VA Claims Articles
I have a question regarding special monthly compensation. I’m currently rated as S1 and my appeal has been added to the docket in DC. I need to see what my chances are getting bumped to L, L1/2 or M?
My current service connected disabilities
- Asthma-60% on appeal seeking 100%
- Rt knee-10%
- Lt knee-10%
- Leaking heart valve-0%
- Bells Palsy-0%
- Pregnancy Complications-0%
Any help or suggestions would be helpful
When it comes to the current options for challenging a VA Ratings Decision, Veterans often send me emails asking what do they do..which option do
they choose? To begin answering that question, let me tell you a story. Every so often, my wife and I trade out our family chores. She pays the bills, I go grocery shopping….she goes to work, I sit around eating bon-bons all day. Just kidding…my wife is probably a harder worker than I am, and those of you that know me know that means something.
When I first went grocery shopping for the family, toothpaste was on the list. Have you seen the toothpaste section in the grocery store? There are over 352 different types. Seriously, the Wall Street Journal researched it back in 2011. There is toothpaste for tartar control, for sensitive teeth, for whitening teeth, flouride, no flouride, every flavor imaginable…I couldn’t even FIND our usual brand in all that mess of colorful labels and boxes, no less decide if our usual brand was the “right” one to buy. So many choices when it comes to a simple thing like toothpaste. Too many choices, really. To avoid having to suffer this dilemma again, we now order our toothpaste online. Screw the complexity. The toothpaste situation is a metaphor for VA Appeals.
- You can file a Request for Reconsideration – but since that process doesn’t really legally exist, it’s like using bleach as toothpaste.
- You can file a Notice of Disagreement (NOD) within one year and start the appeal to the BVA.
- You can file a claim to reopen, and add evidence as to the element that caused the VA to deny your claim.
- Or you can do nothing – throw the damn thing in the trash, grab another box of bon-bons from the freezer, and swear that the VA is the worst government Agency since the Department of Acid Rain was abolished.
If Congre$$ and the Big 6 (the VSOs that, even though stuck in the 1940s, run the legislative corral in Congre$$) have their way in 2017, you will be faced with a NEW and IMPROVED appeals path that looks like it was written by a drunk cow. Seriously, here’s a leaked picture of the new and improved confusion-fest that is the VA Appeals process the VSOs and VA wanted to implement to “improve” the BVA appeal process.
Unbelievable, right? It’s like the toothpaste scenario all over again. But, I digress. To answer the question at hand – which option should a Veteran choose when they receive an adverse VA Ratings Decision – here’s my vote. Do all of them. But do them in a very particular sequence.
Step 1: File a Notice of Disagreement (NOD): Do this first. Do this as soon as possible after you receive a VA Ratings Decision, and you will “jump the BVA Appeal line” in front of thousands of Veterans and get your appeal heard sooner.
The Notice of Disagreement is the most important document in this sequence, as from it are borne all manner of legal rights.
The VA will try to talk you into withdrawing your appeal if you agree to resolve one of the following other methods, but don’t fall for it.
Remind them that you cannot by law settle a VA claim, as that would be asking the government to pay less than it is obligated to pay by law.
Need help strengthening your argument in your NOD and making it more persuasive to VA Bureaucrats?
Check out my training video, “Get to the Point”. (Check out the other Training Videos available at the Veterans Law Blog while you are at it: How to File a VA Claim, How to Get AND USE a copy of your C-File, How to prove the 4 Pillars of a VA Service Connection claim)
Second Step: File a Claim to Reopen. Add the new evide
nce as to the denied elements of the claim.
Why would you file a claim to reopen after filing a NOD?Because if you lose the appeal you filed on the NOD, your claim to reopen is still open and pending – and if you win the claim to reopen based on New and Material Evidence submitted within 1 year of the VA Ratings Decision, you get the original effective date of your previously denied VA Claim.
Think of it this way.
Filing a Claim to Reopen is a hedge bet against the loss of your VA Notice of Disagreement.
Your second bite at the apple. Clear as mud?
Third Step: Ask the VA to Reconsider the Claim. Because why not?
Remember, this is NOT a real process.
There is no such thing as a Request to Reconsider a VA Ratings Decision – VSOs want you to believe that there is so you don’t file an appeal – as many of them “don’t work on appeals”.
If the VA gets a Request to Reconsider, do you know what they are required to do?
Nothing. Not a dingle dangle thing.
Why would you ask the VA to Reconsider the Claim if there is no such thing?
Why would you ask the VA to do something that they are not required to respond to ?
These are all questions that I don’t have answers for, but here’s the best that I can do.
So long as you have followed the first 2 steps and filed a NOD and a Claim to Reopen, what’s the harm?
Maybe they’ll do it.
While you’re at it, ask them to release all the secret files on the Kennedy Assassination – maybe they’ll do that, too.
Fourth Step. Go eat Bon-Bons on the Couch. Seriously…after all that work, you’ve earned a few bon-bons.
Or, better yet, go join Team Red White and Blue, get outside and enjoy the outdoors with your fellow Veterans.
More from Chris Attig
Today, we’re gonna talk about the appeal itself. Once you get a decision, what you need to do after the decision. The two avenues we’ve seen are to appeal it, or to ask for a reconsideration. Carol, what are your thoughts on this?
Don’t ask for a reconsideration. That’s my thought. You know, one of the saddest things is that we see people not continue their appeals. If you’re asking for a reconsideration, you’re not appealing. It’s sort of a new claim, a reopened claim, whatever you want to call it. You’ve got to say, “I disagree” and now there’s a form that you have to use. – Carol Ponton
Matthew Hill: Hello, and welcome to another Hill & Ponton Veteran’s Video Blog. I’m Matthew Hill here with … Carol Ponton: Carol Ponton. Matthew Hill: Today we’re continuing our series on what we see are big mistakes that veterans make with their claims. This is the third mistake.
You had stated here: “I do have an independent medical opinion that agree with my assessment. ” A copy of that along with the death Certificate and autopsy should be referred to and attached to the formal Se4ction 1151 claim. This is the actual SOL for FTCA claims in Tennessee: “Time Limits for Tennessee Malpractice Cases The victim in the case contracted hepatitis B from a colonoscopy in 2006. However, theVA did not inform him of the problems with the colonoscopy equipment until 2009.
The victim filed an administrative tort claim – the first step toward bringing a medical malpractice lawsuit against the VA – just 10 months after learning he had been infected with hepatitis. Unfortunately, by that time it was too late. His case was recently dismissed by a federal appeals court on the grounds that he waited too long to file suit. Even though the VA is a federal agency, medical malpractice claims against the VA are governed by state statutes of limitation. Tennessee has one of the shortest statutes of limitation in the country. Under Tennessee law, a medical malpractice claim must be filed within three years of the date the alleged negligent act occurred. It is important to note that this does not mean three years from the date the victim realized he was injured or three years from the date the victim realized his injury might have been caused by medical negligence.
The time limit is three years from the date of the negligent act, regardless of whether the victim draws the links or not. However, there is an exception in cases where the physician or medical facility fraudulently concealed the source of the injury. Because of this short time limit, individuals who suspect they may have been the victim of medical negligence should contact a Tennessee medical malpractice attorney as soon as possible. In many cases, filing a lawsuit can preserve victims’ rights while evidence is collected to support their claims .” Gatti, Keltner, Bienvenu & Montesi, PLC
This article is part of what happened to many veterans exposed to Hep B , Hep C, and HIV by the VA. “In 2009, the VA notified more than 10,000 veterans that they may have been exposed to hepatitis B, hepatitis C and HIV while undergoing colonoscopies at Veterans Affairs facilities. The VA said the exposure risk stemmed from improper cleaning of the tools used to perform the procedures.Approximately 6,000 of those veterans were treated at a VA clinic in Murfreesboro, Tennessee. The others were treated at clinics in Augusta, Georgia and Miami, Florida. To date, at least 90 veterans have tested positive for one of the three viruses. Unfortunately, a recent ruling in Tennessee has made it hard for exposed veterans to seek redress for injuries caused by medical negligence.” from http://www.gkbm.com/articles/court-dismisses-medical-malpractice-claim-against-tennessee-va/
You might still be within the 3 year Statute of Limits.Their are MANY malpractice lawyers in Tennessee. I think I posted links to some of them for you.They often have a chat feature and often do free initial consults via email. Maybe it is too late.It would be up at 3 years after your husband died,as I understand this: “Under Tennessee law, a medical malpractice claim must be filed within three years of the date the alleged negligent act occurred.” The only redress for those veterans above harmed by the VA, who found out over 3 years years after VA had exposed them to Hep B,C ,and HIV, is Section 1151. I feel the lawyer you had did not understand FTCA at all.
Back on January 12th, 2017, I won a CUE as well as permanent IU via a decision from a review officer, I won both on the spot.
So here it is some 6 weeks later, and I still haven’t heard anything. No information on Ebenefits page, no contact from my American Legion rep-hell he won’t even return my calls!
I called the 800 number, and they don’t have anything either.
What all goes on between the time you win your case, and when you’re actually notified?
Bank app is set to notify me when the “big one” hits, but NOTHING yet.
What is taking so long?
I asked for a copy of my C-File in November of 2014 and never received it. I applied for a rating on secondary conditions in July of 2015 (after getting tired of waiting for it). I received my rating in April of last year and went from 60% to 100%. After noting the effective dates of some of my disabilities I once again contacted the VA in May and asked for the status of my C-File. At that time they had no record of my request so I submitted a FOIA request and have received nothing to date. This may seem like a small deal to some of you but as my 1-year date from notification of my new ratings is quickly approaching I decided to send an email to the new Secretary of Veterans Affairs on February 16th.
- I received an email noting receipt of my email on February 17th.
- Received an email from the person in charge of getting the data on the 21st.
- Received an email today that the CD copy was made and that it was being sent to me directly.
All together a 5 day turnaround!
I was looking for a specific C&P where I was denied for diabetic peripheral neuropathy in 1987. They found the doctor notes so it looks as though I’ll be suggesting the VA CUE themselves on this matter as the criteria for rating is:
|Degree of Incomplete Paralysis||Description|
|Mild||subjective symptoms or diminished sensation|
|Moderate||absence of sensation confirmed by objective findings|
|Severe||more than sensory findings are demonstrated, such as atrophy, weakness, and diminished reflexes.|
I don’t know how they could not have rated me as mild back in 1987, I also asked for an evaluation of peripheral neuropathy in 1993 which they denied. If they backdate the condition it will mean considerable backpay as they didn’t actually date my neuropathy until 2005 and in the early years I was rated at 20% and didn’t receive any benefit for my wife and two kids.
Appreciate the responses. This feedback is really helpful. Navyguy 2013 – Just curious, what Regional Office is working your NOD? flores97 – Congratulations! Glad to hear it worked out for you. So you actually visited the Regional Office in Winston Salem to check your status? Did you they give you a hard time about showing up in person? Gastone- Good info. Sorry to hear about the ridiculous delay. Have you made any other progress since the hearing? Hope so because that’s just a ridiculous amount of time. What RO is working your appeal? I actually submitted a well written nexus letter as my N&M evidence. I thought that I had enough evidence in my favor to win the initial claim, but in hindsight I should have included a nexus letter then, rather then waiting and submitting it with the NOD. Not sure how many DROs are at the Roanoke RO, but I can tell you that there are total of 333 VA employees at that RO; and 215 of those folks process initial claims and 32 of them handle appeals. Not sure what the rest of the employees are doing. Probably not much.
In order for the VA to recognize a veteran’s PTSD in order to award service connection, the diagnosis must be provided by a qualified medical professional. Even though many veterans are treated by VA or private therapists who are not doctors or psychologists (i.e. licensed mental health social workers, licensed counselors, etc.), the VA will not accept their opinions initially diagnosing PTSD. According to the VA Clinician’s Guide (available to download on the VA website), professionals qualified to perform PTSD Compensation and Pension examinations (C&P exams) must have doctoral-level training in psychopathology, diagnostic methods, and clinical interview methods. They must have a working knowledge of the DSM-V and extensive clinical experience in diagnosing and treating veterans with PTSD.
Doctors and psychiatrists categorize the symptoms of PTSD in four general groups: intrusive memories, avoidance behaviors, negative changes in thought and mood, and emotional reactions. These symptoms can significantly take a toll on one’s mental health and can even negatively affect one’s professional or social life.
I almost did and i gave up then my appeal clocked ticked off stumbled on some new evidence the VA ignored and that was my CUE claim 6 1/2 years of fighting before service connected to 100% now. Everyone has a battle everyone has a new method to get what we all want just keep reading and posting it will come to all of us who truely need and me want it!!