Winning a VA claim is not impossible. Obviously, it isn’t easy but then there are a lot of things in life that require finesse. After 30 years of throwing darts at VA’s dartboard, I’ve watched them change over time. Old, tried and true recipes for success seem to fall flat and fail. You can never expect anything to remain static forever. Fortunately, there a few of us who just keep plugging away at it and come up with a new repair order. Shoot. Look who you’re dealing with. Government can’t fart their way out of a wet paper bag… or even light one for that matter. Let’s look at the latest techniques that do bear fruit.
I’d like to present what I do as a workaround for this phenomenon. First, we’re in the new AMA (or AMIA) mode now rather than Legacy. Granted, there are still Legacy claims/appeals out there but let’s focus on what most of you will be involved in. I’m going to use a client as an example. Most of you know I cut my teeth on Hepatitis C claims. They were simple and straight forward. You filed. You lost. You came to me. I refiled and took it up to the BVA after obtaining an IMO and you won. If you were severely ill, it was almost a guaranteed 100% schedular and P&T. That was Legacy. Apparently, we were too successful and the financial well began to suck air.
Next, with the advent of the AMA, we found a new brick wall. Even if you had an IMO, VA would still deny by going out and getting another c&p exam to deny you. This forced you to go to the BVA to win. Again, a minor change but one we could negotiate with a slight change of technique. Yeah. I know Medrano forbid this repetitious behaviour of shopping for a good denial IMO. Tell that to the local poobahs.
Then one day, the BVA got fed up with the gomers at the Fort Fumbles across our fruity plains denying virtually everything illegally and shoveling it all up to the BVA. The BVA bozos began shoveling it right back down to the Regional Offices and telling them to quit pawning off their job on the BVA. All that resulted in was a re-denial and another trip to the BVA to try to win it.
So you won. But it wasn’t that simple. On remand, your local yokels granted your Hep C claim and awarded you 0%. Why? Because you went through the treatment and were cured. You no longer had Hep C so you got SC for it but no VA wampum. The repair order, as usual, was simple. Read §4.114 DC 7354 (Hep c) carefully. VA pukes didn’t…
“With serologic evidence of hepatitis C infection and the following signs and symptoms due to hepatitis C infection:”
I began having to point this out in legal briefs to the BVA. Sure. My client is “healed” but has a lot of residuals. The VLJs concurred with me and sent it back to be rated based on the residuals because 99.9% of us who had Hep C for a gazillion years were mega sick with residuals-not the underlying cured disease. Besides, the regulation says residuals- not proof of continuing disease.
The next wave of stupidity came after a new push. A client is taking lactulose to control his portal hypertension and ascites. He’s also taking propranolol to control his esophageal varices. To get around paying for this, VA demands that you have bleeding varices. Regular old varices, regardless of how many, that are not bleeding are not ratable. I promptly quote Jones v. Shinseki, 26 Vet.App. 56, 63 (2012) and point out that DC 7354 makes no provisions for medication-attenuated symptomatology. Nowhere does it say “rate on residuals after medication”. VA raters look at you with that inimitable 1000-yard stare and say “Who’s Jones?” The end result of this chicanery is you can be 100% on paper for cirrhosis post-hep C and be lucky to get 30% even though the hepatic encephalopathy is so complete you can’t remember your birthday. If you still drive, you pull up to stop signs and wait interminably for them to turn green. Ditto the ascites. It’s controlled by the lactulose to some degree so you won’t be getting any of what’s behind door #2 and Denis the Menace’ cookie jar.
Better yet, try a dumpster dive into your VA VistA records-the ones you dutifully collect from ROI to send in to prove your disability. DC 7312 calls it “erosive gastritis”. Everyone in real medicine calls it GERD. You’re eating omeprazole like candy corn to control it. VA denies a 100% rating because you don’t have erosive gastritis refractive to treatment. Or how about varices refractive to treatment. Or ascites. VA calls ascites ‘trace free fluid in the abdominal cavity’. Six of one or half a dozen of the other everywhere else in the medical universe… except VA. I suppose if you filed for GERD, they’d just turn that argument on its ear and say “Dude, you have erosive gastritis. That’s not the same as GERD. Denied.”
So, it’s back to the IMO factory to get someone to say erosive gastritis = GERD and the trace fluid is ascites. It’s still going to be another trip to the BVA for them to wave their magic wand. These are just a few of the simple tricks VA resorts to in order to defeat you with. But, you can get off this merry-go-round if you’re smart.
Here’s the latest and fastest pathway to SC I can offer. It works right now but that’s not to say they can’t give the rug a tug and jerk it out from underneath you in the future. Start with filing it. VA made that harder, too. If you have filed and lost within a year, you will have to use the new VAF 995 Supplemental. If you filed more than a year ago and lost, you’ll be forced to use a VAF 21-526. At the dawn of time, you only filed one (1) VA claim on a 526. After that you could use a 4138, toilet paper or Standard Form 8.5×11 (white). The operable metric was that it had to be legible. In 2015, that all changed. The NOD 958 came out and no more toilet paper was permitted. No more 4138s as a claim for increase. AMA went even further. Now, it’s a crap shoot. Use a 526 after more than a year and they’re just as liable as not to say “Sorry. Wrong form. Please check your accompanying VA 20-0998 and pick the correct form. I send in both and it really messes with their heads.
With the advent of the AMA, more forms came out as discussed above. If you do not check off the little box in Block #16 on a 995 that says you’re aware of the §5103 info, everything comes to a screeching halt. They’ll send you a new one (after a month) and ask for it to be signed by you or your sword bearer at VFW. Shoot, even if you do check the box, the odds of getting one of those §5103 requests in next month’s mail are way better than winning the lotto. I see them pop up in VBMS and send in the acknowledgement lickety spit the same day. Apparently that causes confusion because they postdate them and look into the future a month out for your response-not the same day. Bingo. Thirty day delay minimum. You’d think you could outwit them by just filling out a stock §5103 and sending it in with the 995 or the 526. No way, GI.
How about you get a client’s POA and file a 526 for his ___________. Wrong. You-even though you are now legally driving Fred’s claim boat and have his POA- are forbidden to file the first 526 without his signature. Yep. 30 day delay kicks in for them to send it back and ask Fred for his Fred Handcock in block 33a. I get around that by just having my clients sign one and I put it in the file. If you sign below in block 37A-even though the client signed it, you go to 526 jail for a month because only the client is allowed to sign it. I usually have to look up the chowderhead employee and send him an email saying the client signed it so no harm-no foul. You see where I’m going with this? Each form has a punji pit that gains VA another 30-60 days to frustrate your filing. It does nothing to impede your effective date. It merely guarantees delays for any baksheesh you’re due. I could go on and on about these asinine little quirks. VA should coin a new word for this. How about asiten or asitwenty.
So, you file and it’s all plugged in. They promptly send you a VAF 21-4142 or 4142a and ask you for permission to get your private med recs from your doctor. But wait. Asiten kicks in. At the top of the form it says don’t use this if you want it done in the 21st century as it may cause up to a one year delay. Best to go get them yourself. Ever since the advent of Obamacare, everyone charges for sending your records to other physicians… or VA. Especially VA. What the hey? They’re government. They have tons of money right? Wrong. VA refuses to pay for copies of the very same records they asked you for permission to fetch. You foolishly think they got them (because they’ll never tell you they didn’t) and you lose. I could go on and on about that one, too. I found out myself the hard way. I discovered it in my claims file twenty years later. My doctors sent VA the $151.09 bill for the records and they sent a reply back- basically a laughing emoji with tears in its eyes… holding up its middle finger.
So, you lose. You come to me or an attorney. I file you again with the minimal required. I submit the 995 (w/§5103 checked just for shits and grins) and an IMO. VA of course denies because we all know a Board certified MD with 35 years of medical practice has shit for brains. VA’s nurseynurse NP with a two-year practice at QTC knows a shit ton more about all this. No sweat. You file the 10-182 NOD to the Board and remodel the kitchen for a couple of years while you wait. When you do win-and you will- it begins all over again with the 0% program. You have to refile a 995 and ask for a higher rating. You have to obtain evidence that shows you’re entitled to a higher rating. Your own doctor will have to get involved. Even then it’ll be the incremental game of 10%, then 30% and six years later after a real donneybrook-maybe the 100% or TDIU you should have gotten this year. Welcome to the new, improved AMA, soldier. You can thank the Big Six VSOs for this new denial technique. They’re the ones who dreamed it up.
The teaching moment is how to outwit these jellyheads as quickly as possible. Remember, they will send your efforts up to a DRO for a quick way to reduce you without reducing the underlying combined rating on the first outing. Next, they come back 4 years and eleven months later and say you’re all better. Bye bye TDIU and the fight begins anew. You don’t even know you got screwed.
One technique I use is to flip the selector lever from semi to rock ‘n roll and start spraying the claims at them to let them know this can, and will, only have one ending- P&T. If they deny you saying you don’t have erosive gastritis, file for it. Get you local physician to state it’s the same as GERD. Get it in writing. Get the shit for brains VA doctor to say “ascites” instead of “trace amounts of free fluid near spleen”.
The best bet is to get your IMO doctor to cover any and all symptomatology in one nexus letter. Everything. Each and every symptom associated with the condition should be tied back to the index disease-not just the index disease. If you’re gonna pay $2 K for the magic paper ($10K if your using Hadit’s go-to guru on IMOs), you might as well get them to write it all in there. The cost is the same regardless if you use quality doctors. Well, it is using my IMO outfit. I hear tell it’s on a sliding scale elsewhere- $1000 for the Hep C dx IMO, $1000 for the GERD dx, $1000 for the ascites, $1000 for the varices, $1000 for the hepatic encephalopathy etc. In fact, one thing I’ve seen in this business is the folks who offer to look under the hood and throw in the IMO for the DM II, the Prostate cancer and the Parkinson’s while they’re doing this. Of course, that’ll be another $1000 each for those too. But why not the hemorrhoids, the flat feet and the tinnitus while you’re there, right? Wrong. The fact is, if you have all that shit wrong with you, you only need to win a couple to get to the 100%. Everything else is generally a waste of time (and $) after SMC S so why pay $15 K when you can only benefit from $2 K worth. It reminds me of the car salesman asking if you want all the extras like the electric ass scratcher and the autotune for your FM radio.
It used to be I always went to the BVA with my IMO for my win. Now, with the AMA, it’s better to just throw down with your most excellent IMO at the local Puzzle Palace and let them deny it. Nowadays, they are going to deny it even if Jesus supplied you with a buddy letter. Worse, it takes 2-3 years if you use the “hearing” or “evidence” lane at the BVA for your NOD. You know as well as I do that the pathetic attempt at denial below is unsupported and they don’t even bother to go through the motions of citing to peer-reviewed articles anymore. It’s basically ” There is no correlation between the Veteran’s DM II and his peripheral neuropathy in all four quadrants nor the erectile dysfunction because I said so. These problems all began before he was dx’d with DM II so the etiology is due to a different cause. What that might be, we have no clue but VA didn’t pay us to deny based on that theory…yet”
You can benefit by having your IMO already denied at the local shit show and have the VLJ grant it above using the direct lane far faster than any other path now. When I say now, I mean since July 2021. About that time, the VA seized up. The BVA is so overwhelmed, they can’t see the windows for the filing cabinets. As for HLRs, I’m trying to have a rational discussion on solutions here- not more obfuscating to delay/deny/derail your claims. All my HLRs end with a new rating decision and an interminable delay that begins with a new 0% chase to refile over…and over… and over. That’s what this is all about. You won but you’ll have to file a supplemental to actually get any $.
In sum- file. Get denied. File IMO and get a cheapo depot denial and proceed to the BVA checkout. Win. Lather, rinse, repeat until desired results are obtained. If they give you shit, start throwing a lot of rocks for everything you can dream up until they cave in and you get the P&T.
If IMOs were Bloody Marys, this is what mine look like.
I got an IMO from my PCM last year. That resulted in over 12 joints being rated for realsiduals for Seronegative Rheumatoid Arthritis. 0% to 20%.
Looking at older posts concerning SMC, that is where I am going with the BVA. My wife has been my VA assigned Caregiver since 2011, and I was awarded SMC S1 and K, but am looking for A&A which should be a no brainer because the VA already decided I need attendance.
However, it is exactly as you say. A knife fight from the start and continually pointing out how ignorant the VARO is about ratings and precedent. Sometimes I feel like I am arguing with communist
You will find that obtaining entitlement to SMC at the higher rates above SMC S is a cat fight. They’ll say you need A&A but will refuse to acknowledge it at a c&p. Get a PCM to fill out and sign the VAF 21-2680 and say you cannot accomplish the activities of everyday living. Refer to §3.352(a) to ascertain which activities you are unable to accomplish without assistance.
Us Vietnam vets are all in our 70’s now. How much longer do most of us have? If VA can deny a claim for a few more years the vet will be dead and it is now on the widow. That is an awful burden.
Either the raters liked getting slapped by the Judges, or are being told to get slapped. Slap me once, and I would change my tune. Someone is pulling the strings. Money.
I once paid $1500 for an IMO that was two paragraphs long. The BVA awarded everything asked for after the doctor challenged that the VA for not using my medical history or researching current medical literature and it only took ten years.
I had a new wrinkle added to my claim/appeal: After the VLJ granted service connection through by accepted IMO (MH), destroying the previous C&P examiners DBQs, and pointing out why the IMO was the only examination that was probative, RO rating adjudicators decided the IMO was “incomplete”, therefore not probative for a MH rating decision! Rating adjudicators elected to apply the one (of 3) examiners symptoms to rate — even when she stated she was not able to separate out my dx due to overlapping symptoms. Adjudicators rated PTSD on the one disability, stating the other dx (Personality disorder, NOS; not-compensable) was the source of my more severe symptoms. So, another 5 years as we head back to BVA for their determination of whether the VLJ was correct in accepting the IMO, or is RO correct by ruling the incompetent C&P examiners accurate… Ah, yes; the battle rages on.
Yep. VA’s optometrist IMO far outweighed my Board cert. surgical ophthalmologist on a blind Vet due to malaria/ primaquine. VLJ remands it for predecisional error and another optometrist finally concurred… but they only gave him 90%. Missed being blind by thaaaaaaat much Agent 99. Sorry. No A&A, Jose. It’s back in DC w/ Dir. Comp& Pen for extraschedular consideration.
Delay and Deny ‘til the Day You Die!
The problem is running out of time with age dictating the next move… or lack there of… 7 years and counting with 70 yrs old coming in November… do they have an IMO for old age??
Calvin, you and about six others got caught in this twilight zone we’re in. I call and no one even bothers to respond anymore. VA denies stuff that any rational rater in the 90s-2018s would grant. Now, like the above folks say, they pick the worst thing and say that’s the best we can do. It’s like ping pong to the BVA. Some who are advanced on the docket have gone up several times and when they come back it’s lowball city or no ball. Things began to change with their attitude about late January 2021 and snowballed from there. All I can do is apologize for VA’s intransigence. It’s utterly appalling.
I don’t blame you in anyway Alex! Your a gentleman and scholar and like most of life, this will go where it goes when it goes there! Thank you for everything you do…