old records

Posted on September 29, 2011 by asknod
RDMURPHY
Registered: 07/31/10
Posts: 49
04/28/11 #1
This is for the moderators or mngr. In my military records prior to discharge in 1983 the army drew blood for a”hepatitis survey”. never told me why. Their hospitilazition records  claimed that I had vrial hep. Does this give me any leverage with VA down the road as far as proving deception? I am unsure exactly when the medical community had IDed the hep c as a seperate disease. Not sure if I will even need this information as the QTC report says all secondary ailments that I filed for are “as least as likely as not” secondary to hep c. these claims are under review ha ha. opinion sir
Edit | Delete
NOD
Avatar / PictureManager
Registered: 11/22/08
Posts: 654
04/28/11 #2
     Ah, Mr. Murphy. You are why Vets have such a good reputation in America. So, you have your hands on your contemporary SMRs and you can clearly see where they state you had ” viral hep” ? A word on this. Viral hep in 1983 was Hep B. This was determined with an Australian antigens test. What the testdidn’t say(but implied) was the disease was not Hep A. This is an important distinction. If the test had been negative and you had jaundice, it would imply you had Hep A. End of claim. But it didn’t. Hep C (aka non A, Non B) was not expertly identified prior to 1989. There were a lot of false positives( and negatives) until about 92-94. Your positive results indicate Hep B, but do not exclusively rule out Hep C. You certainly have leverage and a lot more than you think. A really good nexus from a Gastrodoc stating that the Hep in service was at least as likely as not also Hep C is the glue that will cement this win. B & C are both blood borne pathogens. Hep A travels the oral/fecal route. Ugh. Not sure what you mean by “proving deception.” Do me a favor and read Groves vs. Peake in the Important CAVC Legal Rulings (page 2) to understand the significance of having hep diagnosed in the service. While it can be said you had hepatitis of some kind in the service, it cannot be said with any certainty that you did not have Hep C. That is an important distinction.


     Now, to dispel a horrible misconception. QTC may tell you anything. They may give you the winning lotto numbers for Saturday. What they will not give you is a nexus. The VA sends you there to do one thing only and that is to determine a)if you have the disease you are claiming and  b) how badly you have it (what %) . If you think, or gather by what they say, that they are going to provide a nexus to the VA for you, you are in for a shock. VA raters do this. They gather all the info and make a decision. Usually it is wrong, but 14.7% of the time they get it right-eventually.

     Time and time again I have heard this old wives tale that the Vet comes back and tells us the QTC people are in their court on this one. They may well be, but with that and $4.25 you can get a good iced latte with all the frills or a good heated B&B after dinner in an upscale restaurant. If your QTC doc had stated that it definitely and positively was SC, it still wouldn’t influence the RO decision.  They might look at it as one more piece of evidence, but wouldn’t accord it any more weight than any other piece. No, you’re going to win this on three prongs. One is disease in service which it would appear you have nailed; Two is the same disease (or a reasonable facsimile) currently; and lastly Three- the all important nexus from either a M.D. or an ARNP stating at a minimum that “it is at least as likely as not that the disease the Veteran has now is the one he had in the service”. The doctor has to state that he has read and reviewed not just your medrecs , but also your milrecs to make sure you do not have any UCMJ drug charges on your record. If you peruse 38 CFR § 3.303(B), you will see how that bears heavily on a claim where you had a potentially chronic disease in service that has now resurfaced. that is the crux of what Groves stands for. The QTC doc does not have your medrecs so his opinion is good for kleenex.

     I do not prognosticate on Vet’s claims. I will give you my honest opinion without resorting to tea leaves and chicken entrails that your chances of success are light years ahead of Vets claiming jetguns as the salient vector. Your nexus will be the single most important ingredient in the C file. A weak one is worse than none at all. It simply becomes the springboard for the VA examiner’s denial. As in “while the veteran provided a nexus from Doc. A, it wasn’t very probative because the Doc did not discuss the veteran’s ETOH addiction and homeless status in 1998 nor did he review the contemporary medical records”. VA is good at this. They do it for a living. You do it only once in a lifetime. They look for one mistake and deny based on that. So much for benefit of the doubt.  Just One Veteran’s Opinion (JOVO), sir
Edit | Delete
menalteed
Registered: 09/08/09
Posts: 37
04/28/11 #3
Went down to the VVA today to retrieve some records prior to my peripheral Diabetes QTC and also gather some things to share with you..They lost all my records but took my picture and asked me to give them a nice letter on how helpful they were in my claim winning SC for Hep C by air gun injections. What! hahahah….In any case was nice and agreed..they need the kudos. Vet in the office day prior to me  wasn’t a happy camper, went home and called Patty Murry and made threats. Last I heard he was barricaded in his house surrounded by federal agents. I had a mental grin and thought maybe they should ask him for a letter and picture…I still have the home records, not as good and not as orginized as it shoud be but will go through them and find enough to be helpful.  I may have other questions before my QTC on the 12th…..peter
Edit | Delete
NOD
Avatar / PictureManager
Registered: 11/22/08
Posts: 654
04/28/11 #4
Jez. Tell them to contact the VARO and get a copy of your C-file. I wouldn’t give them anything. Just for shits and grins, did they do all the work to get you where you are now or did you do it yourself? I’ll bet they held your coat while you fought. I really respect VVA because they are light years ahead of other VSOs but the truth is all VSOs are not ready for prime time. I’m sorry if I sound like Negative Nancy. I call them as I’ve seen them in the past. Prove me wrong, Peter. Tell me it ain’t so. I want to be wrong.
Edit | Delete
menalteed
Registered: 09/08/09
Posts: 37
04/28/11 #5
Really all they did was typing the forms but some of them now I have found were not correct, case in point my wife is not covered yet. In any case I did call them a lot and had them pester anyone who would listen up in the VA office. The first person I delt with became very I’ll over the last year and retired several month before my case was rated. He was always blown out by my information and thanked me many times telling me how helpfull my information was going to be in helping other vets, “your supplied information  found on NOD”. The new people in the office will take some time to get up to speed but I think they cleaned out all the files to lightin up the office….a mistake I believe…peter
Edit | Delete
RDMURPHY
Registered: 07/31/10
Posts: 49
04/29/11 #6
mr mngr, brevity got in tne way again. My claims for hepc have allreadt been approved in 2008,currently sparring with big brother on date of claim. wondering what help if any the doctors statement about drawing blood for a hep survey might do for me in a court of law. They clearly knew something was wrong in 1983. Have filed with VA as far as date of disability a copl of 38 USC 3.157,b,1. this seems to clearly state my right to date of claim from my date of hospitializationin a uniformed services hospital. have read the information fowards and backwards and don’t see how they can slide out of it
Edit | Delete
NOD
Avatar / PictureManager
Registered: 11/22/08
Posts: 654
05/01/11 #7
     This is how the system works. If you file a claim, they will either consider or deny. If you have medical evidence from service, but did not file until now, they will not go back to then.The theory is you file within one year of separation to get SC virtually automatically. Absent that, your claim date is when you file. If you are in a hospital and want to file, you can express your wishes to do so. If you file when you get out, they still use the date of when you entered the hospital. You have one year to file this claim after discharge (see  § 3.157(a):                                                                                                                 

Acceptance of a report of examination or treatment as a claim for increase or to reopen is subject to the requirements of §3.114 with respect to action on Department of Veterans Affairs initiative or at the request of the claimant and the payment of retroactive benefits from the date of the report or for a period of 1 year prior to the date of receipt of the report.

The “uniformed services hospital” to which they refer is a military hospital if you were on TRICARE and retired after 20+ years. It isn’t a reference back to any military hospital you ever were in. VA pays (assuming they grant your claim) from date of filing and up to a year earlier if you can prove the requirements listed in § 3.157 re hospitalization (informal claim).
     Does that compute? VA is not generous and neither are their regulations. It mimics civil law in that a claim cannot be imputed. You have to file to obtain benefits. They cannot read your mind, nor will they blithely grant SC back to some ancient time when you had evidence of something amiss but failed to file. Were VA to do this, the government would be in deeper doo-doo financially than it already is.
Edit | Delete
RDMURPHY
Registered: 07/31/10
Posts: 49
05/01/11 #8
Thank you, I do not have a complete copy of 38 USC as pertaining to vet benefits. Took your advice and filed a staterment with big brother as far as witnessing my 2006 claim being mailed. My wife has a saying’when it seems to good to be true it usually is’. will continue onward and upward, wish all brothers and sisters good luck in their ongoing battles. Thank you
Edit | Delete
NOD
Avatar / PictureManager
Registered: 11/22/08
Posts: 654
05/01/11 #9
I suggest you not worry about 38 USC. 38 CFR are the regs on all this- specifically Part 3 (adjudications) and Part 4 (diagnostic codes and ratings). They can be accessed by clicking on Federal Code to the left. Best of luck and thank you for keeping America safe. We served 24/7 /365 w/o any overtime pay. It would seem VA would be willing to go the extra mile for us now as we did did for America then. Amen
Posted in General Messages | Tagged , , | Leave a comment

The Frequent Flyer Program

Posted on September 29, 2011 by asknod

A week or more ago I did something I’ve never done before. I perused another Veterans Benefit site to ask a question on a subject even I am unsure of. I am not above admitting I don’t know everything. I don’t. What I happened to observe there was disconcerting for two reasons, neither of them related to one another.

The first observation was that a FNG had posted an innocuous question that was rudely answered by another Vet. It was the rudeness to a fellow Vet that struck me as completely out of place. The first Vet appeared to be lacking a lot of the knowledge one would assume a Vet with many disabilities would have accumulated by now. This led to the second observation that the newbie was a “frequent flyer”. By that, I mean this Vet has more ratings than you can count on your digits. I will paraphrase as I do not like to identify these individuals and heap scorn on them. Perhaps the moniker of Frequent Filer would be more apropos.

The post started off innocently enough. It was a question about a rating for bunions. After a tirade from Vet #2 about   how to post on their forum, the first Vet expanded on the question. Here I liberally paraphrase without embellishing. It  seems this enterprising Vet had a rating for 10% for a “bunionectomy” and has recently been rated at 20% for Major Depressive Disorder(MDD), secondary to the bunion issue, has Tinnitus (10%), hearing loss (0%), DM2 at 20% and a pearl necklace of other little ailments like hemorrhoids(10%), abnormal menstrual cycle 10% etc. The burning question was if anyone could point her to the Diagnostic Codes for MDD. It seems she was desirous of learning the requirements for a 40% rating in order to qualify for TDIU. Yep. I added it up- 40 +20+10+10+10 would get her 65% rounded up to 70. As we all know, the minimal requirements for IU are 70 with one at 40 or one at 60 or more. This is where the term frequent flyer arises. This Vet is shopping for a TDIU! While I feel every deserving individual should be amply rewarded for his/her injuries, diseases and disabilities, I feel nothing but disgust for this person. Her gender has nothing to do with it. If anything, I have more compassion for my sister Vets because I feel they have a much harder row to hoe. Unfortunately this cannot be said for the woman above.

There are just so many dollars available for Vets. I certainly don’t advocate a means test or Triage for this, but it stands to reason that if someone is gaming the system it deprives others of their fair share and occupies valuable RO time better spent on Veterans with far more severe injuries.

An example, if you will. Several months ago I was sitting in the ROI lobby awaiting my turn to obtain some of my medical files. I was talking with another Vietnam Vet who had the misfortune to step on a Bouncing Betty. His buddy in front of him didn’t make it, but miraculously this fellow did. He lost both legs at the knee and was rusting from all the Shrapnel that’s still in him. He was allowing as how he might get TDIU this time around because now he was over 60 and had been denied 3 times since 1968. He had a rating of 60% for the legs, 10 for tinnitus and the same for injuries to one of his muscle groups. That’s 60+10+10= 70%. This gentleman had no legs below the knees and still couldn’t get TDIU. Perhaps he didn’t have an eloquent VSO. Nevertheless, of all the injured Vets I have met, he would get my vote for IU. I think he almost deserves it more than I do for my hep. As for how he stacks up against Miss menstrual irregularity, I will let the reader be the judge.

So how can a system as equitable as ours be rife with Vets picking the low hanging fruit? I have one easy explanation for it. There are some who join the Service with one thought in mind- retirement after 4 years. These are the same people who “slip” and fall down in supermarkets and then sue for exorbitant damages. They know they’ll be granted a small settlement without a trial and can do this again and again. Insurance companies have nicknamed them frequent fliers. This Vet I describe is doing the same exact thing. They can go on sick call three or four times to prove an ailment or symptom in service and then file after discharge. Some injuries are subjective in nature like Tinnitus. Doctors cannot measure it with a thermometer and audiometer or a visualize it with a magnifying glass. Its your word against theirs. Here it appears the Vet is seeking to learn the path to a higher rating and thus IU via what it takes to be rated at 40% for MDD. I  submit that MDD is another of those subjective ailments. What’s more the pity is that she must have discovered that amassing innumerable 10% ratings will never add up to 100% or even TDIU, hence the query on getting one 40%er.

And we wonder why VA examiners are so cynical and treat us all like lazy boobs seeking something for nothing? I, for one, am embarrassed to be associated or related to malingerers. We should not aid and abet this type of Vet. Fortunately, it appears we don’t get any of those types here at this site. It seems everyone here actually has a disease and a life threatening one at that. I feel much better going to sleep at night knowing I am helping Vets get SC for Hep rather than hemorrhoids. I’m sorry if that sounds uncaring or callous. My Vet friends have diseases that are killing them-literally. That, somehow, is a more worthy calling. Nobody ever died of hemorrhoids.

 

Posted in General Messages | Leave a comment

Reenacters Needed

Posted on September 29, 2011 by asknod

I was reading about all the War of Northern Aggression reenactments scheduled for this year as it is the  sesquicentennial of the War. For those of you from St. Petersburg, that’s one hundred fifty years. Thinking about this sent me woolgathering back to 1961. January 9th, to be exact. That was the chosen date for the beginning of the “Vietnam Conflict” as Walter Cronkite called it then. Up to then I though a conflict was a disagreement your parents had about where to go out for dinner. The idea that two disparate groups of the same parentage could try to annihilate one another like we did from 1861-65 and call it a conflict intrigued me. It sounded way more civilized than what our northern cousins did to us inVirginia. I was 10 years old in 1961. War was COOL.

My father had gotten out of Dien Bien Phu on March 5th, 1954 by air. He had been sent over from Japanwith a group of AF, Army and Naval officers to see if we could learn anything from the French or get some training for our troops. They didn’t leave a moment too soon according to what he told me later. He compared it to what Custer encountered-way too many Indians.

When he came back from his second “official deployment” as Vice Commander of 7th AF under  Bill Momeyer in ’68, he told me we were never going to win that war. McNamara could build cars, but he couldn’t figure out the supply requirements for a war. Pilots were dropping 250 lb. bombs by then because we were out of 100o and 500 lb. GPUs. If fact, we were buying back 500 pounders fromGermanyat $900 a pop that we sold them in the early 50’s for $15 each. It was about this time I decided I just couldn’t miss this shindig. It looked like the last war we were going to have for a while and eau de gunpowder was my kind of perfume. I was 17 in 1968.

Vietnam was the first war we ever lost. Some would put a better face on it and say we took a silver or a bronze, but its the first war or “conflict” that we didn’t take a gold in. Screw that Peace with Honor bullshit Nixon was selling. 58,209 KIA  and 153,303 WIA was not a “conflict”. It was a war. Although that number is counted from 1955 when we decided to start tinkering with politics over there, the Defense Department marks time with a different calender. We officially started spraying AO on January 9th. 1961 according to the VA. If you look closely at the little silver bar on your Green and White “I was there”medal it has a 60- on it. I’ve never seen one with 60-75.

Which brings us back to the 50 year anniversary of the start of the Vietnam war. I was thinking of putting out a call for reenactors of a few memorable battles from that era. I doubt I’ll get any Marines who would like to relive Hué during Tet 68. In fact, I doubt I could convince anyone who was there to relive a moment of that life.What I don’t doubt is that everyone who never went to Vietnam, but said they did, would show up.

While I did spend two years over there, I would never do it again if I knew what I know now. My draft number was 39 in 1969. They took all the way to 70 something.  I joined the AF when my notice from the Army came to report to AFEES inHampton,Va. September 1st. I never would have gone to Canada. Everyone in my family has been in the military. Its in our blood. My Uncle was captured at Corregidor and did the 550K Bataan fun run with a bullet through his ankle. He was a guest of the Japanese Army for 4 years. My father was a P-51 ace (16 1/2 kills) with 27 Air medals. My future brother in law was a 90 day wonder with gold slats in 69. Hell, my great great great  grandfather fought in the American Revolution (Maine Volunteers- part of Massachusetts then). My great grandfather fought for the South from South Carolina. So you understand why I couldn’t walk away from this one. It sounds like Lt. Dan from Forest Gump and in a way it was. Only I wasn’t supposed to die slowly from it 40 years later.

What must go through the minds of reenactors? Reliving history? Wanna be confederate or union soldiers?  I have spent a lot of time helping and listening to Vets in the last 4 years while I learned how to win at this VA thing. Virtually all of them were in SEA. None of them who experienced combat had or has any desire to relive that period. Most would prefer to bury it and walk away. Absolutely none would pine for a do over. Its very  embarrassing to go to a war and lose. It would be like losing a football game in your senior year to the worst team in the league- inTexas. You just don’t get over those things. I haven’t.

So, I suspect there would be no interest in a Vietnam Reenactors Society. There would be that big problem with BATF over the M-60s and the M-79s not to mention the grenades. Finding period aircraft to drop the napalm is going to be a big hassle as well as finding pilots still on flight status. I suppose Claymores would be right out. I don’t think they make dummy ones either. Finding Vietnamese reenactors here would also be a non-starter because they all fought for the losing side, too. No, I guess this will be one for the history books.

We all know that those who forget history are doomed to repeat it. I just didn’t expectAmericato forget it so soon, though. When I go to the VAMC now, I see kids my age when I fought. Real Veterans- not reenactors with boo-boos. More collateral damage again and no end in sight. Dammit.

Posted in General Messages, Humor | Tagged | Leave a comment

date of claim

Posted on September 29, 2011 by asknod
RDMURPHY
Registered: 07/31/10
Posts: 49
04/14/11 #1
attempting to puzzle this one out and figured finally to ask for help. Trying to determine how far back my claim for compensation can go. Exposed to hep c in service in 1982{hospitalized on active duty}. Struggled thru untill diagnosis by civilian doctors in 2005. attempted 1st claim in 2006{VAclaims to have no record}. restarted claim process after transplant in 2008.Approved SC in 2008 and filed for appeal on date of disability immeditley. VA states my hepc was comtracted in service, my QTC physical states my militaty records show symptoms in 1982. Reading statement of case sent me in 01/11 38U>S>C> clearly states that after a claim has been aproved or denied a report of hospitalization will be accepted as date of claim. Also have filed for UI form 2006 when SS disabled me. Have documation out the wazoo,given to VA. opinion please sirs.
Edit | Delete
NOD
Avatar / PictureManager
Registered: 11/22/08
Posts: 654
04/14/11 #2
     Here is the rule as promulgated by VA. Then we will address your 2006 attempt.A claim for injury/disease can be no earlier than the date of filing unless you have been out of the service less than a year. You get a one year presumptive on everything post service, and a sliding scale for other illnesses too numerous to list here like TB etc.


      Now, in the real world, we file claims and the gentlemen at the VARO sometimes misplace these filings. Some Vets in Cleveland would have us believe their claims have been routed to the shredder room and there is ample proof of that according to the VAOIG. Moving on, if your claim was filed via a VSO or other entity such as a lawyer, there will be proof of it at the RO. If you filed it pro se and did not send it certified mail, return receipt requested (CM3R) then you basically have no proof that you did so. You can overcome this problem if you had someone with you when you mailed it at the P.O. Or, if you are kissing cousins with the postmaster/mistress, he/she can sign an affidavit that you did this and they witnessed it. Merely trotting out to the mailbox and running up the red flag is not evidence that will stand up in court. This is called the common law mailbox rule. There is a very informative CAVC decision we posted entitled Rios v. Mansfield that tells all about this. We don’t want to spoil the story for you so we’ll let you read it. Its in the Important CAVC Legal Rulings section.

      Lets us revisit 2006 though. Did you file this or was it via a VSO? You state you “attempted 1st claim in 2006” but do not entail what that consisted of. If it was not a “formal” claim on a Form 21-526, it could be as an “informal” claim- one voiced to a VA doctor and desirous of seeking service connection. A VA doctor is obligated to forward this request if it can clearly be decided that you did so. Merely stating  to the guy taking your temp. and B/P that “VA like so owes me, dude and I’m gonna get justice some day” is not an informal claim. It has to be more specific. 

     Here’s an actual example one of our moderators finds himself in. He filed a claim for hearing loss, and while being examined for this, he voiced the fact that he was severely depressed about how much trouble he was having getting a job due to the hearing loss drawback. Very clearly, this is a classic example of an informal claim for depression. We will find out how VA rules on it sometime in the future when the VA sees fit to address it. Its on appeal. 

     A report of hospitalization can and is often used as a point of reference for a claim filing. What better way to file than to collapse and go to the hospital? That’s a pretty clear statement of the medical facts. 

     Filing for IU (or TDIU) involves a lot more than just filing based on a SSA finding. While VA recognizes SSA holdings of disability, it is not held to any legal standard to honor it. VA is an agency unto itself and is not affiliated with the Social Security Administration. We haven’t determined which drummer’s beat they march to yet, either. Absent a rating that will support a TDIU grant, there can be no foundation for it. Merely applying for it based on an SSA determination gets you very little as you might have found out. My VSO did this in 07. I had a 0% for tinnitus and another goose egg for left ear hearing. I was circling the drain with an AST/ALT of 595/650 and said “What do I do? I can’t work. I’m too sick.” He handed me a TDIU form and said “Here’s what I’d do”. I pointed out that I didn’t qualify with a double ought rating. His immortal rejoinder: “Well, you’ll never find out if you don’t try.” My wife was with me and leaned over and asked if Clarence Darrow was who I was pinning my legal hopes on. She suggested the Publisher’s Clearinghouse Sweepstakes had much better odds. Don’t you hate that when your wife is soooo right? I went home, composed my revocation of Power of Attorney and started studying VA law in earnest. I did file my PCH form, but never ran into the Prize Patrol on the front lawn. 

     Given the information you have supplied so far, this  constitutes our best guess on what awaits you. I had hep in service in 1971, but VA will never pay me back to that date because I didn’t file when I got out in 73. My hep was not apparent then either- just the AO symptoms. But AO wasn’t recognized for another 11 years so again- zip. Life is unfair, but VA takes it to a whole new level of  deprivation. We are stuck with the rules we are dealt. With that said, its important to investigate every action on their part in 2006 that lead to this unadjudicated claim. If you feel uncomfortable discussing it in front of the world, PM me in the upper right link. If they did something stupid like receive your claim and drop the ball (and they often do), we can show you the legal maneuvers necessary to attack this and establish your effective date as 2006. It’s not impossible. As  my SO said those many years ago; “You”ll never know if you don’t try.” 

     I personally don’t believe in “trying” anything. Trying, by its very meaning, implies ultimate defeat. As Yoda said once “Do. Or do not do. To try is to fail”. Lacking a positive mental attitude (PMA) is another harbinger of failure. Mr. RDMURPHY, when I arrive in Hell, I will have some interesting arguments in my NOD. Trust me.

      

     
Edit | Delete
RDMURPHY
Registered: 07/31/10
Posts: 49
04/15/11 #3
Thank you for your swift response, don’t have any problem putting this out to the world,so here goes. 2006 claim was filed formally, mailed by my wife as I was in civilian hospital with complications from hepc. was not return receipt as I waS FOOLISH in beliveing that VA was here to help at the time. Have witnesses who went with her to mail, so may be ok there. still pending response to my challenge of SOC. AS far as date of claim ,38USC 3.157[b,1]   states once a formal claim has been accepted or denied a report of hospitailzation from VA or a uniformed services hospital WILL be accepted as date of claim. I was hospitilazed with HEP in jan of 82 on active duty. As for unemployability I have submitted to VA civilian records from 2005 showing me with active and chronic hep c as well as hospital reports from 2006 onward thru my transplant in 11 2007. Reading the funny papers they send with each award or denial letter VA states that your effective date is determined by either when they received your claim OR when the evedence shows a level of disability under the rating schedule. Am I misreading these statements?
Edit | Delete
NOD
Avatar / PictureManager
Registered: 11/22/08
Posts: 654
04/15/11 #4
     I see your dilemma with deciphering what you are reading. VA does not speak English. They speak TDIU and SOC. They hate dealing with individuals who represent themselves. They much prefer the Good Ol’ Boy network of VSOs with a little Congressional Interest thrown in every once in a while. That had been the status quo for years prior to the internet explosion of sites like this that offer as good or better than what you can get at VFW and the like. VVA is the exception to that rule but it means getting up and driving down there. In spite of what women think, men can multitask but they rarely expose this attribute for fear that it will bring on new responsibilities and cut into their “guy time”. No, its better to be perceived as the Village Idiot and have more time for reloading for bird season.


      If a guy is going out for groceries with a side trip to La Depot pour la Maison to check out the new line of John Deere lawnmowers, he could easily throw this VVA side trip into the mix. But if he can watch a ballgame with the c-box in his lap plotting his VA legal strategy, that too, is multitasking-for fun andprofit. You are saving the planet, creating less global warming by not driving and learning more about VA. Many of us are ill and the option of just jumping into the rig and motoring over to VVA is not viable. 


     VA decides your date of claim strictly by when they receive it unless they use the hospital date. That is a claim for new illness/ injury never filed previously-ever. If and when you are service connected for a disease/injury, your existing medical records are used to determine an appropriate % of disability. We are referring to contemporary records already in existence at the time the claim was filed and newer ones. VA will not retro to your date of separation absent a filed claim. If you win your claim for a filing in 2006, your newer records can be introduced as evidence and the claim posture becomes one of the adjudicators sitting in 2006 observing evidence from the future. This is a win win for you if it happens.

     The second phrase “or when the evidence  shows a level of disability under the rating schedule” is a generalized legalspeak also  pertaining to a filing for increase where you prove to them you are far more ill than they think you are. This usually prods them into writing a slightly larger check to you each month for the disease/injury. All this evidence is absolutely meaningless until you file though.

     Most Vets are not aware of this  but there are two classes of Veterans. Class #1 are all veterans who are not service connected for anything. VA treats you like a welfare cheat trying to claim 10 more Dependants than you have. Everything you say is suspect. If you say anything at a VA medical center to a VA employee about anything having to do personally with the VA, it will be written down verbatim. As in: Patient states”….

       Class #2  is composed of Service Connected Vets. They are inside the concertina wire and are not  a threat. They are legally on Welfare now and can’t really cause any more unexpected financial harm to VA. Getting in is the trick now, isn’t it? Only 14.7%  will ever succeed in gaining membership to  this elite club. Getting there is most easily accomplished by following the adage; “When in Rome, do as the Romans do.” Figure out the labyrinthine rules and regs (or ask someone for assistance) and then use it to prove or win your case. 

     Reading the funny papers is entertainment,sir. VA usually gets the wrong doctor’s name associated with the wrong injury. I have been described in the AO rating decision as  “A veteran of the Vietnam War” and in the hep decision as a “A veteran of the Vietnam Era”. I think they depend on computer-generated software too much and do not inspect the finished product for continuity, accuracy or spelling. Best of luck on busting open the 2006 claim. Your evidence will certainly prove the claim is valid.
Edit | Delete
RDMURPHY
Registered: 07/31/10
Posts: 49
04/15/11 #5
Thank you for the clarity. Spoke to VA today, seems my calls to congresscritters have borne fruit, now showing my secondary claims  being reviewed as of early april. My heart goes out to all the men and women fighting this fight. I have been fortunate,if you can call beening infected with this illness lucky by being hospitalized with hep on active duty and than having the govt actually finding my records 22 years later. good luck and good fortuneto all. THANK YOU
Posted in General Messages | Tagged , , , | Leave a comment

Claims Flow Chart 2011

Posted on September 29, 2011 by asknod

Attached below is a handy little wallet sized guide to understanding your VA claims. I say wallet sized if you shrink it down to carry it or fold it up. If you have one of those magnifying glasses with the light built into a credit card size this works really well. For the rest of us heppers with a world of vision problems-not. You will notice what seems to be,at first glance, a virtually automatic denial at the  VARO level -actually is. We included the leisurely DRO scenic route for dreamers and believers of stories that start out “Once upon a time…”. It leads to the same Egyptian river but consumes another valuable year of your life before you start down the regular appeal path.


     The Remand and Yes paths are drawn uphill  because they travel very slowly. There is no impetus to give money away to welfare cheats and Vets. The denial path goes straight down very rapidly because thats where 85% of  them end up. 

     The Supreme Court path depends on if they really want to hear it. Most times they don’t so it can end rather  unceremoniously at the Federal Circuit. The VA Secretary has the right to appeal your win at the CAVC up to the Fed. Cir. or the Supreme Court.  So, just because you win at the CAVC doesn’t mean VA is finished with you.

     A remand does not imply a win. It means they screwed up and have to do it over again. That can mean another denial under a new ruling and the appeals process starts all over again brand new. Seem like a circus? It is. An incredibly slow, boring, dull circus with a lot of clowns mouthing the word “No!”. 

     A win, on the other hand, often can result in a lollipop with no lickable lollipop attached to the stick (0%). When that happens, you start the appeals process all over again for an increased rating unless you were smart enough to ASK for a “compensable” rating in the first place. 

      The Appeals Universe is a dangerous place to be for the novice. There are  Black Holes that can make appeals stretch out into light years. That’s right, Joe Veteran.  You don’t want to go there without your new, patented Claims Flow Chart by Noodledude from the Speigal catalogue -Chicago -60609. You’ll always know where you are and where you’re heading with one of these. Get our new, improved CFC365 version with on board GPS for accuracy to within a year for just $99.95 more! Take the guesswork out of your claim. Amaze your Vet friends. Group discounts are available for VSOs.                                                                                                                                                                                                                 
Posted in Uncategorized | Leave a comment

VA End of Life Hospice Care

Posted on September 29, 2011 by asknod

Report: Vet on Death Bed Ejected by VA

April 02, 2011

The Virginian-Pilot

HAMPTON — The Hampton VA Medical Center inappropriately discharged a terminally ill veteran from its emergency room and failed to provide him hospice care requested by his wife, a federal investigation has found.

Investigators from the U.S. Department of Veterans Affairs’ Office of Inspector General found that staff members at the Hampton center were unaware of a VA policy requiring that end-of-life care be provided when veterans and their families ask for it.

The investigators’ report, issued Wednesday, came in response to a confidential complaint about the treatment of the veteran, a man in his 50s, who came to the center in August ill with lung cancer that had spread to the brain.

Over three successive visits to the emergency room, the man’s condition steadily deteriorated. By the third visit, he was weak, confused, incontinent and required help from VA staff to get out of his car.

His wife told the staff she was having difficulty managing him and could no longer care for him at home.

Nevertheless, the emergency room doctor discharged him, saying he did not meet the hospital’s criteria for acute-care admission. When his wife asked about hospice care — which focuses on allowing patients to die with dignity, pain-free — she was told no hospice beds were available.

She took him home but, even with the help of a family member, was unable to get him out of the car. She called 911 and paramedics took him to a local private hospital, where he was admitted.

His doctor there contacted the VA and requested hospice care. The veteran was scheduled for admission to the VA’s hospice unit five days later.

Two days before the scheduled transfer date, he died.

The investigators found that the VA emergency room doctor did not do a complete evaluation of the veteran before discharging him, failing to document the significant decline in his condition the past three weeks. They also found that the VA staff missed numerous opportunities to initiate hospice care.

The investigators were unable to substantiate allegations that the veteran and his wife were treated rudely by the staff or that four hospice beds were available on the day of the veteran’s last visit to the emergency room.

In response to the investigation, the Hampton center has provided training for its entire clinical staff in the VA’s end-of-life care policies.

“The Hampton VA Medical Center takes great pride in its state-of-the-art palliative care facility and dedicated staff,” said Jennifer Askey, a spokeswoman. The facility’s emphasis is on “honoring patient and family choice,” she said.

© Copyright 2011 The Virginian-Pilot. All rights reserved. This material may not be published, broadcast, rewritten or redistributed.
Wow, I guess the VA will have a hard time trying to sweep this under the rug. Or will they? Every time this happens, they trot out the standard rejoinder. “We are providing training to our employees to avoid a recurrence of this unfortunate incident.” An unfortunate incident would be if your scoop of Haagen daz ice cream  fell off your cone into the dirt. An unfortunate incident might be correctly picking all but one of the Powerball lotto numbers. However, an unfortunate incident  should never entail losing your spouse. 
Posted in General Messages | Leave a comment

processing time limits?

Posted on September 29, 2011 by asknod
RDMURPHY
Registered: 07/31/10
Posts: 49
03/31/11 #1
Awaiting decesions on multiple secondary claims related to hep c and transplant. Va says the claims are in the development stage, all physical information received by VA 9 feb2011. Yearly bene statement now shows me permenatly and totally disabled  did not last year is there a time limit for processing secondary claims? Houston regional office
Edit | Delete
NOD
Avatar / PictureManager
Registered: 11/22/08
Posts: 654
03/31/11 #2
I love the brevity of men. No offense intended, sir. You have condensed your message down to its most essential component. Women tend to expand rather than contract. I can always discern the difference without having to retreat to the profiles section to determine your gender.


     What we need in order to ascertain what you desire is more info. You are awaiting decisions on claims secondary to Hep. Has the hep decision been made yet w/ respect to SC? Any downstream secondary claims rest on that premise so we ask for clarification’s purposes. You mention a yearly benefits statement yet we are not acquainted with such a beast. Is this something related to less than a 100% rating or is it of pension vs. Compensation origin? If you are P&T, it follows you would be 100% schedular or more and be receiving monies   commensurate with a 100% rating .

     There is no time limit for processing any claims with the VA. I have read about some which have dragged out for four or five years in the initial development stage due to additional information submitted and /or searches for PTSD stressors. All this before an appeal, mind you. My second attempt to summit Mt. VA in 2007 was 16 months from 2/07 to 7/08. The PCT (secondary) from the same claim stream went on until 10/08 before resolution. 

     VA is inundated with claims from Iraqi and Afstan Vets. It’s no wonder they are in the dog house for delays in adjudication. If the new info for secondaries was submitted in 2/11, do not be surprised if you don’t get some acknowledgement that they received it before 7/11. A decision on the merits may still be another 6 months after that. Have you signed up for Ebenefits yet? You can keep track of it on that venue-or so they say. If you need more info on that, shoot us back a query RFN and we’ll show you how. If it ever works as advertised, Vets will suspect they’re in the info loop and feel less like cultured mushrooms in the basement. As with any government computer program, the first hurtle is to get it to work at all. Most are incompatible with the very people they aspire to serve. 

     The Ebenefits program and its orphan sister, HealtheVet , are inspired efforts that allow you to ostensibly view your VA files and medrecs from the VISTA medrecs. Reality is somewhat different. HealtheVet now allows you to see what meds you are prescribed and currently eating. If you are so forgetful that you have use their venue to remember them, you may find this epistle to be unintelligible.  

      We had some input about the Houston VARO last year. They appear to be capable of rational thought processes and possess GED equivalent educational documentation. One of our members received very decent treatment from them. Johnny59’s 10% Hep rating under DC 7345(1989) was upgraded to 60%, his cirrhosis under DC 7312 went from 0% to 100% and he also received 20% for DM2, second to the hep. When he was finished, we had him up to 190%. He is very ill and deserved it. Too bad VA made life a b*tch for him right up to decompensation. He has to be cancer free for several years in order to qualify for a transplant and that will be another ten months. He just underwent a TIPS procedure to relieve the portal gastropathy. This will turn his brain into oatmeal until he has the transplant. We all pray that won’t become permanent.

     Happy Birthday , Johnny. It could have been worse- like April Fools day. Get well soon, too.
Edit | Delete
RDMURPHY
Registered: 07/31/10
Posts: 49
04/01/11 #3
Thank you for your speedy response, sorry for the brevity, just how I am. I am s/c for hepc, transplant and depression, currently rated at 100%. filed for multiple secondary claims in response to an attempt to reduce from va. They have admitted reception from qtc on feb 9 2011. the va doctors at audie murphy have actually been quite haplful in stating my secondary problems were directly connected to hepc. as for Johnny59 I know what he is going thru, had a tips procedure prior to transplant, as long as he controls the ammonti levels it is bearable. i was to far gone for tips to help me, i hope it helps him. NOD is godsend to our uniformed brothers and sisters for the information and support you supply. As for houston varo in all fairness to them they have treated me fairly, if very slowly in the past. I will happy to share my experience with tips and liver transplant with anyone who might need it. THANK YOU.
Edit | Delete
cdneh
Registered: 01/20/11
Posts: 44
04/01/11 #4
I for one would be most interested in hearing about your transplant/tips experience. My husband is headed for that in all likelihood down the track.I agree totally. NOD is an absolute godsend.

__________________
donnelly.kate@gmail.com
Edit | Delete
RDMURPHY
Registered: 07/31/10
Posts: 49
04/01/11 #5
as for the benefits letter I am unsure why, however I have received a statement of benefits from va every year since 2008. It lists what level of disability I receive, S/C, if I am unemployable ETC. This year the letter shows me as totally and permenantly disabled, however no change has meen made as far as retroactive payment or date of dasibility. I hope this means positive things for my family. sorry I did not post this with the first reply.
Edit | Delete
NOD
Avatar / PictureManager
Registered: 11/22/08
Posts: 654
04/01/11 #6
     Mr. RDMurphy brings up an excellent point. The VA is renowned for pulling you in for a new exam every few years to determine if reducing your rating is appropriate commensurate with your symptoms. There are rules and regulations prescribing how it shall be done and under what circumstances. If, for instance, you have a brain fart and forget to attend the dog and pony show, your reduction will be automatic. They must wait 6 months to institute this reduction in order for you to prepare for the financial shock. I suppose that also allows you to get your act together and start a defense by filing a NOD.


     For those of us with Hep., the road is a little rougher. VA always contemplates a reduction as soon as you have a transplant. They try not to be too obvious and allow you time to recuperate, but the unadulterated truth is they are sharpening the pencils and ready to misinterpret anything you say. Vets regularly say positive upbeat things to their doctors when they are having a good day. Saying the same thing to a QTC examiner can be fatal to your wallet. Obviously you will be feeling better following a transplant. That goes without saying. Communicating this joyously to the QTC examiner results in his/her annotating that you are a latter day Lazurus, recently returned from the dead. VA will take this good news and “construe” it to mean they can now reduce you from the former 70% w/ TDIU back down to 40% without.  You, of course, are still a doorbell’s distance away from decompensation and hardly prepared to rush out and seek work. Nevertheless, this is how VA envisions it. 

     I severely doubt the “examiners” at the VARO who come to these misguided conclusions are evil and uncaring. They work from a book (M-21) which dictates their choices. We all know that each Vet’s circumstances differ depending on a host of variables including the plethora of secondary ailments too numerous to mention here. To arbitrarily reduce a Vet on one set of criteria without viewing the disease process in its totality renders a decision both flawed and arbitrary. It can take months, sometimes years, to correct these inequities. 

      So, today’s teaching moment obviously is- Do not miss your VA C&P exams. If you do, immediately contact them and ask for a do over. Don’t let it fester. I know whereof I speak. I missed a hearing exam in 1994 and it cost me Tinnitus (10%) for 13 years. For those of you without calculators, that was about 
$15, 368 dollars with no interest. Chump change you say? Well, in my former life when I had a good job and ample $, that would have bought 10 really nice bottles of 1945 Château Lafitte Rothschild. Everyone knows they are rare and hard to find. What few know is that it is unarguably the finest vintage since 1918. I don’t drink now so that’s a lot of pee under the bridge. Besides, I can ill afford it. Making the mortgage payments on time is the most exciting financial aspect of my new life. I’m sure some of you can equate with that reality.

      The legal posture says they cannot change your rating after 5 years. It is considered “protected”. Likewise, after 10 years of P&T, your spouse is protected and will receive DIC. If you perish prior to the 10 year date, your spouse can still qualify. The codicil is that you must have died from the service connected disease you are rated for. If you’re rated for hep. and die from hemorrhoids prior to the 10 year mark, you lose. All your spouse gets is a really neat flag and a burial allowance. And before you get all teary eyed and blubbery, the burial allowance wouldn’t cover a decent cremation for your pet hamster. 
Edit | Delete
RDMURPHY
Registered: 07/31/10
Posts: 49
04/01/11 #7
good morning kate. wish you and your husband well. my tips procedure did not help me due to my advanced condition at the time. It may help your husband. as for transplant this sounds corny but it is important to keep a positive attitude before and after sugery. it helped me greatly. Unsure if you are awaiting transplant with va or civilian doctors, but there has been a change in how patients are rated as far as priority. in 2007 this probobly save my life when they started using ‘meld’ scores to determine transplant priority. Hopefully the tips procedure works for your husband and buys him time for transplant. If you go to transplant and get thru the first 90 to120 days without complications your out of the woods. Have hope, next generation treatment for hep c is coming out  this year, hopefully much better than last batch.  my sugery was in 11/07 and I am still here. Hang in there
Edit | Delete
cdneh
Registered: 01/20/11
Posts: 44
04/01/11 #8
We will, and thank you 🙂
We are waiting to hear back on the MELD score, they ran that the last time we were in.__________________
donnelly.kate@gmail.com
Posted in General Messages | Tagged , | Leave a comment

multiple claims?

Posted on September 29, 2011 by asknod
victim88
Registered: 07/27/09
Posts: 14
01/03/11 #1
after filing for service connected hcv- 04/07 and being denied, (no evidence of hcv or treatment for hcv during military 77 – 88) file currently with american legion/bva in washington dc for appeal.my military medical records reveal a long history of headaches due to a slip and fall at booth camp, these headaches continue to this date, after years of headaches and many hospital visits, a neurologist stated cluster headaches.  i’ve had these headaches for so long i forgot how they started, anyway should i file a claim for compensation due to military related headaches that are clearly documented in my military records, and plenty of medical records after service.  after being advised of the long wait for a decison from the bva regarding service connected for hcv, would it be feasible to file for service connected for headaches?

thank you  for your support

ci5od
Edit | Delete
NOD
Avatar / PictureManager
Registered: 11/22/08
Posts: 654
01/03/11 #2
You have two different subjects you are dealing with here. Don’t confuse them. Your claim for HCV really shouldn’t take forever. The BVA was crowing last fall that it only takes 155 days from receipt of a certified claim to completion of adjudication. We all know better and don’t subscribe to the Tooth Fairy’s newsletter or the Flat Earth Society magazine . Nevertheless, it doesn’t take eons either. From date of receipt of a certified claim in D.C. it shouldn’t take more that a year to docket it and receive a meaningful resolution. If a remand is included, that can stretch it another 8 months or more. If the claim cannot be easily resolved or the AOJ screwed it up royally, of course it will  take longer.


     As for the headache claim, that is a completely different animal. As the VA works with a paper file system, they will have to halt adjudication proceedings in D.C. to make a copy of your C File and return it to your local VARO in order to begin your headache claim. If you wait, your effective date of claim (the day you file it) is later and later. Delay means less $ for you or at least a later date when your compensation will begin. It really is not tied to any appeal or legal action pending now or in the future in D.C. If you have documented evidence of this in your contemporary medical records your claim may well be decided at your local VARO rather than require an appeal. The whole claim will hinge on that doctor’s nexus though. If it is couched in the wrong terms, all your time and energy will be for naught and you may end up in an appeal. Everyone’s circumstances are different. If you were injured in the service and your medrecs reflect it, this claim should be a slam dunk. Although we are not Legalzoom.com, we do have all the info you need to do it yourself. Involving a VSO is required if you need someone to hold your hand. After all, they are just going to be your mailman to the VA. If you get any meaningful legal advice from them, you may want to immortalize it electronically and share it with us on Nodtube. 
Edit | Delete
victim88
Registered: 07/27/09
Posts: 14
01/04/11 #3
bless you all for all the support given,yes my military & civilian medical records reflect my long history of headaches after boothcamp, also my neurologist provided a somewhat nexus stating my present condition and past military connection. i filed this claim for headache &  provide copies of my military medical records reflecting my slip & fall & headaches also the above mentioned nexus.  my plan is to win this claim for headaches, while waiting to win my hcv decision with the bva.

this is a question regarding my third discharge: 85 – 88

OTH-pattern of misconduct, -88 UA,unauthorized absence- 79,
alcohol abuse/ARC -87

my only defense is the chronic headache pain, that right “severe headaches l missed work, alcohol consumption seemed to work for a little while, but then depression, more headaches never ending pain from the headaches”.

question is would my defense of chronic headaches be a plausible excuse for bad behavior? missing work, alcohol consumption, presc/drugs?

thank you for your support
Edit | Delete
NOD
Avatar / PictureManager
Registered: 11/22/08
Posts: 654
01/04/11 #4
     I guess the burning question we have to ask is quite simple. Was your third period of service  under other than honorable conditions-to wit: either an Undesirable or the Big Chicken Dinner (Bad Conduct Discharge)? The reality here is that your injury occurred during boot camp which we presume was your first period of service. If your discharge for that was under an Honorable or even a General Discharge, you would still be eligible for compensation . The way the rules read is quite simple. If the injury occurred during a period of enlistment that was considered to be dishonorable, then you lose any entitlements. However the service you served in bifurcates your time into two separate categories if you have “issues”. They usually state that your service was honorable from X to X2 and under less than honorable from X2 to Y. This is usually followed by your summary parting of the ways unless you become their guest at Leavenworth for some hard time.


     It would appear you have 3 different enlistments with some dead time in between. This being the case, it has to be assumed that Period A and B were under honorable conditions. They would hardly allow you to reenlist if you had a poor track record. If period 3 is also under honorable conditions, then you have nothing to worry about as far as the headache claim goes. Even if it is bifurcated into a good and a bad period, the injury still occurred during the first enlistment and is thus protected. 

     The issues of alcohol or prescription drug abuse may plague you on your hep claim, though. VA will often catastrophize those events and portray them as the precursors to risk factors that are willful misconduct. We have seen VA’s marked propensity to view any event of a negative nature in the worst possible light. Be prepared for this with a game plan and evidence to refute it. Forewarned is forearmed in Claimsworld.
     As for support, we pay it forward for all those who aimed us in the right direction. It’s the very least we can do for a brother or sister in arms. We’re sure you would do it for us if the tables were turned.
Edit | Delete
marlinanddiane
Registered: 05/20/10
Posts: 27
03/11/11 #5
Started Interfron lasted 6 months,  doctor stop treatment because of a 3 lung infections, now think he has MS disease also. Could Hep C cause this also. Still waiting for doctor statement from Va. Does anybody else have this with there Hep C
Edit | Delete
NOD
Avatar / PictureManager
Registered: 11/22/08
Posts: 654
03/11/11 #6
One would think that being on Interferon would make you immune to almost anything and everything that comes along. It excites your immune system into attacking the HCV. If you have an underlying autoimmune disorder, it can have  unpredictable results much like napalm on a house fire. Often the body will attack itself in addition to the hep. Google autoimmune diseases and see what you come up with concerning MS. I found this:  


 In MS, the body’s own immune system attacks and damages the myelin.     

      Now, I have no M.D. after my name , but it stands to reason that any time the body attacks itself, it fits the definition of an autoimmune disease. Getting a lung infection while on a hyperdrive motivator like IFN seems incongruous on its face. There must be more at work here. I have no knowledge or training to give meaningful advice. I suggest you discuss this facet of the drug with your gastrodoc. He should be knowledgeable about this insidious reaction. Mine wasn’t. He knew I had Crohn’s and decided to hose me with it anyway. It almost killed me the first time out. Trust no one but yourself when it comes to medicine. A doctor’s opinion is often just that- an opinion. Remember, the shingle hanging  outside their door advertises that they practice medicine. I never see one stating they perform it. Until that day, I will read the small print on the medicines they prescribe me very thoroughly. It would have saved me several years of illness and four operations. I am truly sorry to hear of your travails. I personally believe they will come up with a viable cure for hep some day. I suspect it will involve a drug that envelopes the disease and effectively keeps it from doing any harm to the liver. IFN is like an iron bomb vs. a smart bomb. It sometimes works if it hits the target, but can have spotty results. It was not designed for everyone as we can clearly see now. Too bad we are the orphan child to HIV. They seem to get the lion’s share of the medical funding. It must be more “cool” to have that than HCV. Well, that seems to be Hollywood’s current take on it. Wait ’til Charlie S. comes down with it and then we’ll all be in high cotton, medically speaking. 
 
Edit | Delete
AZeeJensMom
Moderator
Registered: 01/05/09
Posts: 94
03/12/11 #7
My brother has MS and Interferon, had he chosen to go that route, was a recommended form of treatment.  He decided against it because 20+ years ago when
he was diagnosed, it was the mild form of MS.  He has been in remission since, yes …
he has shown hiccups along the past 20 years but all in all, his mind and attitude is positive and when they told him he might never walk again 20+ years ago, he proved them wrong.   

I envision the future miracle cure for HCV is something along the lines of a substance, agent or medication or maybe all of the above that when ingested or injected will go after all those little buggers, scoop ’em up like Dawn dishwashing detergent grabs hold of the oil in the water.  Then, the encapsulated packet of little buggers exit the body….how, I think you can imagine the exit procedure without me going into detail 😉

My husband has been through 3 courses of IFN treatment, to what we always thought was to no avail…..however, had he chosen to go the “no treatment” route, his liver more likely than not would have done an about face and failed him long ago.

As NOD says, these are decisions and discussions for the gastro doc.   Everyone’s reaction is different, we are all unique …. I wish you well, and if you need a supporting hand or in need of any assistance we can provide, we stand ready to do so.   

You are not alone ……,

Support and Good Wishes
Posted in General Messages | Tagged , , | Leave a comment

38 C.F.R. § 4.112 (2009)

Posted on September 29, 2011 by asknod
NOD
Avatar / PictureManager
Registered: 11/22/08
Posts: 654
01/25/11 #1
 When a Vet finally get service connected for Hep, he/she often ends up going back to the RO for a rating on it. This is based on one’s medical records, or, if they are lacking, a new exam for C&P to be up to date. If you won at the BVA level, you are usually 2 years sicker than you were when you appealed and 3 years down the road from your initial filing. 


     When you attend this little shindig, you would be well advised to prepare for it. VA will note what you are wearing, whether it is appropriate, your general hygiene, and your general appearance (haggard vs. well tanned and red rosy cheeks). They will annotate your sensory perception, any depression, and your general demeanor. 

     Some of us men go in and tell the examiner everything is fine, that they feel a little “off” but can mostly handle it. This is the macho response and is absolute anathema to the claim. You will read all about it in the claims rating document. “Patient denies fatigue, nausea, vomiting, general malaise and weight loss. Claimant’s description of his health was “Good to go”. Based on the above, he is hereby rated at 0% noncompensible due to no major ailments.” 

     While we have heard of some claimants using black eye shadow to enunciate dark circles under their eyes, FD&C #2 Yellow food coloring in their eyes and wearing loose-fitting clothing and complaining of weight loss, be aware of the following.

     38 C.F.R. § 4.112 (2009) deals with the weight loss mentioned in DC 7354. Specifically, the mention of minor weight loss versus substantial weight loss. These are important phrases. VA, either by requisitioning your private medrecs, or by researching your VA generated medrecs, will be able to ascertain what you normally weigh, what you weighed 2 years ago and whether you are gaining or losing weight. Your story, or version of events, has to correspond with VA’s unless you have been adjudged non compos mentis.

Additionally, when the Vet requests the leap from 60% to 100% for hep c, he/she often doesn’t understand the requirements. Simply stating subjectively that you have “near constant” debilitating symptoms does not rise to the level of evidence. A doctor must make this pronouncement before it has any gravamen. Note #2 at the very bottom of all the ratings info on DC7354 also clarifies the definition of “incapacitating episode” to mean:

Note (2): For purposes of evaluating conditions under diagnostic code 7354, “incapacitating episode” means a period of acute signs and symptoms severe enough to require bed rest and treatment by a physician.
     I cannot tell you how many Vets have beached their claim on this requirement. Notice if you will the word “and” between bed rest and treatment by a physician. VA has taken that one step further in pursuit of semantic excellence. Now, Vets will discover to their chagrin that if their doctor hasn’t specifically prescribed bed rest, they don’t qualify for the highest rate. The average disinterested observer might misinterpret the “severe enough to require bed rest” phrase to mean it’s a subjective choice determined by the patient. Au contraire, ma cher. Nothing could be farther from the VA truth. Lacking that one innocuous phrase by your doctor will render all your time and hard work meaningless. Don’t let that happen. Make sure your doctor includes the exact phraseology employed in the Diagnostic Code. To wit:

With serologic evidence of hepatitis C infection and the following signs and symptoms due to hepatitis C infection:
  Near-constant debilitating symptoms (such as fatigue, malaise, nausea, vomiting, anorexia, arthralgia, and right upper quadrant pain) 100
Edit | Delete
AZeeJensMom
Moderator
Registered: 01/05/09
Posts: 94
01/25/11 #2
Nod …. Thank you for another very informative piece of information.


I shall share my experience with my “everything is fine, he is my hero” Veteran husband.  It’s difficult for anyone who is battling HepC, and especially a man, to admit to anyone, not even to himself that he is tired.   Tired enough to find himself (or herself – we are women, hear us roar) taking naps throughout the day just to make it from sunrise to sunset.   THIS is VERY important to tell your doctor about, not just for treatment purposes but for your claim also.   If it’s not in written words, it didn’t happen.   

It took a very “long while” for my Veteran husband to admit that “yeah, I’m a heck of a lot more tired than I used to be, yes, I do take more naps and much more frequently than I ever did before”  — Prior to his dx and then 3 rounds of treatment (for that alone he is my HERO, without a doubt) he was Mr. Happy aka:  Mr. Energy  aka: Mr. Positive aka:  Mr. Live Life to the Fullest … not to say he isn’t most of those some of the time now, he is …. but…….he is no where near the same guy who used to jump out of bed each morning with the zest of a 13 year old on summer vacation who could not wait to ride his bike and play baseball with his buddies until dark.   

It wasn’t until he finally told his doctor “yeah, I feel beat up most of the time, no where near the energy I once had, fatigue is constant but I try to fight through it” – basically, he had to come to grips and the reality of okay, just because I’m admitting these symptoms, it does not mean in any way shape or form that I’m admitting defeat or that I’m weak.   Heck, he made it this far — think about it — 116 weeks of IFN and Ribavarin — he isn’t giving up … he isn’t giving in … he finally just admitted he was feeling weak, tired, fatigued, etc.  His doctor said to him “Sir, take those naps, you need them, don’t feel guilty, not one tiny ounce of guilt. You are not giving up, you are not giving in, you are becoming active in your treatment.”  His doctor needed to know this — and he was willing to write it down in his chart and wrote him a statement for the VA — take those naps, you need them, take as many as you you need and I’m ordering you to do so.   It’s the way it is, accept it and move on.  

He was recently granted 100% schedular for HepC after an 8 year back and forth with the VARO and BVA…..and, ultimate acceptance for the life he has now, to which he will enjoy and live every minute to the best of his ability without sacrificing his ego or his health. 

I can’t stress how important it is to any Veteran to get this information into their medrecs.   Period.   You can’t get to 100% without being this ill, and you for certain will never get to 100% if you don’t have it in writing — Prescribed Bed Rest.

AzeeJensMom
Posted in General Messages | Tagged , , | Leave a comment

VAOPGCPREC 9-97

Posted on September 29, 2011 by asknod

     A funny thing happened while I was searching for new ways to help Vets. I hear horror stories regularly about  Vets who submit claims, sometimes followed by new evidence after a denial. One of the hallmarks of the VA is to ignore you or misinterpret what you are filing or complaining about. How many adverse decisions have you read where the BVA or the RO says something along the lines of “the claimant’s communication was interpreted to be a request for an increased rating” or some such drivel? Most Vets are not conversationally challenged. If you submit a claim for something, it is invariably in English and succinctly informs VA of what it is you seek. The VA, unfortunately, is  grammatically incapable of absorbing what you ask for. No matter how well and clearly you couch your terms, the RO will manage to hamburger your intentions, thus causing interminable delay in correcting it. If I didn’t know any better, I would suspect it was a ploy to obfuscate the issue or frustrate the claimant. Unfortunately there is no prove of that.


     Secondly, when you do finally get their attention and clear up any misconceptions, you will discover yourself humming Alex Trebeck’s immortal theme song for a lot longer than 30 seconds, often resulting in laryngitis. What I am getting to is that there are occasions, increasingly more frequent, where the VA simply allows your claim to fall through the cracks. Frustrated Vets often walk away from this system in disgust assuming their claim is inconsequential or just denied. By the time VA gets around to dealing with it you probably have moved and your mail is not being forwarded. Hence the claims is dropped for failure to respond.

     In a more perfect world we file a claim. Reality, for the most part, dictates it will be denied for some arcane reason at the AOJ level. Most Vets at this juncture submit new evidence to buttress their claim(s) if they have any. Some submit the evidence as they initiate their appeal via their NOD. VA will, eventually, mail you an SOC telling you you have 60 days to mail in a Form 9, or, in the alternative, the rest of the year following the date of mailing of the adverse decision to do so. This is where the cracks develop. Often they fail to look at the new evidence you submit. They proceed to the BVA and you have to resubmit it there. An increasing number of claimants submit the new evidence and then await a readjudication at the RO rightfully assuming there is no need to appeal it as the RO is going to decide it. Here is where your claim goes into the deep freeze. 

     When you submit new evidence within the one year period [38 CFR 3.156(b)], VA is required to issue an SSOC addressing the new evidence. Their failure to do so puts your claim on hold. This situation continues until they act and issue the document. It makes no difference how long this sorry state of affairs continues. Your original claim, even one back to when you were discharged, is still viable unless and until VA acts on it. The judicial landscape is littered with these incomplete actions. Veterans would be well advised to examine old denials for errors. Assuming you can prove your claim, an old filing in 1985 that was improperly addressed can be worth hundreds of thousands of dollars. Calm down. The government does not pay interest on their errors, but it does add up.

     The improbable vehicle for this conundrum is VAOPGCPREC 9-97. It was issued on February 11th, 1997 in response to a query by an RO about how to adjudicate a claim where a rater had wrongfully denied a Vet and needed guidance on how to rewrite the denial. The head witch at the General Council’s office, Mary Lou Keener, actually helped us all immeasurably with her response. In essence, the VA OperationalProcedure General Counsel PRECident stated that if VA does not, will not or cannot issue an SSOC before the one year statute of limitations runs out, that the Vet is still afforded 60 days from the date of the issuance of said SSOC. What it also did that is of even more import, was enunciate the legal requirement to issue the SSOC following the submission of the new evidence in no uncertain terms. VA had been    noticeably remiss in their obligations regarding this over the years. It started popping up in one BVA decision after another shortly after its issuance- all the more evidence of VA’s culpability and effort to derail claims.
     Witness just a few of the decisions I found without having to dig very deeply:



     The site address for the General Counsel Precedent is:

     I doubt VA will be sending us a thank you letter for being so helpful and informative of Veteran issues. It may have the unfortunate effect of causing a large number of Vets to reexamine their claims and discover they are still viable. If this results in even one Vet finding a discrepancy in his/her claim and getting justice long after it is due, we will feel vindicated. As the VA is so fond of saying(regarding CUE claims): “Justice delayed is NOT justice denied.” Let us hope this comes back and bites them on the proverbial butt. Vets deserve much better in an arena that VA purports to be “a non adversarial venue for claimants”. Amen


Posted in General Messages | Tagged , , | Leave a comment