Become a Patron of HadIt.com. If you appreciate what we are doing and can afford a monthly commitment, this is a great way to support us
HadIt.com Veteran to Veteran Fundraiser
Revenues are down, costs are up and I need your help.
Give a financial gift to help with the upkeep of HadIt.com. HadIt.com is NOT a non profit. Gifts are not tax deductible, they are just gifts.
By Lolo Square Pants
Request to Reinstallation for Sleep Apnea and Low back condition claims
Back in January 2021, I received via mail a CD containing information to be used before the Board of Veteran Affairs for the MDD condition. I discovered VFW submitted a document on Jul/2011 where he withdraws the claims for Sleep Apnea and Low Back condition. This was the first time I learned about this document.
For the claim of Sleep Apnea, I hand-delivered favorable IMO to the Hearing officer in 2010 and at the time they had also an IMO for the Low Back Condition(2008) along with a full medical report from the same doctor.
After reviewing the CD and my paperwork, I asked the VA via phone on Feb/2021 about communications between July and September 2011. The VA representative emailed me a document dated 8/1/2011(attached) with multiple issues on it and an indication of; “We also withdrew all other issues on appeal as per your Veterans of Foreign Veterans letter dated and received July 2011".
I kept working on the claims throughout the years; these were done in two different RO and to all effects VA indicated that they were working on these claims as presented in their communications on Feb/2012 and Jun/2012.
Interestingly, for the latter communications, VA does not indicate a withdrawal of appeals nor that my claim is “reopened”. Finally, on Apr/2013, VA use different wording like “denied the reopening” since “Evidence no show event, Evidence not new. Claim not reopened. Not Substantive”. While still, VA did not evaluate IMO on the record.
Out of frustration, I did not further pursue these claims; until I received the CD in January 2021, and realize that my claims for Sleep Apnea and Low back claims were withdrawn without my consent in 2011.
Significantly, the VFW letter offers a conditional appeal, where indicates: (1) “As longer his appeals for increase in the other conditions…”, (2) “He would be satisfied with the decision made,” (3) “This withdraw does not mean…” Additionally, there’s an undated additional handwritten note in the printed proposal that indicated another “conversation” with the veteran.
As I learned under Warren v. McDonald, docket no. 15-0641 (Sep 14, 2016) it is, held: An appellant or his/her representative may withdraw an appeal, but unless the withdrawal is on the record at, it must be in writing. A withdrawal “is only effective where withdrawal is explicit, unambiguous, and done with a full understanding of the consequences of such action on the part of the claimant.”
I tried to get a hold of the VFW trough 12 emails (for 2 months) and multiples calls without success. I did change the VSO. Also, I wrote a letter detailing the events to the VA. Now the VA wants the request in a Form (20-0995). This form explicitly indicates that is to be used for “New and relevant evidence to submit for VA to consider”.
I request that my claims of Sleep Apnea (2008) and Low back(2005) be reinstated at their original claim date since they were worked continuously since their inception and there was evidence that were not evaluated. As today My sleep apnea is worse indicated in a VA Study in 2019 and had Spinal Fusion in Kentucky (2015).
I appreciate any help you can provide.
I have several questions which are at the end of my post, but here is some background information.
I got an email from CCK law firm with a link to this Youtube video. It indicates that the National Defense Authorization Act of 2021 was enacted and includes the three new AO presumptives: Bladder Cancer, Hypothyroidism, and Parkinson's-like symptoms (symptoms similar to Parkinson's without actually having a Parkinson's diagnosis).
My father served in Vietnam boots on the ground, non-combat, for one year and had a number of ailments arise over time both during and after service. He did file for one musculoskeletal disability in the early 1990s and won 10% SC, but nothing else. Whenever I asked him to consider filing new claims, he simply did not want to deal with it. I didn't question him, but brought the idea up periodically. Now, after many discussions, my father recently finally agreed to allow me to help him file new VA claims.
Here are the issues, some are AO-related:
Mental health, memory problems, antisocial behavior, and triggers related to hearing helicopters. This is in part related to AO/Vietnam, but also due to a head injury later in service. Head injury residuals due to a head injury later in service. Sleep impairment and daytime tiredness due to a head injury later in service and hypothyroidism. Digestive issues including heartburn, dysphagia, voiding dysfunction, and alternating constipation and diarrhea in part related to AO/Vietnam, but also in-service diagnosis of food poisoning, frequent gastroenteritis including hospitalization after drinking contaminated water Residuals of insect bites including Lyme disease due to numerous in-service treatments for chiggers and tick bites, including one describing circular formations. Nocturia, frequent nighttime urination (3+/night) Hypothyroidism due to to AO/Vietnam; He was repeatedly diagnosed with this years ago. Parkinson's like symptoms to AO/Vietnam including apathy, cognitive changes, early stage dementia, depression, fatigue, occasional hallucinations, problems swallowing, etc... Fortunately, he had not developed cancer.
My mother and I are working to write buddy letters to support each of the claims. She has letters, photographs, and even videos to help reinforce this.
Question: My father retired from the Army and has a 10% rating. If he happens to get 50% or more, would that mean he would get paid from both Army retirement and VA disability?
Question: Any recommendations or tips?
Question: Would he qualify under Nehmer?
Question: Under Nehmer, because he has never filed for any of these conditions, is there any chance for a backdated EED?
As you all know the recent Agent Orange Defense Dept Bill does not include HBP.
I found another recent HBP due to AO award at the BVA- there are more, and some I already posted here-
"In the December 2019 examination, the examiner provided a positive nexus for the Veteran’s hypertension. In support, she explained that according to medical literature, the Veteran’s hypertension is more likely due to his exposure to herbicides during service. She cited a news article that reviewed health impacts between Agent Orange exposure and hypertension. The Board finds this opinion to have probative value. While it was somewhat conclusory as it relies on the news article, the Board notes that it is the only opinion that addresses hypertension based on herbicides exposure. As such, the Board finds the opinion to have some probative value. Moreover, the Board notes that the National Academy of Sciences (NAS) has found that there is “limited or suggestive evidence of an association between” hypertension and exposure to herbicide agents (such as Agent Orange) based on a recent statistical study. See Determinations Concerning Illnesses Discussed in National Academy of Sciences Report: Veterans and Agent Orange: Update 2012, 79 Fed. Reg. 20308 (Apr. 11, 2014); see also 38 U.S.C. § 1116 (b) (2012). The category “limited or suggestive evidence of an association” means that the “evidence suggests an association between exposure to herbicides and the outcome, but a firm conclusion is limited because chance, bias, and confounding could not be ruled out with confidence.” Id. A more recent study by NAS released on November 15, 2018, indicates that “[t]he latest in a series of congressionally mandated biennial reviews of the evidence of health problems that may be linked to exposure to Agent Orange and other herbicides used during the Vietnam War found sufficient evidence of an association for hypertension.” NATIONAL ACADEMY OF SCIENCES, Hypertension Upgraded in Latest Biennial Review of Research on Health Problems in Veterans That May Be Linked to Agent Orange Exposure During Vietnam War (Nov. 15, 2018), available at: http://www8.nationalacademies.org/onpinews/newsitem.aspx?RecordID=25137." https://www.va.gov/vetapp20/files1/20007929.txt In this case the C & P examiner gave a probative statement to award the claim. It still was denied at the RO level. The veteran or their rep should have sent them the actual report-it could have been awarded at the RO level,if their RO can read. I have posted a link to the National Academy Of Science Report , that many vets have used, in order for them to attain, with proof of AO exposure, a SC rating for Hypertension. I used this same report for my HBP accrued claim, but the VA said they do not have that claim, I am used to them lying, and will need to find the time to pressure them to find it or file it all over again. Due to my accrued widow status and the fact it is a Nehmer claim, the EED ( 1998) will be the same anyhow. If an AO vet has "essential" hypertension or no other known cause for it, and they were exposed to AO,they should file the claim using the above most recent report that states the "sufficient" association of HBP to AO has been determined. Unlike former Sec Shulkin Sec Wilkie sent my VARO a coy of my letter to him, making a strong argument why HBP should be an AO presumptive. Deemed as a "sufficient association" by NAS -that is a higher level of association than many of the established presumptives have. If VA has never attributed your HBP to any other cause, and you are an incountry veteran ( to inlude BWV AO vets), they would be hard pressed to suddenly find some other NSC cause for the HBP, but they might try.
I hardly ever read the inbox messages- others can help you here- it seems you have done what you needed to do with the TDIU claim-but I hope you can scan and attach here the decision that combined the tinnitus and the HL percentages. The VA might have made an error in combining them. Please cover your C file #, name, address ,prior to scanning the decision. "Tinnitus. The condition of tinnitus almost always results in a disability rating of 10 percent. Similar to hearing loss, this singular 10 percent rating takes both ears into account. However, it is possible for veterans to receive separate disability ratings for both hearing loss and tinnitus. Getting VA Disability Benefits for Hearing Loss | CCK Law
cck-law.com › types-of-va-disabilities › hearing"
rebabevets posted a question in VA Disability Compensation Benefits Claims Research Forum,I already get compensation for bladder cancer for Camp Lejeune Water issue, now that it is added to Agent Orange does it mean that the VA should pay me the difference between Camp Lejeune and 1992 when I retired from the Marine Corps or do I have to re-apply for it for Agent Orange, or will the VA look at at current cases already receiving bladder cancer compensation. I’m considered 100% Disabled Permanently
Ddsr posted a question in VA Disability Compensation Benefits Claims Research Forum,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)
broncovet posted an answer to a question,While the BVA has some discretion here, often they "chop up claims". For example, BVA will order SERVICE CONNECTION, and leave it up to the VARO the disability percent and effective date.
I hate that its that way. The board should "render a decision", to include service connection, disability percentage AND effective date, so we dont have to appeal "each" of those issues over then next 15 years on a hamster wheel.
Ztmiller8 posted a question in Appealing Your Veterans Compensation Disability Claims NOD, DRO, BVA, USCAVC,Finally heard back that I received my 100% Overall rating and a 100% PTSD rating Following my long appeal process!
My question is this, given the fact that my appeal was on the advanced docket and is an “Expedited” appeal, what happens now and how long(ish) is the process from here on out with retro and so forth? I’ve read a million things but nothing with an expedited appeal status.
Anyone deal with this situation before? My jump is from 50 to 100 over the course of 2 years if that helps some. I only am asking because as happy as I am, I would be much happier to pay some of these bills off!
Joey Ross posted an answer to a question,I told reviewer that I had a bad C&P, and that all I wanted was a fair shake, and she even said, that was what she was all ready viewed for herself. The first C&P don't even reflect my Treatment in the VA PTSD clinic. In my new C&P I was only asked about symptoms, seeing shit, rituals, nightmares, paying bills and about childhood, but didn't ask about details of it. Just about twenty question, and nothing about stressor,
Picked ByJoey Ross,