Transcript 0:00 [upbeat music] Hello, everyone. 0:20 Uh, welcome to Hill & Ponton's live Q&A. Uh, this week you have me, Kerry Baker, and just me. Uh, Carol was supposed to be with us, uh, she's got the flu. 0:32 Uh, so, uh, unfortunately, I will have to answer all of y'all's questions today. Uh, so hopefully Carol will be here next week. So, uh, with that, uh, I really have no other announcements. We'll just get started. 0:49 All right, first question. Chris, uh, wanted to, under the current rules, can you file a claim 0:56 f-from the BVA to the CAVC, the CAVC is a court, um, for appeal while simultaneously presenting new evidence and going the supplemental claim route in case CAVC dismisses? And then part two, 1:15 uh, oh, so, of three, uh, quality found error and said reopen September twelve mental health. Uh, they then reopened the claim and requested SSDI and voc rehab records received January twenty thirteen. 1:30 They never made a decision after that. Am I correct if VA reopened it, so it's open? Uh, so thank you so much, Marine to Marine, uh, Carol twenty twenty-eight, President, you served, you deserve. 1:48 All right. Let's go back to... Thank you, Marine to Marine. Uh, let's go back to, uh, the first part of that. All right. 1:57 So our understanding is that you can file a supplemental claim while you have a appeal pending at the court. Uh, you couldn't use to do that, but now you can, uh, and, uh, 2:13 'cause the court's outside of VA system altogether, it's in the federal court, uh, system. 2:18 Uh, so g-generally VA will tell you you can't have two appeals going at the same place at the same time, uh, but since the court is not part of VA, uh, you can do that. All right. Uh, let's go to the second one there. 2:31 I think that was really the last real question. Uh, so I'm not sure what leads you to believe that quality found an error and said reopen the September twelfth, uh, claim. 2:43 But if that's the case, uh, yes, that should be reopened. Um, now my question would be, when did they do that? Uh, since you said they never made a decision. 2:54 Did they find it in September twelve or did they here recently find it? Um, if they found it recently, then they should establish it as a pending claim, like, kinda like any other claim under a proper end product. Um, 3:13 so, you know, if you call the VA or look in your system, if it shows you have pending claims, um, I'm not sure what the end product code would be for that, uh, but it should show something. 3:24 And if they have not, uh, if there's nothing pending, then that's sort of a red flag for you. Um, 'cause generally they don't publish quality review, uh, decisions, uh, in there. So, um, I say generally. 3:41 They-- I've seen 'em before where they come out and said, "Well, uh, based on a quality review, we had to go back and do this." But they generally won't say that. Um, now there's two types of quality review. 3:51 There could be, uh, what's called an RQRS, rating quality review specialist. That's a local quality reviewer. Uh, or it could be a STAR, uh, quality reviewer. That's the national, uh, quality review team. 4:06 STAR stands for, uh, systemic technical accuracy review. Uh, and that is, uh, that's out of Nashville here, uh, but they work for VA central office. 4:18 So, uh, if it's not pending, I would, I would try to find out why, uh, try to get that, get that into an open claim and find out what their decision was. And was there a third question on there? I don't... 4:30 I think it was more of a statement. Uh, yes, I think you, you're correct to, that it should be reopened. But again, I would verify that. All right. Next question. This is from Sandrab sixteen ninety-four. 4:47 Uh, follow-up one... Hi. Follow-up one of two. I'll file the new HLR with DTA argument per your advice because, right, uh, I'm not sure if it was my advice or not. This is, this is question number two. 5:03 Uh, because the RO ignored my missing STRs and three point one five six C request. The service org will not file a CAR because my new claim was granted using old markers, 5:20 now closed with the wrong earlier effective date or the wrong effective date. Shouldn't the RO be able to open and reconsider the prior denial without a BVA remand? Why is this, uh, reg so misunderstood? 5:37 Please do a video on this regulation. Thanks. All right. Go back to the first part. Not sure of the actual question. I'll file the HLR with DTA argument per your advice. 5:49 The RO ignored my missing service treatment records and three point one five six request. Uh, the service org will not file a CAR. Grant was old marker. All right. 6:02 Go to the next, next oneAnd it's now closed with wrong effective dates. All right. So I'm-- you're missing some procedural stuff there that's kinda confusing me. Uh, it, it, it-- I guess one... 6:19 there's a couple of questions I would have. Are you still within your appellate period, uh, for that decision that you say has the wrong effective date? Um, and was that decision 6:35 done by an HLR? Okay, if it was done by an HLR, you can't go back to an HLR. Um, if, if it was an HLR, you might have to go to the board, unfortunately. 6:50 Uh, 'cause the supplemental claim team, or which is the first line raters, they're not gonna overturn what the DRO did. Um, so you may have to, uh, appeal to the board for that. Why is it so misunderstood? 7:04 [sighs] You know, the language is a bit ambiguous. It's been litigated out the wazoo. There's a number of court cases on it. Um, a-and of course, VA likes to fight it. 7:19 You know, y-you can use that regulation in certain circumstances to get a much, much earlier effective date if it applies to your case. 7:30 And trying to get VA to, you know, go back five years, ten years, thirty years, depending on the case, uh, they're not gonna do that very easily, and they're gonna fight that. 7:41 And because they've fought it like that over the years, it's led to a lot of litigation that in some aspects has confused the matter. Uh, there's a recent court case out, I think it's Reynolds v. 7:55 Collins, uh, by name, if, if, if my memory's working, uh, that it was just put out in December. 8:03 That was on three point one five six C, and it basically said that you get the earlier effective date, or at least you can potentially get the earlier effective date, as long as the service records played at least some role in the, uh, in the new benefit. 8:21 So they don't have to be the sole role, they just had to play, uh, uh, some bit of a part in, in getting the benefit granted. Uh, that's good, uh, because, 8:33 uh, the board has denied lots of cases on this ground, saying that the, the new evidence was not why it was granted. Uh, well, it, it's-- the new evidence is usually partly why it's granted, and it only has to be partly. 8:46 So, uh, that should help us going forward with arguing these cases. So hopefully I answered that. I know it was a little waffley there, but I, uh, it... I don't think I had all the info. 8:57 But, uh, hopefully that gets you in the right direction. Uh, all right, next question. Catherine McDaniel. Uh, sorry, I'm right at the distance where if I put my glasses on, I can't see it. 9:11 Without my glasses, I can barely see it. [laughs] Uh, fifty percent obstructive sleep apnea. What happens if you don't use the CPAP because of feelings of suffocation causing anxiety and stress and the use of 9:26 LVAD equipment for my heart? Will VA take away the fifty percent? What can be done? Well, so VA usually has little cameras on those CPAP machines, and they know exactly if you're using it or if you're not. 9:43 Uh, I'm kidding. That's a joke. Uh, no, the, the, [chuckles] the important part is that your sleep apnea is severe enough to be prescribed a CPAP machine. All right? 9:56 All joking aside, whether you use the CPAP machine or not is completely up to you, you know. Now, I would not take that machine back to VA or whoever gave it to you and tell them you don't need it, uh, because they may 10:14 jot that down in a way that could be detrimental. Uh, if, if VA sees records that you don't need a CPAP, that's different than 10:24 having one, uh, and because it's prescribed to you, but you choose not to use it because of any number of reasons. 10:33 Uh, that may not help your sleep apnea, uh, but I mean, those are your reasons for not using it, and that's strictly up to you. 10:40 Uh, a-and so usually once VA assigns that fifty percent, uh, and you get prescribed that, that s- machine, uh, they're not gonna revisit the issue unless you give them reason to, so you should be fine. 10:55 All right, next question. Uh, Remy eighty-six. Uh, one, hello, uh, I have a C&P exam for major depressive disorder tomorrow for an increase. I am one hundred percent P&T with SMCS. 11:11 My son helps me with all my ADLs. My anxiety has worsened in the past six years. I'm always in bed due to my depression and lack of motivation. 11:23 Is there certain specifics you can tell me that the examiner looks for in the exam to grant an increase from seventy to one hundred percent? Okay. Here's where you're gonna get the cautious me on this. 11:37 Uh, it sounds like where you just said you're a hundred percent permanent total with SMCS. So going from seventy percent, maybe you're TDIU for that, and you've got other disabilities. 11:51 Uh, but going for, from seventy percent to a hundred percent when you're already SMCS is not gonna change your overall rating. Uh, so unless you're going for aid and attendance, I don't know why you'd file that claim. 12:05 Um, and if you are going for aid and attendance, uh, then the question there would be-What is it, what do you need to show for aid and attendance? 12:17 And with a mental health condition, that can be difficult on occasion. Uh, there are two sort of broad categories for aid and attendance, and one, uh, you're probably not gonna meet under a mental h- 12:34 under a mental health category. That one being the ability... Your, your activities of daily living and that, the, the ability to feed yourself, dress yourself, bathe yourself, uh, that type of stuff. 12:50 You know, usually a mental health condition is not gonna prevent you from doing that, uh, but that's one thing you need to show for aid and attendance. 12:57 Another thing, or the, the other side of that coin is the ability to keep yourself free of harm, all right, in your surrounding. 13:07 Uh, and I'm not quoting it from the regulation, but that's, that's basically it, and that's where mental health comes into play. 13:13 Uh, i-is your mental health condition severe enough that you're a danger to yourself if left alone? Um, you know, either you hurt yourself or you get hurt by your surroundings because you, you don't have enough, uh... 13:29 You know, you're mentally disabled to the point where you can't, uh, you, you don't know right from wrong, or you may leave the stove on, and that's just one small part of it. Uh, you go out and get lost. 13:40 Uh, I mean, there's all kinds of mental health disabilities that could make you pose a danger to yourself. Uh, that's what you kinda have to show in order to get aid and attendance. 13:51 But if you're just going for a schedule a hundred percent, you're already, uh... Sounds like you're already there with SMTS, uh, so I'm gonna assume you're going for aid and attendance on this. Uh, hopefully that helps. 14:09 All right. Kale Fisher eight eight six nine. I have a hundred percent P&T with homebound status. One hundred percent for PTSD, one hundred percent for psychogenic non-epileptic seizures. 14:24 I was denied the caregiver program. PCP would not sign off on A&A form. I resigned from job and have disability retirement through OPM. What can I do next? 14:39 I am struggling with ADLs and recovery from a seizure. So, all right. That can be a tough one. Um, you know, it sounds like the seizures are obviously the main reason, uh, you need help, uh, from somebody else. 14:56 Uh, so, you know, I, I realize people struggle a little bit more when they've had a seizure, uh, you know, than if they haven't in a while. So one question I would have is, how often do you have seizures? 15:11 Uh, when you have seizures, what kind of seizures are they? Um, you know, can you drive or, uh, has your seizures, uh, gotten to the point where they've taken your license? 15:22 Um, you know, if you're having seizures routinely throughout the month, uh, and, you know, you can't function after a seizure, that type of lay evidence needs to be in the file. 15:37 I would get statements from people that have to help you after a seizure. Um, but I think the one big part there is showing how often you have them. Uh, you're a hundred percent 15:50 for the seizure disorder, so th-that right there means you, you have to have them somewhat frequ-frequently. Uh, 15:59 so I would paper the record with as many lay statements as you can from yourself, from other people that have to help you, how often you need that help, what kind of help you need after a seizure. 16:11 Um, you know, does somebody have to be with you all the time while you're not having a seizure in case you do seize? 16:19 Uh, 'cause I know that's the, that's the situation where a lot of people, where they have seizures all the time, they, they shouldn't be left alone. Um, you know, and, and that's how I would go about that. 16:31 Uh, just because your PCP won't sign off on the A&A form does not mean you can't file for A&A. 16:36 If you file for A&A, uh, even if it's with a five two six or a supplemental claim, they should give you an examination for A&A. 16:44 Um, you know, just because they won't sign off on the form doesn't mean, um, that, that you can't get A&A. Now, obviously, if you can get A&A, that's gonna help your chances, uh, of getting the caregiver program. 16:57 And remember, the caregiver denial, which would not surprise me in that situation, can be appealed to the board. So I would get that evidence in the record and then consider appealing to the board. 17:08 The board has done a pretty good job of remanding caregiver appeals, uh, because the medical centers are... 17:14 They just suck at it so much, uh, that the board finds all kinds of reasons, uh, that, you know, things that they didn't do correctly that they remand it. 17:23 And then you usually have a much better shot at getting the, getting the caregiver, uh, program at that point. So hopefully that will help you get both the A&A and the caregiver. All right. One of three. Uh, Grace Smith, 17:40 uh, retired oh-four engine man in Navy. All deployments under PACT Act locations, Gulf War post nine eleven. Recently diagnosed first with hypertension, second diabetes, third chronic kidney disease. 17:56 I want file all three DBQs or tricky VA rating purposes, VA rating purpose labs are a key. I'm not sure if I read that right. Uh, would this be under TERA, 18:12 and is this presumption under PACT?Should I get Terra Exam File 526? Thank you for helping us vets. Okay, so a few things here. ITIF expired, submit another one. 18:27 So yes, if your ITIF has expired, yeah, you want to submit another one, unless you're just going to submit the 526. If you haven't submitted this claim, 18:37 then you have till the end of the month to secure a January 26 effective date. So I would go ahead and file the 526, unless you, for whatever reason, aren't ready to do that, then you would want to do another ITIF. 18:53 Nate, go back to the second part. All right. Now, once you file these claims, as long as you can show you have the conditions, you should file the evidence along with it. 19:09 Now, if this is at the VA, you can just tell them what VA medical center treats you for these conditions. If it's outside, I would attach a copy of the records with the claim. 19:19 They should provide a Terra exam for you, all right? You shouldn't be on the hook to go get that yourself. That's part of VA's duty to assist you in developing the case. 19:29 You do have to show them that you have the condition. Once they do that, once you do that, they will generally set up an exam for you and consider Terra. Are these presumptive under PACT? I think you said 19:46 hypertension, diabetes, and chronic kidney disease. Unfortunately, these are not presumptive under PACT if you're talking strictly Gulf War. If you're talking herbicide exposure, that's a different story. 20:03 The hypertension and diabetes is presumptive for herbicide exposure. It's not for things like burn pit exposure. That does not mean that they don't have to give you a Terra exam. They should still do that. 20:23 Keep in mind, so here's one way to approach this. This is a little complicated. A lot of things from the burn pits, all right, in Iraq and Afghanistan and Kuwait and all that 20:35 produced numerous toxins that can have an effect on a cardiovascular system. Now, they're not going to presume it's related to service, but there are links. You may need medical opinions. 20:48 If VA denies the case, I would try to get them to do their job first and get the medical opinions that they're supposed to. If they come out negative, you may need to seek your own. 21:01 But for example, part of the air samples that were taken around Balad in Iraq of the burn pits produced TCDD, which is tetrachlorodibenzoparadioxin. 21:17 That is the dioxin that was in Agent Orange. Okay. Why is that important? Because that's defined as a herbicide agent for the purposes of VA regs. 21:32 Theoretically, if you can show you were exposed to a herbicide agent during active duty, then you should get presumptive service connection for the things related to that herbicide agent, and that includes hypertension and diabetes. 21:46 It would not include the chronic kidney disease, but odds are that's related to the hypertension. So you could still get there with the chronic kidney disease. So the hypertension and the diabetes are your key 22:00 to get service connection in order to get the other, but they're also key based on the exposures to things like burn pits. There's medical nexus literature out there you can use, 22:14 but you may have to seek your own medical opinion if VA's comes back negative. 22:20 What you may want to try to do when you submit the claim is get evidence about what was in some of the air samples from the burn pits that have that stuff online. 22:31 You may have to do a little digging, but it's all out there. 22:35 But the key is, because if they just ask for a Terra opinion, they're not going to address most likely the individual toxins, and that's what you have to drill down to is showing exposure to the individual toxins that can affect the cardiovascular system. 22:52 One of those toxins is the dioxin. So that's an approach to that. Again, it's not a simple one, but since it's not presumptive, you may have to do a little extra footwork on it. In my opinion, it's worth it 23:08 because I think there's a relationship between those exposures and blood pressure and diabetes. Hopefully that helps a little bit. I know it's not as clear as crystal. All right. STLT4. 23:25 I'm not going to pronounce that. One of three. Why does civilian documentation not seem to matter in the VA claims process? We are 27 months into a claim for A&A that we are hoping results in SMCT. 23:44 We have done an HLR. He's been deemed incompetent, but still denied A&A. Then we went to the board. 23:54 The board remanded it, ordered an A&A exam, even though we had two 2680s, neurology notes, neuropsych testing, and mental health notes. 24:07 After the A&A exam, the rater added three conditions and ordered three more exams. Why does it seem like our documentation doesn't matter? A very good question.It absolutely matters. 24:26 Okay? The problem you're dealing with now concerns who's looking at it. Uh, it's being looked at by the normal VA rating specialist. Um, I don't know what they're teaching some of these guys nowadays. Um, 24:45 we-- I-if, if it's beyond simple, um, we see clients run into the problems that you're running into. Um, now, you did say you're going after SMCT, right? 25:00 So when you're saying A&A and then saying SMCT, I don't know if you're referring to the same thing. SMCT is the highest level of A&A. 25:12 Uh, so what I don't know by your question here is if you've already been awarded regular A&A. All right? 25:20 If you have not been awarded regular A&A, you pretty much have to meet that threshold in order for them to consider SMCT, simply because 25:32 if you can't satisfy the requirements for regular A&A, you're not gonna satisfy them for the higher level of SMCT. So I don't know which... 25:42 Uh, I obviously know you're talking about SMCT, but I don't know if you're already getting regular A&A. Uh, if you're not, and you're fighting for regular A&A at this point, um, a lot of things could help out there. 25:56 One, the fact that he's been deemed incompetent. Um, two, if... Now, some things can hurt the A&A. A-and obviously, I don't know what all he's service-connected for, so I'm just kinda, uh, stabbing at things here. 26:11 But if you don't have a single one hundred percent disability rating, at the level you are right now in front of the normal raters, that's gonna hurt you because they all believe that you have to have a single one hundred percent disability rating, even if the doctor comes out and says you need A&A. 26:31 Okay? They make this mistake all of the time. And we'll see decisions with favorable findings that say you require aid and attendance based on your service-connected conditions, and it's still denied 26:45 because you don't have a single one hundred percent disability rating, even though you might have a combined one hundred percent disability rating. That's wrong every single time. 26:53 You appeal that to the board and argue three point one oh four, which is the binding effects of favorable findings. 27:01 The board will usually reverse it because that fa- that binding finding, if you will, is binding on the board as well. 27:10 Uh, you'd think if the RO's making a finding that's binding on them, how are they denying it in the same decision? Uh, I ask that question every time I see one of those, but yet they figure out how to do it. 27:23 Uh, it's, it's just a misunderstanding that they believe you have to have a single one hundred percent. Um, if it's-- if you already got the regular A&A, and you're going for the SMCT, the answer is kinda in what you're 27:39 claiming. Okay? You're asking VA to compensate you at ten thousand some odd dollars per month. Uh, they are gonna scrutinize that. Okay? 27:50 Uh, the first-line raters are kinda told to look at the VA exam, and they don't go any further than that. Uh, it goes to the board, to somebody like a judge. They are supposed to look at everything in the record. 28:03 Of course, so are the frontline raters, but they don't. Uh, a decision review officer in the middle, they will sometimes, uh, depending on if you get a good one or not. Uh, but that's just... 28:14 If you're trying for SMCT, that's just something that you're, you're gonna have to fight for. It's not a benefit that's easily gotten. Um, you know, it requires a, a significant disability from a traumatic brain injury, 28:29 uh, and, and it's just hard to get those ratings, uh, at that level. Keep at it. It sounds like you're doing everything you need to be doing, and you-- it sounds like you got the evidence that you need to have. 28:40 Uh, it's just a matter of getting the case in front of somebody that will make a final decision and knows how to make it right. So you may end up having to go back to the board with it. Uh, don't be surprised about that. 28:52 Um, you know, and, and don't hesitate to do just that if you have to. All right, next question. Uh, howdy, Ho-holidlove. [chuckles] You guys and your names. 29:08 Uh, how long does it usually take between a BBA grant and the actual implementation of the decision? Okay. Not long, okay? It, it really depends on what they have to do to implement that decision. 29:24 If they don't have to do anything, like set you up with an exam, okay, uh, for example, let's say you, you've got a mental health condition, and it's-- and the rating is on appeal, and the board comes out and says, "We grant a hundred percent." 29:38 Well, that-- the VA's not gonna have to evaluate you for that. The, the RO-board's telling them exactly what to do. We usually see those within a week, okay? 29:48 Um, if, on the other hand, they have to get an exam before they can figure out what to rate you, say if the board granted service connection, and they don't have any rating criteria, they need an exam first, uh, it will usually... 30:04 however long it takes them to get the exam, which could be a couple of weeks to a month or so, it's usually right after that. Um, now what we'll see them do sometimes, a, a lot of times actually, 30:16 they'll issue a decision up front and lowball it. Say, you know, "We're granting the mental health condition that the board granted at zero percent and setting you up for... and setting you up for an at-once exam." 30:29 So you get a rating real fast.Giving you a low ball rating and then you've got an exam right after that for them to figure out, you know, where you fall in the disability level. 30:40 So it just depends on the case, but that's probably one of the fastest things that takes place in, in all of these appeals is if the board grants a benefit, the RO usually implements it fairly quickly. 30:54 Now, if they're not, if it's three months, four months down the road, and you haven't got a decision, yeah, I'd be inquiring with somebody because that's, uh, that to me would raise a red flag based on all the others that I see. 31:07 Okay. Uh, user, lots of numbers and letters. Uh, "What happens when your remanded claims get sent back and it's still denied?" Nothing happens 31:23 if you don't take action, okay? 31:25 Under the Appeals Modernization Act that went into effect in twenty nineteen, February of twenty nineteen, that's what most appeals are under these days, unless you've had an appeal in the legacy system from way back. 31:41 You have to submit another one oh one eighty-two, which is an appeal to the board, within the year of that denial to get it to go back to the board, okay? I absolutely disagree with that practice. 31:54 Uh, the board did not have to change that regulation, but they chose to. The AMA did not mandate that they do so. 32:04 Uh, and what I mean by that, under the legacy process prior to twenty nineteen, if your case was remanded by the board and not granted at the RO, the RO would issue a supplemental statement of the case, and it would automatically go back to the board. 32:19 'Cause it's on remand from the board, they maintain jurisdiction of it unless the benefit was granted. So it would automatically go back there. Uh, 32:30 it will not automatically go back there now under AMA simply because they, their rules say that, yeah, it, it has to... you have to initiate another appeal to the board. You would think 32:41 it's under remand, they would maintain jurisdiction, but they relinquished jurisdiction, uh, and that was a rule that they kind of decided themselves after interpreting the AMA, but it does force you to reappeal. 32:54 So if it's on remand, they deny it, you don't do anything, after a year, that appeal dies, and you've lost that, that appellate time. So do another one oh one eighty-two, send it back to the board. Okay? 33:08 'Cause if the board thought something was wrong enough to remand it, one, there's no guarantee that they got those instructions right. They might remand it again, or the board might find a way to grant it. 33:20 Either way, it's not gonna happen if you don't go back to the board with it. So... All right. Next question. CPOD, CPO Deep Sea Diver. 33:35 "In nineteen ninety-eight, I was rated a hundred percent and granted IU, but the decision letter stated that IU was moot because of the one hundred percent, uh, the one hundred percent rating. 33:46 Should they have given me SMTS, uh, for these two ratings?" No, not necessarily, if they're both for the same thing, okay? Um, the only way you get SMTS out of that is if you had the one hundred percent rating for a 34:03 particular disability, whatever that disability is, and you were found unemployable due to a separate disability altogether. Okay? 34:14 Then you're talking about really two hundred percent ratings, one being IU, but for two separate disabilities. Uh, if on the other hand, they rated you a hundred percent 34:27 and decided that because of that same thing or same group of disabilities, you were also unemployable, then that's a single hundred percent. 34:36 They're just saying the TDI is moot 'cause they got you to a schedule a hundred percent. A-and that's all that means. So good question though. All right. Terrence Brown. 34:52 "I'm trying to get A&A for one hundred percent PTSD, uh, one hundred PTSD, seventy TBI. 35:03 Also have fifty migraines, fifty s-sleep apnea," I'm assuming, uh, "three thirties, uh, twenty for back, twenty left leg, twenty right leg, uh, five tens. If I get A&A, 35:19 what would my SMC rating should be? Just wondering." Okay. Good question. All right. You're asking me to figure out a lot of stuff, uh, just by reading two lines here. But let's just say hypothetically, 35:35 I am the SMC guy, so I'll give it a shot. Uh, let's say you get A&A just for the PTSD. 35:46 Now, I don't know if you're, what you're saying there is the seventy for the TBI, is that part of the PTSD, or do you have a separate rating of seventy for TBI? 35:57 I, I don't know if that's what you mean there, uh, 'cause I've seen it both ways. So let's say y-your, your A&A is granted just based on your PTSD, 36:10 and you also have that separate seventy for the TBI and all this other stuff, okay? The A&A is gonna pay you at the SMC-L rate. Starting at L 36:23 is where half steps come into play, uh, and, and we can get multiple half steps now, okay? And I see seventy, if that's a separate for the TBI, that's, that's a, that's a half. 36:37 Anything fifty or higher is a half step.So 70, you have, uh, fifty for migraines, fifty for sleep apnea, so that's two half steps. Um, three thirties, so I think any two thirties, um, 36:53 is, uh, w-would be fifty percent combined. So you're talking starting at the seventy L and a half, fifty M, another fifty M and a half, 37:06 two thirties, that's, uh, thirty-six, that's forty-eight, I believe, if I'm, I'm doing that math right in my head. That should be fifty, so two thirties. N, uh, three twenties. Hmm. 37:21 You could, you could get to N, N and a half. Now, if that seventy is part of the PTSD, it's all one rating, um, then maybe N from that. 37:35 Without doing the math actually on paper, you know, I'm obviously doing it in my head, um, but every fifty percent or combination thereof, you can figure a half step out of. 37:46 So with that advice, you can, you can kind of figure out where it should be. Um, here's a little unknown note. N and a half plus K gets you R1. Now, that is hard to get to. 38:02 Uh, but if you can, N and a half plus K, like you would get K for loss of use of a creative organ, for example, um, and you need aid and attendance, in this case, if you got the A and A, uh, but N and a half plus K 38:18 while needing A and A puts you to R1 automatically. So your magic number there would be to try to get to N and a half. Uh, and if you have a K, then great. 38:28 If you don't, need to go find one, uh, 'cause you'd be real close to R1. But even a N rating or N and a half rating, that's, that's really good. So I think you're at least looking at N, maybe higher. 38:39 Hopefully that helps. All right. The Veterans Aid, uh, one oh three. Hello. 38:47 A VHA primary care provider completed a twenty-six eighty to state the veteran needed A and A for the med management and food prep, uh, due to mental health-related memory issues. It was denied by the rater. 39:01 That does not surprise me. Uh, the veteran recently received SC for neuropathy, left lower extremity, previously had SC for the right upper extremity. 39:10 That combination, per the VA PCP, causes the need for A and A, as noted on the separate twenty-one twenty-six, uh, twenty-six eighty, uh, for dressing and shaving and bathing. 39:25 The first denial-- Should the first denial be appealed, uh, should they go forward with a new twenty-six eighty not yet filed, or should they do both? Hmm. Go back to that first part. 39:43 Okay. All right. So you've got evidence showing what should get you A and A according to the twenty-six eighty, and then you have new evidence after that, that, that shows more of a need for A and A. 40:02 Uh, should you appeal one or file the other or do both? Okay. I would do both, uh, because don't ever let go of potentially appealing one that's gonna keep your effective date older, 40:19 even though you may have a reason to file a new one. If you file a new one, it, it may not go back as long as the other one. They're gonna have to look at the newer evidence, okay? Um, 40:32 unless you file an HLR on, uh, the first one. The, the HLR on the first one is only gonna get that evidence considered that was part of the first one. 40:44 Uh, but you're still gonna want that other evidence considered as well. 40:47 Uh, you could do all this with a supplemental claim and just file one thing and, and, and do, you know, give them the new evidence and make the supplemental claim part of that first denial. 40:59 But I can tell you right now the reason they probably denied that first one, med management and food preparation. All right? That generally is not gonna be enough for aid and attendance. Um, 41:12 the needing someone to prepare your food is not the same in VA's eyes as feeding yourself. All right? One of the ADLs. Um, 41:24 you have to show an ability that you need someone's help in feeding yourself, not just preparing food. And med, med management is kind of the same way. 41:35 You know, they have apps nowadays that, that can help with med management. Uh, so there's, there's a sort of a thin line there between 41:46 med management, food prep, food prep, and a danger to yourself if you're talking a, a mental health issue. Now, obviously you throw in the physical issues, uh, that was in... 41:58 It was the later part of your question, then that, that solidifies it further. That's why I would probably do a supplemental claim, put all that evidence there. That way you get to argue your new evidence, 42:09 uh, but you also keep the other claim going. 42:13 If they come back and grant A and A on the new evidence and limit the effective date, then you're just arguing for an earlier effective date of A and A consistent with the first decision. 42:25 Uh, so that's probably what I would do, uh, just based on what I see in your question. Hopefully that helps.All right. 42:37 I have about another ten minutes, uh, 'cause I have a conference with the VA, uh, right on the top of the hour. So just wanna give you guys a heads up. So I'll try to go through a number of them kinda quickly. 42:49 Uh, VBA Consulting twenty-nine... VB-VB Consulting, uh, twenty nineteen. "Hello. Uh, hello. Uh, does a veteran file an appeal before the CAVC without help from a lawyer? 43:02 Is there a specific form and any cost to the veteran? Thank you always." Um, okay, a veteran can file an appeal, uh, to the CAVC without help from a lawyer. 43:15 Uh, I don't know that I would advise it, uh, but it can be done. You can appeal pro se. 43:20 Um, if you go to the court's website, the Court of Appeals for Veterans Claims, there are instructions on there on how to file an appeal, um, a-and it's, it's really not hard. 43:34 Um, the harder part is getting going in the appeal, writing an appellate brief and all that, but, uh, their g-general counsel will kinda help you through that if you're pro se, although they'll still argue against you. 43:47 Keep that in mind, uh, 'cause it's not a, uh, non-adversarial system at the court. You got general counsel arguing against you, and your attorney would argue... typically argue for you. Um, any cost, if you have a... 44:03 a-and I'm going off a little bit of rusty memory here. If you have a net worth of two million dollars or less, 44:10 um, which is obviously most people, um, and then you file a declaration of financial hardship, and there's no cost. Otherwise, I think there is, there is a fifty dollar filing fee. 44:23 Uh, so at most, you pay the fifty dollar filing fee. But obviously, if you don't have two million dollars, uh, you file... And, and that... 44:32 Ninety-nine point nine percent of the time, even if you're represented by an attorney, they're gonna file a declaration of financial hardship on your behalf, and it's not gonna cost anything to get the case into court. 44:42 So yes, it can be done on your own. Uh, it can be done, uh, without any cost and, um, um, you know, if you're up to it, go for it. 44:53 Uh, now when you file it, you might get offers from a lot of attorneys to take the case for you. Uh, they don't know anything about the case. 45:02 Uh, they have a way to see who's filed and don't have a representative, and they might just offer you, uh, representation. 45:09 They might look at the case later and decide to yank that representation, uh, 'cause they don't know anything about the case. But, uh, but you may get offers that way. So just keep that in mind. All right. 45:23 City Nights, uh, "Do you know how to appeal a VR&E decision? I disagree with the track I was put on. I wasn't given a decision letter, just email and video conference with VR&E rep. M twenty- M twenty-eight C manual 45:41 steps were not followed. I was rehabilitated under VR&E fifteen years ago. Two years ago, approved for tinnitus, which is not good for noisy environment." All right. I'm not... 45:58 If you're asking how do you appeal a VR&E decision from fifteen years ago, I don't know that you can do that. Uh, now we don't do VR&E appeals, so take that with a grain of salt. Uh, 46:16 uh, I used to do VR&E years and years and years ago, and I'm work-- I'm talking like twenty years ago. Uh, it was part of what I did. Uh, I didn't do it all the time. Um, 46:28 I went through VR&E myself when I got out of the service. Um, it... but if it's that old, it... I, I think it would fall into category of anything else that old, that you're out of your appellate window. 46:40 And if they did rehabilitate you, and now you're saying that you were rehabilitated into an incorrect track, 46:50 but they did it and, and, and you accepted that track, and it's been that long ago, I don't know that you have an appeal now. Um, 46:57 but I also believe that if your service-connected disabilities have presented a situation where your current 47:09 voc-- your current vocation, sort of, that they helped you get is no longer suitable for you because of your disabilities, there might be a way to reenter voc rehab to get retrained into something else. 47:25 So that's something I would look into if I were you, just based on what you're asking me there, uh, and my interpretations of it, which could be incorrect. Uh, so keep that in mind. Hopefully, that helps. Uh, 47:41 Jarhead Ninety-one, uh, "I have my first therapy session with VA for PTSD next week. I want to submit a claim for PTSD with sleep apnea secondary with CPAP before new rules start. 47:55 Can I submit upon receiving a diagnosis?" You can. Uh, "Or do I need to have a number of months of treatment first?" No, you don't have to have a number of treatments. You do need to have the diagnosis. Uh, it... 48:11 now, I say you, you can file the claim now even without the diagnosis, but understand they're only gonna do so much without the diagnosis. 48:21 Having said that, if you know you're gonna get the diagnosis, if you know you have sleep apnea for whatever reason, um, is it gonna hurt you to go ahead and, and file the claim now? No, it won't. 48:33 Uh, you're gonna have some time there to go ahead and get them the diagnosis as part of the development of that claim.If you're worried the VA is gonna come out next week with the final regulations, that-- we have no indication they're gonna do that. 48:47 Uh, but at the same time, we would not have indication they're gonna do that. They're not gonna call Kerry Baker up and say, "Hey, let your folks know we're about to file this re-- finalize this regulation." 48:58 Uh, they're not gonna call Hill & Ponton up and say that. Uh, so when it comes out, there's a good chance we might not know it until it hits the streets. Um, 49:07 but nonetheless, with the way regs are coming out these days, it-it-- anyone's guess, okay? Um, but yeah, if you are convinced you're gonna get the diagnosis, uh, y-you, you can go ahead and file. 49:22 Even if you file, say, today, and they change the reg next week, okay? And you get the diagnosis the week after, what controls there is when you file the claim, 49:40 not when you got the diagnosis. When you're talking about which version of reg do they apply, the old or the new, 'cause your claim was pending, they have to apply the old version to that, okay? 49:52 So there could be, uh, benefit to you, uh, filing sooner rather than later, uh, if, if, big if, they were to come out with the regs anytime, uh, soon. So hopefully that helps. All right. Do we have another? 50:12 No? All right. It's ten till or almost ten till. Uh, I better hop off here to do my conference. And, uh, glad to be with you, uh, all alone. Hopefully my voice didn't get too crackly there. 50:26 Uh, and, uh, I'm sure I will see you guys back, uh, again real soon. All right. You guys have a good rest of the week. 50:35 [outro jingle]
