Transcript 0:00 [upbeat music] Good morning, everybody, or good afternoon, depending on where you're at. 0:21 Uh, welcome to Hill & Ponton's podcast. I'm Kerry Baker. Uh, I will be d- starting this today by myself. Uh, Ursula was supposed to be with me. 0:32 Uh, she had stuff to do, which happens from time to time, and, uh, so I'm gonna, uh, start. She may be joining us in about, uh, twenty or thirty minutes, and if she does, then that's fantastic. 0:46 Uh, and if not, then we'll just keep on going. Uh, I'll have to hop off right at three, if not about five till three, for another conference. So we'll get as many as we can. So, uh, start whenever you're ready, Mr. 1:02 Producer, as, uh, some people would say. Uh, all right, I'm not gonna try to pronounce that name. Uh, "Part one. I'm a hundred percent P&T, PTSD, seventy, fifty, fifty, three forties, three thirties, four twenties. 1:18 I've applied for A&A via caregiver program for my wife. Wife helps me with daily ADLs for me being bedridden during pain flares, up to six weeks sometimes. If granted A&A, 1:36 and with Berry case law, I believe I could get SMC-M and a half, but I could get higher due to my back injury, uh, that has secondary conditions of incontinence and radiculopathy, et cetera, maybe R one. 1:52 I am also a Chapter sixty-one medical retiree. 1:54 Since I am medically retired, does that mean I can't increase my pay if awarded SMC, uh, R one or M and a half or R one due to the offset less than twenty years for medical retirees?" Uh, I'm gonna... Okay, part four. 2:12 [laughs] Sorry about that. Uh, "Also, since I'm a hundred percent P&T, should I not poke the bear? I've heard that once a hundred percent it is better to not file new claims. Thanks so much." 2:25 Okay, so we went from not filing claims to R one. There's a whole lot in between there, um, with what appears to be a CRSC question. As far as the CRSC, 2:37 I, I'm gonna say I don't know the answer to that, uh, off the top of my head. Uh, go back to that part, uh, Nate, if you could. I think it's part three. Uh, less than twenty years. I... 2:49 You know, it, it depends on if you're getting the Chapter sixty-one now and how much of it you're getting. If you're getting maxed out, you, it may not make a difference. 2:59 Uh, I don't know that it would go up because you're getting SMC. Uh, I think it depends on, uh, if you're getting a hundred percent or somewhere beneath it. 3:08 Uh, to my knowledge, it, it does not go up with SMC, but I could be wrong on that. So, um, all right, let's go back to the second part. Let me see, uh, uh... All right, Berry. Uh, all right, so that one is, it depends. 3:24 All right? You listed off a number of things there. If VA awards A&A 3:30 due to all of your service-connected conditions, then Berry will not apply, period, uh, because they'll be giving you A&A based on all of your service-connected conditions. Um, 3:44 if, on the other hand, the A&A is based only on certain conditions, then any condition it's not based on that's fifty percent or higher or a combination could be used for half-steps. 3:59 Now, whether that's gonna get you to M and a half or R one, I'd... R one, not likely. Uh, uh, but it could certainly go beyond the L, uh, as long as 4:14 there are separate fifty percent ratings, either singular or in combination, uh, that are not taken into account for the A&A award. 4:26 Um, anything else, if it, if they, they do A&A based on everything, then Berry will not apply. As far as poking the bear, go back to the part one, Nate. Um, all right. So you've got a lot of stuff there. Uh, 4:42 uh, it would be hard-pressed for me to see VA, that, that they could reduce that much stuff to get you where you're below a hundred percent. 4:50 Now, having said that, I don't know what your disabilities are, um, y-you know, a-apart from the PTSD. But, you know, that's a, that's a, that's a personal question. 5:03 That's a decision you're gonna have to make on your own. Uh, are you poking the bear? Look, if you need... I-if your s- if your symptoms are that severe and you need A&A for long enough periods of time, 5:16 uh, then theoretically, they shouldn't be reducing that if it's that severe. Uh, and, and so I would feel, just based on what I see there, fairly comfortable applying for it. Uh, but at the end of the day, 5:31 uh, it, it's not really poking the bear. It's just the hopes that some, excuse my French, dumbass doesn't get a hold of it and think, "Oh, I have to reduce this." 5:40 Uh, odds are any reduction that you're talking about based on all those would be incorrect. Uh, so I... Odds are you're okay, but at the end of the day, uh, it's a decision you're just gonna have to make. So, uh, 5:56 all right. I think that was all of them. So let's try the next one. Uh, Jose-Jose Doe. I, I'm probably not saying that right. Uh, "Hello. 6:10 Uh, I want to claim IBS secondary to PTSD, anxiety, depression, but I see a lot of denials due to no causation. What do you think? How do I request a C&P with VA contractor? My C&Ps at VAMC have been bad." 6:27 All right, well, so could you claim that secondary? Sure. Um, here's what I... I wouldn't claim specifically IBS, all right? Because you don't want VA to limit 6:45 the, the, the consideration to just IBS. For example, the... you claim IBS, they send you in for an exam, um, and the examiner comes back and says, "You have reflux," or you have, uh, 7:02 you know, any number of GI conditions apart from IBS. You could be setting yourself up there for a denial of IBS because they, they diagnose something else. Uh, I would claim 7:16 generally gastrointestinal dis-disorder to include IBS, and if there's anything else that, that you're diagnosed with, include that as well. At least then you're catching, uh, everything that you can. Uh, 7:30 uh, PTSD, anxiety, depression, mental health lots of times will cause GI-related issues. Uh, will it cause IBS specifically? Uh, that's, uh, that's, that's a, that's a bigger question. Some people would say yes, some no, 7:46 uh, but, but you're gonna have a harder time if it's limited to just IBS, so that's something to take into consideration. Um, as far as requesting a C&P through your contractor, y-you really don't have control over that. 8:01 Um, y-you can always ask for a contractor, I suppose, in your claim, but VA's gonna send you to whoever they have in the area. Uh, and most of the time it's a contractor. I'm surprised... 8:14 So if you've had ones from VA Medical Center, maybe it's because there's no contractors in your area. Um, a-and I'm speculating there, I don't know. Um, so, you know, that's just not something that, that you can control. 8:29 You can always ask. You can ask anything. Whether they're gonna pay attention to it or not is anyo- is anyone's guess, unfortunately. Uh, and don't think that because it's a contractor, it's gonna be better. 8:42 They suck sometimes, uh, and sometimes they don't. But then again, sometimes ones at the VA Medical Center don't. 8:50 So it's a, it's a crapshoot either way, uh, and there's not a whole lot, uh, that, that you can do about it. Um, you know, keep notes, and, uh, if it's bad, you can always rebut it with a statement. 9:05 So, uh, that's about all I've got on that one. Living with Russ. Well, I hope Russ is treating you okay. Uh, "How do you think the new changes for evaluations due to medication will affect future claims?" 9:23 Ah, you must be talking about the new change to section four point one zero. We don't know yet. Uh, you know, w- at, at first read, 9:41 m-my initial impression is VA's gonna get confused about it. 9:44 Uh, some people are gonna think, "Well, you have to evaluate considering the medication," and others are probably gonna think, "No, you have to evaluate not considering the medication." Uh, we just don't know. 9:57 Um, for the most part, I... off the cuff, I don't think it's gonna change anything dramatically, uh, simply because VA's kind of making that change to keep things the way they are, 10:15 so as to avoid having to redo a bunch of stuff consistent with the court cases. Um, so that being the, the situation, I don't think things are gonna change a whole lot. 10:27 Yeah, you're gonna, you're gonna have people misin- misconstrue it and get it wrong from time to time. Uh, but in large part, the rating schedule itself is not changing. 10:38 Um, so I wouldn't, I wouldn't expect, uh, other than case-by-case situations, uh, any mass changes to ratings on that. Just... But I could be wrong. You know, we are talking about VA. 10:50 They, they can't spell VA sometimes, so, uh... All right, next. Tiny Tiny, uh, I think I remember that name. Uh, "What can, what can you explain regarding the latest..." Ah, I just did. 11:07 Uh, [chuckles] um, "Will the latest changes to four point one oh have any effect on pending claims that have already, uh, had a BVA hearing and a C&P exam?" Like I said, I don't think so. 11:21 Uh, I think they are just trying to, uh, keep things the way it is, uh, rather than going back and... 'Cause even in, in their reg- uh, in their... This was an interim final... 11:36 This was an interim final rule, which means it's effective immediately. But at the same time, they gave sixty days notice and comment. Now, this is me just thinking out loud here. 11:54 I think VA's probably doing that to avoid a rule challenge in the Federal Circuit, 11:59 uh, because if they just up and changed it, and it affected downstream claims-Somebody out there would probably challenge that rule under the Administrative Procedures Act, the APA, 12:12 uh, as violating the APA and challenge that in federal circuit. I could completely be wrong on that, um, but if they give notice and comment, well then, uh, which they did in this, in this rule, um, 12:26 that kind of shoots down the APA rule challenge there, uh, at least to some degree. Um, 12:33 so again, we'll, we'll see how that goes, but I don't think you're gonna see, uh, any major change since VA's just trying to keep the status quo. So... All right, next question. Jacob Samuels forty-seven fifty. 12:51 Can you explain SMC half-steps? Uh, my husband is L and a half. I think he should be higher. Okay. So if you are at L, 13:03 uh, either by aid and attendance or by through other SMC, uh, say loss of use of both feet, for example, would get you at L, or just the need for regular aid and attendance would get you to L. Uh, 13:18 it-- but starting with L, okay, however you get there, if you have additional service-connected disabilities rated at fifty percent or higher that are not taken into consideration to get you to the L, 13:36 then you can use those for half-steps. So for example, if you had loss of use of both feet, which would get you to L, but if you had PTSD at fifty percent, that would get you to L and a half. 13:49 If you also had a heart condition, say, at sixty percent, that would get you to M. You have fifty percent PTSD, sixty percent heart. 13:58 If you had a few other disabilities that, say, were ten percent, twenty percent, and thirty percent, as long as they combine to fifty using VA's combined rating table, it would get you another half-step. 14:12 Uh, so now if, if they give you aid and attendance, like I said earlier, [phone ringing] based on all of your service-connected conditions, that doesn't get you the L. 14:24 Uh, that just gets you-- uh, that gets you the L, but not anything above it, 'cause they're giving you the aid and attendance based on everything. 14:32 Uh, so just something to keep in mind when you are service-connected for a number of things, but only certain things cause the need for A&A. So, uh, hopefully that explains the half-steps. 14:50 And I, and I went into multiple half-steps there, but that's, uh... Now, let me add something to that. There's a full step, okay? If you are at, uh, L, 15:04 same scenario, loss of use of, uh, both feet. Say you have a hundred percent for PTSD, a scheduler hundred, right? Then that would get you a full step by itself from L to M. 15:21 Now, can you apply a full step and a half-step at the same time? The jury is still out on that one. Personally, I think the reg is written to allow you to do that, uh, but we don't know for sure. 15:37 Barry, Barry did not actually address that scenario specifically, so, uh, we have to make the arguments and find out. All right, next question. Jim Huber, uh, helping friend. Okay, let's help your friend. 15:54 Uh, he's a hundred percent P&T PTSD with TBI, applied for A&A, but was granted housebound. Needs help, not housebound. Any help? Well, next steps. Uh, 16:10 look, the only thing you can probably do for, at least from what little info I have there, is appeal it, uh, and ask for aid and attendance, uh, if that's what you filed for and they gave him housebound. 16:23 I would be curious if that's his only rating, uh, a hundred percent PTSD with TBI, on the notion that they're both rated together, and they might not be, but if that's the case, 16:41 in other words, he's got a single hundred percent, I would wanna know how they gave him housebound. 'Cause it's rare that you see somebody literally confined to their home. All right? 16:54 Uh, and that's what a housebound rating, uh, requires. If you are literally confined to your home, odds are you meet the requirements for aid and attendance. All right? 17:07 I would think more along the lines that he might have gotten the housebound rating by having a single hundred plus another rating at S or high-- or at sixty or higher, which gets you the housebound rating, um, 17:22 on a statutory level just by the fact that you have a single hundred and a separate sixty. Uh, so I would, I would, you know, kinda it's gon- depends on the facts of the case, but you can always appeal it. 17:32 Uh, you can ask for a HLR a-and, and do it that way and have a conference with a local decision review officer or go to the Board of Veterans' Appeals. Um, so it, it really just depends there. So... 17:47 All right, next question. Michael Finn. Uh, hi, I'm N and a half without A&A. I have SMC(M) for hands, plus my other SE added up to N and a half. I just claimed, 18:06 uh, ED SMC(K).What, what would is SMC N and a half plus K, uh, add up to if not R one? Okay, 18:21 I think what you're asking there, if you're at N and a half and you get a K. Uh, okay, N and a half plus K should get you to R one if you need A and A. 18:37 That does not necessarily mean you have to be rated for A and A, you just have to be in need of A and A. Now, if you have loss of use of both hands, then I don't know how you don't need A and A. Uh, 18:55 so if you get the K, from what I'm reading here, that would put you at N and a half plus K. I would file for, uh, R one or, or get the K, see if they take you to R one automatically. They might, um, 19:14 you know. But yeah, one, you need the K in order to get there. Um, and if they don't do it automatically, I would ask for an HLR. I would say, "Look, I'm N and a half plus K, why didn't I go to R one? 19:28 I have lost use of both hands, so clearly I need aid and attendance." Um, and they would probably either grant it or send it back saying, "Hey, you forgot to address this." 19:38 So, uh, that's what I would do short of going to the board. I, I would try to handle it locally first. All right, next question. All right, I'm not gonna try to say that one. [laughs] A hundred percent P and T. 19:56 Will the VA retroactively re-adjudicate VA claims for the new medication rules? I don't have a mental health rating, uh, or did not use a third-party company to file my claims. 20:11 No, I have no indication the VA is gonna retroactively re-adjudicate a thing. 20:17 Uh, part of the reason, uh, for them to-- them changing this is so that they don't have to re-adjudicate claims, uh, consistent with the court's decision. So 20:27 if you don't have anything pending, then I think you're perfectly fine. All right. Angel Marrero, I think I've seen you before. 20:37 Uh, can a vet with SMC-L A and A due to PTSD, SMC-K and four separate SCs at fifty percent each count the hundred percent PTSD to qualify for R one? 20:58 All right. So if you're, if you're at A and A due to PTSD and you have four separate fifty percents, that's gonna go from L to L and a half 21:13 to M to M and a half to N. That gets you at M-- at N, not N and a half. You need N and a half plus K to get to the R one. 21:28 Uh, if, if my math is right there, uh, then it sounds like that would put you to N, not R one. So yeah, you need another half step and the K. Or looks like you already got the K, so you need another half step. Close. 21:46 Very close. [laughs] Uh, all right, next question. Are we out of questions? [sighs] That would be a first. 22:02 Uh, Remy eighty-six. Hello, I recently received aid and attendance SMC-L for a hundred percent major depressive disorder last week. I want to apply Berry half-steps. 22:17 What form do I use and what should I submit? I have fifty percent sleep apnea, fifty percent migraines. Ten GERD, ten bilateral sinus plus twenty. Okay. So, all right, you got aid and attendance 22:35 and you did not get ha- [clears throat] you did not get half-steps. [sighs] And you, and you say you got the aid and attendance based on your hundred percent, uh, mental health. 22:49 So one of two things either happened there. They either granted the aid and attendance based on everything, not just the mental health, which would keep you from getting the half-steps, 23:00 or they simply failed to give you the half-steps, which we've seen that too. Uh, they just-- it slipped their mind. They forgot about it, weren't paying attention. Um, either way, I would do, uh, an HLR. 23:16 Uh, go the easy route first. Uh, the, the reviewer, while you're on the conference, should be able to tell you exactly why you didn't get the half-steps. 23:29 Uh, but I would have the conference and say, "Look, I, I thought I received aid and attendance for my mental health. Uh, I also have these other disabilities, uh, that should warrant half-steps under Berry." 23:43 And at least then they'll know what you're talking about. They'll look to see whether you got the A and A due to everything or if the, uh, if the folks just missed the half step. Yay, Ursula. 23:55 Oh, damn, Ursula done disappeared. Well, I don't know what happened there. Uh, so hopefully that helps. 24:03 Uh, but I would, I would venture to say it's one of those two scenarios, uh, and either one could be handled at least initially with HLR. Uh, and then if, 24:15 you know, if that don't work, you could always go to the board with it.So hopefully that helps. Charles Lewis thirty forty-five. Hello. Ninety percent rated. Ursula? Am I here? I can't hear anything. I don't know. 24:32 I see you. Are you here? Can you hear me? I can hear you. Okay. I can't hear anything. I'm gonna leave, and I'm gonna try to figure this out, and I'll come back. Okay. All right. Hello. 24:45 Ninety percent rated TDIU February twenty twenty-three. Fifty percent migraines, fifty mental health, bunch of tens, not P&T. [phone ringing] Should I submit for, uh, P&T or leave alone? 25:00 Will f- would feel safer with P&T. Hmm. Okay. So generally speaking, if they grant TDIU, 25:13 they've-- they're considering you permanent and total, and they're not gonna bother you anymore. I don't... I-if-- unless they just made a mistake and, and, uh, didn't, you know, set up an exam for something that, 25:31 uh, for whatever reason, uh, for routine future, they would generally do TDIU as permanent and total. Uh, so there's a few things here. I would, I would wanna know, 25:44 did they truly not make it permanent and total, or did they just do something wrong? Uh, 25:51 and one way to tell is, all right, if, if they granted Chapter thirty-five benefits, dependents educational assistance on your notice letter or on your rating, then that's permanent and total. 26:02 Sometimes they forget to put that on there. If they forgot to put that on there, but the code sheet under future exam says none, well, then they're-- you're permanent and total. 26:15 They just forgot to put the Chapter thirty-five benefits on the letter. So either one of those things. So I would look at the code sheet. You nee- you might need to get a copy from VA, um, or your... 26:26 if you have a rep, they can get one for you. But the code sheet, there's a section on the code sheet that says future exam. When you're permanent and total, it generally says none. 26:35 Um, so that's the, that's the key giveaway right there, um, even if they forget to put Chapter thirty-five on the rating decision. Now, 26:46 sometimes you might have a future exam for one condition, say maybe one of your ten percents, but they're not gonna examine anything else. 26:55 And, and so theoretically, they've considered you permanent and total, but it doesn't say none because you have this other disability sitting out there that has a future exam. A-and that could be a scenario as well. Uh, 27:09 I, you know, I would... Uh, now let me, let me add, if there's a future exam for something that's going to affect the TDIU, okay, uh, 27:24 it too would be on the code sheet under future exam, and I'd wanna look on there as f-- and find out when, when do they plan on examining me. 27:33 If it's two or three years down the road, I might leave it alone, unless you really need the ancillary benefits like Chapter thirty-five, or unless you know that it's just for one of these smaller issues. 27:45 Uh, there's-- there's a chance they could have not put Chapter thirty-five on there because they got confused and saw a routine future exam for something that's not causing the TDIU. 27:57 So there's, you know what I'm saying, there's a number of p-possible scenarios there. Uh, 28:02 you can always do an HOR a-and, and, and put P&T, uh, or Chapter thirty-five, uh, on there, uh, but I would look into it first, try to get a copy of the code sheet, uh, look closely at your notice letter to make sure Chapter thirty-five is not on there, uh, 'cause they don't, they don't just come out and say, "Hey, you're P&T now." 28:23 Uh, you, you gotta sometimes find out by reading between the lines. So, uh, hopefully that helps. And Ursula, can you hear me? Now I can't hear you. Nope, can't hear you. 28:45 Nope, still can't hear you. [laughs] Nope. I don't know if Nate and them can hear you. I cannot hear you. So I'm gonna assume that nobody else can hear Ursula. And we lost her. 29:03 She'll, she'll figure it out. We got thirty minutes. Uh, Cecil B nine R. Uh, "Hello, I'm seventy percent for insomnia, uh, major depressive anxiety. Uh, 29:16 also thirty for migraines and other ratings that total ninety-two percent." Uh, you're close. "I'm trying for an increase in migraines, new claim for GERD and TDIU. Uh, how does the new rule impact?" 29:34 If you're talking about the four point one zero, like I don't think that would impact y-you at all. Uh, it's not gonna impact a TDIU claim, period. Um, it's not gonna impact, you know, mi-migraines. 29:52 Th-that's gonna be based on prostrating attacks. You know, if the medicine completely resolves any prostrating attacks, I suppose it could affect it at that point. Uh, 30:04 most migraines that are ratable at fifty percent, medicine doesn't resolve them. 30:09 Uh, and by the time you have it in a, in a prostrating situation, in other words, the headache's incapacitating, you know, the medicine might still be having, uh, an effect, still, still be kicking in. 30:22 That doesn't mean you don't get prostrating attacks. You still do. I would tell the examiner that. Uh-But, but yeah, I don't see that impacting, uh, the overall claim. So... 30:36 But, uh, you guys are just full of Berry and new rule questions, aren't you? Uh, Jeffrey Hillard, Hilliard, "How would Berry work here? 30:47 Seventy percent PTSD with TDIU, TBI fifty percent, sleep apnea fifty percent, uh, SMCK, and housebound." It does not, unfortunately. It does not work in that situation. Uh, half steps do not start until SMCL. 31:06 Uh, if you're-- and that's, you know, that's an unfortunate thing in the rating schedule. You can be housebound and add on a ton of disabilities and stay at housebound 31:22 if they're not causing a need for A&A, uh, or loss use of two or more extremities. Uh, so you have to have one of those two things before Berry's gonna have an effect. Uh, okay, I guess there's another part here. 31:37 "Also had a fifty percent rating for vertigo reduced to ten percent. How do I go about finding that reduction? Happened in a rating decision that denied A&A and SMC, SMCT, but had favorable findings of need for A&A." 31:52 [sighs] I know what happened there, 'cause I see it all the time. Uh, so let me just jump to the A&A, okay? Uh, if you had favorable findings that you need A&A, uh, 32:06 due to your service-connected conditions, and VA denied it, you only VA could, could do this. 32:13 They have a binding favorable finding 'cause they're binding on VA, so why didn't VA grant from that binding favorable finding? 'Cause the VA has a little synopsis in their manual 32:26 that says something to the effect of, "Generally, a one hundred percent rating is required for A&A," and I'm summarizing there. And it goes on to try to explain why. Uh, that is incorrect, okay? 32:42 It is, it is, it is, it is as incorrect as incorrect gets, uh, and VA is still not taking it out of their manual. So 32:53 r-raters believe you have to have a single hundred percent in order to get A&A, and even if the exams say you need A&A, you don't have a single hundred percent, they deny A&A. 33:05 In that situation, you need to appeal the case to the Board of Veterans' Appeals, and you need to cite 38 C.F.R. 3.104c, 33:18 which is the regulation concerning the binding effect of favorable findings. 33:24 And basically, you're arguing that regulation means VA must give you A&A because they did a favorable finding that you need A&A due to your service-connected conditions, and that there's no requirement in the regulation or the statute for a single hundred percent rating for A&A, because there's not. 33:46 Uh, so that's, uh, you know, I, I, I could be wrong in all that. Uh, they may have denied it for some other reason, but, uh, I doubt it. I see those denials, uh, all the time. Uh, as far as the reduced rating, 34:02 I would appeal that to the board too. Uh, if, if VA made a mistake in reducing that, uh, you know, the board will not uphold a reduction that cannot stand on its own two feet. 34:16 Uh, the board reinstates those things all the time. Uh, I... but, but with the A&A thing, I wouldn't even waste your time at the regional office, uh, 'cause even the DROs, they, "Oh, the manual says I have to do this." 34:28 You know, the manual does not take priority over the regulation and the statute, uh, but these folks at the RO think it does or act like it does. Uh, the board knows that it does not. 34:41 So go to the Board of Veterans' Appeals with that. All right. Uh, Grace Smith, "Good day." Good day to you. Uh, "Would you consider having a video on the four ten, uh, and how it applies to veterans? 34:59 Are they not to consider taking medications? Is it only for musculoskeletal?" No, it's not only for musculoskeletal. And look, do not stop taking your medicine, okay? Uh, that is not something, uh, 35:16 anyone should do. Uh, you know, you're gonna have people out there with high blood pressure that stop taking their medicine and end up having a stroke. Uh, you know, don't do that. 35:30 Like I said earlier, I don't think the four point ten change is gonna affect anything going forward from the way it's been done because VA's trying to maintain the status quo, not change future ratings. 35:46 Uh, c-could I be wrong on that? Uh, sure, because VA can, can misinterpret the hell out of stuff. Uh, but I think if that happens, it would be a misinterpretation. 36:00 If there's a regulation that tells VA to take into account the effects of medication, that regulation change is not gonna affect that. They're gonna still, they're still gonna take into account some medication. 36:14 Uh, you know, [phone rings] they, they, they check vision while you're wearing your glasses, uh, not while you're not. Uh, but like I said, on whole, I don't think it's gonna have a, a large effect. 36:29 But can we do a video on it? I mean, I would say let's-Let's-- we can certainly do a video, but I would wait until we start seeing its implementation, so that we can better advise you 36:45 as to whether we think they're implementing it right or wrong, uh, as a whole, uh, and then what to do about it. 36:52 Uh, you know, taking your medication, that's a personal decision, uh, but I would not, I would not advise somebody to do that. Uh, or I would not advise you to stop taking your medicine. So, all right, next question. 37:07 Fort Mack, uh, dec-- dec-- decanation, decision maybe, uh, for toxic exposure says, "Did not serve active duty. Was there for basic training. What can I provide? Did acknowledge illness, 37:26 but saying I was in training and not on active duty." Yeah, I've seen these before, uh, declined. So, all right, active du-- uh, let me back up. 37:40 Basic training is considered active duty, even if you were in basic training for reserves. That-- while you're in basic training, you're technically on active duty. 37:50 But let's just play their game and say, all right, it's, it's active duty for training. You were training, uh, it was basic training, and, uh, i-if, 38:02 if you get a disability while you're on active duty for training, so you fall and break a leg and, and you need a hip replacement, uh, that active duty for training 38:20 becomes active duty for VA purposes, and there's a regulation on that. Same thing with exposures, okay? If you were exposed to, say, Agent Orange while on active duty for training, 38:38 uh, and VA concedes that you were exposed, and you have an Agent Orange-related disability, then VA should still service connect that, and that active duty for training then becomes active duty for VA purposes. So 38:57 now it's gonna require a little bit of finesse in the argument, uh, because I would venture to say, I could be wrong, don't know all the facts of the case, I would venture to say they probably didn't deny it s-solely 39:13 because you were active duty for training. My guess is they would have denied it because they didn't have medical link, a medical nexus between whatever disability it is and the toxic exposure. 39:25 Um, and just as a caveat, there was e-extra thing, you were also on ac-in ac-active duty for training. Uh, so you need to fight both of those at the same time if the, if the first applies. 39:38 But look, I'm telling you right now, Fort McClellan, uh, I do-- I am the Fort McClellan. I'm the guy, okay, [chuckles] uh, when it comes to Fort McClellan. Uh, those are tough claims. 39:50 Uh, VA's l-- gonna make you fight for it. If you're doing it on your own, uh, uh, my hat's off to you. Um, but do it from a position of knowledge. Uh, understand what exposures are out there. 40:07 We've got a lot of stuff on our website, uh, that I use in our claims. Um, and, uh, you know, make sure you're arguing the right thing with the right conditions. Uh, and force them. 40:19 If you go to the Board of Veterans' Appeals, and you're probably gonna have to with a Fort McClellan claim, your argument would be, look, you're, you're pre-- i-if they denied you based on no a-no active duty and they didn't really develop the actual cl- underlying claim, I would say that's premature. 40:36 You have to find out if my exposures caused my disability, and if it did, that becomes active duty for trai- for VA purposes, and thus you can't deny me based on active duty for training. 40:48 So maybe that's a better way to say that. So hopefully that helps. Uh, US Army grunt. Now that, that I can say. Uh, "Mr. Baker, I wanted to thank you for advice you gave me a couple of months ago on live stream." 41:04 Well, you're welcome. "I am working on Fort McClellan claim, getting ready to submit, waiting on DBQ, still need Nexus. Uh, thank, thanks you. Uh, AG." Well, you're welcome. Hopefully it goes well. 41:19 Uh, like I said, I know those are tough claims, but in my opinion, they are worth it. Uh, and, uh, we're gonna beat the Fort McClellan bullshit that they play. Uh, we're gonna beat it one way or the other. 41:34 We-we're, we're winning a lot more of those claims now. Uh, the court's not having VA's BS. 41:42 Uh, I don't think I've seen a, a denial from the board in the last couple of years that we could not defeat in federal court, which is exactly the way we argue those cases. 41:55 We-- it's a scorched earth philosophy, but my mindset is I don't want the board... I, I, I want to be able to defeat the board in court regardless what reason they come up with to deny the case. 42:11 Uh, and so far that's worked. Now, we, you know, there are still some Fort McClellan cases we can't win. Uh, uh, but the ones that we, we, we take on, we usually, uh, 42:23 uh, we usually get good, good results so far with them. So that egg is gonna crack. 42:30 All right, next question.Rated at ten percent right knee, supplemental for right hip, or supplemental for hip replacement, not resurface, was approved at only ten percent for painful motion. 42:48 VA also rated the scar at zero percent. Have you ever seen total hip replacement rated at only ten percent for painful motion? Uh, the scar at zero and not the minimum thirty for installed prosthesis. 43:03 Like, I've seen VA screw up the most simplest of claims, and it sounds like they may have done that in your case. If you are service-connected for that hip replacement, 43:17 and they only rated it ten percent, then they made a big old hulking error there. Uh, I would ask for an HLR, point out the fact that you've got a total hip replacement that they did not consider. 43:31 That's a minimum of thirty percent, and, uh, that should-- as long as it's, those are the facts, that the hip is rated ten percent and it's service-connected, and you had a total hip replacement, you should get thirty percent for that. 43:43 So I would definitely go, go, go an HLR route on it. And if that doesn't work, then I'd go to the board. Uh, Jackson, Jack-Jack Centra. I probably mispronouncing that. Uh, I'm eighty percent, 43:59 fifty percent sleep apnea, twenty percent osteoarthritis, uh, coccyx scar twenty percent, 44:07 left and right peripheral neuropathy, both ten percent, hearing loss ten percent, tinnitus ten percent, diabetes ten percent, denied TDIU. Should I file an appeal? Yes, you should file an appeal. 44:19 Uh, I know that comes up to more than seventy percent or at least seventy percent, uh, probably eighty or ninety percent, uh, once you do the math. Uh, yeah, I would file the appeal if you're not working. Uh, uh, 44:35 and it-- now, should you develop it first, maybe get some lay statements, explain why your conditions, uh, keep you from working, maybe try to get a vocational report. 44:45 You know, all of that is a possibility that you can do. Uh, I would probably try to put some paper in the record, uh, but I would definitely not accept a decision without an appeal. So one oh three, uh, 45:03 how do you deal with evidence submitted alone prior to five two six? What is the effect of need for a fiduciary on an AA determination? Before two oh three. 45:21 Before the five two six. [upbeat jingle] What will the effect of the revised twenty-six-- what will be the effect of the revised twenty-six eighty? Current says, currently says, "Needs A&A due to stroke." 45:39 May be revised to say dementia. All right. Go back. Okay, let me start from the end. Uh, I don't know what the effect of the revised twenty-six eighty will be. Uh, I, I don't know. I mean, there should be no effect. 45:55 If you, if it points out that you need A&A, uh, due to your service-connected conditions, you, it should still support A&A. Uh, if it, if it doesn't, then it won't. Um, uh, but go back to the first part. 46:11 Uh, how do you deal with evidence submitted alone prior to five two six? You deal with it like anything else. It, it's evidence in the file. Uh, if it supports the claim, um, then it supports the claim. 46:24 VA is supposed to be looking at the entire file. We all know they don't. Uh, at least certainly the first-line raters. 46:33 Uh, if the first-line raters deny the claim, and you don't think they considered that evidence that was there prior, if that evidence supports the claim, then I would ask for an HLR and point out that evidence, uh, and so that they can take it into consideration. 46:50 Uh, what is the effect of a need for a fiduciary on an A&A determination? The, the effect is the same as any other need for a fiduciary. That means they're gonna assign you a fiduciary 47:04 if they're finding you, likely finding you not competent for VA purposes, uh, and for financial reasons, meaning somebody else is gonna manage your, your finances. 47:16 Doesn't matter if you're getting A&A or higher SMC or a lower, lower rating, uh, you're still gonna get the rating that, uh, that you, that you're rated for, but the finances are gonna be managed by a fiduciary. 47:33 That is something you can appeal if you don't agree with it, just like anything else. Uh, but yeah, other than that, it doesn't have any real effect, uh, on the actual A&A, so. All right, next question. 47:49 Hello, Army vet, ninety percent rated, awarded TDIU February twenty-three, mental health fifty, fifty migraines, bunch of tens, not P&T, all disabilities static except for one, the feet. Should I file for P&T? What... 48:04 I... Hmm, did we have this one? Uh, would feel safer. Uh, would feel safer. Okay. I think we had this one or one damn close to it. Um, okay. It, 48:20 this may be the one that I tried answering before, but maybe you're just re-explaining it, that your feet's not static. Maybe that's the reason, uh, it's not P&T. Uh, 48:31 you know, I, I can't tell you, you should or shouldn't file for it, but it-If you don't and they come up with a routine future and nothing's changed, odds are they're gonna make it P&T at that point. Uh, 48:45 that's usually what happens. You got a much better chance of them making it P&T than you do of them taking it away, to be honest. Not that they couldn't, but, uh, you know. Would-- could you file for it nonetheless? 48:58 Sure. If, if that makes you feel more comfortable, uh, you know, you don't-- you're just asking for a permanent status. You're not asking for an increased rating in anything. Um, that should, uh, you know... 49:12 Would, would it work? I, you know, I don't know. It depends on the facts of the case, but, uh, uh, you're fine filing for it. Uh, I see nothing wrong with that. 49:22 So I know I probably didn't answer the way you wanted, but, uh... "Hi, everyone. I'm seventy-eight years old, Republic of Vietnam vet. I am one hundred percent for heart static. I am one hundred percent for P&D static. 49:38 Everything I have is static." Okay. "I have SMC-SK-ANA." You don't have S-S-N-A-N-A. Uh, I can explain that. "M, wife is VA caregiver and also my fiduciary. 49:55 Uh, I have several other things. I have two sixty percents for peripheral vascular disease of both legs. I am fifty percent for s-sleep apnea, thirty percent for migraines," a bunch of other things there. 50:09 I'm just gonna skip to the end. A bunch of peripheral neuropathy, uh, ten for hearing loss, ten for tinnitus. "Okay, now where do I go with this? Uh, please help. Uh, sure do miss Combat Craig." [laughs] Uh, 50:28 I, a-again, uh, it depends on if VA considers you, uh, permanent already or not, and if, and if it shows that on the code sheet, uh, or it doesn't. 50:43 I would venture to bet it might, okay? Go back a couple, uh, uh, go back a couple of points. All right, go back another. 50:58 All right, so you're a hundred percent for PTSD static, a hundred percent for heart. Uh, you know, then if, if, if this is still the question about, uh, the P&T, then yeah, that definitely sounds like you're P&T. 51:13 Somebody may have made a mistake in not putting it on your rating, uh, or they have you P&T on the code sheet, uh, and they didn't add it to the rating. Uh, in that case, I'd feel perfectly fine filing for P&T. 51:29 Uh, I mean, a hundred percent for heart, a hundred percent for, for, for PTSD, that alone, I'd feel perfectly fine, uh, filing for P&T. 51:40 [notification sound] Um, but I may also ask for an HLR, like I said earlier, to find out exactly why the P&T is not on there, 'cause it, it very well could have just been an oversight by the people that rated the case, uh, and not add that on there. 51:56 If I was to see that right there on a rating, uh, I would, I would think, yeah, they made a mistake here in just not adding P&T. They weren't trying to say the vet is not P&T. Uh, so that, that's what I would think. 52:13 Um, and then I would ask them to put that on a, on a decision so that, you know, you're, you're sure that you have it. Uh, again, I would get the code sheet. Get a copy of that code sheet, 52:25 uh, see, see what it sa- it says for future exams, and it may just be the one for the feet, uh, that's on there. But it sounds like you're probably P&T, and they just didn't put it on there. So, 52:40 I don't know if that gives you the answer you're looking for, but, uh, you know, without looking at the actual file, there's only so much I can answer. Uh, "Want to get hearing aids," uh, Francis Fowler. 52:53 "Want to get hearing aids. Uh, do I need to put in a claim? And if they're, and if they're, uh, abidant..." I'm not sure what you're saying there. 53:04 "Will they put a claim for compensation, and will they apply for compensation, or do I need to do that?" Uh, okay, you don't have to have a claim for hearing aids. Uh, 53:16 you can go to the VA Medical Center most of the time and get hearing aids, um, if you're, especially if you're already enrolled in the healthcare system. Uh, it, you... 53:27 Now, if you do that, that's not gonna file a claim for you automatically. You would need to file that claim yourself on a five two six, uh, and give it to VA, uh, for... 53:37 and it wouldn't be for hearing aids, it would be for hearing loss, probably tinnitus along with it. Um, you know, but at the end of the day, those are two separate things. 53:47 Sometimes if people are never enrolled in the system, and they're not otherwise eligible for VA healthcare, they might need to file a claim and get service-connected for hearing loss in order to get the hearing aids. 54:01 But in a lot of situations, that's not an absolute requirement. Uh, so it won't hurt to do both. Uh, if you're needing hearing aids that bad, I would go to the medical center and try to get them. 54:13 At the same time, if you're gonna file a claim, do a five two six, send it in to VA, uh, and you'll have two things going at once. Uh, but, but they are two separate things. Uh, 54:28 user, uh, bunch of letters and numbers. "I deserve retroactive pay, and why did they provide my disability with my re-- I deserve retroactive pay, and why did they provide my disabilityWith my retirement pay. 54:48 I'm not sure what you're asking there. Uh, now, if you're, are a retiree, twenty years or more, and you have a rating of less than fifty percent, 55:05 uh, they are going to offset that, um, for a concurrent receipt. They're gonna say you can't get concurrent receipt in that situation, therefore, you wouldn't get, you wouldn't get retroactive pay. 55:18 Uh, the only way around that is to, one, either be at fifty percent or higher, or two, have a ten percent for disability from a Purple Heart-related injury. Okay? Uh, 55:34 apart from that, you don't get both of those benefits. Now, if you, uh, are a retiree and you are rated above fifty percent, okay, 55:45 if it's a brand-new rating, and it went back, and you didn't get retroactive pay, it could be because they're just checking the amount of, uh, of retirement pay you got. 55:55 We call them DFAS offsets, where they will offset it initially. Once they find out from DFAS what your retirement pay is, DFAS gives them a spreadsheet. 56:06 Once they get that, they give you back everything that they, that they withheld. And that could take two or three months from the time, uh, they issue the rating, sometimes less. 56:17 Uh, so that, you know, not knowing anything else about what you're, what you're asking, there's a, you know, could be any of those scenarios. 56:26 Uh, hopefully that helps, but if you wanna be more specific, I'll, I'll try to answer better. All right, we can do one more, maybe two if they're... 56:45 Uh, all right. So I'm going to ask the question that has, uh, so I'm going to ask the question that has YouTube abuzz. All right. Uh, how do you see the recent VA change 57:01 countering Ingram playing out? Can the courts overrule CFR? So all right. I don't know if I can answer this any differently than I have already. Uh, 57:18 can the courts overrule CFR? Yes. Uh, if, if, if, uh, they find that a regulation is invalid for whatever reason, usually, uh, that it doesn't comport with the statute, uh, they can do that. 57:36 I don't think that would be at play here because four point one zero is in the rating schedule. It's part A of the rating schedule. Um, that's VA's [notification sound] territory, VA's jurisdiction, if you will. 57:50 They get to make the rating schedule. Uh, the court has a little bit less of a jurisdiction to review the rating schedule. Um, that doesn't mean they can't review it in any circumstance. Um, 58:07 a circumstance where they can't review it, uh, if you try to say, "I deserve more than ten percent for my tinnitus." The court would go, "Well, the rating schedule is at ten percent for tinnitus and no more. 58:19 Um, you're saying that's not valid. We can't review that 'cause that belongs to VA." Um, and that's how that would work out. Four point ten being in part A, it's not technically in the rating itself. 58:32 Uh, yeah, they could review that possibly for, uh, validity. But can they review it once VA changes the regulation? Uh, if VA gets their way, they can't. 58:46 Uh, so, [laughs] uh, you know, what will... Will something happen to this in the future? I, I don't know. 58:53 Uh, somebody will probably try to appeal it, but a lot of times, uh, if the regulation is not, uh, contradicting a statute, and it's otherwise, uh, you know, within VA's jurisdiction of what they are allowed to do, 59:10 uh, the courts aren't going to, uh, change it just because they don't like it or just because it, it doesn't comply with some of their prior case law. 59:19 Uh, VA has changed regulations before, uh, because they didn't like case law. Uh, you know, and sometimes they get away with it, sometimes they don't. It doesn't happen very often. 59:30 Again, I don't think this is gonna have a, a huge effect, uh, on things, uh, uh, going down the road since VA already has been doing cases like this for a very long time. Uh, but you know what? We will see. So 59:48 we'll see what YouTube thinks, YouTube will knowing, so it might prove me wrong, but, uh, I'll stand my ground on it. All right, it is three o'clock. 59:58 [notification sound] Uh, hopefully I got, uh, enough of your questions answered. If I did not answer some to your liking, I apologize. I'm just doing the best I can with what I've got. 1:00:10 Uh, and, uh, hopefully you guys got something out of it. Sorry Ursula was not able to make it. Uh, and, uh, we will see you guys again next week. I don't know if it will be me or not, but it will be somebody. All right. 1:00:25 Thanks a lot, guys. 1:00:28 [outro jingle]
