schedule of ratings in affect at time of the decision.

 

 

 

 

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@Berta I think CUE is going to be extremely difficult.  There were missed exam's on the 2006 Rating Decision.  For the NOD, I had sent in the report from the VA Psych; they just will not SC the lungs.  I think it might be best for me to follow protocol.  The DRO has my Appeal.  They could Grant and if not, they'll Certify the Appeal and we'll wait for a Docket number.  Looking at other cases out there, going outside of the protocol has it's dangers.  The whole system is set up to follow certain steps and since I'm already 60% combine, it might be best for me to just keep my powder dry.

Those Federal cases can take up to 10 years.  The whole thing is designed to push out benefits for as long as possible and to discourage Vets.  My case in point is when I gave up after 2006.  It can be so damn frustrating but I am much better off than many others.  God only knows how many of our people have lost limbs and are still trying to get SC.  We all learn from each other and man, I sure have learned a bunch just being here a few days.  I have a good Lawyer and we're getting by just fine.  I need to stop and appreciate what I have and not worry so much about what could be.

Should we go all the way to the Board and not prevail, there are other remedies.  What I want others to do is to learn from our mistakes.  My biggest mistake was not taking the VA Disability at Separation and then the next big mistake was giving up in 2006/2007.

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I agree- you have a good lawyer- and they know your situation better than we do.

If the VA 'missed' using the C & P exams to prepare the past denial ,that is one thing, but if you missed the exams by not showing up- that changes everything.

We have all made mistakes in the claims process.....and that is how we learn to succeed.

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I agree with ya broncovet  a denied writ is a wake up call (so- to -speak) to the judge

Sometimes a denied write is just as good as getting it approved.(jmo)

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