I have a question about this and how it works. So my EED is from last month, but there is a very good chance another claim will be coming back and will set the EED for 100% P&T back to 2015. So if this happens is there a way to apply again to get that backpay of all those payments?
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Hello,
I was denied for PTSD and migraines two years ago. I’ve been having sessions with a VA psychiatrist till now and found something interesting in my progress notes the other day.
The VA psychiatrist wrote this: Veteran is a 40 yo male with bipolar disorder, unspecified anxiety, and PTSD from military experiences and MST.
Does the statement above satisfy the Caluza elements?
Thank you
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Hello.
A friend of mine has a BVA hearing coming up in Dec. He does not want to travel all the way to Wash DC because of the COVID. What form, if any, should he use to tell the BVA that he will not be able to attend his hearing and that the BVA should decide his appeal without his presence? Thanks in advance for all your help.
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Hello,
I got a copy of my C and P of my tinnitus exam, and the doctor listed why he thought I was service connected. Listed my MOS that I had in the Army. Ok good.
I read on and then he listed and MOS I never held and stated that since I held this MOS, I should be service connected too.
So my question is, will anyone ever notice this incorrect additional MOS listed on my exam and go back and remove my 10% they gave me?
Thank you
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I AM WRITING FROM FLORIDA UROLOGY PA
WE HAVE RECEIVED IN OUR BANK EFT OF 41.40 AND WE DO NOT KNOW WHO TO APPLY IT TOO. WE HAVE NOT GOTTEN AN EXPLANATION OF BENIFITS
ALL THAT COMES UP IN OUR BANK IS 36TREAS310MISC PLEASE HELP US
THANK YOU
GAYLE VESTAL
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If your claim was denied due to telehealth reasons please do yourself a favor and read over/ reference this very important BVA case: https://www.va.gov/vetapp20/files3/a20003992.txt
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Hello,
I have a CP exam coming up soon for my dispute over 0% rating for scar. Is it possible to get 10% effective the time of scar rating for a hernia? I have a large forearm hernia below scar that I was told can't really be fixed.
Also what is a painful scar? After surgery there was 1 obvious adhesion at wrist that surgeon had to break by bending wrist back. I think I have more at base of thumb because it's enlarged and restricts motion but not enough to be rated under range of motion. However repeated use does cause pain where the surgery was and adhesions are scar tissue.
Thanks
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In compliance with the Paperwork Reduction Act (PRA) of 1995, this notice announces that the Veterans Benefits Administration, Department of Veterans Affairs, will submit the collection of information abstracted below to the Office of Management and Budget (OMB) for review and comment. The PRA submission describes the nature of the information collection and its expected cost and burden and it includes the actual data collection instrument. View the full article
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I filed for PTSD 9/2017 and battling the VA and today I received my 70% PTSD bringing my total to 80%! I have filed every appeal on time after being denied and for some reason they made my effective date for 9/2020 on the day that I had my C&P Exam. My rep is telling me that they rated me at 0% from 9/2017 til 9/2020 and 70% after 9/2020 and now we must appeal the date again.
Is the appeals process last long as the regular appeal time and what are the odds that they actually correct the issue at the end of this?
Thanks for your help in advance.
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I have the basic understanding of new and relevant material meaning.
However if the C&P exam said records were reviewed; however nothing (evidence) is listed in the decision letter, can you submit military records to help reopen a claim.
The thought is doesn't evidence considered to make a decision have to be listed in the decision letter?.
All comments are welcomed.
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This is what won my sleep apnea. Please feel free to use this in your fight against the VA. Most would not need to be this long, but I would use what you feel is needed and fits with your claim.
Dear Ladies and Gentlemen:
Supplemental Claim is elected. If additional evidence or clarification is needed, please
contact me by facsimile, telephone, or U.S. mail.
The above veteran received a Rating Decision dated March 12, 2020 and wishes to
appeal this decision regarding the following issues:
1. Service connection for sleep apnea. The Veteran is entitled to service connection for sleep apnea. The Board remanded the
veteran’s claim because the VA failed to provide a medical examination. The VA finally
provided an examination on February 17, 2020. Counsel has not received a copy of the
examination and therefore cannot fully assess its sufficiency. However, from the portions of the
examiner’s opinion provided, it is inadequate for several reasons. First, the examiner determined
that because the veteran was not diagnosed until 11 years after his service, it is less than likely
that the veteran’s sleep apnea is related to his service. A lack of medical records is not negative
evidence that disproves the veteran’s claim. Sleep apnea does not require immediate medical
care. Moreover, sleep apnea in particular is a condition that is often undiagnosed, as noted by the
attached article by the University of Washington. It is inappropriate to discredit the veteran’s
claim merely because he does not have a treatment record for a historically underdiagnosed
disorder that does not require immediate treatment.
Furthermore, the examiner determined that the veteran’s sleep apnea was likely not
caused by the veteran’s military service because “exposure to burn pits does not cause a physical
obstruction in the airway, which is the cause of sleep apnea.” Some older research questioned
whether burn pits could cause sleep apnea, however the most recent academic research from
May 2020, which is attached, shows that sleep apnea is caused by exposure to burn pits. The
basis of the examiner’s decision is based on a decisively faulty premise and is therefore
inadequate.
Moreover, the examiner entirely failed to consider secondary service-connection due to
the veteran’s PTSD. PTSD is a well-established cause of sleep apnea, as noted in the attached
articles. The examiner’s failure to consider secondary service connection due to the veteran’s
PTSD, which is noted throughout his medical records, renders the examination inadequate. If the
VA provides an examination, it must be an adequate one. The multiple failures committed by the
examiner renders their opinion inadequate and the veteran must be provided a new examination.
Please readjudicate the claim accordingly.
Also attached are the following articles:
1. Visesh Kapur et al, Medical Cost of Undiagnosed Sleep Apnea, Pulmonary and Critical
Care Division, Department of Medicine, University of Washington.
2. Chelsey Poisson et al, A Pilot Study of Airborne Hazards and Other Toxic Exposures in
Iraq War Veterans, International Journal of Environmental Research and Public Health,
published May 9, 2020.
3. The Connection Between PTSD and Sleep Apnea, Sleep Foundation.
4. Peter J. Colvonen et al, Obstructive Sleep Apnea and Posttraumatic Stress Disorder
among OEF/OIF/OND Veterans, Journal of Clinical Sleep Medicine.
Additionally, based upon common errors committed by the VA, the Veteran argues and
preserves the following:
Examination inadequate. If the VA Secretary provides an examination, it must be an
adequate one. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). VA regulation instructs
adjudicators to return as inadequate an examination report that is not supported by sufficient
findings or does not contain sufficient detail. 38 C.F.R. § 4.2; see also Bowling v. Principi, 15
Vet. App. 1, 12 (2001); Vazquez-Flores v. Shinseki, 24 Vet. App. 94, 97 (2010) (citing Daves v.
Nicholson, 21 Vet. App. 46, 51 (2007), for the proposition that “...when a medical examination
report was susceptible to multiple fair but inconsistent meanings, the Board erred in failing to
seek clarification”). “Most of the probative value of a medical opinion comes from its reasoning”
and a medical opinion is not, “...entitled to any weight . . . if it contains only data and
conclusions.” Nieves-Rodriquez v. Peake, 22 Vet. App. 295, 304 (2008).
An inadequate medical examination frustrates judicial review because it does not
adequately reveal the current state of the disability. Hicks v. Brown, 8 Vet. App. 417, 422 (1995).
The necessity of a thorough examination and a thorough explanation of the examined conditions
is simple. The primary purpose for the examination is to require the Board to decide the claim
based on sympathetic development and the resulting accurate view of the veteran’s current
medical status. See 38 U.S.C. § 5103A(d); Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991).
The Board “...must provide for the conduct of an adequate examination during the active stage
of appellant’s (disorder), and must, on the basis of that examination and all evidence of record,
ascertain the existence, extent, and significance under the rating schedule of any (symptom) due
to (the disorder).” Ardison v. Brown, 6 Vet. App. 405, 408 (1994).
If the VA decides a case without an adequate and competent medical examination, it is,
in effect, supplying its own medical opinion, which is remandable error. See Colvin v. Derwinski,
1 Vet. App. 171, 175 (1990). An independent medical opinion must contain sufficient
information so that VA is not exercising independent medical judgment. Stefl v. Nicholson, 21
Vet. App. 120, 124 (2007); see also Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301 (2008)
(The Secretary, “...when he undertakes to provide a medical examination to obtain a medical
opinion, must ensure that the examiner providing the report or opinion is fully cognizant of the
claimant’s past medical history”); Stegall v. West, 11 Vet. App. 268, 270 - 71 (1998) (VA
examination remanded for inadequacies of exam on remand).
When the examiner states that a non-speculative decision cannot be reached, the Board
must consider several factors in determining whether the opinion is adequate. First, the record
must demonstrate that the examiner has weighed all procurable information. Next, the examiner
must provide an explanation for his or her conclusion. The record must also demonstrate that an
inability to provide an opinion without resorting to mere speculation “’reflects the limitation of
knowledge in the medical community at large’ and not a limitation—whether based on lack of
expertise, insufficient information, or unprocured testing—of the individual examiner.” Sharp v.
Shulkin, 29 Vet. App. 26 (2017).
Veteran’s lay statements. The VA must adequately review veteran’s favorable lay
statements concerning his medical status. His statements are competent proof. These statements
of his current medical condition need not be supported by contemporaneous, corroborative
medical records. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006); see Dalton v.
Nicholson, 21 Vet. App. 23, 39 (2007) (where Court explained VA was in error when the sole
premise for the examiner’s conclusion was the lack of notation or treatment of the claimed
disability in service); see also Smith v. Derwinski, 2 Vet. App. 137, 140 (1992) (noting that the
purpose of section 1154(b) was “...to overcome the adverse effect of a lack of official record of
incurrence or aggravation of a disease or injury and treatment thereof” (citing H.R. Rep. No.
1157, 77th Cong., 1st Sess. (1941), reprinted in 1941 U.S.C.C.A.N. 1035)).
VA must address the credibility and probative value of veteran’s lay statements in its
analysis of veteran’s case. VA must have a valid basis for finding veteran’s lay testimony
incredible where VA concludes that veteran’s claimed injury is one of such severity, it would
have been recorded in service had it actually happened during that time. Kahana v. Shinseki, 24
Vet. App. 428, 433-34 (2011).
The VA must consider lay statements where (1) the, “...layperson is competent to
identify the medical condition, (2) the layperson is reporting a contemporaneous medical
diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a
medical professional.” Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Credible
lay evidence alone is competent to establish the existence of the claimed condition(s). Further, in
some instances lay evidence by itself is sufficient to establish a medical nexus between veteran’s
service and current disability, insomuch that no “medical evidence” is needed to substantiate the
claim. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009).
To decide the claim without an accurate record and review of veteran’s lay statements as
to his actual physical condition is in contravention to law and effectively operates to allow the
VA to substitute its own opinions for that of record. This is always harmful error. See Doran v.
Brown, 6 Vet. App. 283, 287 (1994) (citing Colvin v. Derwinski, 1 Vet. App. 171, 175 (1990)).
Discounted favorable evidence. VA has the obligation to weigh and consider all of the
evidence. See Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997); Hogan v. Peake, 544 F.
3d 1295, 1298 (Fed Cir. 2008) (A determination regarding service connection requires
consideration of “...all pertinent medical and lay evidence...”) (quoting 38 C.F.R. § 3.303(a)).
The VA must do this whether it finds the evidence persuasive or not. See Gilbert v. Derwinski, 1
Vet. App. 49, 56-57 (1990).
If the VA is going to discount favorable evidence, it must explain why it did so, make its
explanation understandable to laypersons and provide sufficient detail to facilitate court review.
See Norris v. West, 11 Vet. App. 219, 224-25 (1998); Allday v. Brown, 7 Vet. App. 517, 527
(1995). This is required as a matter of law. See 38 U.S.C. § 7104 (d); Gilbert v. Derwinski, 1 Vet.
App. 49, 56-57 (1990); Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Schafrath v.
Derwinski, 1 Vet. App. 589, 592-93 (1991); Daves v. Nicholson, 21 Vet. App. 46, 51 (2007)
(citing Meyer v. Brown, 9 Vet. App. 425, 233 (1996)).
VA errs when considering the effects of medication on the appropriate rating for
appellant’s service-connected condition when those effects are not explicitly contemplated by the
rating criteria. Jones v. Shinseki, 26 Vet. App. 56, 61 (2012). VA errs in taking those effects into
account when evaluating veteran’s disability rather than limiting itself to the symptoms expressly
contemplated by the appropriate rating code. Conditions caused by the adverse side effects of
medications used to treat a service-connected condition should be service-connected on a
secondary basis. Wanner v. Principi, 17 Vet. App. 4 (2003), rev’d on other grounds, 370 F.3d
1124 (Fed. Cir. 2004).
Where a medical record is incomplete, the VA should refer the examination report back
to the examiner for clarification. 38 C.F.R. § 4.2. This is also the case for private medical
examination reports. Savage v. Shinseki, 24 Vet. App. 259 (2011) (In Savage, the Court
explicitly limited VA’s duty to seek clarification of private medical reports to situations where
“...the missing information is relevant, factual, and objective–that is, not a matter of opinion...”
24 Vet. App. at 270. Specifically, the Court held that when a private medical report is the only
evidence on a material issue, and material medical evidence can no longer be obtained as to that
issue, yet clarification of a relevant, objective fact would render the private medical report
competent for the assignment of weight, the Secretary must attempt to obtain such clarification.
Id. at 267.
Sympathetic development. 38 C.F.R. § 3.103(a) mandates the “...VA to assist a
claimant in developing the facts pertinent to the claim...” and obligates the VA “...to render a
decision which grants every benefit that can be supported in law...” See Cook v. Principi, 318
F.3d 1334, 1337 (Fed. Cir. 2002) (en banc) (noting 38 C.F.R. § 3.103(a) is the regulation setting
forth the duty to assist codified in 38 U.S.C. § 5103A)); see also Roberson v. Principi, 251 F.3d
1378 (Fed. Cir. 2001) (declaring Congress has mandated “...that the VA is to fully and
sympathetically develop the veteran’s claim to its optimum before deciding on the merits.”).
(Quotation omitted).
Included in this obligation is the obligation to weigh and consider all of the evidence. See
Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997); Hogan v. Peake, 544 F. 3d 1295, 1298
(Fed Cir. 2008) (A determination regarding service connection requires consideration of “...all
pertinent medical and lay evidence...”) (quoting 38 C.F.R. § 3.303(a)). This pertains to all
claims. Ingram v. Nicholson, 21 Vet. App. 232, 238 (2007); see also Szemraj v. Principi, 357
F.3d 1370 (Fed. Cir. 2004). The VA must consider all evidence whether it finds it persuasive or
not. See Gilbert v. Derwinski, 1 Vet. App. 49, 56-57 (1990). This obviously includes
conscientious, independent consideration of veteran’s lay statements. See Buchanan v.
Nicholson, 451 F.3d 1331, 1335 (Fed. Cir. 2006).
The Court in Ingram v. Nicholson stated that although there is no legal “...definition of
‘sympathetic reading’, it is clear from the purpose of the doctrine that it includes a duty to apply
some level of expertise in reading documents to recognize the existence of possible claims that
an unsophisticated pro se claimant would not be expected to be able to articulate clearly.”
Ingram, 21 Vet. App at 255; see also Robinson v. Mansfield, 21 Vet. App. 545, 553 (2008)
(Board must consider all theories of entitlement that were reasonably raised by either the veteran
or by the evidence in the record).
Despite such obligation, the VA has failed to develop and adjudicate its decisions with an
eye to allowing the veteran the maximum benefit to which he is entitled, which is a failure in its
duty to assist and outcome determinative error. See Roberson v. Principi, 251 F.3d 1378, 1385
(Fed. Cir. 2001); Schroeder v. West, 212 F.3d 1265, 1271 (Fed. Cir. 2000); see also Akles v.
Derwinski, 1 Vet. App. 118, 121 (1991).
Benefit of the doubt and burden of proof. Veteran argues he is being held to a burden
of proof beyond that set by law. The VA holds veteran to an unfair burden. Federal statute
clearly states, “When there is an approximate balance of positive and negative evidence
regarding any issue material to the determination of a matter, the Secretary shall give the benefit
of the doubt to the claimant.” 38 U.S.C. § 5107(b). “...the preponderance of the evidence must
be against the claim for benefits to be denied.” Gilbert v. Derwinski, 1 Vet. App. 49, 53-55
(1990). VA applied the improper standard of proof in this case.
Reasons and bases. VA is required to consider and “...discuss in its decision, all
‘potentially applicable’ provisions of law and regulation.” Majeed v. Nicholson, 19 Vet. App.
525, 529 (2006) (citing Schafrath v. Derwinski, 1 Vet. App. 589, 593 (1991)); 38 U.S.C. §
7104(a). The VA must account for all of the evidence whether it finds it persuasive or
unpersuasive, and provide reasons and bases for rejecting evidence. See Gilbert v. Derwinski, 1
Vet. App. 49, 56-57 (1990). It must weigh the credibility and probative value of all evidence. See
Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997).
If VA is going to discount evidence and refuse to provide veteran a medical examination,
VA must explain why it did so. These reasons must be sufficient to allow veteran the opportunity
to understand why it did so. See Norris v. West, 11 Vet. App. 219, 224-25 (1998); Allday v.
Brown, 7 Vet. App. 517, 527 (1995). This is required as a matter of law. See 38 U.S.C. §
7104(d); Gilbert v. Derwinski, 1 Vet. App. 49, 56-57 (1990); Gabrielson v. Brown, 7 Vet. App.
36, 39-40 (1994). This is not only for the benefit of the veteran, but also the federal appellate
court which will ultimately review the claim and its adjudication. See Allday v. Brown, 7 Vet.
App. 517, 527 (1995).
Missing medical records. “Since the VA has been unable to obtain the veteran’s service
medical records, it has a heightened duty to explain its findings and conclusions.” See Lee v.
Nicholson, 2006 U.S. App. Vet. Claims LEXIS 1393. More specifically, in Washington v.
Nicholson, the Court held that when a veteran’s records are presumed lost or destroyed, the
Board is “...under a heightened duty to consider and discuss the evidence of record and supply
well-reasoned bases for its decision as a consequence of the appellant’s missing SMRs.” 19 Vet.
App. 362, 371 (2005). The Court held the Secretary breached the duty to assist in failing to
“explore alternatives” to missing service records and “...VA should make reasonable efforts to
obtain such reports, statements, or other records that might provide corroboration for the
appellant’s assertion...” of an in-service injury, disease, or event. Id.
The Secretary’s duty to assist includes a duty to obtain any “...relevant records held by
any Federal department or agency that the claimant adequately identifies and authorizes the
Secretary to obtain.” §38 U.S.C. § 5103A(c)(1)(C); §38 C.F.R. § 3.159(c)(2); Loving v.
Nicholson, 19 Vet. App. 96, 102 (2005). Efforts to obtain records in the custody of a Federal
department or agency must continue unless “...VA concludes that the records sought do not exist
or that further efforts to obtain those records would be futile.” 38 C.F.R. § 3.159(c)(2).
“If VA . . . after continued efforts to obtain Federal records concludes that it is reasonably
certain they do not exist or further efforts to obtain them would be futile, VA will provide the
claimant with oral or written notice of that fact.” 38 C.F.R. § 3.159(e)(1). The notice must (1)
identify the records VA was unable to obtain; (2) explain what efforts the VA took to obtain the
records; (3) describe any further action VA will take regarding the claim; and (4) notify the
claimant that he is ultimately responsible for providing the evidence. 38 C.F.R. § 3.159(e)(1)(i)-
(iv).
Negative evidence and mischaracterization of claims. The Board may not consider the
absence of a medical notation to be negative evidence when there is no reason a medical
examiner would have commented on a particular matter. Buczynski v. Shinseki, 24 Vet. App.
221, 224 (2011). See Douglas v. Shinseki, 23 Vet. App. 19, 25–26 (2009) (“...the duty to gather
evidence sufficient to render a decision is not a license to continue gathering evidence in the
hopes of finding evidence against the claim”).
The Board may not mischaracterize veteran’s claims. Mischaracterization of claims may
lead to considering issues outside of “...the scope of the appeal, applying the wrong law, and
engaging in the wrong analysis.” See Murphy v. Shinseki, 26 Vet. App. 510, 513 (2014) (the
Murphy Court recognized mischaracterization of claims as the catalyst to improper reduction of
claims, which the Court indicated has a “...’chilling effect’ in the administrative appeals
process...”).
Medical treatises. A medical article or treatise “...can provide important support when
combined with an opinion of a medical professional” if the medical article or treatise evidences
“...generic relationships with a degree of certainty such that, under the facts of a specific case,
there is at least ‘plausible causality’ based upon objective facts rather than on an unsubstantiated
lay medical opinion.” Sacks v. West, 11 Vet. App. 314, 317 (1998); see also Wallin v. West, 11
Vet. App. 509 (1998).
“A veteran with a competent medical diagnosis of a current disorder may invoke an
accepted medical treatise in order to establish the required nexus; in an appropriate case it should
not be necessary to obtain the services of medical personnel to show how the treatise applies to
his case.” Hensley v. West, 212 F.3d 1255, 1265 (2000). “An ‘evaluation’ of treatise evidence
should be made in the first instance by the BVA.” Timberlake v. Gober, 14 Vet. App. 122, 131
(2000). If the Board fails to consider medical-treatise evidence by the veteran, the Court will
remand the case to “...the Board to evaluate “that evidence” to see if it supports a nexus.” Id.
Due process. Veteran also contends the Regional Office’s (RO) failures as expressly
asserted in this Notice of Disagreement rise to the level of the Secretary’s denial of Veteran’s
procedural due process protections, guaranteed to U.S. military veterans by the Fifth
Amendment, U.S. Constitution. See Cushman v Shinseki, 576 F.3d 1290 (Fed. Cir. 2009).
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In our veteran group, Mark, wants to file a supplemental claim for headaches.
He was originally denied secondary connection to Vertigo around the 2011-2012 time frame.
He had two episodes for headaches due to cold symptoms and one episode of head pain caused by heat while in the Marine Corp.
He went for a C&P Exam in late 2011 and was diagnosed with vascular migranes by the C&P examiner.
He was denied secondary service connection due to no medical relationship between headaches and vertigo.
He is consulting with his primary physician for treatment and is wondering if direct service connection is the best way forward.
He will use the military service records, C&P examiners diagnosis, and a current diagnosis as the foundation for direct connection.
The group reiterated make sure the current diagnosis include all sypmtoms, residuals, and problems he is dealing with.
Is he on the right track??????
All comments are welcomed.
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I have been trying to find more info on the Mote V Will case decision ( Fed Cir) that Tbird posted here today.
The veteran had claimed he had been in covert operations in Vietnam.
In another fairly similar case the BVA stated:
"Furthermore, the Board notes that the Veteran and the appellant has continuously and consistently contended that the Veteran served in Vietnam during a period between 1969 and 1975, where he was exposed to the herbicide agent, Agent Orange; however, the appellant noted that the Veteran’s Vietnam service is not disclosed in his military records due to the top-secret and covert nature of his service. See Statement in Support of Claim, September 2012. A review of the Veteran’s military records reveals the Veteran has had foreign service throughout his military career, but does not specifically state where the foreign service was. Additionally, upon further review of the Veteran’s military personnel file, there is a declassified report regarding covert operations in Southeast Asia, to include Vietnam; however, it does not specifically note that the Veteran was a part of this mission. Therefore, resolving all reasonable doubt in favor of the Veteran, the Board will concede that the Veteran had Vietnam service; and thus, was exposed to Agent Orange. However so, the Board notes that neither pneumonia nor ILD is a listed disease subject to presumptive service connected based on herbicide exposure under 38 C.F.R. § 3.309(e). Therefore, based on the above, the Board finds that service connection on a presumptive basis is not warranted in this case."
https://www.va.gov/vetapp19/files5/19142047.txt
The VA can declassify anything regarding the Vietnam War ,and I believe Vietnam has been entirely declassified from research and work I did on a Thesis n the Vietnam War, for AMU, as well as declassify anything that a claimant ,whose MOS was Top Secret Classified,that would help support a claim they have filed.
While the Personnel record in the veteran's 201 file above did not specifically name him, it was obvious to the BVA that this type of evidence in a Personnel file, would not be there if the veteran was not in the covert operation.
Unfortunately there have been veterans who claimed secret missions or covert ops that they could not prove, and this can be a very difficult task, if the veteran dies from a disability that the survivor becomes a substituted claimant on , and is trying to connect the veteran's death due to their secret /covert mission.
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Thank you everyone for sharing your knowledge of va disability claims process. Postings on this website have answered most of my questions on how to submit claims and also on how file appeals. However, I could not find an answer to the following question.
Background: I filed a claim for SMC L based on aid and attendance due service-connected cardiomyopathy with coronary artery disease, s/p myocardial infarction. My Regional VA denied my claim, so I was forced to appeal the denial to BVA. The BVA remanded my SMC L claim back to my Regional VA with instruction to give me another C&P exam. My Regional VA was also instructed to decide my case anew and to support the new decision with a Supplemental Statement of the Case. And that if I was still not satisfied with the new decision, my Regional VA was instructed to forward my case back to BVA for adjudication.
As instructed by BVA, my Regional VA got me scheduled for another aid and attendance C&P exam early this month. Yesterday, however, I received a letter from my Regional VA finally granting 100% disability rating for my service connected Menieres Disease (Note: My Menieres Disease disability claim was filed more than a year ago and I had undergone C&P exam for this claim in Dec 2019). I still have not heard from my Regional VA regarding the result of the BVA-directed aid and attendance C&P exam on account of my service connected cardiomyopathy with coronary artery disease, s/p myocardial infarction.
Question: Since I’ve been granted 100% for my service connected Menieres Disease, can I submit a request to my Regional VA to ask them to grant me SMC M instead of SMC L? (SMC L for service connected cardiomyopathy with coronary artery disease, s/p myocardial infarction PLUS an entitlement to a higher rate of (M) for having a service connected Menieres Disease rated 100%).
Thank you all in advance for your help.
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I had a higher level review, in July which errors where found. I had a new C&P on August 7th. I was told they are waiting on records. My question is long long can they drag out a records request? They should have my records since this is just correcting errors.
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The Department of Veterans Affairs (VA), Advisory Committee on Disability Compensation (the Committee), is seeking nominations of qualified candidates to be considered for appointment as a member of the Advisory Committee for the 2020--2021 membership cycle. View the full article
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Hi, new member here, longterm lurker.
I'm seeking advice on moving forward with my claim regarding loss of peripheral vision (code 6080), TDIU as a result. Specifically, I'm wondering if I should file the supplemental reopen to include EED, SC, and the TDIU? Here's the timeline:
Initial VA claim in 2015 for numerous things including field of vision loss, back pain, lower leg numbness, etc. This resulted in only 30% service connected lower back arthritis, but denial on the vision issue. By 2018, the back worsened and a few other issues arose, so I submitted another claim resulting in the back increasing to 40% SC, hemorrhoids 20% SC, lower limb radiculopathy 20% for 70% total.
I did not appeal the vision due to lack of education on the VA claims process. However, I've done my research and found that my initial vision C&P exam was insufficient. Per 38 CFR § 4.77 - Visual fields., the exam must be conducted using Goldman kinetic perimetry or Humphrey/Octopus automated. Neither of those occurred during my test. My vision test was outsourced via LSI (?) to a local optometry store. After meeting the doctor, he was informed that the "machine" was broken, so my test was performed manually using a tangent screen skipping Goldman. This is the basis for the insufficient exam.
After receiving my initial 30% in 2015 I entered into the VA for my medical care, as a part of that I indicated I had vision issues and thus began annual visits at the VA to get an exam and meet the ophthalmologist. My initial Humphrey scans did show significant loss of peripheral vision and I was transferred to the head of the department for follow on analysis. She did a full eye exam, could not find anything physical in the eye that might be causing the loss and recommended annual visits to track the progress. Fine.
3 years passed and each year the Humphrey test showed continued loss of peripheral vision. In 2019 I started seeing the neuro-ophthalmologist who decided it was time to do more investigating and ordered a MRI and then later a CT Angiogram. The results of those tests was that once again no physical cause could be seen for the vision loss. I'm a Gulf War vet with 42 combat missions in the aircraft in 1991 and then a 2nd tour in the Gulf during Southern Watch during 1992. Additionally, our airwing was based and I lived at NAF Atsugi which has been highlighted for issues regarding a dioxin incinerator just south of base. I was going to name these issues to garner a SC but recognize that may be weak sauce.
My left eye concentric contraction is around 15% and the right eye is around 20%. Based on the better eye this translates to 50% rating.
The TDIU is something I've only recently thought about. I have issues with driving and going into busy stores is extremely stressful as I cannot see people coming from the sides so I avoid them. Previously, I owned my own business but prior to Covid I had already shut one location and sold another as I was reducing my workload due to my back and vision. In March I closed my last location and do not anticipate reopening because I don't think I can handle it. Physical labor is out of the question and the back/hemorrhoid precludes extending sitting and the vision is making driving near impossible and headaches are an issue.
Thanks for any advice on how best to further the vision claim and perhaps include some of those issues I've talked about. Any problems with reopening a claim based on an insufficient initial exam?
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These are my favorite regulations/case law which frequently result in a win for Veterans: Feel free to add how YOU won your claim, including the regulation or case law.
1. Caluza Elements: If you filed for benefits and HAVE all 3 Caluza elements DOCUMENTED, your approval chances are good. a) Current diagnosis b) In service event or aggravation c) Nexus or doc opinion that your current diagnosis is at least as likely as not relate to your in service event. Source: Caluza vs Brown https://www.knowva.ebenefits.va.gov/system/templates/selfservice/va_ssnew/help/customer/locale/en-US/portal/554400000001018/content/554400000061412/Caluza-v.-Brown,-April-12,-1995,-7-Vet.App.-508-(1995)
2. New and Material Evidence: If you have been denied, often you can reopen the claim by submitting "New" evidence. Source: 38 CFR 3.156 There are significant differences if this is New "evidence" or "new SERVICE" records, with the new service records being the most advantageous to the Veteran. Source: https://www.law.cornell.edu/cfr/text/38/3.156
3. Appealing the wrong effective date: VA "often overlooks" these situations which can help the Veteran. https://www.law.cornell.edu/uscode/text/38/5110
A. Applying for benefits within a year of date of discharge. This should result in an effective date the day after discharge.
B. Claims for increase. You can get an "extra year" here.
C. New Service records; new evidence. Again, see 38 CFR 3.156 C, above.
D. Nehmer Vets. Vietnam Vets "boots on the ground", has special rules that benefit Vets. To see if you qualify for an earlier effective date, read this: https://www.nvlsp.org/what-we-do/class-actions/nehmer-agent-orange-lawsuit#:~:text=As class counsel%2C NVLSP currently,under the Nehmer Court Orders. For more information contact NVLSP who can represent you at no cost to you in certain circumstances.
4. Preventing VA from reducing your ratings. Veterans P and T, over 5 years (or more) have certain protections to their rating, making it difficult for VA to reduce your rating. Read this over carefully whenever VA tries to reduce you.
https://www.law.cornell.edu/cfr/text/38/3.344
5. Berta's CUE FAVORITE: https://www.law.cornell.edu/cfr/text/38/4.6
REMEMBER: If you have a BVA denial, you can often hire an attorney to represent you and EAJA should cover your attorney fees.
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Thanks pacmanx1, my SSDI letter states that " There are no jobs that exist in significant numbers in the national economy that the claimant could perform". Should I appeal to the board with option 2, so that I can submit more evidence? Such as IMO etc.
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OK guys. i have a lot of news to update you all on but i haven't gotten my letters yet so i am waiting on those before i post updates. but looking like i have won to very large claims in my favor that should push me over to 100% schedular. all of my claims are disabilities that obviously will never get better and will only degrade for the rest of my life(osa,tbi,tinnitus,back leg feet issues hearing loss,gerd)
so with all that being said i am looking into what my next steps are. i know i am going to be fighting some effective dates on some of my claims and that will be a seperate post. but i have searched far and wide and have found very little info on P&T as it pertains to veterans that are looking for just getting their disabilities identified as permanent but not necessarily total. i still work and want to continue to work as i enjoy my job, my employer is good to me and makes great allowances for my disabilities to allow me to continue to work,etc. i worry getting P&T will make me have to stop working like TDIU.
so questions:
is P&T like TDIU as respect to work?
can you be rated permanent and not total?
what process do i need to go through to get my claims rated permanent?
i have some effective dates that are already "protected"(over the 10 year) but not as permanent (over 20) and some with newer effective dates. if i get permanent or if P&T is given together, will all my claims be protected together, or will each claim have to stand on its own as being permanent? reason i ask this question; i know that P&T is listed on benefits summary page on ebennies, so wondered if you cant have permanent without total and if once you get it its for all claims since its just a yes no question not for each disability.
can you not get the benefits of being 100% without being P&T? ie champ va etc?
again i tried to find answers to these questions and knew if anyone had the answers it was the guys here.
thanks for any help or any resources you can direct me to!
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