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  • Trouble Remembering? This helped me.

    I have memory problems and as some of you may know I highly recommend Evernote and have for years. Though I've found that writing helps me remember more. I ran across Tom's videos on youtube, I'm a bit geeky and I also use an IPad so if you take notes on your IPad or you are thinking of going paperless check it out. I'm really happy with it, I use it with a program called Noteshelf 2.

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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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    • So, my lawyer sent an IME w/ IMO and filed a supplemental claim solely for IU on March 20.

      It was closed on March 25, and va.gov just states claim closed and nothing more.

      Hopefully, I get good news.
    • Thanks for the responses. I am filing a new claim but will continue pushing the NOD. My new question is it stated in law or statute that if during the claims process the VA finds conditions that could possibly rate service connection that was not originally filed for, the VA will “invite” the veteran to file the claim on the claims form. Reason I ask is that my private DBQs, NEXUS letter, and even the VA nurse examiner's DBQs lists bilateral upper radiculopathy as present. If it is written in statute or official guidance it might qualify as a CUE. Just looking at all angles. 
    • Everyone needs to read our stories so they can try to avoid these screws by the va...
      Thank you, everyone contributes, good or bad, all of our stories will help others, and yes, they have been stated by others for ages, over and over, but we just get depressed, and the time turns into years as they screw us..

      Welcome to the department of Veterans Affairs!  I can honestly say, "been there, done that".  

      Even after winning my tdiu in 2017, it was back to the drawing board as VA hornswaggeld my effective date.  (but of course).  

      I finally won my tdiu effective date in Feb. 2020, 18 years after I first applied!!!  

      Here is how they managed to drag mine out 18 years:

      1.  They never adjuticated my decison until 2009, where they called it "moot".  

      2.  I appealed, said it was not moot because it could result in an earlier effective date and SMC S under Bradley vs Peake.  The judge agreed with me, and ordered VARO consider me for extra schedular TDIU, under 4.16 b.  

      3.  The VARO piddles with  the remand for 3 years, and hoped I wouldnt notice.  I noticed and raised cane until they adjuticated it.  (denied of course).  

      4.  Finally, after the baord denied again, I hired a lawyer, in 2014, and appealed to CAVC.   

      5.  The lawyer won a remand, got an IMO and I won tdiu in 2017.  But at the wrong effective date, even after 15 years.  

      6.  I hired another lawyer, Chris Attig, and appealed the effective date, and he won a remand for effective date.  Trip 2 to CAVC.  

      7.  Mr. Attig won a remand, and advised me to get another IMO.  

      8.  The board awarded my earlier effective date in Feb. 2020.  

           So, I do have advice fighting VA for TDIU, they fought and fought and I hung in there and won it all.  

      ADVICE:  Dont count on VA, they could easily throw your fax in the trash.  Follow up!  
    • "Keep in mind that due to the nature of the digestive system, VA would most likely combined your conditions and pay you at the higher rate to avoid pyramiding".    That is one of my main gripes.  They are only listing the GERD with hiatal hernia and ignoring the rest of my gastric issues such as the gastritis which I also had in service.  I included it in my 2007 request for increase and again in 2019.  The info from the civilian dr that stated I had the gastritis with H pylori was not even provided to the examiner in 2007, nor did he have my VA health records. The 2019 request was based on an EGD I had AT THE VA in Jan 2019.   I filed for an increase 6 Mar and they did an ACE on 27 Mar and downgraded to noncompensable on that date.  The only reason I was thinking CUE:  38 CFR § 3.326 - Under Examinations  it states (c) Provided that it is otherwise adequate for rating purposes, a statement from a private physician may be accepted for rating a claim without further examination".  
    • Enough has been said on this topic. This forum is not the proper forum for an attorney and former client to hash out their problems. Please take this offline
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Question

Hello Everyone:

I found this site a few months ago and have been reading.  I finally bit the bullet to sign on.

I would like to ask @Berta and @broncovet if VARO from the VA Regional Office could give medical opinions in the decision letters?

 

I received a decision letter that specifically stated, "The Veteran's private medical records from Dr. (name) shows a diagnosis of (disability) dated (date) "Therefore, it is the opinion of this reviewer that the Veterans (disability) is less likely than not (less than 50% probability) incurred in or caused by the injury or complaints during the service."

The nexus from the Dr. was more than likely.

Please I would appreciate any help with understanding this from the VARO stating the medical opinion.

Thank you in advance!

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Posted (edited)

Welcome to hadit!  You have landed in the right place!  

It sounds like VA has done a dirty trick to you, and I may mention you are not alone.  About 80 percent of the appeals which reach the BVA are granted, or remanded due to one or more VA errors.  Only 20 percent are denied again.  

Its amazing how the VARO turned a favorable nexus "at least as likely as not related to an inservice event" into an unfavorable one.  

This isnt the only time this has happened, however!  

In Cushman vs Shinseki, the court found the VA altered the Veterans record in order to make the evidence less favorable to the Veteran.  

https://caselaw.findlaw.com/us-federal-circuit/1346393.html

I think you have 2 choices, and, you can actually do both!

1.  File a CUE disputing the facts, submitting the correct exam report.  

2.  Importantly, if this CUE is not decided within 11months and 2 weeks, then file a nod.  

     Berta is the CUE expert, and she usually cites 38 CFR 4.6, but this is cue error is criteria number 2 in CCK Law's explanation of CUE critieria.  

https://cck-law.com/blog/cue-claims-how-to-challenge-a-final-decision/

     In other words the "facts were incorrect".  

CCK law recommends caution in filing CUE, and I reiterate that.  Berta has done very well with CUE, and perhaps she will chime in. 

     My recommendation would be NOT to file a Cue at this time, but instead file an appeal.  You could do the SCL (I think you should submit the correct and favorable exam report as new evidence..but that could backfire if VA already has that as evidence.)  Best is if you get a copy of your cfile and see if the correct exam is in there.  You could view your VBMS file in a VSO's office (should he permit you to view the file) and see if the evidence is there.  

      Its my opinion, however, that you should skip SCL, and go directly to a BVA appeal.  I cant advise "which" BVA appeal, tho, as its unclear if you need "new evidence" or if the VA just cant read.  (BVA appeals can be done with or without new evidence).  

    

       

    

Edited by broncovet

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FaithIsAChoice Bronc's advise I also think is correct. You were done wrong. Period. Good job by you. I come to the same conclusion. You could appeal using HLR. It would be quicker; the VA just made a CUE, and if the DRO has his stuff together, he would change the decision in your favor. Unfortunately, that doesn't always work. You could still try that avenue, and if it were denied, then go BVA route. Or, you could just skip the HLR and go to BVA. It will take longer, but much more likely result in a win for you. If not in a hurry but just want to get it right, go BVA IMO.

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Posted (edited)

 Thanks for joining -I have a far different opinion on what you posted.

Did the independent medical opinion conform to the IMO/IME criteria here at hadit?

for example-

"The nexus from the Dr. was more than likely"-

Did the IMO doctor base that on entries in your SMRs and/or 201 inservice personnel file, with a full medical rationale?

Did this doctor have expertise in area of the disability that fully outweighed the C & P examiner?

Or was this a MH issue and the VA needed more proof of the inservice event, accident,  etc etc, that caused the MH disability?

If the IMO was due to a prior C & P exam, that denied the claim, did the IMO/IME doctor have a copy of the exam and did he/she clearly point out the medical errors in the C & P exam?

CUES are found in the way decisions are worded, and/or  in the Evidence List, and often on the rating sheets.

Can you scan and attach the decision here, with the Evidence list,

and a copy of the IMO/IME?

Redact names and C file # prior to scanning it.

I have seen many " as likely as not" statements , from doctors , for over 2 decades, that do not advance the claim because the IMO/IME is deficient, or because the nexus the veteran  claimed, has not been proven.

Just yesterday I think I mentioned that my husband went to the Newark VA to try to get a business loan.1983

A few hours later he was diagnosed with PTSD by the Director who prepared a Buddy statement for him.

Due to a flashback, he had to wait in a small room and expected to be arrested.

Another Vietnam vet came in too and they started to talk-and my husband revealed a horrific event he had volunteered for in Vietnam. The other vet started to pump him for details of it.

The other vet then said, I have to be honest with you- I am the Director of this hospital but I was there as a VA psychologist, to treat those who did this job -some who had an immediate severe reaction to it.No one but those who were there could possibly know those details.

He was not arrested and apologized profusely to the Oriental VA employee he tried to choke. The director got someone to write the claim, for PTSD and the Director immediately prepared a buddy statement as an eye witness account, and of course this terrible event was all verified in my husband's unit history.And in the National News back here .A few month later (1983 )he got an award letter for SC PTSD and he didnt know what PTSD was and the director told him to go to a vet center , and that is where I met him- I was a VA vet center volunteer.

Things like that do not happen often at all.

Your claim might well need a buddy statement or even more than one.I have no idea what it needs but the decision will reveal that.

My point is that "More than likely" is a nuanced phrase, and not an eyewitness account. It was the only good thing VA ever did for my husband-  to get a diagnosis and buddy statement from the VA within hours  and then to get to the Vet Center. Also the VA contacted him about a Veterans Job Fair and he was immediately hired by a large company due to his work history.

PHVAC Operator and Nuclear Power Plant Equipment Operator .

When we relocated and he worked at the local VAMC, that is when his claims issues and everything else ,to include proper medical care, went downhill.

 

My point is that the IMO/IME  has to be enhanced by documented medical facts.As well as by abstracts and treatise excerpts in some cases.

 

If you paid money for the IMO/IME and it does not conform to the IMO/IME criteria that VA will accept, maybe you should contact the doctor for more details to bolster the IMO.Or get a better IMO/IME.

But you will still need a proven inservice nexus-

then again I am guessing here about everything . but knowing nothing factual, 

and once we see the decision, the Evidence list, and the IMO/IME- we can advise better.

I see no basis for CUE, at this point.

 

 

 

 

 

 

 

 

 

 

 

Edited by Berta
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Posted (edited)

I agree with Berta...we dont know if the nexus "meets VA's criteria" or not.

I made a mistake of assuming the nexus was valid, but that was an incorrect assumption, because I have not read the nexus.

If the nexus was deficient, then you will need a valid nexus for your claim to succeed.  This is, in no small part why I suggested, "it would be best if you got a copy of your cfile".  The nexus exam should be in it.  If you have access to the exam, the VA seems to have different standards for their own doctors or their contractors, then they do if we hire a doctor Independent Medical Opinion.  

Your nexus needs:

1.  You have to demonstrate the doctor is competent to opine.  He needs to show expertise in the applicable field, usually by submitting the doctor's CV detailing his medical training and experience.  He is basically acting as an "expert witness" and he has to show expertise to be an expert, such as Board certifications, etc.  

2.  If this is an IMO, then the doctor needs to state "he reviewed your records".  

3.  He needs to provide the nexus statement in a way the VA understands.  It "may" or "could be" connected to service is insufficent.  He needs to say its "at least as likely as not" connected to an in service event.  

4.  He has to give medical rationale as to why he made this opinion.

     If any of these things are missing or insufficent, your nexus wont fly.  

Edited by broncovet

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Posted (edited)

I will bump up the IMO IME criteria  in our IMO forum-

it is on page 6 of that thread.

 

Edited by Berta
in cloud

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    • By TropicLightning125
      First I'd like to thank all of you for the great assistance you provide! I'm a long time lurker but finally created an account to post this question to the experts today.
      Background:
      - Discharged from active duty in September 2000
      - Participated in a "VA Pilot Program" where you sat with a VA clerk during out-processing to determine any potential disability claims, which were then submitted by the clerk for you.
      - In Jan 2001, received a decision letter with the following rating, back dated to my date of discharge: "Service connection for degenerative disease of low back has been established as directly related to military service. An evaluation of 10 percent is assigned under diagnostic code 5293. An evaluation of 10 percent is assigned if there are mild symptoms associated with intervertebral disc syndrome."
      Fast forward to 2018. I experienced a herniated L4-L5 disc and had a (mostly unsuccessful) discectomy . I applied for an increase for my Degenerative Disease of the lower back and for radiculopathy of the sciatic nerve in both legs. My claim was closed in October 2019 with no increase for the Degenerative Disc Disease (a story for another time, but a bad C&P was involved and I've already filed a supplemental), and new secondary ratings for the radiculopathy: 10% Left Leg and 10% Right Leg back dated to my 2018 surgery and the right leg increased for some unknown reason to 20% on the date of my (bad) C&P exam in August 2019.
      My question:
      In reviewing my original 2000 claim decision letter today, I found this statement listed under FACTS: "MRI findings have revealed degenerative changes and degenerative disc disease of the lumbar spine. EMG studies have revealed mild chronic recurrent L-4 root irritation."
      Keep in mind, at the time of discharge I was only rated for the Degenerative Disc Disease, not any leg/nerve issues, though it is clear from my Service Medical Records I also had recurring leg pain and numbness.
      Is it odd that they literally called out the EMG results in my rating decision but did not grant an award for Sciatic Paralysis/Neuralgia/Radiculopathy back in 2000? Based on the current schedule (http://www.militarydisabilitymadeeasy.com/lowernerves.html) I think the "mild chronic recurrent L-4 root irritation" would have granted a rating of 10% for incomplete partial paralysis (8520) and/or neuralgia (8720). But...did these codes even exist back in 2000? I certainly was not aware or told that the nerve/leg pain was a separate rating. How would I even go about finding out if these diagnostic codes existed in 2000?
      In the event there was a rating available for this back in 2000, would this be something that would be eligible for a CUE? Obviously after almost 20 years I'm well outside the window to appeal the decision, but I feel the clear unmistakable evidence is right in the VA's own decision letter, and 20 years of an additional 10% rating makes this worth my time and energy.
      Thanks again for all you do!
    • By Sailorman
      On appeal, the BVA awarded me service connection for my left ankle, right ankle, and lower back strain.  Question, when they awarded me conditions was the VA required to review my other disables such as my right knee for an increase? The reason I ask, I am currently rated 10 percent for right knee disability but the regulations state if a veteran has multiply joints infected they will be rated 20 percent or higher. 
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    • So, my lawyer sent an IME w/ IMO and filed a supplemental claim solely for IU on March 20.

      It was closed on March 25, and va.gov just states claim closed and nothing more.

      Hopefully, I get good news.
    • Thanks for the responses. I am filing a new claim but will continue pushing the NOD. My new question is it stated in law or statute that if during the claims process the VA finds conditions that could possibly rate service connection that was not originally filed for, the VA will “invite” the veteran to file the claim on the claims form. Reason I ask is that my private DBQs, NEXUS letter, and even the VA nurse examiner's DBQs lists bilateral upper radiculopathy as present. If it is written in statute or official guidance it might qualify as a CUE. Just looking at all angles. 
    • Everyone needs to read our stories so they can try to avoid these screws by the va...
      Thank you, everyone contributes, good or bad, all of our stories will help others, and yes, they have been stated by others for ages, over and over, but we just get depressed, and the time turns into years as they screw us..

      Welcome to the department of Veterans Affairs!  I can honestly say, "been there, done that".  

      Even after winning my tdiu in 2017, it was back to the drawing board as VA hornswaggeld my effective date.  (but of course).  

      I finally won my tdiu effective date in Feb. 2020, 18 years after I first applied!!!  

      Here is how they managed to drag mine out 18 years:

      1.  They never adjuticated my decison until 2009, where they called it "moot".  

      2.  I appealed, said it was not moot because it could result in an earlier effective date and SMC S under Bradley vs Peake.  The judge agreed with me, and ordered VARO consider me for extra schedular TDIU, under 4.16 b.  

      3.  The VARO piddles with  the remand for 3 years, and hoped I wouldnt notice.  I noticed and raised cane until they adjuticated it.  (denied of course).  

      4.  Finally, after the baord denied again, I hired a lawyer, in 2014, and appealed to CAVC.   

      5.  The lawyer won a remand, got an IMO and I won tdiu in 2017.  But at the wrong effective date, even after 15 years.  

      6.  I hired another lawyer, Chris Attig, and appealed the effective date, and he won a remand for effective date.  Trip 2 to CAVC.  

      7.  Mr. Attig won a remand, and advised me to get another IMO.  

      8.  The board awarded my earlier effective date in Feb. 2020.  

           So, I do have advice fighting VA for TDIU, they fought and fought and I hung in there and won it all.  

      ADVICE:  Dont count on VA, they could easily throw your fax in the trash.  Follow up!  
    • "Keep in mind that due to the nature of the digestive system, VA would most likely combined your conditions and pay you at the higher rate to avoid pyramiding".    That is one of my main gripes.  They are only listing the GERD with hiatal hernia and ignoring the rest of my gastric issues such as the gastritis which I also had in service.  I included it in my 2007 request for increase and again in 2019.  The info from the civilian dr that stated I had the gastritis with H pylori was not even provided to the examiner in 2007, nor did he have my VA health records. The 2019 request was based on an EGD I had AT THE VA in Jan 2019.   I filed for an increase 6 Mar and they did an ACE on 27 Mar and downgraded to noncompensable on that date.  The only reason I was thinking CUE:  38 CFR § 3.326 - Under Examinations  it states (c) Provided that it is otherwise adequate for rating purposes, a statement from a private physician may be accepted for rating a claim without further examination".  
    • Enough has been said on this topic. This forum is not the proper forum for an attorney and former client to hash out their problems. Please take this offline
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