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Advice requested...


Jamezam
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Question

This post is about seeking the best advice for my next step(s). I'll try to be as succinct as possible, however, we are talking about the VA compensation process.  

I received a BVA decision in December 2018, most appeals were denied, however, the important one’s, back increase (40%) and SC for migraine headaches, although zero percent, were granted and the BVA judge also stated:

TDIU: VA treatment records have raised the issue of TDIU as part and parcel of the claims for increased rating; the Veteran has submitted several records indicating findings by VA that he is not employable at present due to his service-connected disabilities. This claim has not yet been adjudicated, and further, in light of grants of service connection and increased rating herein, required additional development.

I currently have a total rating of 60% and the VARO TDIU decision states:

Entitlement to individual unemployability is denied because you have not been found unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. This case has not been submitted for extra-schedular consideration because  the evidence fails to show you are unemployable due to service connected disabilities. (38 CFR 4.16).

I received a fully favorable decision for SSDI by the Social Security Administration and VA Vocational Rehabilitation and Employment Services States:

After carefully reviewing the evidence, I have determined that it is not reasonable to expect you to be able to train for or get a suitable job at this time.

I had a VA/social security attorney, whom I felt was not meeting my needs as there was very limited communication on their part, I’d filed a complaint with them letting them know, I didn’t need hand holding, however I do expect my representative to take action on the BVA decision, appeals, CUE, etc. It seemed like they weren’t interested in working on my behalf, and I kind of felt like they were just waiting for a positive VA decision so they could get paid. I am completely aware VA things take time, and I’ve been battling the VA for three decades now.

Anyway, I decided to contact CC&K and they informed me they aren’t interested in taking my case. I’ve already filed a NOD and I have no idea what’s going on with the VARO remand response to the BVA.

I’m almost sure, I can win an increase for my migraine headaches rating and entitlement to TDIU via pro se representation. However, I would love to have some assistance and not sure if I should keep contacting attorney’s, VSO, forum buddy, or go on my own. I’ve only had one attorney in all the years I’ve been pursuing my VA compensation rights, my previous VA claims were won on my own, and I’m almost positive both my SSDI and BVA claims were granted without any assistance from the attorney. They got their VA 20% and SSA $6,000, so I figure were good and it was time to terminate our agreement and move on.

Thanks in advance…

 

 

 

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broncovet 

quoted

''  If you get the exam rescheduled, then file a supplemental claim "with new evidnence" and explain you did not get notice of this c and p exam.''  

 

why would he need to get new evidence if the evidence he has was not consider? it can't be considered if he had no C&P Exam?

I Still don't think he needs to hire an attorney just to look in his VBMS?

Why can't he use the VBA? FOR THAT AT NO COST.

Now I need to look into my VBMS TOO but I'd need to look closely for what I need and they more likely won't let me do that   to look for what I need  EED ect,,ect,, exams ect,,ect,,  that could take a while  so they may not let me use or open my VBMS for that reason.

.but just to look to see if and when a C&P Exam was scheduled  they should be able to do that.

I remember a few years ago I went to the VBA office and requested my C&P EXAM REPORT ...THE VSO TOOK ME BACK TO HIS LITTLE CORNER OFFICE AND I GAVE HIM MY CLAIM# and or SS #   HE LOOKED ON HIS COMPUTER AND FOUND THAT EXAM REPORT  MADE A COPY & GAVE IT TO ME  AND OFF I WENT.

Edited by Buck52
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Look at this M21-1 article extract:

https://www.knowva.ebenefits.va.gov/system/templates/selfservice/va_ssnew/help/customer/locale/en-US/portal/554400000001018/content/554400000076269/M21-1,-Part-III,-Subpart-iv,-Chapter-4,-Section-N---Neurological-Conditions-and-Convulsive-Disorders#7e

  Quote
Severe economic inadaptability denotes a degree of substantial work impairment.  It does not mean the individual is incapable of any substantially gainful employment.  Evidence of work impairment includes, but is not necessarily limited to, the use of sick leave or unpaid absence.
 
Note:  In cases where migraine headaches meet the criterion of severe economic inadaptability and, additionally, the evidence shows that the claimant is incapable of substantially gainful employment due to the headaches, referral for consideration of an extraschedular award of a total evaluation based on individual unemployability is appropriate.
 
Reference:  For more information on severe economic inadaptability, see Pierce v. Principi, 18 Vet.App 440 (2004).

 

The migraine criteria does state "With very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability", but the M21-1 article overrides that.

The VR&E finding and your SSDI finding (if it was attributable to SC disabilities) should warrant consideration of  extraschedular IU.

It would probably be a good idea to connect the dots clearly for them and don't hesitate to use their own adjudication manual M21-1 to fight back.

 

I included my blog article on migraines which might be helpful.

 

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Thanks Vync,

I don't know how I or other Veterans are still sane after ALL the absolute BS and hoops the VARO make us jump through!

I filed a NOD last month and I've begun to work on an additional NOD that's currently six pages. My current NOD includes CFR's and adjudication manual M21 information. It's just that when I begin working on this stuff, I become easily discouraged and burnt out. The battle just never seems to end. After 28 years I finally get a 20%,rating, then 40%, then with the BVA decision 60%. And, on top of that, my SSDI claim that is verbatim to my VA SC disabilities and the VR&E letter stating After carefully reviewing the evidence, I have determined that it is not reasonable to expect you to be able to train for or get a suitable job at this time.

And yet, I still have to fight these completely idiotic, moronic VARO personal and spend more time responding to their stupidity, when all I want is the proper migraine headache rating and TDIU.

Anyway, I guess I may need to take a break for a couple of days, to gain the strength and motivation to begin my fight back. Your post is entirely beyond helpful, as I AGAIN sent them a copy of the VR&E letter, stated my VA SC disabilities are the same as the one on my granted SSDI claim, and I sent them three years of pain and migraine headache diaries.

That MR-21 you referenced is something I hadn't seen and with this year's Ray vs. Wilkie CAVC decision, I guess it's just a matter of patiently working on my my supplemental NOD.

Thanks again my friend...

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The real key here is to never give up.  If your migraines keep you in bed and limit your activities then I say go for it.   There are times when VA will simply deny a veteran's claim and the veteran would have to fight.  I personally had to fight VA for 2 decades in trying to get them to look at evidence in my C-file.  When my claim got to CAVC, my attorney and VA attorney remanded my claim and never went before a judge.  After the joint remand my claim was granted but the local VARO low balled my rating so back to BVA I went and finally got new remand with a new effective date.  I admit that if VA gave me a correct rating 20 years ago I would be in a better place but this is the hand we are given to play so we have to play with their rules.

Edited by pete992
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As for extrascheduler consideration for migraines, this might be a bridge too far.  I lost my job due to my service connected migraines and a SSA lawyer stated I could not work any job due to my lost time from work and I still was denied extrascheduler for migraines in trying to get TDIU.  The VA just does not consider migraines a serious disability.  I do not know why but that is how they roll.  The max for migraines is 50%. 

I would like to say that if you have been to the BVA before you should be able to do it again and win with your evidence.  Another part of me says that a lawyer has access to the BVA that we do not and for complex claims that might be necessary.  I will only say as pete has said to never quit, never surrender.  These guys will B.S. us and lowball us all day long and would get away with it if it were not for the BVA and CVA.     

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You stated:

 "And, on top of that, my SSDI claim that is verbatim to my VA SC disabilities and the VR&E letter stating After carefully reviewing the evidence, I have determined that it is not reasonable to expect you to be able to train for or get a suitable job at this time."

If the SSDI award is solely for your SCs, and if the Voc Rehab denial is documented by Voc Rehab,

as solely due to your SC disabilities, and 

If the VA had evidence of your SSDI award ( they send an authorization form, ad obtain SSA records,

and also if they had evidence of your Voc Rehab denial, documented as  due to SCs,

(Lots of hypotheticals,)but if all of those above are true then you have basis for a CUE under 38 CFR 4.6.

Can you scan and attach the decisions here.Cover your C file, name address prior to scanning it.

We need to see their rationale and the evidence list.

 

 

 

 

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The BVA remand does not mention the SSDI award,or Voc Rehab info-

but you said they had that info-so they did commit CUE if they never considered it.

You said:

"I don't know how I or other Veterans are still sane after ALL the absolute BS and hoops the VARO make us jump through!" I agree and dont forget, the put us widows through lots of BS as well.

The VA wants us to become frustrated angry and depressed because they know all that compounds the disabilities  veteran's have.

You said you filed a NOD etc but I feel you have the basis for a very valid CUE.

Many of my CUEs are searchable here and most f them involved violation of 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

And I won them all. But have 2 more pending.

Your SSDI award and your Voc Rehab denial are "elements" that strongly hold "probative value" to your claim.

As the reg states any element of probative value must be 

"thoroughly and conscientiously studied by each member of the rating board in the light of the established" etc

(0f course that depends on if the 'member of the " rating board"

can read.

You can write a brief CUE , as within the templates here in the CUE forum, stating they violated that above regulations enclse again and add to th letter as enclosed the SSDI and VOC Rehab evidence and put Attention to : then the alphanumeric that is n the upper right hand side of the decision.

This is the idiot who violated 38 CFR 4.6 ( I filed one of these types of  CUEs with IRIS years ago as well as my RO. You might get a fairly fast decision and not have to even appeal this at all.

Also Put into the letter and enclose any proof you have that you sent this info to them, such as a USPS Tracking printout if you sent it Priorty.

I had one claim at the BVA and the BVA noted ll of the evidence (i the Cfile) that VA had ignored.BVA awarded.

But I also had a wrongful death FTCA and 1151 claim and the VA ignored 12 copies of my husband's autopsy, and failed to even send it t0 the General COunsel, when OGC requested all available records at VA in the medical files, and my C file, and any other evidence.

I was not worried about the 1151 claim at that point, but made a few phone calls to VACO and the OGC and they were shocked to learn that an autopsy had even been done and by ignoring the autopsy one f many 1151 denias I got had a C & P doctor state my husband "possibly died from an overdose of cocaine.

 

He didnt even drink and was an Organ donor and the autopsy revealed only VA meds in his system.

I know all about VA BS,  and their lies, and VA's deliberate attempts to denigrate our claims.

The good people at VA have to work with these idiots but we can all overcome their erroneous denials, with evidence, and without letting them get us down. I know that is not easy to do but there are many hardcore claimants like me here, and we  have refused to allow these VA incompetents to prevent us from continuing the fight, until we succeed.

 

 

 

 

 

 

 

 

 

 

 

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@Jamezam I believe you are on the right track. I recommend taking it in bite size pieces. I usually start with an outline detailing my primary goals. Then I work on each aspect a little bit at a time so I don't get burned out on it.

After dealing with the VA red tape since 1995, I realize that the VARO workers are under a lot of pressure to turn over as many claims as possible in the shortest amount of time. On one hand, they claim to have reviewed "all evidence of record", which is practically impossible, but on the other hand they make obvious errors and overlook evidence. If we had access to VBMS, it would be great if we could just go in and tag specific documents that are pertinent. They could then just review, verify, and approve. But that makes too much sense.

For M21-1, I just have a shortcut to it and then search for key terms as necessary. I like that it provides links to other articles, regulations, and laws. Of course, it also links to non-public internal resources that we cannot access.

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Thank you everyone,

I'm working very slowly this morning. Here are the documents I mention in my post:

VARO Decision No SS 12.11.2019.pdf

 

 

 

 

Edited by Jamezam
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I have to say my VA records similar to yours where they lowballed my sTBI at 70% but gave me IU 100% made it P and T if that makes any sense. It took me six years to get jt corrected and my 0 for my migraines took 8 years to finally get bumped up to 50% but since they had made me 100% backdate to when I filed when I fixed my TBI I didn’t worry about the EED issue that and like you I was granted SSDI for them already which is one of the factors that made my increase very quicker. I was just concerned on getting the correct rating after 8 years for my headaches, but the way the two are worked they won’t hold each other up. As far as it was concerned in my case I had an active appeal for the Permanent and total when I filed an increase. The increase went in light speed in talking about 2 months for the 0 to 50% jump. The Permanent and total appeal was apparently something they missed when they made me 100% scheduler. I walked into the RO with my IU P and T award and I asked the Head officer in charge at the RO to ask him the question and he came say my paperwork said they didn’t see my old decision from Philly and the next day new decision 100% P and T. I also live 10 minutes from my RO makes it easy not sure if it’s as easy for you. Lost in my head sorry so if you have an appeal already in the works I would file an increase and if it’s black and white get the increase that’s probation weight for the BVA to look at that’s just my advice.... get it right the BVA will Correct the EED they have never failed me shocking I am a fan of the boards decisions usually 

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The decision is sure not what I expected.

Any "NO Show " for a C & P exam is serious.

The Evidence refers to SSA as to your SSA "profile" but I do not know if that "profile" included your actual SSDI records.

I saw no evidence that showed they considered your Voc Rehab denial at all.

The Voc Rehab letter is more supportive but dated before I assume you got the 60% SC.

The Voc Rehab letter has the email for the Voc Rehab  person who made the decision.I think you should contact them by email-to see if they would provide a better decision- with the proof of the 60% and your actual SSDI award , but then again

the  "no show" is  very concerning.

I will try to read everything again-dont have time to at this minute  but others will chime in as well.

 

 

Edited by Berta
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I just read the NOD- it appears you have an attorney helping you.

It also appears that you sent info already to the BVA and I assume the attorney you have will be handling that.

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It also looks like you were also  a "no Show" for a TDIU exam.....maybe I am not interpreting that part of the decision correctly.

Others will opine on the downloads.

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Why should veterans be forced to attend more exams, when said exams were already previously conducted within months of the newly requested exams? Especially when there are VA contracted examiners much closer! And, they informed me there wasn’t even appointments available besides the hearing test.

Why should veterans be forced to contribute to their already prostrating migraine headache and chronic pain? Can veterans be expected and forced to increase the pain they have 24/7, when exams are unreasonably far away?

I’m sure others will opine about if your exam is thousands of miles away you should still attend exams. Again, no exams other than a hearing exam was scheduled. How does one miss non-scheduled exams?

I terminated my POA because they were not working on my behalf! 

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On 2/21/2020 at 9:18 AM, Berta said:

I just read the NOD- it appears you have an attorney helping you.

It also appears that you sent info already to the BVA and I assume the attorney you have will be handling that.

I mailed NOD to VARO and BVA. The attorney never bothered to guide/assist me with any VA claims, appeals or BVA.

Edited by Jamezam
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Berta is correct.  "No show" to a c and p exam is almost akin to sending VA a letter to request withdrawal of your claim.  We dont know what reason(s) VA had to request an exam, but when they do, we have to show up or expect a denial.  

A C and P exam, in the decision maker's opinion, is required because there is medical evidence not documented.  There may have been a mistake in one or more of the previous exams, or, the decision maker simply was lacking evidence he thought that a C and P exam could fix in your favor.  

Like it or not, if the VA calls for an exam, you need to go or expect to be denied.  

Its not difficult to understand the attorney not being interested in persuing a claim where you refused to attend a c and p exam.  If the exam was at an incovienient time, then you can reschedule, but we NEVER suggest skipping a c and p exam.  Rememeber, VA is looking for a way to deny, and you just gave them a big reason to deny: No show for an exam.  

You will need to fix this, in my opinion, to get benefits.  To do that, you will need an IMO/IME to supply the evidence which was missing.  To find out what was missing, you need to go through your cfile and first check Caluza elements for each issue claimed.  

As Berta explained, SSDI is great evidence "but only if" your SSDI letter awarded benefits due to conditions for which you were SC for.   

To get tdiu you have to document "that you are unable to maintain SGE due to Service connected conditions".  If the reasons in the SSDI letter for your award are NOT service connected by VA, then the SSDI letter wont help you.    You may "also" have to provide evidence that retraining you into a new job is not feasable for you.  Example:  You have bad knees and you work in a warehouse.  Your kness prevent you from doing this job.  But, could you be retrained into a "sedentary" work position, such as a computer programmer?  This may take a voc rehab opinion.

Bottom line: You are probably going to need an IMO to win this, based on what you posted.  

Its possible the BVA could remand and order another exam, but there is something in the regulations that states you have to cooperate fully in providing the VA the requisite evidence.  YOU dont have to attend C and P exams, and you dont have to sign a release of information..BUT, if you dont do these things, the VA consistently denies.  

Like yourself, I dont like telling the VA "every single detail" about me.  There are things I would like to keep private.  But..make no mistake..VA wont award benefits if you dont cooperate and provide evidence.  VA benefits come with a cost.  We have to give up our privacty to VA.  Thousands and thousands of VA employees can/do read our private medical evidence to decide whether or not to grant our claims.  We dont have to like it, but we do have to comply.  

Edited by broncovet
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The SSDI determination is good...that its unreasonable to expect you to retrain.  But the unanswered question is "why" you are unable to work.  Are you unable to work due to SC conditions, or some other reason?  

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The recent VA decision you attached above clearly states:

"We have been informed that you have missed the VA examination scheduled in support of your
claim. There is no infonnation presently indicating good cause for absence on the scheduled
appointment date. As a result, medical evidence that could have been used to support your claim
was not available to us. (38 CFR 3.655)

Please notify us when you are ready to report for an examination, or you may submit a disability
benefits questionnaire (DBQ) which must be completed and signed by a health care provider."

The infonnation" typo is theirs not mine.

 

The closest VAMC to you might well have a DAV Van, that could possibly transport you to and from the C & P exams.

Or you could take their advice as to the DBQ or get a private IMO/IME.

The lawyer you has is an expert in SSDI and also handles VA claims issues.

But when he got the copy of the decision I read here ,  I know he was concerned about the "No Shows".

There are a few VA Accredited agents here at hadit- forget who- but someone will know and post their contact info.

Perhaps you should contact an accredited agent to help you.

 

 

 


 

Edited by Berta
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While I appreciate everyone's feedback and advice. You're missing the big picture.

The VA was misinformed, there were NO examinations scheduled, period! There was one conversation with the contracted examiner on a Friday afternoon for a hearing examination on Monday morning! I emailed my attorney, about the examination and he replied with "We can call them on Monday in an attempt to have this scheduled far closer to you. This is unacceptable and we will inform them of this." Again, every reference to any other missed examinations is entirely false, as again there was no other examinations EVER scheduled, period! ALSO, neither I or the attorney had ever received a VA decision, as the communication with the examining contractor was in November, the VA decision was in December, and after several inquires, the decision letter was mailed out.

I'm amazed to have read some of the challenges the VA has put other Veterans through on this forum and impressed how my fellow Veterans have stood their ground and how hard my fellow Veterans have fought and won against the ineptitude of the VA, and created and in some cases created precedence. Which is why I'm amazed how incredibly shut down others have become based on the statement "We have been informed that you have missed the VA examination scheduled in support of your claim."

It’s my choice if I choose my own health and wellbeing over being forced to drive two or three hours for an exam that by the VA’s own guidelines, could have been scheduled far closer. And, how many exams should we be subjected to in a short period of time? If you have an exam and they want to schedule another exact exam in less than three months, should we be subjected to multiple exams? Does anyone not believe the Associate Counsel for the Board of Veterans’ Appeals. See: Veterans Law Review [Vol. 7: 2015] Resolving the Ambiguities in 38 C.F.R. § 3.655: An Analysis of the VA Regulation Governing the Failure to Report for an Examination, report not hold water? And, the report is about Failure to Report for an “Examination”, which as I’ve stated three times now, no examinations where scheduled. There was no conversation with the VA contractor, aside from the phone call about a hearing test. As there were zero conversations with the VA contractor, there were never any dates or times for any other exams!

It's my opinion that the VARO did not follow the guidelines of M21-1, Part III, Subpart iv, Chapter 3, Section A - Examination Requests Overview. It’s a fact there was already three previous exams within months for exactly the same SC conditions in which the VA wanted yet again to request another exam. It’s my opinion that there is precedence in requesting unjustified multiple exams.

It’s my choice to fight the VA on the false claims that I missed “scheduled” examinations. After having an attorney who never fulfilled my request, thus the termination of said agreement. And, wining every other VA claim through my own volition, I’ve decided to once again strike out on my own.

I came here looking for support and advice, not lectures about missed exams, from those who have firsthand experience of what it takes to battle with the VA. At this point I just feel even more beat up by everything I’m dealing with. So I thank you for your time and I will do what I’ve always done, which is the do what’s best for me…

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25 minutes ago, Jamezam said:

While I appreciate everyone's feedback and advice. You're missing the big picture.

The VA was misinformed, there were NO examinations scheduled, period! There was one conversation with the contracted examiner on a Friday afternoon for a hearing examination on Monday morning! I emailed my attorney, about the examination and he replied with "We can call them on Monday in an attempt to have this scheduled far closer to you. This is unacceptable and we will inform them of this." Again, every reference to any other missed examinations is entirely false, as again there was no other examinations EVER scheduled, period! ALSO, neither I or the attorney had ever received a VA decision, as the communication with the examining contractor was in November, the VA decision was in December, and after several inquires, the decision letter was mailed out.

It's my opinion that the VARO did not follow the guidelines of M21-1, Part III, Subpart iv, Chapter 3, Section A - Examination Requests Overview. It’s a fact there was already three previous exams within months for exactly the same SC conditions in which the VA wanted yet again to request another exam. It’s my opinion that there is precedence in requesting unjustified multiple exams.

I came here looking for support and advice, not lectures about missed exams, from those who have firsthand experience of what it takes to battle with the VA. At this point I just feel even more beat up by everything I’m dealing with. So I thank you for your time and I will do what I’ve always done, which is the do what’s best for me…

While I can't answer about the multiple exams and timeframes, I can say that you will need copies of the correspondence sent "out" by the VA, no matter where it went, because it obviously did not make it to YOU or perhaps the lawyer. I don't know by what methods you have available for notification, and if the address with the VARO has been updated correctly. It may not be that the VA was misinformed, but had the wrong/old address, or simply mailed it to the wrong person even. This would be the specific "thing" you would need to argue in disagreement with the claims. Since it is a part of your claim file now, it should be available at the RO, or by chance MHV.

EX: In my first award packet, I had my award plus an entirely different person's award letter stapled together. With social and details of their claims. This is a very gross error on the VA's part, and I'm sure it happens quite often, because it seems there is no "Quality Assurance" section that gives a second look after the first rater groups get a hold of our information.

To summarize, the/your question is :

"Advice requested...I have a claim that was denied in part, because there was a scheduled C&P exam that I was not notified of." "What can I do?"

In the first post of this thread, this was not addressed as part of your big picture, and it can be edited to include this for further clarification.

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      • Adding Background information in your post will help members understand what information you are looking for so they can assist you in finding it.
    Rephrase the question: I was diagnosed with apnea in service and received a CPAP machine, but the claim was denied in 2008. Should I refile?
     
    • Question B. I may have PTSD- how can I be sure?
      • See how the details below give us a better understanding of what you’re claiming.
    Rephrase the question: I was involved in a traumatic incident on base in 1974 and have had nightmares ever since, but I did not go to mental health while enlisted. How can I get help?
     
    This gives members a starting point to ask clarifying questions like “Can you post the Reasons for Denial of your claim?”
     
    Note:
     
    • Your first posts on the board may be delayed before they appear as they are reviewed. This process does not take long.
    • Your first posts on the board may be delayed before they appear as they are reviewed. The review requirement will usually be removed by the 6th post. However, we reserve the right to keep anyone on moderator preview.
    • This process allows us to remove spam and other junk posts before hitting the board. We want to keep the focus on VA Claims, and this helps us do that.
  • Most Common VA Disabilities Claimed for Compensation:   

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  • VA Watchdog

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

    employment 2.jpeg

    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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