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  • 14 Questions about VA Disability Compensation Benefits Claims

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    When a Veteran starts considering whether or not to file a VA Disability Claim, there are a lot of questions that he or she tends to ask. Over the last 10 years, the following are the 14 most common basic questions I am asked about ...
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  • Most Common VA Disabilities Claimed for Compensation:   

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

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    You’ve just been rated 100% disabled by the Veterans Affairs. After the excitement of finally having the rating you deserve wears off, you start asking questions. One of the first questions that you might ask is this: It’s a legitimate question – rare is the Veteran that finds themselves sitting on the couch eating bon-bons … Continue reading

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    • This is the latest Compensation & Pension (C&P) Clinicians Guide dated 20180719. The only other one I've seen is dated 2002, including the one on this website and the VA website. I got this from my claims agent, who got it from the VA.

      VA Compensation & Pension (C&P) Clinicians Guide 2 Final Corrected 20180719.pdf
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    • I don’t say thank you enough to all of you...
      You, yes you, are the reason HadIt.com has remained a resource-rich resource. Thousands come each month to read, ask questions, or to feel a sense of community.

      Last month June 2020, we over 50k visitors they viewed over 160k pages. Veterans and their advocates, spouses, children, and friends of veterans come looking for answers. Because we have posts dating back 15 years and articles on the home page, they usually can find an answer or at least get pointed in the right direction.

      You all made that possible. Thank you.
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    • VA has a special where we can ask questions TODAY, at 3:00 to "people that matter?"  Someone should ask why we can not ask them questions EVERY day, why today only? (This is a big problem with VA..the 800 number often does not give specific answers).  We should have people in VA who "solve Vets problems" like Allison Hickey did a few years ago. 
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    • The 5, 10, 20 year rules...



      Five Year Rule) If you have had the same rating for five or more years, the VA cannot reduce your rating unless your condition has improved on a sustained basis. All the medical evidence, not just the reexamination report, must support the conclusion that your improvement is more than temporary.



      Ten Year Rule) The 10 year rule is after 10 years, the service connection is protected from being dropped.



      Twenty Year Rule) If your disability has been continuously rated at or above a certain rating level for 20 or more years, the VA cannot reduce your rating unless it finds the rating was based on fraud. This is a very high standard and it's unlikely the rating would get reduced.



      If you are 100% for 20 years (Either 100% schedular or 100% TDIU - Total Disability based on Individual Unemployability or IU), you are automatically Permanent & Total (P&T). And, that after 20 years the total disability (100% or IU) is protected from reduction for the remainder of the person's life. "M-21-1-IX.ii.2.1.j. When a P&T Disability Exists"



      At 55, P&T (Permanent & Total) or a few other reasons the VBA will not initiate a review. Here is the graphic below for that. However if the Veteran files a new compensation claim or files for an increase, then it is YOU that initiated to possible review.



      NOTE: Until a percentage is in place for 10 years, the service connection can be removed. After that, the service connection is protected.



      ------



      Example for 2020 using the same disability rating



      1998 - Initially Service Connected @ 10%



      RESULT: Service Connection Protected in 2008



      RESULT: 10% Protected from reduction in 2018 (20 years)



      2020 - Service Connection Increased @ 30%



      RESULT: 30% is Protected from reduction in 2040 (20 years)
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Jamezam

Advice requested...

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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      Subscribe here https://community.hadit.com/subscriptions/
      • 1 reply
    • VA has a special where we can ask questions TODAY, at 3:00 to "people that matter?"  Someone should ask why we can not ask them questions EVERY day, why today only? (This is a big problem with VA..the 800 number often does not give specific answers).  We should have people in VA who "solve Vets problems" like Allison Hickey did a few years ago. 
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    • The 5, 10, 20 year rules...



      Five Year Rule) If you have had the same rating for five or more years, the VA cannot reduce your rating unless your condition has improved on a sustained basis. All the medical evidence, not just the reexamination report, must support the conclusion that your improvement is more than temporary.



      Ten Year Rule) The 10 year rule is after 10 years, the service connection is protected from being dropped.



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      At 55, P&T (Permanent & Total) or a few other reasons the VBA will not initiate a review. Here is the graphic below for that. However if the Veteran files a new compensation claim or files for an increase, then it is YOU that initiated to possible review.



      NOTE: Until a percentage is in place for 10 years, the service connection can be removed. After that, the service connection is protected.



      ------



      Example for 2020 using the same disability rating



      1998 - Initially Service Connected @ 10%



      RESULT: Service Connection Protected in 2008



      RESULT: 10% Protected from reduction in 2018 (20 years)



      2020 - Service Connection Increased @ 30%



      RESULT: 30% is Protected from reduction in 2040 (20 years)
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