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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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    • 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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Berta

Mandamus petition dismissed, Claim granted

Question

Posted (edited)
Case Number:20-3907 Docketed: 06/05/2020
Luis Negron-Ortiz v. Robert L. Wilkie
Appeal From: Department of Veteran Affairs
Fee Status: dfh

 

"On June 5, 2020, the petitioner, Luis Negron-Ortiz, through counsel filed a petition for extraordinary relief in the form of a writ of mandamus compelling the Secretary to take immediate action to implement a December 6, 2019, Board of Veterans' Appeals decision that granted a disability rating of 20% for right and left lower extremity diabetic peripheral neuropathy and a 70% disability rating for post-traumatic stress disorder (PTSD), both throughout the claim period, and a total disability rating based on individual unemployability from January 1, 2009; and remanded the issue of entitlement to an effective date for PTSD earlier than May 30, 1997. Petition at 1-2, 8; Appendix at 9-18. The Secretary responded to the petition on June 18, 2020, and asserted that a VA regional office issued a rating decision on June 15, 2020, implementing the awards. Secretary's Response at 2-4. Later the same day, the petitioner filed an unopposed motion to voluntarily dismiss the petition. Motion at 1. Accordingly, it is ORDERED that the petitioner's June 18, 2020, motion is granted. It is further ORDERED that the petitioner's June 5, 2020, petition for extraordinary relief in the form of a writ of mandamus is DISMISSED."

https://efiling.uscourts.cavc.gov/cmecf/servlet/TransportRoom?servlet=CaseSummary.jsp&caseNum=20-3907&incOrigDkt=Y&incDktEntries=Y

Maybe the petitioner sent a copy of this writ to the VARO---I cannot tell if that caused the RO to act swiftly on his claim or not-

and I assume he still has an EED claim still open. Very unusual to see this type of situation.The veteran, upon receipt of the award ( this also was a hardship case) correctly filed the Motion to dismiss the Writ.

 

 

Edited by Berta
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Thank you for posting this, Berta.  Its helpful, because knowledge is power.   

The problem I see is this:  This gives the RO "carte blanche" authority to simply ignore BVA (or CAVC orders) and simply not implement them unless the Veteran complains.  

Even when the Veteran complains, those complaints obviously fell on deaf ears.  

Of course, the worst part is a denial of this writ so that VARO is free to repeat the procedure, with no fear of a writ being granted.  

Quite simply, its inefficient, irresponsible, and down right unacceptable performance by the VARO which, the court simply turns a blind eye to by dismissing the writ.  In this instance, the dismissal of the writ was unopposed, but, Im not sure this is in all Veterans best interest.  

As far as I know, a Writ is "the only" way we can get a stubborn RO to do things they are required to do, and that, was only effective for THIS Veteran.  

The next Veteran the VARO does this to,  may not have an attorney at his disposal to file a writ, and few Veterans have the skills needed to file a writ.  Instead, I would like to force VARO to compliance on a wide scale.  We should not have to "beg" the VARO to comply with BVA/CAVC remands.  

This puts the burden "on the Veteran" for irresponsible and unacceptable VARO behavior, over  which the Veteran has no control.  

Instead, the burden "should be on the VARO" to implement.  They should be given a real time limit, and be fully expected to comply in the entirety..and answer and be held accountable, if they fail to comply.  

This is another example of "lack of accountability" here, where the court simply turns a blind eye to this, instead of actually compelling the VARO to do their job when they have failed to do so.  

After a Veteran weaves his way through a complex application and appeal process, and wins his benefits, the burden of implementing these timely should be on the VA, not on the Veteran.  

This dismissal switches the burden "to the Veteran"..to force the VARO into compliance.  Without a doubt, Veterans are forced to comply with VA regulations, and, indeed, the VARO needs to be compelled into complaince and to be held accountable when they fail to do so.  

Thanks for letting me vent.  

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Posted (edited)

Interesting case  I need to keep this and watch this to see what they do with his EED.

I COULD BE WRONG BUT HAD HE NOT FILED THE WRITE  THINGS MAY HAVE HAD A DIFFERENT OUTCOME.

SOMETIMES , NOW  I   AM JUST GUESSING ON THIS BUT WHEN A VETERAN OR HIS ATTORNEY FILES A WRIT,   THAT SEEMS TO MAKE THE VA TAKE MORE ATTENTION AND SOLVE THE VETERANS CLAIM  AND HAVE THE WRITE DISMISSED

''writ of mandamus is DISMISSED."

Edited by Buck52

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  • Our picks

    • 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)
      • 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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