Transcript 0:00 [ on-hold music] Hi, and hello. 0:17 It's another Hill & Ponton VA podcast. And today, I'm Carol Ponton, and I have Ursula McCabe with us. How you doing, Ursula? Very good. How are you? I am great. The weather's getting cooler. I love it. 0:30 I can't stand the heat. How about you? Um, it's still hot here in Florida, so I think we've still got a couple more months. But it's cooling down a little bit. But, yeah. A little bit. Yeah. 0:40 Well, we want everyone to know that Nate's birthday is this week, and I hope you join us in saying happy birthday, Nate. He's looking very handsome- Happy- Don't you think? Yep. He's got a new haircut. 0:51 He's looking ready for his birthday. He's ready just to go out there and do great. So happy birthday. Happy birthday, Nate. All right. 1:00 One of the things, uh, we're gonna have Carol's Corner, but we're gonna have Ursula's opinion. You know, VA law is not a science. 1:07 It's really an art, and that means it's just constantly changing, and you have to figure out what works today, works, what works tomorrow. It's not always the same thing. 1:16 So I really ha- like having Ursula on because she brings... Even though we all work together, we all do things a little bit differently, and we all see different things. 1:24 So I'm excited to see what her answers are gonna be to some of these questions because I learn from this just like you do. So, Nate, let's see our first question that Ursula gets. 1:36 Do you get a separate rating for bronchitis and sleep apnea? Ursula. So those are both respiratory conditions. Um, and it really does depend on what the symptoms of those conditions are. 1:52 Um, if the bronchit-at-astitis is a completely different set of symptomology than the sleep apnea, then yes, you could get a separate rating for the both. Um, the respiratory conditions also has some really cool kind of 2:11 carve-aways in it when it comes to certain respiratory conditions where even if some of the symptoms overlap, you can get steps up. 2:18 I don't know what exactly the bronchiolitis is, but I'm assuming it's some kind of bronchial tube something. 2:28 Um, and I would say that if those symptoms are different than sleep apnea, then yes, you can get a rating, or you might be able to get a step up in one of the ratings as well. 2:37 So remember, if there, there's the pyramid rule, which means that if you have a problem, um, you can't, you can't get a higher rating from another problem that's pretty much identical. 2:49 So, like, if you have depression and anxiety, they're all gonna-- you're either going to get the two together joined for a rating, or you're gonna get the higher of either rating depending on whether they are from the same source. 3:02 So that's the same way with pulmonary, and it's, it's very... We always have to go back to the ratings because you never know. 3:08 Sometimes the rating will say you're not allowed both the bronchial and the sleep apnea, for instance. But other times when you look at the rating, it does because of the symptoms that it causes. 3:20 So it's always good to check that because sometimes the VA will not give you a rating when it should. So thanks, Ursula. One of two, my VSO filed a CAR. 3:34 That's a, that's when you've been denied, and you file for a higher level review within thirty days. Filed a CAR for SMC half-step calculation error thirty days ago. 3:44 It immediately went to preparing for decision phase after filing but has been sitting in the national queue for the last few weeks. Is this normal? 3:54 Um, Ursula doesn't-- They really do more of the HLL, HLR than the CAR, and we do the CAR. Yes, the CAR, um, the CARs tend to be very rapidly decided most of the time, but several months is normal. 4:09 It can be within a couple weeks, or it could be two or three or four months. So I would not say they've gone beyond the normal time in that. 4:17 The other thing, um, is when you're dealing with the half steps, anything that's implicating, um, the Berry decision, which is the multiple half steps, they've actually centralized those, so when they're going into higher level review or even CAR, they're having to send those decisions to a specialized group to review it. 4:36 So when you are dealing with half steps, you can expect it to take a little bit longer because it has to go through more than one person's set of eyes. Right. 4:44 So and it's funny, sometimes I don't know if it's the authority of the DRO, but sometimes they do them right away, so maybe that person has authority, and other times they seem to sit, like you're saying, or so, like, maybe this person wasn't authorized to do that. 4:58 One of the things I'm seeing on our VBMS is they actually have, they have an S- SMC calculator, and it would say at the bottom, or the new one's now say Berry. 5:09 So I think they're actually setting up an automatic way to do the Berry calculations, but I'm not seeing it in all of it, so I don't know if it's been uniformly dispersed or whether they're still working on that. 5:20 Um, I know I spoke with [audio cuts out] recently about it, and he said that the calculator that they have right now is not updated with Berry. And so that might be why it has to go somewhere else. 5:31 Um, and I recently, you know, had a very clear Berry implication that, you know, the DRO didn't send it off and just, you know, used the calculator and, and denied it. 5:42 Um, so you do wanna, when you get that decision, definitely check and make sure that those half steps were implemented correctly, um, because I don't know that the regional office exactly knows how to do them. 5:55 Sometimes they do, but definitely check and make sure it's done. Sometimes they don't. 6:00 And for those of you who don't know what Berry is, so what happened was last year there was a court decision, I think it was last year, and what they s- before-Um, if you got 100%, it w- even if you kept getting more 50%, 100%, you didn't get any more money. 6:16 Um, 6:17 the Berry case has opened that up, and they said once you have aid and attendance, and that aid and attendance was based on, say, PTSD, but then say you have a 50% rating for sleep apnea, you have 50% for headaches, then Berry allows you to go up the SMC ladder. 6:34 The SMC, Special Monthly Compensation, gives you more than 100%. So each time you go up, if it's a 50% rating, say, for sleep apnea, you would go up a half a step, which would give you L and a half. 6:47 If it's 100%, you go up to M. And each time you go up, you get more money each month. And that's what's been so amazing about Berry. It's totally changed everything we do. 6:58 Before, if I had 100% for my veteran and they had sleep apnea or if they had aid and attendance, I didn't necessarily file any of the other disabilities they had because there was no way they were going to get additional money unless they had loss of use of feet, blindness, something like that. 7:17 Now with Berry, I file for everything that they could be service connected for because that's how you get up the SMC ladder. 7:24 So Berry has been the best thing that's happened to veterans, I think, in the last couple of years. We've seen some... 7:30 Yeah, we've seen some really great, uh, decisions, and it has changed the way that, um, as advocates, we look at it and go, "Well, normally I wouldn't do that, but I am gonna do it now because it can be very substantial." 7:43 Exactly. Mm-hmm. Cassius Williams. Hi, Cassius. 7:50 If you received a zero percent for TBI and got an increase of forty percent, do you receive retroactive pay and aid and attendance if you're already paid permanent and total? 8:01 You wanna start with this, Ursula, because this is a complicated question. Yeah. I attended a C&P exam recently. It was for cognitive impairment. Can the VA award a higher level of SMC due to TBI residuals? 8:14 Lastly, I have two fifty percent ratings. Can I f- get two half steps of SMC? So you wanna go back to one, Nate, so we can start with those questions? Um, 8:24 so if you are at zero percent and y- for just the TBI and not the residual, so where it says traumatic brain injury, an increase to forty percent, if you are already at aid and attendance and permanent and total, 8:41 then that increase may or may not make a difference depending on what other conditions you're service connected for. So like we were talking about Berry, it's 8:54 fifty percent or more or a combination of disabilities that equal fifty percent. 8:59 So if you've got that forty percent increase for the TBI, and then you have ten percent for tinnitus or tinnitus, that's a half step because it equals fifty percent. Um, so in isolation looking at this, no, it wouldn't. 9:14 But if there's other things at play, you could be looking at an increase in the SMC level, which is L. That would take you to L and a half. And remember, um, you, you... 9:27 Any retroactive would depend on, y- you had asked whether you get retroactive. It, it, it depends on the date that the VA gave you and if... what is the effective date. 9:36 If they gave you, which they're prone to do, an effective date of yesterday, then no. 9:41 But if you had filed that claim, and it's been continuously appealed, you should be able to go back to the date that you filed that, and that should be the effective date. And if it's not, you need to appeal that. 9:51 So that determines whether or not you get retroactive. The other thing you always have to remember is, what was the basis for aid and attendance? 9:59 If the basis for aid and attendance was not TBI, then you could get this extra half step. Because you're zero, I'm assuming it wasn't part of that. 10:09 But remember, whatever the basis is for the aid and attendance, say it's PTSD, you can't use that again to get another step upwards. But here I think you definitely should. And what was the next question, Nate? 10:23 Uh, it was for cognitive impairment. Can the VA award higher levels for SMC? Yes. And the next one is? So 10:30 the TBI, the way that they look at a TBI and determining what that TBI rating is gonna be is they look at the cognitive, physical, and also, like, behavioral or mental stuff. 10:45 And so the cognitive really falls underneath what that TBI r- like, when you're rated for a TBI, that's really the cognitive decline because that cognitive decline can sometimes be made separate and distinct from a mental health condition. 11:04 And a lot of times we will see mental health conditions due to a TBI rated under the rating code for mental health. And so, and then the same thing with physical. 11:15 If you end up with, you know, paralysis on the left side of your body because of this TBI, you're going to be rated for those physical manifestations separately. 11:26 So that cognitive decline is really what the, the TBI rating takes into it. 11:35 A lot of times TBIs are rated really low, and then they rate off all your other stuff, but they're not looking at the cognitive decline, or they're lumping the cognitive decline in with the mental health stuff. 11:48 So, um, you, you gotta look at it. But that's kinda... TBI is one of those really weird ratings, um, where you're gonna see the TBI at zero and then maybe at other things. 12:00 And sometimes you see the TBI higher.Well, so the traumatic brain injury, like Ursula said, can cause a number of different problems. 12:08 So headaches, that's gonna be a physical thing even though it's caused by TBI, and that gets a separate rating. Uh, you could have paralysis. 12:16 You could have m- [clears throat] dizziness, Ménière's disease, where your balance is off. So all of those would be TBIs, but they're not the mental part of TBI. 12:25 And so the forty percent, I'm assuming, of TBI is for the mental part. And yes, you should be getting SMCT, and no, they are not giving it. So I have not seen, um, I have not seen it granted by the regional office. 12:40 What they do is they give you the forty percent rating, and they never talk about SMCT. So you need to go to the board. The board is where I'm finding people are getting, um, the SMCT. 12:51 Remember they changed, it was the Lassiter case, I think, where they changed and said the VA was holding, uh, people with TBI to a much stricter standard than they should to give them SMCT. 13:02 What they need to show is TBI requires them to have aid and attendance, and when you show that, then you're entitled to SMCT. So I would definitely go to the board with this. 13:17 Shiloh M.: "Is it better to send Social Security Disability TDIU or a hundred percent permanent and total approval when applying? Is it better to send Social Security? 13:27 I was awarded both on increased claims from seventy percent to a hundred. Currently a hundred percent permanent and total. Is there any benefit for award on both increases?" Okay. 13:37 SSDI is Social Security, so I'm not quite sure what you're saying because you're entitled to Social Security Disability when you worked and paid into the system and your VA benefits. 13:48 So you're really talking about three things here: Social Security a hundred percent, TB- TDIU means under VA you can't work because service-connected problems, or a hundred percent where your service-connected problems combine to a hundred percent. 14:04 Um- I think she's asking, you know, if she wants to apply for SSDI, what VA stuff should she send over- Oh... is what I'm getting from that question. Um, and I would say, you know, send it all over. 14:17 A lot of the evidence that you used for TDIU and to get that permanent and total status with VA, if you put that in front of Social Security, they can review that evidence. 14:30 But there is a rule that says that just because you got VA TDIU does not mean that Social Security has to grant it, and vice versa. 14:39 If you get TD, uh, Social Security Disability, that does not mean that VA's gonna grant it on the same basis. So I would send any information that you have about these because it's just evidence to help. 14:51 I am not a Social Security attorney, but I would, I would send it all over because- No. I did Social Security for years, and one of the problems [laughs] we ran into is the judges there don't know how VA works. 15:03 And so oftentimes they would say, "Well, why should I give you a hundred percent if the VA hasn't given you a hundred percent?" They don't really equate. 15:10 So the law is because you're a hundred percent from the VA, it's something that Social Security has to consider but they're not bound by, and the same thing for the VA. But when you have... 15:22 So that's why I was always hesitant to send something from the VA that showed you had a sixty or seventy percent rating because they're saying, "Well, they don't think you're a hundred percent, so why should I?" 15:31 But if you are a hundred percent, you absolutely should send it, plus, uh, any of the compensation and pension exams or medical evidence that support that. 15:45 Isadora Vasquez: "I have a twenty percent cervical strain arthritis, and I've been having pain in the right side of my neck going down to the shoulders and a problem with pain in my right thumb. 15:54 I have a twenty percent for Type 2 diabetes, and I'm now having issues with my feet tingling and sharp pains. Both conditions are bothering me daily. 16:04 Because I'm already rated for both, do I have to see my primary care first to submit my secondary claim or submit my secondary claim because I'm already diagnosed and rated with both issues and let 16:17 claim because I'm diag- and let claim because I'm already diagnosed and rated with both issues and let the C&P examiner determine if my conditions are secondary?" Um, so going back, 16:31 I, first, my first question would be how long ago did you get the decisions that granted you, when was the last time that you got a decision granting you cervical and diabetes? 16:40 Because remember, if it's within a, within a year, you can go ahead and appeal those. If it's not, then you have to file a 526 asking for an increased rating. Um, but my sign that I always hold up is file right away. 16:53 Even if you file an intent to file rather than a claim, get that claim filed right away if it's been more than a year so that you are marking the date you can start getting benefits. 17:03 The longer you wait, the longer it is before you get benefits. And clearly, you should be entitled to all of these things that you've talked about. 17:10 I think you should get going with filing a claim and also go to your primary doctor right away, get those records in. If they get in before the C&P doctor, you're always gonna be sent to a C&P doctor. 17:21 And if they get in before, then maybe the doctor will consider them. Maybe you wanna take them with you to the C&P exam. Anything you'd add, Ursula? Um, I would, I would definitely file something as well. 17:33 I agree with Carol a hundred percent there. Um, but kind of knowing what, what's causing, you know, if it's the shoulder, that may be coming from your neck. Um, but that's also part of the cervical spine 17:47 C&P that they're gonna do at VA. 17:50 So when you go in and you ask for an increase of your cervical spine, it's gonna talk about, you know, the radiculopathy that comes down, and if you're having it, you should certainly mention that.The thumb I'm not too sure about because that, if it's the actual thumb joint, that could be a carpal tunnel, something separate. 18:08 Um, and also with the diabetes, if you're getting the tingling in your fingers and your toes, that's also on the C&P exam where if you ask for an increase, they have to look at those things. 18:19 Um, so I don't know if, if you're still on appeal or can appeal, I would try to treat it as an increase to those already service-connected conditions to try to lump them in. 18:30 And if, you know, you were having those issues, you could get an earlier effective date. Um, and I would probably also list peripheral neuropathy due to diabetes, you know, radiculopathy due to neck. 18:45 You cannot trust VA to come up on their own and decide, you know, what these theories of service connection are. You're supposed to be able to, but you can't. So I would put it out there. Right. 18:55 And so as Ursula said, it could be connected. The problem going down your arm could be connected to the neck, it could be connected to peripheral neuropathy. 19:02 You're not a doctor, and they're gonna have to decide that, but you wanna allege all of that so it's evaluated. 19:08 And your problem with your thumb, that brings up, I always like to look ahead because it takes forever to get the benefits you're entitled to. 19:16 If you have a problem with using your thumb, which is one of the main things that helps you use your hand, and you have tingling, you're close to having loss of use of hand. So you also wanna always consider those. 19:28 Make sure you file for that if you're having difficulty zipping, um, anything that you would need to dress, holding forks- Mm-hmm... cutting your knife, cutting things with your knife. 19:36 So file for all the things you think you might be entitled to. Oh, please check follow, please, Nate. I remembered. Okay. I... 19:48 Will the effective date for aid and attendance be the date of the exam or when the date was filed? It should be the date it was filed. The VA is going to try to give you as little as possible. 19:58 I think I find, or used to find probably 75% of them would give you the date, sometimes the date of the decision, sometimes a month before, and often the date of the C&P exam. That's wrong. 20:10 It should go back to when you file for the claim. How should I address this? I think you should file an appeal, um, on the decision le- let's see. 20:21 I filed an intent to file on February 21st, then for aid and attendance on August 21st. On the decision letter evidence page, the intent to file was not listed. How should I address this? You should file. 20:32 And these, these are great CAR HLRs if it's been within 30 days. You wanna file and say it's been continuously appealed, appealed, an intent to file was filed on that date, and it should go back to that date. 20:45 Anything you'd add, Ursula? Nope. Okay. That's it. Hi, Another Step. Welcome back. What are your thoughts regarding the recent Washington Post article and the claims that veterans are exploiting the VA? Oh my God. 20:59 It was awful. Oh, I was so angry. I know exactly what article you're talking about, and I'm sorry, Carol. You can go. No, I feel the same way. Go ahead, Ursula. I'm good. I mean- No, go ahead... 21:12 I, I can't believe that they essentially said that all veterans are out here taking advantage of this s- this thing, and VA's giving out all these benefits, and nobody really needs them. And then they cherry-picked a few 21:30 very, very serious cases where people were actually prosecuted for that kind of misconduct to say, "Oh look, all vets are doing this." And I was surprised to see it from The Washington Post. So was I. Um, so surprised. 21:45 And I, I just, I don't know why they're coming after... I, I don't know why this is something that they wanna try to do, because it's not like that. The veterans that we help need these benefits. 21:58 And they, you know, we, we're able to get service connection, we're able to do what we do here because it's within the rules and within the law, and they absolutely do need it. 22:10 And to try to make a system that's already so hard and complicated and un, you know, so- Unfair to the veterans. Yes. Right. 22:22 And then say that, "Oh, well, all these veterans are taking advantage of it," it's just not true. And- No, it's not true... from what I see, it's not true. Um- I've been doing this 30 years, and I can tell you, 22:34 veterans, you know... I had a friend that I said, "We need to file for your benefits." And he says, "Why? We wanna wait until I retire." And I said, "No. 22:41 Do you know how long it's gonna take you to get the benefits you're entitled to?" He was in Vietnam. He was a SEAL. He had peripheral neuropathy so bad that he could barely walk. He couldn't use his hands. 22:52 And I said, "You have no idea." It took eight years to get his benefits. And I know him personally, and I think everybody we represent, we, we are very careful. We, we represent veterans. 23:03 We get all of their medical records. They go to C&P exams. Are you gonna tell me those people are corrupt? They are so far on the v- the VA side, it's ridiculous. 23:13 So this may have happened, but it has not, I don't see it, and I, I, I have a very, I have a feeling the ratio of people that they think do this is so tiny compared to everybody else. I remember Kerry had a case. 23:27 This guy could not get out of bed. The only way he could get out, remember his case where he had to hold on to some kind of rope and transfer himself? Yep. 23:36 The judge, when the VA denied, denied, denied, when he co- finally got to the board, the judge was so mad that he approved, because he saw the guy in person. He approved that right away. Do you know what rating he got? 23:49 0%. And so when I read articles like this, it makes me so mad, because they're not telling the story about everybody else. They're... I don't know. It's like, why are they doing this? Because this is so odd. 24:02 It's so, we don't see this. So I'm telling you-I have real problems with them not getting into why aren't you telling them about everything else that's happening with these veterans? 24:12 Why aren't you making this something that shows all of these veterans who are deserving, who have been denied, denied, denied. So, all right. So one of the things I- Right? 24:22 [clears throat] So one of the things I worry about is, and Carol, I'm sure you've seen this as well, we get a lot of veterans who are older who have left military service, you know, lived great productive lives, and now they've got these conditions that are either presumptive or not presumptive, but definitely linked to exposures in their time in the military. 24:43 Sometimes mental health issues that pop up after they, you know, go into retirement. 24:49 And one of the things I always hear-- not always, but I hear, "Well, I didn't wanna file because there's veterans that are worse off than me." 24:57 And so that's already a lot of times already have this mentality of I don't wanna file. Exactly. 25:03 And reading things like this makes them not want to file because they don't want to appear to be someone who's taking advantage or doing all of these things, but these are benefits that they are entitled to, they earned. 25:17 Yeah. They, they are theirs because these things really did happen. And so those types of th- like, those types of articles really just bother me because we need them to take their benefits. They need them. So. 25:31 And they're so... You're right. I, I can't tell you how many veterans feel guilty about filing for what they're entitled to. 25:38 So I don't see veterans [chuckles] out there trying to take advantage of the system, it's just the opposite. They all feel like someone else suffered more than I did, so I'm not entitled to this, which is not the law. 25:49 Um, and the, and you know, the other thing I would say, they would say, "Well, you had a productive life, why file now?" Because the problem is when you get older, your immune system gets much weaker. 25:58 And so all of these things that diabetes, Agent Orange cause are finally able to attack and really take over your immune system. And so PTSD is another thing. I find when the veterans... 26:12 People have PTSD, you find these veterans usually are just, they are going all the time. They don't want their mind to rest. 26:19 And so they'll spend all their time doing something so that they don't get back into their head about what happened. And then when they retire, they've got this time and the PTSD comes back in full force. 26:31 So, you know, people who look at things like that and say they're not entitled, they don't really know what they're talking about. So, you know, yes, I'm pro-veteran, I'm not pro-fraud. 26:41 Um, and I don't think the veterans are getting what they're entitled. So when I see an article like that, I'm sorry. You know, I, I see so much of the other, it's hard for me to get upset about something I've never seen. 26:52 Let's go to the next question or I'll, I'll just go on forever. [laughs] We'll keep going. [laughs] Angel Marrero. Hi. 26:59 I went to, I went from TDIU to a hundred percent permanent and ta- total, permanent and total, but VA inferred SMCS. So you had a hundred percent plus sixty percent for chronic fatigue syndrome. 27:10 I have other conditions pending, what can I do? Thanks. Now remember your, what is the highest SMC step-up level a vet can get with SMC L and four separate service-connected ratings at fifty percent each qualify for? 27:23 Thanks again. Let's go back and read it again. Ursula, what do you think? Okay. So if you're TDIU, um, or you're a hundred percent permanent and total- And have L... um, and that's when a... Yep. 27:36 I, I don't see the L here. That's L. That's it. Yes. And you can have L, aid and attendance. Okay. 27:41 So with this one, um, if you are TDIU without regard to your chronic fatigue syndrome, then you would be entitled to that, um, extra S, um, the housebound status. 27:54 Um, and that isn't like the Barry case where you only get one, you only get that one step up, so it's a specific SMCS. Right. Um, you have to look at what your permanent and total for, um... 28:09 You have to be a hundred percent for one condition and then sixty percent for something else, or TDIU based on one condition and then a sixty percent for something else. Um- For the SMC, yeah. So this very much just... 28:24 Yes. So this very much depends on what the TDIU and all of that was for. You would just have to take a look at it. 28:30 Um, if you're, if you think you've got it, you could always file a CAR or a higher-level review and ask someone to review it. That, so that, in that situation, in that scenario. 28:40 And the next question, the next part, what is the highest- What is the highest- Yeah. You can... With L, with four separate service-connected fiftys. So if you have L, um- Which is aid and attendance... 28:54 aid and attendance for those conditions, and then separate from what you need the aid and attendance for, you have four separate, you'd go L and a half, M, M and a half, N. So you would get to N. 29:08 Now remember, one thing that you need to learn is, r-remember anything that is the basis of aid and attendance you can't count. 29:15 But you can count all the others, and the great thing is if you can get up to O, you're, you jump from O to R1, which is the nine, almost ten thousand dollars a month. 29:25 So when you're going, you wanna get to O, you don't wanna stop. 29:28 And that's why I said we started filing a bunch of other claims of disability that the veterans had that we realized they should be service connected for, and we didn't file in the past because there was no benefit. 29:38 Now there's a benefit. 29:40 So for instance, if you have, uh, headaches, if you have chronic fatigue, if you have sleep apnea, if you have PTSD, any of these things you have, and the thing is, the people that were in the Gulf, they've got a myriad of things. 29:54 So they should file for all of them, not just one that'll give them a hundred percent and stop there. And be mindful on what you're claiming you need aid and attendance for- Right... as well. 30:06 Um, if you go in there and say it's all of your conditions that require the aid and attendance, then those aren't gonna be able to be included. 30:13 But if you can get the aid and attendance just on orthopedic or just on your heart, that's gonna set you up for a higher-Half step increases in the future. Right. 30:23 So- So we might only- If someone has, say, peripheral neuropathy, that affects their hands, their feet, so they're not able to do the things they need for activities of daily living. 30:31 They may also have PTSD, cancer, any of these other things. So if you, as Ursula said, you only wanna use 30:39 one thing, one problem, if you can, as a basis for aid and attendance, so you can use all of the others to get up to O, which gets you to R1. I'm my favorite veteran. I served, I deserve. Jennifer's my real name. 30:56 I wanted to ask if old claims for deceased World War II dad could be reopened. I really need to know a lot of more about that. The problem is, I don't... If, if your dad is not alive, um, I don't know. 31:12 I know if he has a widow who's alive, then maybe there's a basis you could open for her. But you o- you can't file a claim for a veteran after they're dead. You can file for a dependent. 31:22 Say, if the widow's still alive, and she wants benefits, and the veteran never claimed PTSD that caused him to kill himself or cancer that caused him to die, then she can claim those just as the basis of dependent benefits, not for benefits for PTSD itself. 31:41 Okay? So I, I would need to know more, but I don't know that that could be op- definitely not for the veteran because he's dead. Yeah. I don't think so, without knowing more. Yeah. Okay. 31:58 Here's my Carol's Corner, and I wanna thank the person that asked me... Remember, all of you, we talk about the things that we see every day and we think are helpful, but I know VA law is so vast. 32:10 I know there are things that you wanna know about that we haven't talked about. And so we were asked a couple of weeks ago, I think, about dependent benefits when someone dies. 32:19 Now, we've talked before about the wife, the widow, and their benefits, but what they wanted to know, I think, is about the children. So there are two... 32:27 When a, when a, when a veteran dies, there are two different benefits that I can think of for, uh, a dependent child. So remember, until the child reaches eighteen, they're dependent. 32:39 So say you have a child who's perfectly normal, but his father dies, and he's twelve. He's entitled to benefits on his own until he reaches eighteen. Um, 32:49 there, this gets more complicated, but say the benefit was permanent and total, and then this child may also be entitled to benefits for school or things like that. But just benefits as a dependent. 33:01 There are two things: the child who is fine, and when he's eighteen, he's an adult, he has no more problems. The other person that's entitled to benefits is the child who's disabled before they turn eighteen. 33:12 That child is entitled to benefits. When the veteran is alive, the veteran will get a benefit for him. It's not very high, several hundred dollars a month. 33:21 But when that veteran dies, that child alone, not, say he has a mother who's alive, who's a widow. She's entitled to her benefits, but that child is entitled to his own benefits as well. 33:31 So all you have to do is show that he was disabled before he turned eighteen and is the son of the, the veteran. 33:39 If the veteran was already getting benefits, it should be a very reas- easy thing to file for, but you have to file. 33:45 So years ago, when I didn't know how this worked, I filed for benefits for the deceased widow and assumed that she would be getting benefits for the child. 33:54 But that wasn't right, so I actually had to file a separate, uh, uh, application for the child. And he got, uh, I think it was like, it's now like fifteen hundred dollars a month on his own. 34:05 So that's what you need to make sure of. A lot of veterans come to me and they say, "Well, the child had problems before eighteen." If you can't prove they were disabled at eighteen, you're not gonna win. 34:17 So the fact that at nineteen or twenty, they were in a car accident, that doesn't help you. So it's a very strict rule that you have about having these kids qualify. Okay. Nate, we're back. Dave Butchas. 34:34 I filed for disability on the first of May, and for the last ninety days, they say pending, no medical exam. I called the listed eight hundred number, and they said there's nothing for me to do. 34:44 How long do I have to wait? I think that's very unusual, don't you, Ursula? I think you should file a forty-one thirty-eight and ask for the status of your case. 34:55 Uh, remember I told you the crazy things that people were getting from the eight hundred number? This is just one of them. 35:01 Most new claims, if it's a new claim, uh, they are, they are decided within a few months, and May is a long, too long for that to be pending. 35:10 Um, I don't know if it's something unusual like a radiation case where they want you to tell them how you were affected by radiation or if there are things you haven't answered. 35:19 But regardless, I think they would have decided this case by now. So I would file, that's a VA twenty-one dash forty-one thirty-eight. And remember, if you file on a form, the VA has to act. 35:30 If you send in a piece of paper like a letter, they don't have to act. So always put that on a form so they have to say, and you say, "I filed on this date. Please let me know the status of my claim." 35:40 But that's definitely too long. Yeah. You should be getting something. Right. If, if they're waiting on something, you would know. Right. Marty, one of two. I was just diagnosed at eighty-one with CLL. 35:56 Did not serve in Vietnam or any presumptive PACT Act area. What medical conditions can be linked secondary to CLL stage zero leukemia? High cholesterol, stress, other? 36:08 The first thing I-- What can, what can CLL be secondary to? The first thing that I think all of us look for is what was your job and what were you exposed to in the service? Were you exposed to welding fumes? 36:19 Were you exposed to asbestos? Were you exposed to the cleaning solvents that they have? They're finding that those... And, uh, where were you based? Remember, it's not just Camp Lejeune where people were exposed. 36:30 There are many sites that are now called toxic sites. So I would wanna know where were you based. I would wanna know what your MSO was. I would wanna know what you were exposed to. 36:39 Did you have to do any painting where they may have had, um, lead-based paint? So those are the things that I would look for. 36:46 How about you, Ursula?I would, um, if there's no presumptive exposure to anything, I would certainly start looking at, you know, the MOS just like you said. 36:56 Um, and if you, you put in that claim, VA's gonna have to devel-develop for a Terra, even though those really aren't that helpful. But yeah, there's... 37:06 Just because you weren't in one of those places with presumptive exposure does not mean that you were not exposed. Right. That can be toxic. 37:13 And a Terra, and a Terra, just so that everyone knows, is the VA is now required to say whether or not a veteran was exposed to any toxins, and that's called the Terra report. 37:24 As Ursula says, they're notoriously inaccurate, wrong, they're just a problem. So they will do one for you. Maybe it'll be helpful, maybe it won't. 37:32 But it's your job to show what your MSO was, what you were exposed to, what type of toxins. Being in the military, you were just constantly... 37:41 airplane fumes, you were just constantly exposed to so many things that you didn't think about. 37:47 And so you need to go back and think about all the things that your MSO, your station, wherever you were, um, if you were on a ship, all of those things, what were you exposed to? 37:56 And list those when you're saying, "This is why I think I should be service-connected for that." 38:01 You also, when you find out, say that you were an air-aircraft mechanic and you clean, used those solvents, then I would put the solvents into Google and say, "Can they cause this CLL?" 38:12 I would, if it says yes, then I would attach those medical, uh, opinions to my claim and say, "I was exposed to," and put all of the things that you think you were exposed to, "and these articles show that they can cause CLL." 38:26 So you want to put the VA on notice. Matthew says you don't wanna do that, but frankly, if you file a claim for CLL, they're just gonna deny you. 38:34 They're not gonna look for what you were exposed to, they're only gonna look at the Terra report, and that's not gonna be very complete. 38:39 So I like to give them a little more information, uh, so hopefully they can get it right. Unfortunately, I don't have any confidence that the C&P exam is gonna give you benefits. 38:49 I think you're probably gonna have to have an IME, um, don't you think, Ursula? 38:54 Yeah, especially if it's a, if you're trying to prove not only that you were exposed to that, but also for a link if it's something that's not presumptive. Typically, this is where we are going out to an expert. 39:06 I also wanna talk about, can you go back just one slide real quick? Um, all right. 39:13 So CLL is also one of those, those cancers or leukemias where even if you do get service-connected for it, if you are at Rai stage zero, you're going to get a zero rating from the regional office, even if you have active cancer. 39:33 They mess this one up all the time. All the time. And so, all the time. 39:38 And so it's essentially if it is active cancer, Rai stage zero, and you have symptoms from the CLL, then that is not asymptomatic and Rai stage zero. 39:50 So it's, you need to be rated at 100% because it's still an active cancer. So be very mindful when you're doing this. 39:59 The first step is the service connection, yes, but be prepared for not only a fight to get that rating correct, but also they're gonna schedule exams six months out. Be prepared for them to propose reduction. 40:16 I know that's terrible, but this is one of those where this is happening. 40:20 I see it happening with my clients and, um, it's just, it's really, really frustrating, and it's specifically CLL that we see it because it's different than the other leukemias. 40:30 Um- Yeah, I, I think that's because of that stage zero, whatever it is that they look at. But I had a client and I, we had to get his 100% at the board. Um, the board clearly said, "It's still active. 40:42 You still have cancer. It's 100%, it's not zero." So it's really important that even if you don't get the rating that, that you need at the regional office, you go to the board so you can get the correct rating. 40:53 Thanks for pointing that out, Ursula. That's really important. Larry Price, one of two. "Should I do anything? I retired in 20- 2002. In service, weight gained to level of clinical obesity, 195 plus to 276. 41:11 Claim obesity in 2002 denied. In view of Adams, should I appeal the 2002 decision? To what advantage? Claim sleep apnea 2025, denied. Intending to appe- appeal sleep apnea with obesity as intermediate. Your thoughts?" 41:29 So, um, with this one, so obesity is not a disability that you can get service-connected. But it does allow as an- A rating. Yeah, a rating for, but it does allow for an intermediate step. 41:45 I have actually never been posed with the question of, you know, you, you just have obesity in service, and then that led to the o- the sleep apnea. Um, so I don't know. 42:00 I've typically seen, like, diabetes leading to obesity or orthopedic conditions leading to obesity or mental health leading to obesity. So Carol, I'm gonna 42:11 let you answer that one, because I don't know if the only thing is obesity in service, what that would look like. I don't know. 42:17 Well, first, and also going back, I don't think you can go back to 2002 if you didn't appeal it. So you would be going from right now. And I think you have to frame your claim. These are really hard to win. 42:28 I never use obesity if I can use anything else. 42:32 But I think if you show obesityHappened in the service, then I think you have a good claim on this part because of sleep apnea, which they constantly say is caused by obesity. So I think I would try that. 42:44 But then when I have a veteran, I always wanna know what else is going on. Do you have tinnitus? Do you have anything else that you could possibly apply for and get service-connected for? 42:54 And then it's, they all, all of these diseases seem to go in a circle. They all seem to be related to each other. 43:00 So I would, I would try to find out, is there anything else that you think you should be service-connected for, and could that have caused sleep ap- apnea or, or any of the other problems? 43:09 But I definitely think because obesity started in the service, you have a better article, uh, argument than most, that you got obesity in service, which has been the basis of your sleep apnea. So I would try that. 43:21 But I just... You need to know they hate that claim. Remy86, "Hello, I wanted to stop in and thank you for all you do. Last week I was granted TDIU from 2012 to 2018, and my retroactive back pay hit my account today." 43:38 Wonderful. Wonderful. Yeah. This makes my day, like you, Ursula. There are so many deserving veterans out there and, and, um, I just can't, I can't encourage you enough to get out there and get what you're entitled to. 43:53 You served, you deserve. And Remy86, I am so proud of you. Khalid1of2, "How do I find out whether or not the VA had or did not have service records at the time they made a decision? 44:07 If it turns out they did not have the records, what is the proper way to file 44:12 a claim that raises the fact that they were missing service department records that show a disability in service with pain, weakness, and deformity in a joint per 38 CFR 3.156c?" Ursula? 44:23 This is what, this is one of my favorite regulations, actually. Okay. So [laughs] let's go back to the first part, to how do you know if service records entered your file after? 44:35 Um, there's a couple of ways just from the information that you're getting from VA. You can look at the rating decisions and see what evidence they considered. 44:45 So if you have one, and they considered only this evidence, and then the next one, there's additional service records listed as evidence, that could point you to saying that was added after. 44:59 The best way to do it is actually get a copy of your claims file from VA. When you get a copy of that claims file, it is in order from the date things were received. 45:10 And so when I go through a claims file and I look at, you know, everything that's happened from the first claim, the service records, if I see decisions and then I see service records or service medical records after decisions, that is tipping me off to go, "Wait a minute, I need to go look a little bit closer." 45:30 Um, sometimes there are entire bunches of records that are gone, and I get a whole new set in. I've also seen it where I've gotten two pieces of paper in there that are both relevant to the previous denial. So 45:48 do look and make sure that those records are distinct and different to the ones that were already in the file when they first made that decision. So that's how you find out- Right. Go ahead. 46:01 One note of caution- So that's how you would find out- Is, one note of caution is, for years, what would happen is, remember, there was no electronic file. 46:09 So what, what would happen is, they would send the entire file, the VA would send, uh, in St. Louis, would send the service medical records to the VA in St. 46:20 Petersburg, and they would review them, and then they would send them back. They would not keep copies. So when you're looking at older decisions, you can't go by what was actually in the file. 46:31 What you have to look at is, there's a paper when they make a decision, on that, there's a notice of award, and then there's another one where they actually talk about what the claim was, what evidence they reviewed, and what decision they made. 46:44 And they will say in there, service medical records and the date from when to when. That is how you absolutely know, or should know, what was supposedly in the file at that time. 46:54 Because back in the, you know, when I started doing this in the '90s, they weren't in the file. They, they only started keeping them in the file later. 47:02 So if you see them in the file, or sometimes on that decision, they will say, "Service medical records not available," or they will say, uh, "Only a few service medical records were available." 47:14 So that's what you're looking for, and if you find that, that opens up your claim. Say you file for your back, the service medic- medical records showing an injury in your back were not in there, and you were denied. 47:26 Then you can file and say, "I want my claim reopened." And you need to file, remember, forms. So you would file an 0995 because this is the second time you're filing for it. "I want service connection for my back. 47:39 This medical record was put in the file this date, which was after this decision, and therefore I should have my claim reopened." So that's a wonderful way to get benefits, but you have to be really careful. 47:50 You need to read all of the things. Sometimes they, the first record, the first decision will say, "Service medical records are not in the file," or they will say, "Service medical records are in the file." 48:02 The next decision may not mention the service medical records, even though they were in the file in the first case. They're assuming they still have those service medical records. 48:10 So you need to file what did they say, and then you go up seeing was it put in later, or were they never put in? So it's much harder than you think. 48:19 You need to trace each one of those, um, decision letters that say whether or not it was in the file and what exactly was in the file. But remember, you don't have to have all the service medical records. 48:30 This can apply to... I've had, and I'm sure Ursula has, people denied, um, Agent Orange Nehmer cases because they weren't in Vietnam. 48:38 And then all of a sudden you'll get-In twenty-twenty five, a record that shows this veteran was in, in Vietnam during these dates. That reopens that claim. 48:49 So it doesn't have to be service medical records for, for instance, it can be something else. But, uh, uh, it has to be a record that existed at the time that proves, helps to prove the claim that was not in the file. 49:01 So you're not just looking at service medical records, you're looking at other things perhaps. 49:06 So one of the things we always do is we ask for the service, um, personnel, so their military records, not the medical records, but we want their service personnel file because you will find in there a lot of times things that help prove your case. 49:21 The VA did not and does not normally include those in the claim file. So they usually have to be written for and put in the file by you. So I know it's a lot of information. I think I cl- I made everybody dizzy. 49:35 Did I, Ursula? Can you clarify? No, I, I think you're g- No, I think you... That, I mean, it was absolutely right. 49:41 But I think, you know, the important thing is, is just because records entered the file does not mean that it's gonna be a successful 3.156C argument because those records needed to not have been in the file and they must tend to, like, change what the decision outcome would be. 50:03 So just because they're there, it's not necessarily a 3.156C argument. There's also, you have to look at, you know, you were denied, how long was it till you filed again, those service records enter. 50:17 That's gonna be different because then once you're granted, you're looking at an effective date issue under 3.156C, um, because that claim is still open, so it gets very tricky. 50:29 Um, I would personally recommend you find a, an advocate that can help guide you through that, um, to make sure, because especially if there's a lot of benefits on the line, to be honest. 50:42 Because these are, these are benefits the VA does not want to give you, and I can tell you- No... you're probably going to be, I'd say ninety-five percent of the time, denied by the regional office. 50:50 You have to go to the board. The board may give them, but a lot of times the board doesn't want to do them. 50:54 We've had to file CAVC claims repeatedly on a lot of these because they just don't want to give you these benefits. So these are times when you, you need to go to the court of appeals. You need somebody to help you. 51:06 If you know that there are service medical records that weren't in the file, I'm with Ursula, you need to get an advocate. 51:11 And when you tell them why you want somebody representing them, you need to tell them, "This is it." 51:16 Um, because like us, we get so many people asking us to help them that we try to figure out who can we really help, what are cases they're not gonna win on their own. 51:24 And that's one of the things that we look for because we know that's probably not gonna happen. Most of the time you are going to the board, and I've got several at the court right now, so. Yes. 51:36 It's not fair, but it's what they do. But I do like finding them. I do too. [laughs] How long are LVJs taking to make decisions currently? AOD took nine weeks to approve. That's advance on the docket. 51:49 Now the appeal is set in the desk for five weeks, direct review. Um, I don't think that's too long. Uh, the direct reviews I'm finding, 52:00 uh, d- most of them aren't taking a year, but the one thing I would ask you, did you waive the right to appeal? If you didn't waive the right to appeal, then they're gonna hold that on their desk for a year. 52:12 So remember, make sure you did that on... 52:14 In all of our appeals, we have written in there the thing, the statute, uh, language that says, "We are waiving our right to appeal and asking that a decision be made right away." 52:24 Um, if you didn't do that, you need to do that right away. 52:26 Advance on the docket, and if it's on the, the judge's desk, it would assume like they're probably going to be working on it, but that's not, uh, they take a while. I'd say six to eight months anyway. Yeah. 52:38 The AODs we're seeing several months. I think nine weeks is very, very quick. Yes. Um, but if, a- and it sits, a lot of the time it's sitting at the board. It's just sitting there before it's even put on a judge's desk. 52:51 So the fact that it's even on a judge's desk is a good thing, and it could sit there for a while. Um, you know, most of the time, you know, for a non-AOD case, you're looking at three years at the board, you know? 53:03 So nine, ten, twelve, six months, four months, not bad, you know. Right. For, for deci- for better decisions. And here's another thing that I learned the hard way. Remember a lot of... 53:15 We would file, um, say, a direct appeal to the board and a motion to advance on the docket. Well, the board, when you file an appeal, it may take a while for them to docket the appeal. 53:28 Meanwhile, they're getting the motion to advance on the docket for a veteran they don't have an appeal pending for, so they just trash it. 53:34 So you think that the motion to advance on the docket is before them and it isn't. So what we've started doing now is we file the appeal, and then we wait a day or two and then file the motion to advance on the docket. 53:46 Um, the- We actually wait- Go ahead. We actually wait until we get the docketing letter and then we do the AOD. We're not getting docketing letters in so many cases that we... That's why we're doing it. Um- Okay. 54:00 It's, you know, they, what they're... 54:03 The other thing the BVA does a lot is they, they will have the regional office keep the case because they're graded on how quickly they do cases, and as you can tell, it's already abysmal. 54:13 So they don't want the case sitting up there where it sits there for three years, so a lot of times they'll wait and call the case up later. So- Oh... that's another problem that you run into. 54:23 But we found if we wait a day or two and then send the motion to advance on the docket, that it usually gets in there. 54:29 If you filed it and you haven't heard from them in a while, then you need to file that again yourself, um, because somehow it got lost. The things we learn the hard way with these people. [laughs] Yeah.Timothy, part one. 54:43 Claim pending from SMC for aid and attendance July 14th, twenty twenty-five for PTSD rated one hundred percent, migraines fifty, overactive bladder, bladder forty. 54:55 I submitted a twenty-eight- twenty-six eighty from my PCM. The twenty-six eighty is the form that they ask all the questions as to why this person is-- should get aid and attendance. Okay? And an independent clinical 55:09 psychology exam report with my claim. Back in October of twenty twenty-four, my PCM noted that my wife was my caregiver. She helped me with bathing, my lower back, tub transfer, putting on bracelets, 55:22 and ambulating within the home. It should have been raised when I received my decision in December twenty-four for loss of use of both feet. If granted, more likely it will be dated from twenty-- July twenty-five. 55:33 You wanna go back, um, to... What was the first question? He's just trying to see, so he first filed and then- Filed... 55:44 there was a letter in the file that showed aid and attendance might be needed, and then he filed the twenty-six eighty a year later. 55:51 Um, what they will probably do is give you the effective date of the twenty-six eighty, and you should absolutely file an appeal for the earlier effective date because aid and attendance isn't a claim. 56:03 It's a benefit that's part of everything. 56:05 So wherever, if that was c- that claim was continuously pending and you needed aid and attendance in October of twenty-four, that's when your entitlement arose, and that is when aid and attendance should be granted from. 56:20 So I would absolutely appeal the effective date. Yeah. That's the law, but that's not what the VA says. Under the VA, under this new AMA, they're taking the position that you have to file for these. 56:30 You have to file for loss of feet, you have to file for aid and attendance, which is not the law, but that's, that's the way they're taking it. 56:37 So you're probably gonna have a difficult time getting that granted at the regional office. Um, remember, if you file for aid and attendance, this is one way we've gotten it. 56:46 Say you file for aid and attendance, and the next-- after that time period, you're granted, say, one hundred percent for PTSD, which is the basis of your aid and attendance, and that rating goes back farther than the date you filed for aid and attendance, then you have a good argument as well for going back to that date, not just the date that you filed for aid and attendance. 57:06 Um, these are-- this is a mess, and I think that the courts have not really come down on a lot of these questions. So the VA is taking the position that it's the date you filed. 57:17 They don't care that your aid and attendance is supposed to be inferred. They don't care that loss of use is supposed to be inferred of your feet. They say it's the date you filed. 57:25 There is no, there is no claim for aid and attendance. You just have to use one of the basis, one of the, uh, five two six forms and write that in there. 57:35 Uh, but you're going to continue this until there's some case that comes down and, and resolves this question. I would always go to the board. You're more likely to get benefits there. 57:48 Topical Tim in the Philippines, "If I file for TBI, traumatic brain injury, from multiple concussions in the service, can they do-- defy--" no, "defy-- deny future claims for depression and migraines as those are my symptoms from TBI?" 58:02 No, that's just-- you're entitled to all of that. Remember, traumatic brain injury can cause mental problems as well as migraines, uh, pa- paralysis, um, dizziness. There-- seizures. 58:14 There's so many things that TBI can cause, and if TBI is connected to service, you're entitled to all of those things. One more question. 58:25 Nick-a-doodle, "Hi, I'm waiting for a final BVA decision, back pay to two thousand nine. If denied, what paperwork do you need to review my case in order to see if you will, if you will take me as a client? 58:37 All decisions from two thousand nine until two thousand twenty-five." 58:41 Uh, our, our intake office really likes to get a list of all the decisions that you have, 'cause that gives us a, a, a basis for tracking where you are. 58:50 But what happens when you call our office, when they, um, take your case in, they're going to ask you for all of these things. So I think you should be prepared to give all of those. I hope they don't deny you. Okay. 59:05 Ursula, thank you so much. It was-- I've never done this with you. Thank you. This was fun. Yeah. I usually do it with Kerry, and I have to go, "Come on, Kerry. Come on. Have you noticed?" [laughs] Yeah. 59:15 I do the same thing all the time. I work with Kerry every single day, and I'm like, "Kerry, come on, we gotta go." 59:21 [laughs] We love Kerry, but Kerry knows so much, and it's just, he's got that Tennessee drawl that comes out- Mm-hmm... little by little. So- Absolutely. Maybe Kerry will be on here with us next week. 59:32 Thank you for coming. I hope you have a great week and spread all the knowledge you have. Have a good night. 59:40 [outro jingle]
