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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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    • 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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      Our traffic is going up and so are our expenses, however revenues have gone down and so I am reaching out to you to see if you can help me keep Hadit.com up and running.
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    • https://community.hadit.com/searching-for-va-claims-information-on-hadit.com/

       

      Your question has probably been asked before so the fastest way to find the information you need is to search for it.
      • 3 replies
    • How to get your questions answered...


      All VA Claims questions should be posted on our forums. Read the forums without registering, to post you must register it’s free. Register for a free account.

      Tips on posting on the forums.

      Post a clear title like ‘Need help preparing PTSD claim’ or “VA med center won’t schedule my surgery” instead of ‘I have a question’.


      Knowledgable people who don’t have time to read all posts may skip yours if your need isn’t clear in the title. I don’t read all posts every login and will gravitate towards those I have more info on.


      Use paragraphs instead of one huge, rambling introduction or story. Again – You want to make it easy for others to help. If your question is buried in a monster paragraph there are fewer who will investigate to dig it out.


      Leading to:

      Post clear questions and then give background info on them.

      Examples:

      A. I was previously denied for apnea – Should I refile a claim?


      I was diagnosed with apnea in service and received a CPAP machine but claim was denied in 2008. Should I refile?



      B. I may have PTSD- how can I be sure?

      I was involved in 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 from your claim?” etc.

      Note:

      Your firsts posts on the board may be delayed before they show up, as they are reviewed, this process does not take long and the review requirement will be removed usually by the 6th post, though we reserve the right to keep anyone on moderator preview.

      This process allows us to remove spam and other junk posts before they hit the board. We want to keep the focus on VA Claims and this helps us do that.
      • 2 replies
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Harvey Ryan

Proper Form to Use for Submission of a C.U.E. Claim

Question

Hello all,

My name is Harvey Ryan.  I'm an Air Force veteran, rated at 100%.  I could really use some help.  I've been attempting to submit a Request for Revision concerning an Earlier Effective Date for Service Connection for Migraine Headaches based on a C.U.E.  I don't know what form to use.  I was granted service connection for migraines with an effective date of December 2009 (the decision was made back in 2015).  It was based on newly discovered service records that I'd been arguing were present for 15 years.  The decision was made in my favor, however, they didn't consider the claim back to the original denial, which was June of 1993.  My argument is based on the following:  "38 CFR 3.156  Section (c) , as is outlined in M21-1MR Section 2a and 2d.  CFR 3.156 Section (c): This exception deals with newly discovered service department records or records that existed at the time the VA made its decision and simply did not associate with the claim.  If the claim was denied previously, but then granted on records which have recently been discovered, the regulation requires that the VA consider an effective date back to the time of the previously denied claim."  In the decision letter, the effective date was only given to the date of 'receipt of my claim to reopen': .   “In light of the evidence, an evaluation of 50 percent is assigned from December 14, 2009, the date of receipt of your claim to reopen your claim for service connection.”   My argument is, because the regulation was NOT properly applied (direct contradiction to the mandate of evaluating from the date of the original denial, when all prerequisites outlined in 38 CFR 3.156 Section (c) are satisfied), it triggered my ‘Request for Revision’ due to the presence of an alleged CUE.  I have included all supporting documentation in my file, however, I don't know what form to use to submit a C.U.E. claim.  

Some of the research I've done says to use the 20-0996 for Higher Level Review.  If my interpretation and understanding is correct, that form is only used when the decision has been within the last 12 months.  I also saw form 20-0995 mentioned for a Supplemental Claim.  My interpretation of that form is when there is new evidence to present.  My claim is based on a C.U.E., but no new evidence...so you can see my dilemma.  If anyone can offer some assistance, I'd greatly appreciate it!  Thanks to you all for your service to our country.

Regards,

Harvey Ryan

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If you have no new evidence and you want the decision reviewed De Novo, then you use the -0996. 

 

CAS

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Great question, Harvey, and welcome to hadit. 

    Based on what you posted, I agree that, if the VA denied you, then you submitted "new service records", you should get the earlier effective date.  But there are some catches, too.  You need to read "all" of 3.156, because there can be "gotcha's" in there.  "Gotcha's" are in BOLD.  

    I remember a discussion on this very issue.  Im not sure VA even agrees on which form to use for a CUE.  The VA does not have a seperate CUE form.  The consensus was to use either a 21-4138 or a Supplemental claim form.  

    I will try to find the link for you.  

    There are "at least" 2 types of CUE.  

1.  Cue on a claim finally adjuticated.  This means a claim adjuticated "more than a year" ago which has not been appealed AND, has not been reopened with new evidence.  

2.  Cue on a claim which is not final.  Berta is good at these.  Generally, you can appeal a claim under a year ago by filing a nod, but, there is some chance that your Cue will fly and get you benefits sooner than an appeal would.  

     I wont go into Cue on BVA appeals at this time.  But that can happen also.  

     

      

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Posted (edited)

I humbly disagree that a 0996 should be used to file CUE.  But the form is here, so read the directions yourself:

https://www.vba.va.gov/pubs/forms/VBA-20-0996-ARE.pdf

   The following directions with the 0996 is why I dont recommend them for use with CUE:

Quote

Use this form to request a HIGHER-LEVEL REVIEW of the decision you received. A HIGHER-LEVEL REVIEW is a new review of an issue(s) previously decided by the Department of Veterans Affairs (VA) based on the evidence of record at the time VA issued notice of the prior decision. The higher-level reviewer WILL NOT consider any evidence received after the notification date of the prior decision. This form must be submitted to VA within one year of the date VA provided notice of our decision. For additional information on the HIGHER-LEVEL REVIEW process or a list of review options that allow VA to consider new evidence and how to file, visit https://www.va.gov/decision-reviews

As I underlined, you have gone over a year, so the HLR form should not be used.  CUE can be filed anytime, HLR must be filed within a year.  

Based strictly upon VA's "directions", above, you "could" use an HLR (0996), but only if you are filing a "type 2" Cue, which I described in the previous post.  That is, if your claim decision was in the past year.  You indicated that was not the case.  

      All this "assumes" who ever wrote the directions for the HLR "knew what they were doing", and that is not always the case!!!  But we should be able to follow the directions VA has with the form!!!

Edited by broncovet

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Thanks for the replys.  I did find that the 0996 was denied due to more than a year.   Broncovet...my claim fits the first option you mentioned: "1.  Cue on a claim finally adjudicated.  This means a claim adjudicated "more than a year" ago which has not been appealed AND, has not been reopened with new evidence."    Would it be a good idea to submit with both the 0995 AND the 21-4138 just to cover all bases?  I have spent a lot of time going over 3.156 to look for all of the 'gotchas.'  Do you have any specific ones that you would advise to pay particular attention to?  Thanks again for your help and assistance.

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Posted (edited)

Some here have suggested CUE be filed on a 21-526 EZ form-

We have had some successful Cuerinos, here ,after the March 2015 date changes, who used- I think, the 21-526 EZ.

As a widow I had to file 2 CUEs on the new survivors accrued forms.

Please go over my templates for CUE claims here carefully.

Cue is not technically a claim, it is as the BVA has said, a 'frontal assault' on a VA decision.

As a tactical warfare student, I LOVE that description and practice enfilading fire power- meaning I make it perfectly clear , as briefly as I can how they made a clear and unmistakable error to my detriment.And I add the regulations they broke.I surround them with Evidence.

Legal evidence only -for CUE.

In my pending CUES,I even went through years of older VA rating schedules so I could tell them  with my mathematical  facts, how much they owe me.

I did that on my AO HBP claim as well.

This is an important thing I mentioned here before but it bears repeating.

A surviving spouse MUST file within one year after the veteran spouse's death to get the best EED possible for a DIC claim, and also for an accrued claim.

An accrued claim arises from continuing a veteran's claim that was pending at death.

The only Exception to that Is a Nehmer claim, and also Blue Water Navy claims, that are granted due to AO exposure per HR 299 - available here in our AO forum.

A survivor can still succeed on DIC , if they file after that one year has passed,  but the EED will not be back to the date of the veteran's death.

However, if not a  Nehmer claim, or BWN AO claim,  where the surviving spouse filed after the one year following death, it  will NOT

                                  be accepted as a valid by the VA.They will deny it- 

"In this regard, the RO also denied the Appellant’s claim, in part, because her claim for accrued benefits, received in January 2016, as well as a claim for substitution, received in April 2016, were not timely in that they were not received within the one year period after the death of the Veteran’s surviving spouse in November 2014. After the death of a claimant, if there was a claim or appeal pending at the time of death, then an eligible person may apply for accrued benefits, as discussed above. Alternatively, where the claimant at issue died after October 10, 2008, as in this case, an eligible person may apply to be a substitute claimant in order to complete processing of the claim or appeal and obtain benefits. See 38 U.S.C. § 5121A; 38 C.F.R. § 3.1010 (a).

In either case, the application must be received within one year after the death of the claimant, and the applicant must be an eligible person. Id. An application to be a substituted claimant also may only be made by a person eligible for accrued benefits under 38 C.F.R. § 3.1000 (a). 38 C.F.R. § 3.1010 (a)."

https://www.va.gov/vetapp19/files1/19103890.txt

This was not a Nehmer claim.

When I get time I will repeat this in our DIC forum again as I notice many 'guests' read that forum .

 

 

 

 

 

 

Edited by Berta
typo

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  • Similar Content

    • By MAC64
      Hello Defenders of freedom!
      I have a question pertaining to this denial for headaches. The decision letter is quoted below. 
       
      3. Service connection for headaches.
      "We may grant service connection for a disability which began in military service or was caused by some event or experience in service.
      Your STRs are negative for any treatment of or diagnosis of headaches. On your post-deployment exam in 2005 you denied any headaches. On separation, you denied any headaches. VA treatment records are negative for any treatment of or diagnosis of headaches. On VA exam, the examiner stated there was no evidence of any residuals of a traumatic brain injury.
      We have denied service connection for headaches because the evidence of record fails to show this disability was incurred in or caused by military service."
      From my understanding these 3 points must be overturned to successfully win a CUE case:
       (1) either the correct facts, as they were known at the time, were not before the adjudicator or the statutory or regulatory provisions in existence at that time were incorrectly applied; 
      (2) the error must be undebatable and of the sort which, had it not been made, would have manifestly changed the outcome at the time of the prior determination
      and (3) a determination that there was CUE must be based on the record and law that existed at the time of the prior adjudication in question.  
      @Berta, or veterans out here who have knowledge/experience, tell me what facts you think would be needed to prove this denial for headaches was an error? 
    • By OldJoe
      Thought it best to start a new post since my other one had become so long and probably fairly confusing with all of the twists and turns that my claim has taken. 
      It seems as though the VA is about to deny my NoD for my knees (or has I guess since the DAV rep told me about the Dr opinion).  Should have seen this coming a mile away when the nurse practitioner wrote the nexus connecting for my knees to my back.  I just called her office this morning explaining that I needed a Doctor to basically endorse what she wrote so I could resubmit it. 
      In short I interpret this as they simply got a Dr to opine their stance and since a Dr out ranks a nurse practitioner so the VA specialist's word stands.  The DAV from St Louis also mentioned that from the VA that in the Dr's opinion there isn't any medical evidence to support the claim (a quick google quickly proves otherwise, but I know this doesn't mean a hill of beans in their eyes).
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      My CUE; well after faxing material to Mr. Spickler's office evidently they routed it for a DRO review (included all pertinent documents).  My CUE concerns the fact that they used the information in my SMRs to approve me for my back that they had in their possession at the time of my original claim back in 1997.  My CUE claim is basically a textbook case of what a CUE should look like and how it should be decided.  Instead they didn't even wait for the ink to dry before they denied it (actually couldn't have sat on the raters desk more than a week, this includes time in inbox).  Since I had the other in RAMP I went and had this converted over to RAMP as well.  My thinking is that if they are going to deny me under a DRO review then they might as well deny me quicker under RAMP instead of waiting 6 months to a year.
      If you are interested in reviewing the past history of my ongoing claim (now in appeal status) you can find it here (be forewarned it is long and can be quite confusing, though you might glean a few things of what not to do):
       
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      In 2010 while I was on active duty training I was hospitalized for a month. For walking-pneumonia, pneumothorax, hemothorax ,decortication and thoracotomy. I had 3 major surgeries in 48 hours, 2 blood transfusion, placed in a chemically induced coma and placed on a ventilator and life support. I spent two weeks in ICU. While recovering I had to re-learn how to eat, talk and walk. I some how turned into a vegetable. With this being the first time I've every had to go to the hospital I was traumatized by the visit. At the time I was 19. Since this was ADT, and not AD a LOD was done and found "NOT IN THE LINE OF DUTY." "NOT DUE TO OWN MISCONDUCT." Because I was receiving treatment before going on active duty. I was doing Honor Guard for deceased veterans. When the funding became available I was placed on an ADT status. 
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      I have been filling for asthma since I returned home from Afghanistan. At the C&P exam I did when I first filled back in 2011, the decision letter stated "The provider referred to a period of inactive duty."  Service connect was denied. Which was a true state, but the provider never mention any of the incidents I had while on active duty in Afghanistan. With that a CUE claim has been filed and I now had another C&P exam coming up. I had PFT test done then and I had one done today. My question is which one will they use, and what if i run in to the same situation at the C&P exam. I have been on an albuterol inhaler since Ive been back I still continue to cough up phlegm and i constantly get respiratory infections. Im still always short of breath to where it affects my daily activates. It has gotten to the point where I become depressed because I'm not able to have fun with my two boys, as any father would and having to explain to them why I can't  run or why I can't wrestle with them is heartbreaking. Any advice would be helpful!
       
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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)
        • Like
      • 4 replies
    • Wonderful news way to hang in. I hope this gives you some well deserved peace. 
    • If HadIt.com has helped you or you believe in it’s mission then please donate even $1 helps. I hope HadIt.com has provided $1’s worth of help to you. Imagine waking up and there is no HadIt.com it could happen and that is why I’m asking for your help now.



       



      Our traffic is going up and so are our expenses, however revenues have gone down and so I am reaching out to you to see if you can help me keep Hadit.com up and running.
      • 4 replies
    • https://community.hadit.com/searching-for-va-claims-information-on-hadit.com/

       

      Your question has probably been asked before so the fastest way to find the information you need is to search for it.
      • 3 replies
    • How to get your questions answered...


      All VA Claims questions should be posted on our forums. Read the forums without registering, to post you must register it’s free. Register for a free account.

      Tips on posting on the forums.

      Post a clear title like ‘Need help preparing PTSD claim’ or “VA med center won’t schedule my surgery” instead of ‘I have a question’.


      Knowledgable people who don’t have time to read all posts may skip yours if your need isn’t clear in the title. I don’t read all posts every login and will gravitate towards those I have more info on.


      Use paragraphs instead of one huge, rambling introduction or story. Again – You want to make it easy for others to help. If your question is buried in a monster paragraph there are fewer who will investigate to dig it out.


      Leading to:

      Post clear questions and then give background info on them.

      Examples:

      A. I was previously denied for apnea – Should I refile a claim?


      I was diagnosed with apnea in service and received a CPAP machine but claim was denied in 2008. Should I refile?



      B. I may have PTSD- how can I be sure?

      I was involved in 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 from your claim?” etc.

      Note:

      Your firsts posts on the board may be delayed before they show up, as they are reviewed, this process does not take long and the review requirement will be removed usually by the 6th post, though we reserve the right to keep anyone on moderator preview.

      This process allows us to remove spam and other junk posts before they hit the board. We want to keep the focus on VA Claims and this helps us do that.
      • 2 replies
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