Transcript 0:00 [upbeat music] Hi, welcome back to, 0:30 I guess it's season one, episode two of Tactical Claims with Hill and Ponton. Here to test it all out again is me, Ursula McCabe, and Kerry Baker. Hello. All right. 0:46 So we're gonna get into it with some questions. We're gonna do the same format as last week, but let's just get into it. You go first. All right. Angel Marrero, "Greetings. 0:59 Can a VLJ grant service connection, effective date, and ratings on a BVA claim? Also, can the V- " VLJ stands for Veterans' Law Judge, by the way. Uh, "Can it infer the..." Uh, I have someone in my way. 1:15 "Infer the highest level of SMC if the criteria is met under Berry?" Okay. So the short answer is yes, the VLJ can do all of that if that is before them under their jurisdiction. 1:32 So I think probably what you're asking is can they do that in one rating, in one decision? So the answer is generally no. 1:42 Uh, they cannot grant service connection for one disability, set the effective date for that disability, and the rating for that disability all in the same decision, uh, because they are limited in jurisdiction to the issue that's before them. 1:59 So if the issue is service connection, their jurisdiction is service connection. Uh, if the issue is effective date, then that is what they'll decide. Same with the rating. 2:09 Now, there are times when the rating and the effective date are both before them. 2:14 If they do things like stage a rating, you know, they look at the record and say, "From this date, we're gonna increase it from here to here, and another date, we're gonna increase it further or decrease it," they can do that. 2:26 Um, and as far as the SMC goes, you know, i- if the issue is an increased rating, uh, to include SMC and the, and the evidence shows that SMC is warranted, then under the theory that they're supposed to assign the highest rating possible, yes, they can infer the issue of SMC, uh, as long as it's there. 2:53 We, we see them not do that from time to time when they should. So I would say if you're working on a case and you think there's SMC there, and you're appealing it to the board, certainly raise it to the board. 3:10 Uh, don't, don't trust that they will always do that. Yes, they can, doesn't mean they will. Uh, 3:17 so if it's something within the, uh, the decision's sort of jurisdiction, like an increased rating, uh, and there's loss of use possibly, uh, you know, if it's an arm or a leg or whatever it may be, uh, definitely raise the SMC. 3:32 So... But that's, uh, basically it. Anything, Ursula? Nope. That was perfect. [sniffs] Okay. stlt4l's. All right, so one of maybe four. 3:51 "We are eight hundred and sixty days into an A&A claim. It was initially denied, then I hired an accredited rep. He did a higher level review. They prepay- they proposed incompetency and ordered two C&P exams. 4:07 Exams done. Incompetency put in place and still denied A&A. Ultimately going for SMCT, because we absolutely have the documents to back it up. Appealed to the BVA. 4:24 Judge remanded it in December. RO requested an A&A exam. They then ordered two more C&P exams, just like the previous ones completed in twenty twenty-four. All the DBQs are uploaded. 4:38 It's been sitting at OAR since March fifth with no movement. Any idea what p- could be going on? The accredited rep has been less than helpful." Um, so 4:53 there's could be a lot of things going on, but, um, you know, just to... So he may not not being helpful 'cause he doesn't wanna be. Sometimes we just don't know why things are taking this long. So 5:06 if you're just trying to figure out how long a decision is gonna take to come, um, it could be coming tomorrow, it could be coming in a couple more months. Um, it just depends. Um, 5:19 what I see a lot when we've got claims that have gone up and down, and they are remands from the board, and they come down, and you get more exams, um, it's not 5:31 atypical to see more exams when they're remanded, especially if the board wanted specific questions answered in those exams. 5:39 If those first exams were not adequate, the board could come back and say, "Hey, this is what we need specifically addressed," and then make a decision. So the one place I would say this is probably 5:55 the most likely culprit other than just VA being super slow, is they got those exams and you showed up for them. 6:04 There's a very good chance that when those exams got back to the rater, the rater didn't-Feel as though they were adequate and sent them back out for additional work. That could be it. 6:19 Maybe they needed another opinion, maybe they needed some clarification. Maybe all the questions the board answered 6:26 hasn't, haven't been answered, and they need to get all that stuff before they get a decision to you, and they just haven't done that yet. 6:34 Um, it could be that, you know, the initial rater is looking at it, and someone else is looking over it to make sure that there aren't any mistakes in it. 6:44 Um, you can certainly, you know, send in a memo and go, "Hey, what's going on with this?" But I don't know that that would be very helpful. But sometimes VA just takes a long time. Um, but, uh, what was it? 6:58 Eight hundred and sixty days, that's a really, really long time. Um, Kerry, do you have any ideas of what else might be holding that up? Well, I mean, 7:10 you know, you don't wanna un-u-unfortunately, you don't wanna focus on the eight hundred and some days, because that's not how the DROC or the, the OAR, that's not how they're looking at it. 7:23 Um, you know, they are looking at it from the time it was remanded, how long has it taken them to get to a decision. Um, and, you know, if it's been there since March the fifth, you're talking nineteen days. 7:35 For it to be in one spot for nineteen days, that's nothing unusual. The overall time, yeah, that's horrendous. Uh, but to be sitting waiting on a decision for nineteen days, that's not unusual at all. 7:49 Uh, so it could just be the normal backlog of them getting to the case when you're talking that. Now, if it's still sitting there sixty or ninety days from now, uh, I'd wonder what's going on with it. 8:02 Uh, but, but for now, I would, I would say that, that could just be normal delay. Hopefully you get a decision soon. For sure. Our next. 8:20 All right. TWSR one oh two. C&P exam was in May twenty twenty-five. I submitted three physician Nexus letters just before filing deadline in August twenty twenty-five. 8:35 VBA decisions list evidence dated before the Nexus letters. Is it appropriate to send the Nexus letters to the C&P exam doctor now and get an updated DBQ? All right, go back to that first part. 8:51 So I, I'm interpreting this that you've got a decision, so you say VBA decision lists evidence. Uh, I'm surprised that you actually expect them to list the evidence that you gave them. Um, I'm kidding. 9:06 They, they are supposed to list the evidence you gave them. We see them all the time, all the time, uh, fail to list evidence that we gave them. Um, y-you know, that is not uncommon. Uh, here's the thing, if you send 9:23 your, uh, your Nexus letters back to the, the C&P examiner, I don't think anything's gonna happen with that. You can't mandate them do another DBQ. Only VA can do that. Um, 9:41 and if you submitted that, those Nexus letters, uh, you know, to the VA, uh, it should be in, they should be in the file. Uh, I would probably ask for a decision review officer, uh, an HLR, uh, to go over that. 9:56 If they did not address your Nexus letters and you think they were in the file, uh, when they made the decision, uh, then ask for an HLR and point those out. 10:06 If they were not in the file, they made the decision before the, before they got to the file, then you'd wanna do a supplemental claim. Um, I want to... 10:15 One thing you said here, uh, you submitted the Nexus letters just before the filing deadline in August of twenty twenty-five. I don't exactly know what you mean by that. 10:27 Uh, if you're thinking you have a deadline to file evidence in support of the claim, as long as the claim is pending, you technically have no deadline. Uh, 10:43 it, it-- there's no deadline from like o-one year from the time you filed a claim or whatever. If they haven't made a decision, you can file evidence on that, and they're supposed to consider it. 10:53 Uh, so I, I don't know if you're, I don't know, if, if you're thinking there's a, a deadline, uh, and the claim is pending, I, I'd say you're, you might be mistaken on that. So, uh, 11:05 I don't know if that really answered your question very good. But, Ursula, what do you think? I agree with you. All right. Um, Michael Jefferson eight six two two, one of two. 11:18 Does being service-connected forty percent for loss of left foot drop and a hundred percent for type two diabetes with neuropathy, upper right forty percent, left lower thirty percent, 11:34 lo-lo-lower right twenty percent qualify for special adapted housing due to the loss of one lower extremity with the residuals or organic disease? Kerry, you can take that one. 11:51 Uh, yeah, you're gonna have to go back to that first part. I got lost in translation there. Um- Yeah. I'm not tracking the numbers. 11:57 So does being service connected forty percent for loss of use of the left foot, left foot drop, so you got, uh, left foot drop forty percent and one hundred percent for type two diabetes with neuropathy, upper, 12:11 upper extremity forty, left at thirty, lower at twenty qualify for specially adapted housing grant due to loss of useGo to the next section. Ah, something popped up in front of my screen. 12:28 Hang on. [keyboard clicking] I cannot, uh, I cannot see out... There, it's gone. Uh, okay. I, I wouldn't worry about the residuals of organic disease. Um, all right, so go back. 12:45 I'm sorry, Nate, go back to that first part. So you're asking about specially adapted housing. It, it, you know, and, and you're probably asking about the loss of use requirements for specially adapted housing. 12:57 Uh, the fact that you're 100%, that, that's not gonna do it by itself. Um, it depends on if you're rated for loss of use or if you have loss of use, uh, for those extremities. 13:14 Now, if those are just ratings and you don't have, uh, loss of use of those extremities, then that's probably not gonna get you there. Um, you know, I don't know [dog barking] 13:24 if, if what you're saying, um, you have foot drop, uh, and, and [dog barking] loss of use, uh, for the, uh, for the left foot... 13:35 Sorry, I think my dog hears Ursula's dog or something and- I was about to say, I think my dog's bark [laughs] just started. I was able to mute, though. They're, they're- Sorry... they're, they're talking to each other, 13:48 so. [dog barking] Um, so unless you have the, the loss, the SMC for that foot drop, um, then I don't think it's gonna qualify for specially adapted housing. [dog barking] If you do, uh, then it might. 14:01 You should probably have both, uh, extremities', uh, loss of use in order to really get it. Um, so I'm not, probably not answering your question very good, but it, it... I don't have all the info. 14:11 So, yeah, you need, you need the loss of use, not just the, the ratings for the extremities. Um, and look, file for this specially adapted housing. All they can do is say no. It's not gonna affect your other ratings. 14:26 Um, and if you don't have SMC for the loss of use, [dog barking] uh, yet you have foot drop and you have to wear braces and all that, [dog barking] uh, file for SMC. Um, 'cause any time they grant SMC 14:41 to the point where it establishes entitlement to the specially adapted housing, [dog barking] they're supposed to automatically list that as an entitlement. 14:51 So you don't have to technically file for the specially adapted housing in order to be entitled to it. If, if your benefits entitle you to it, they're supposed to put that on the rating decision automatically. 15:04 Uh, so it's so, so appealing for things like the, uh, the adapted housing and, and the, for the auto or the house, uh, it's not really something you need to do. 15:15 You need to get the underlying rating to the point where it gives you that entitlement, if that makes sense. [footsteps] All right. Ursula, am I doing this or are you doing this? 15:33 Oh, I'm muted. I'm muted. So we'll do... I'll do this one. All right. Um, hopefully my dogs don't go crazy. "Hello. 15:41 I get aid and attendance, but I recently noticed my PCP put two more of my service-connected conditions on my 2680 with a need for aid and attendance. 15:50 How would I word it on my 526 for these conditions, bilateral knee pain, strains, bilateral radiculopathy, and lower back pain, lumbosacral strain?" Go back. So 16:08 it looks as though... If you're already getting aid and attendance, I'm not sure why you're filing the 2680. Yeah. That was what I was thinking. Yeah, like, that's what is kind of hanging me up there. 16:25 If you already have aid and attendance, there's no reason to file a secondary 2680 for aid and attendance. Um, if what you're trying to do is get a higher level of SMC, you don't need, um, to, 16:42 to file that 2680. And if you're just trying to get service connection for other conditions, um, 16:50 really think about whether or not you should and what adding bilateral knee pain or other things will do to your claims, and whether or not it's even gonna help you, or if you're gonna open yourself for VA to start looking at those orthopedic conditions again. 17:05 So I would, um, I would move forward with caution. Um, and that's all I have to say about that. Yep, me too. All right. We're gonna go into... 17:19 Sorry, Leander Savoy, we're gonna come back to you because we have our teaching, t-tactical teachings. Yep, we have that coming up, and then, uh, Kerry's also gonna talk about his little moment of rants. Um... 17:34 [upbeat music] Okay, so today on teachings, what we're gonna talk about is severance. 17:50 So we're dealing in the world where you get a rating decision and VA has said, "We're going to sever, sever service connection." What we're not gonna talk about is reductions. That's something completely different. 18:06 That's when they're looking to lower a rating for a service-connected disability. Here, we're talking about when VA decides to completely take away your service connection. 18:19 So there are some situations where it is a, it is legal for them to do so. But before they're able to do a severance, there are certain p-And strict 18:32 legal and due process things that they need to go through before they can sever the service connection. So there's really only three ways in which VA can sever. So number one is fraud. 18:46 It means that when you made that initial claim you misrepresented the facts or what was going on with it. For some reason the grant was illegal. I don't really know what that looks like in practice. 19:00 I've never seen a severance come through for an illegal grant and I, I, I... maybe someone else can come up with a, an example. I'm not too sure. 19:10 But the one that we see the most is VA comes back and they want to sever based on a clear and unmistakable error in the original grant. 19:21 So I'm gonna kinda talk about that a little bit more, and what VA needs to do in order to overcome that clear and unmistakable error, um, standard before they can sever. 19:37 So something that is important for you to know, so I'm gonna start out with this, is that there is also a rule that helps protect veterans. So if you have been service-connected for a condition for ten years, 19:51 VA cannot sever that condition unless it was done via fraud or if for some reason you don't have the requisite time in the military. 20:04 So if it's ninety days, you know, whatever it might be, that's-- they can take it away for that too, but after ten years you are protected. 20:12 So if they're coming to take something away [dog barking] that you've had for twenty years, they just simply can't do that. Um, one of the, [dog barks] the other things is when you're dealing with, um, 20:25 with a proposed severance and they're coming to you and saying, "Hey, we're gonna take this away", VA has to prove that their grant was based on a clear and unmistakable error 20:38 and again, that's a very high burden for them to do. So, 20:43 you know, I'm gonna give you kind of some trip, ch- like some things to talk about when you get that severance, um, and what, what they need to follow before they sever. Okay, so first of all the burden is on them. 20:59 So what VA has to do, VA can't just come in one day and say, "Hey, we're gonna sever that." 21:06 They have to first give you a proposal to sever, and in that proposal to sever it has to include things like the reason for the severance and the evidence they used for that severance. 21:20 Then f- once you get that proposed severance in the mail you have thirty days to request a hearing and sixty days to submit additional evidence. 21:32 So if you request a hearing, once you get that notice of severance or that proposal to sever, request a hearing and then VA cannot at all sever that benefit until they've had that hearing with you. 21:48 And you also have time to submit additional evidence before that hearing or up until they make a decision. So some things... 22:01 Remember, a clear and unmistakable error is extremely hard to prove. It means that if two people look at the same file and the same evidence they can absolutely say, "We were wrong on that." 22:18 An example would be you don't have... Like they give, they grant you 22:28 aid and attendance at the, or the LSMC for loss of use of your lower extremity, but you still have your lower extremity and it still works and you're still walking, and someone just made a mistake, and you look at the record and you're like, "No, that was completely wrong. 22:45 We don't know why we assigned that, that rating to it." Um, but that would also still be a reduction. See, it's really difficult to come up with things that are undebatably wrong. Um, so, you know, keep that in mind. 22:59 It's, again, a very, very high burden. 23:04 Some things that we do and ways to kind of fight the severance is once you get that proposal to sever, go ahead and send in a hearing request, and the reason is they can't sever until they've had that hearing. 23:17 It delays the final decision. So if you're getting, um, compensation that's coming in, it'll kinda, you know, pause and have you still have that compensation coming in while VA's waiting to have that hearing. 23:34 Also submit evidence. Submit medical opinions, service records, prior favorable findings. Um, those are really gonna help you so by the time you get to that hearing, um, 23:48 you can-- you have that evidence in the file for them to look at. And then you also want to kind of attack VA's argument. The biggest argument is what you said is an AQE. That is not a clear and unmistakable error. 24:04 If the evidence is debatable, it is not AQE, or you can say that VA failed due process. Um, but, you know, the biggest thing is it-- you really wanna hit that it's not AQE if it's not AQE. 24:21 Um, so it's... Severance is one of the hardest things for VA to legally do. 24:28 It's when they're saying, "Hey, we're taking away this benefit and this disability from you," and sometimes along with that goes the benefits that you've had because you had that disability. 24:38 So keep in mind that-If you've had a disability for 10 years or more, VA cannot sever it. Certainly make sure that you're requesting a hearing, getting all of your evidence in once you get that proposal to sever, and 24:56 make sure that when you're submitting that evidence, you're really hitting on the clear and unmistakable error language, because that's the burden that VA has to prove. 25:08 They have to prove that, and most of the time it fails. So that is my tactical teachings for today. 25:16 If you've had a severance or you get a proposed severance in the future, don't panic, just take a look at it and know that the law is on your side for this, and that it's actually very difficult for VA to take away that benefit. 25:35 [upbeat music] All right. Back to questions. Well done, Ursula. Did I mute it? All right. 25:51 Um, Leander Savoy, sorry we had to cut you off, but we got you here. Um, "Hello. I just filed higher level review for effective date. Is there anything I should know about how it works? 26:03 When they call me, any advice would be great. Thanks for all of your support." So I love effective dates, I really do. Um, and I'm not just saying that to be funny. Uh, we were actually gonna... 26:16 It was either severance or effective dates that we were gonna talk about today. Um, you know, next time Kerry and I are on, we'll be sure to talk about effective dates. So 26:26 one of the things that VA does, and even so much more now in, um, in AMA, is you can continuously pursue a claim, which means you file your initial claim, your own nine nine five, you go to the board, you come down, and you've kept it on appeal the entire time. 26:48 What VA does is then you'll file a supplemental claim with, you know, a medical opinion, and they finally grant that benefit. Most of the time, 26:57 and I do say most because I'm actually surprised when they get the effective date right. Most of the time they're gonna set that effective date as the date of the last oh nine nine five that you filed. 27:11 Or if you're dealing with unemployability, they're gonna set it from the date of the eighty-nine forty that you filed. Sometimes they like to get tricky, and they like to 27:24 set the effective date of the date of the exam that you had two weeks ago, right? So those are the most common effective dates that I see VA adding to a claim once it is finally granted. 27:38 So when you go to your higher level review, um, what I would do is submit just a... And, and I actually do this, is I'll just have, like, a procedural history and I'll say, "I filed a claim for this issue. 27:51 I filed an oh nine nine five for this issue. I filed a higher level review. I got a decision. I did this, I did this," and I show that there's no gap in that claim stream, and that's typically the easiest way to do it. 28:08 Now, if your effective date is one of the more complicated issues, I'm not gonna go into that because I don't know that, but that is really the best way. You can just take that little, 28:19 you know, memo that you send, go ahead and send it in to VA, and then when you're talking to the decision review officer, you can say, "Hey, I submitted this on this date. It lines out the whole procedural history. 28:33 This is why I need that earlier effective date." 28:36 The other important thing is sometimes VA likes to say, "Okay, well your claim's been continuously pursued, but this is the date where that's the level of severity, when the entitlement arose to that disability." 28:52 So you may wanna also just point out some things in your record that show that your disability was there and active and indicative of a rating. 29:05 So those are kind of the two points that I would make sure you have for that effective date higher level review. Kerry? Excellent. No, I got nothing on that. 29:22 All right, let's go next one. Benji, give us the next question. I can read that one again if you want. No, we just answered that one. Okay. Benji. 29:41 Benji, mate. Mate. Are we out here by ourselves? [laughs] Oh, there we go. Okay. They lo- they left us. [laughs] I was scared. I was like, "What do we do?" [laughs] Yeah. Yeah. 29:54 We just sit in front of the camera and we'll operate it. Another step twenty-five. "Wanted to file for sleep disturbances in 2013 and was denied. 30:04 At the time, I had a diagnosis from deploy- uh, diagnosis from deployment for sleep disturbances. I had a diagnosis for obstructive sleep apnea from the VA in 2010, less than 30:20 one year after I left service. Uh, I have since learned more about obstructive sleep apnea and the VA process and am now SC. Can I go back and have my effective date for sleep apnea changed to 2013?" Right. 30:39 So the answer is probably not.But not definitely no, right? In order, and, and so let's assume the decision that granted service connection is no longer appealable, 30:57 uh, therefore you can't challenge the effective date on a direct appeal, 'cause if you could, that's a much better way to do it. Uh, let's say that's not possible. 31:08 So you look at the case now two, three, four years after the fact and think, "VA should have done this differently back in twenty thirteen. I think they should have granted service connection." 31:20 Uh, the only way, and I think Ursula touched on this, the only way to show that, uh, you are entitled to that earlier effective date is to show that, uh, 31:33 VA's decision back then was the result of clear and unmistakable error. Again, that error has to be undebatable in accordance with the law at the time and the evidence of record at the time. 31:47 It has to guarantee a different outcome, uh, what VA calls outcome determinative. So if it doesn't fit that clear and unmistakable outcome determinative qualification, it's not gonna make it. Right? 32:03 If there's a plausible basis in the record for VA to have made its decision, in other words, if an examiner come back and said, "This is not related to the veteran service," even though it clearly was, okay? 32:17 That might have... that might be enough evidence right there to form a plausible basis for an examiner to de- or for a rater f- to deny service connection and, and get you a, a denial on a CUE motion. Um, 32:30 so just putting that out there. CUEs do happen. Uh, I like me a good CUE, uh, if I can win it, and, uh, I'll, I'll try them quite a bit, but I also know when I'm not looking at a CUE, I'm, I'm just not gonna try it. 32:46 Uh, so that's, that's the way to do that. Now, there are some other ways if, if when they denied you originally, what happened within that first year after denial? 32:55 Did you do anything that could be counted as an appeal that they, that they overlooked, leaving the case on appeal? There's a few things that could happen there. 33:04 Uh, new evidence coming in within a year of that decision, uh, new service records coming in later, uh, all of those are issues in, in and amongst themselves. 33:15 Uh, most of the time though, you're, you're sub- you're left with that CUE option, uh, and that's, that's a hard, that's a hard bend there. So anything on that, Ursula? Nope. Okay. George Lowell. 33:36 Okay, one of two. "A hundred percent permanent and total..." [laughs] It's George. Hi, George. Hey, George. "A hundred percent permanent and total SMCS now. 33:44 More claims could be filed, but you said previously, leave it unless going for SMCL. I believe these and not, I believe these and not yet filed claims will require aid and attendance possibly down the road. 34:01 Also, some things are vocational rehab and education independent living, depends on service-connected conditions. File now for service connection later. By the way, I like your new format." 34:15 We're glad you like the new format. Um, if I'm understanding it, you are just asking if you should file for service con- Go back one more, Benji. 34:36 I mean, it depends. If, uh, if the conditions that you're trying to claim are going to increase your rating and you need aid and attendance now, then yes, I would file for them. If, 34:53 if filing those conditions could jeopardize the claims that you have now, and you could lose part of your status, and they're not gonna give you any additional compensation now, I would not file them. 35:08 I, I, I would-- I don't think it's smart to file them for no benefit whatsoever. Um, if there is a benefit that you can tangibly get from it, then yes, file. 35:22 But it doesn't sound like there is in your case, so I would personally hold off. Um, Gary? No, I'm kinda with you there. Uh, I don't know that I'd file things just to file them. 35:38 That independent living program is, if you can get that, is a good program. Uh, at least it used to be. I haven't dealt with it in a, in a very long time, 35:48 uh, but it used to be a very, very good program for people that were totally disabled, couldn't work, and wanted something to do to make themselves independent. Uh, but, uh, no, I don't have anything else on that. 36:05 All right. All right. James, sixty-one oh... James G, sixty-one oh nine. "How hard is it to go from one hundred percent P&T to SMCS or SMCO with two SMCL? 36:20 Uh, I'm going to be seventy percent for PTSD or one hundred percent. I plan to file for physical because my wife helps me get up and down stairs and to bed daily." Okay. Oh, one more. "My wife is my daily caregiver. 36:38 I have been a hundred percent P&T for almost a decade, and my conditions have become worse. I have had over two hundred chiropractic and acupuncture treatments. Nothing really helps."Is that it? Okay. 36:54 Go back to the first one. All right. "How hard is it to go from P&T where you are to SMCS or SMCO?" First, let's be realistic here. 37:08 SMCS and SMCO are worlds apart, okay? Um, you've got SMC- Literally on the opposite ends of the spectrum on the SMC chart. Yeah. In between there you've got L, L and a half, M, M and a half, N, N and a half, 37:26 and O. Uh, so that's a lot. Um, so how hard is it? Well, it, you know, it depends on what service-connected and, uh, let's just assume everything you've got is service-connected. 37:43 Uh, you, uh, and let's assume your hun- 100% P&T now is a single 100%. Now, I don't know the answer to those things, so let's just make that assumption. And you get 70% for PTSD. That's gonna put you at SMCS. All right? 38:00 100 plus 60 gets you S. The rest of the stuff is hard to answer. Uh, i- if those things in combination, uh, cause you to need aid and attendance, right? That would get you L. 38:16 Now, two rates of L will get you to O, okay? Any two rates between L and N get you straight to O. All right? And that's one of the ways to get to O. 38:29 Uh, but, you know, that means you have to have two separate distinct disabilities that each independently by themselves cause you the need to have aid and attendance of another person. 38:40 Now, we see that, uh, in severe cases, so it's not, uh, it's not out of the question by no means. Um, but just know what you're getting into and know what you gotta show. 38:50 Um, you know, and, and if you show two Ls through aid and attendance, or one L, say for example, [clears throat] loss of use of both feet is, is L. You, you may not need aid and attendance if you have that. 39:03 Uh, but if you have other things that require aid and attendance besides the loss of use of the feet, that's gonna take you to O, uh, and then to R1. Uh, 'cause if you're at O and you need A&A, you go to R1. 39:17 Uh, that's how we probably reach the most of our cases of R1, 39:26 uh, or O, if you wanna look at it that way, is loss of use of two extremities together with additional disabilities that by themselves would require aid and attendance. Um, 39:39 but understand you're probably gonna have to fight for that, because these raters nowadays are just afraid to pull the trigger on something like that. 39:51 Um, and I don't know how many times I sit and look at a examination 39:58 where a vet's confined to a wheelchair, can't get out of that wheelchair, and the doctor says, "No, you don't have the effective remaining function that would be equally well served with amputations or prosthetics." 40:10 Bullshit, you do. Uh, excuse my French. Uh, a- and even if you didn't, 40:16 you still meet the definition of loss of use with no effective remaining function of, you know, uh, in the, in the forms of balance and propulsion 'cause you're confined to that wheelchair. 40:27 So anyway, not to get off on a rant. We'll save that for another day. Uh, but, you know, it's possible to get there. There's just a lot of stuff I don't know about the question. 40:36 Um, so I'm just giving you some generalities. Anything else, Ursula? Well, it seems to me like you are about ready to rant, so I think it's time to go into your ranting segment. It's, it's- How do you feel about that? 40:50 Well- You're already fired up, I think. Well- Time to go? Well, I'm getting a little excited. Yeah. [upbeat jingle] Hello, everybody. Uh, 41:06 I would like to talk a little bit about severances in a specific area, uh, of severance. Uh, Ursula touched on severance. I wanna touch on some things I've seen. And VA, I hope you're listening. 41:18 You should be listening, 'cause you're the guilty party here. I wanna talk about some Fort McClellan claims. 41:24 Uh, anybody that knows me and, and who's a Fort McClellan victim knows that I go after Fort McClellan claims primarily on exposure to herbicide agents, the very exact same herbicide agents that were used in Vietnam. 41:39 Um, and I feel strongly about that. I've been working on it for about 15 years, and, uh, and we're getting closer and closer. More claims are getting granted. 41:49 Um, and we have some pretty damn good evidence of herbicide use on Fort McClellan. It, it's rock solid, actually. Um, and we've had several cases where somebody has looked at our evidence 42:07 and conceded herbicide exposure, and this, once that exposure is conceded, it's not a presumption, it's a concession, 42:17 and then they have a herbicide-related disability, prostate cancer, lung cancer, diabetes, leukemia, non-Hodgkin's lymphoma, the l- a pretty big list for, for the Vietnam vets, 42:29 that they then grant service connection for those herbicide-related disabilities. And then somebody else comes along in their infinite wisdom, and usually it's a quality review, 42:42 uh, what's called an RQRS, a rating quality review representative, in other words, a quality reviewer at the local level. Usually. Not all the time. 42:53 Sometimes it's a DRO.And that upsets me the most because those are the people that are supposed to have the most experience in this that should know better, uh, than to start severing things that were granted legally. 43:10 But what will happen is somebody like that will then look at that, uh, case and go, "Oh, that's not Vietnam. Uh, that's not Thailand. That's not the Korean DMZ. That's not C-123s. That's not Blue Water Navy. 43:27 We, we were not supposed to have, uh, presumed herbicide exposure for Fort McClellan. Uh, that's not an area we're allowed to do that." Bullshit, it is. All right? 43:38 If there is evidence in the file of herbicide use where a person served, and that herbicide, those herbicide agents, are the same ones listed at the, in the regulation at 3.307, 43:53 and VA concedes as likely as not that that person was exposed to those herbicides, you can't come back later and sever service connection. 44:04 All you're doing is guaran-guaranteeing you a reversal at the Board of Veterans' Appeals. And if the board, if you're listening, all you're doing is guaranteeing a reversal from the court. 44:16 So please do me a favor and stop trying to sever Fort McClellan claims. If they're my cases, you're gonna lose every single time. 44:28 And if that happens to any of you out there, by all means, appeal the thing or give us a call, uh, 'cause it's not supposed to happen. 44:37 Uh, another thing, and this is not really severance, so I might be, I might be digressing a little bit. Also on Fort McClellan claims, 44:47 once VA concedes exposure, and excuse me, Board of Veterans' Appeals, you're guilty of this one a lot, so I'm sure you're not listening. 44:55 But once VA concedes exposure to the herbicides on Fort McClellan and you have a herbicide related disability, you don't need a medical opinion linking the disability to the exposure. 45:10 In Vietnam, you get two presumptions, a presumption of exposure and then if you have the right disability, a presumption of service connection. 45:20 If it's somewhere where you do not get a presumption of exposure, but you have proved that you were exposed or as likely as not exposed, which is supposed to be the standard, and you have 45:32 the otherwise herbicide-related disability, you still get the presumption of service connection once you prove the exposure. So everybody pull their heads out of their heinies and stop making these mistakes, okay? 45:50 And if you do that, we'll all have, uh, a better day, and you'll have less work, and I won't have to appeal and prove you wrong. So there's my rant. It's a short one, but it's an important one. All right. 46:04 You served your country, and now another challenge awaits, getting the VA disability benefits you've earned. Too many veterans face endless delays and denials, and they shouldn't have to. 46:14 At Hill & Ponton, we know the system and how to fight for you. Scan now to download The Road to VA Compensation Benefits, a free guide from Hill & Ponton, trusted VA disability attorneys. 46:24 For over thirty years, we've helped veterans secure the benefits they deserve. Our free guide helps you avoid common mistakes and know when to call for backup. Scan now or visit hillandponton.com. 46:36 Those sponsors, they're just wonderful. They're just amazing. Aren't they? Yeah. Yeah. That's so cool. Love our sponsors. Yeah, for sure. All right. Let's, uh, take some more questions. Let's get to it. All right. 46:50 This is from Michael Jefferson. 46:53 Um, "Does being service-connected a hundred percent for asthma, COPD, sleep apnea, and chronic cough by way of TERRA qualify under 38 CFR 3.809a for the s- uh, special housing adaptation grant due to residuals of inhalation injury?" 47:14 All right. This is a good question. Um, I actually pulled it from the comments 'cause I wanted to talk about this for a second. Mm-hmm. Um, so there are actually... 47:26 Since you're talking about the special housing adaptation, I do wanna just say this to everyone that's out there. That is different to the specially adaptive housing, so there's SHA and SAH. 47:42 The special adaptation for the housing is where VA comes in, and they, they essentially give you a, a grant to completely remodel your home to make sure that you can kinda get where you need to go, I believe. 47:58 And then the SHA, which we're talking about here, is more limited, and it's limited into providing adaptations and things in the home to make it so that you can ambulate safely in your residence. 48:14 So there are a couple of ways to get the SHA grant. Um, they are for loss of use of both hands, or you have severe burns, um, and you have trouble ambulating in your home. There's also, um, 48:32 you know, for respiratory issues, that includes COPD and asthma. You have to have a one hundred percent totally disabling condition, so you're a hundred percent with the asthma and the COPD. 48:48 So you have opened the door to possibly getting this housing adaptation grant.But just because you have 100% disability and it shows you have 100% disability, that doesn't necessarily mean that you have functional impairments that you are gonna require a home adaptation. 49:13 So you are going to have to show that you require continuous oxygen, that you need rails in your home because you can't ambulate correctly because you're so out of breath that you are at risk for falling. 49:28 So it's not just having the disability rating that's gonna get there. You're gonna need to show a little bit more that you actually need the adaptations in your home in order to be safe. 49:41 And so you can do this through your medical records if your records show that you are on constant oxygen. 49:49 If your doctor is saying that, you know, you're unable to walk, you get dizzy, you're falling down, you need these things in order to be safe, that's what's gonna get you the housing adaptation grant. 50:01 So it's not just the rating, it doesn't get you there. You're gonna have to show just a little bit more to get further. [sniffs] Kerry? Uh, I have only a couple things. Uh, so s- on the inhalation injury specifically, 50:19 um, so that... The, the origins of that come from, uh, uh, my, my understanding is, um, all of... 50:31 When everybody started getting TBIs and blast injuries and all this, when you're in that close environment of explosions, you sometimes breathe in superheated, for example, superheated air and it damages your lungs, um, 50:49 and to the point where you have to have special, uh, HVAC systems in your house to keep the humidity at a certain level, so to, to protect your lungs. So th-that's the thought process, all right? 51:04 Um, uh, I do, I do think, uh, the asthmas and the constrictive bronchiolitis and all that qualify for that as long as, like, uh, Ursula said, you show that you need those adaptations. 51:17 Uh, not everyone with, you know, uh, a little bit of asthma is gonna get that. Um, you know, but, but, uh, there are plenty of people out there that do have to have certain 51:31 levels of clean air and lack of humidity or increase in hu- in humidity, I suppose, uh, to protect their lungs from those injuries. So that's kind of the, the, the or- the origin of that. 51:44 Uh, and the other thing I wanted to say, so somebody posted, uh, in the comments, uh, "Today's raters lack the training and guidance that you, Kerry, had back in the old days." 51:55 I don't know what you're talking about, I'm only twenty-five years old. Uh. [laughs] Ma-maybe thirty. [laughs] So, but yes, I appreciate that and 52:13 those were the old days, unfortunately. The good old days. All right, next question. This is still your question, Mr. Twenty-five Year Old. This is you. Yeah, let me put my, my young eyes to it. Uh, claimed, uh, 52:32 FSAD secondary to meds and, uh, a major depressive disorder. Got denied HLR DTA, which means duty to assist era. Uh, was sent to mental health exam, uh, got denied. 52:46 Mental health examiner said no link to meds or, uh, major depressive disorder. M21 says mental... A mental cannot... A mental cannot render a diagnosis. What to do? 53:03 I'm not sure what you mean there at the, at the end. Um- Um- D- So they, they do have some pretty weird rules in the M21 when they're talking about, like, mental disorders. 53:16 Um, I could see how they could say that you can't... You're, you can't get diagnosed with a medical condition based on a mental health condition. Um, and I just don't think... I think that's patently false. 53:32 Um, and so that might just be what VA... Sorry I hijacked your question. Um- No, no. Go ahead. I was- So just because the M21 says so does not make it true. Okay? Yeah. 53:43 The RO and the raters are gonna read that, the ones that don't know what they're doing, and they're gonna be like, "Oh, no, we can't do that." The fact of the matter is that we know that every... 53:55 I mean, it's common knowledge that medications for depression can cause things like female sexual arousal disorder and erectile dysfunction. It happens. Yeah. It's part of the medications. 54:09 Um, and the higher dose or the longer you've been on it, the more you, you're at risk for those types of things. So, you know, I would get something from your doctor. 54:22 I would, if you can, I would go and go to Google Scholar or just find some articles that link the medication that you're on, 54:32 and also major depression disorder, that talk about, um, your arousal disorder to those conditions and submit that, and go to the board and to the evidence lane. Yeah. 54:45 I would not mess around with the regional office anymore. Um, so, 'cause it looks like, you know, you, you filed your claim, you went higher level review, they sent you back for a DTA. 54:58 You got another mental health exam and then-They didn't provide a link. I would just take this to the board at this point. Get some scholarly articles, get some stuff in there if you can get something from your doctor. 55:11 But, um, I wouldn't give up on that. I would certainly keep going with it. Yeah. And, and I s- now that Ursula kind of explained it, it makes sense to me what you're saying now. So I, I completely agree. 55:24 I used to keep track of every time a single word changed in the M２１. Uh, can't say I have the time to do that as much as I'd like to. 55:32 Uh, but I wouldn't care that if that's in the M２１, like you say, the, the mental health examiner can't diagnose, uh, uh, what, what we're talking about. Yeah, I agree. That's BS. 55:43 And there's plenty of court decisions out there that talk about, uh, who's considered a medical expert in VA's world, and it's really broad. 55:58 I, I mean, to the extent that it can be detrimental to some claims when you're trying to argue that a nurse practitioner and a physician assistant's not qualified to make an opinion on a certain thing. 56:09 Courts have come back and said, "Hey, at the end of the day, they're a medical expert. They are qualified." Uh, and something like that should be, if they wanna enforce it as a rule, should be in a regulation, 56:25 right, not in the M２１ manual. Um, a-a-and because that's, uh, that, that's what I would call a substantive rule if they, if they intend to stick with it. [dog barks] So anyway, so [dog barks] my two cents on it. Yeah. 56:40 The other thing that, uh, we've recently been seeing is severances of, um, insomnia as a mental health condition. Um, it's kind of a new thing that I've been seeing lately. 56:53 Um, and it's because there's something in the M２１ that says insomnia by its definition is a symptom of a, of something. It's not-- it's, it, it can't be a symptom of a disability. 57:10 So we see it where people can't sleep because they have tinnitus or tinnitus. 57:16 Um, VA's coming back and they're-- or they're saying, "Okay, the tinnitus is ten percent with insomnia," and they're not rating that insomnia separately, even if it's, you know, thirty, fifty, seventy percent disabling because they're not getting any sleep because of the tinnitus. 57:32 Um, and there's some wacky rule in the M２１ that says, you know, insomnia by itself, like to get that diagnosis, it means that it's not secondary to anything. 57:45 Like, I don't know the exact wording, but, um, we've seen some severances come through or, you know, ratings incorporated into, um, the, the tinnitus and they're not looking at the, the actual disability picture. 58:02 That's a straight trip to the board for me. Whenever the M２１ says something like that, it-- no brainer taking it to the board. All right, next question. 58:20 All right, I guess we're gonna finish up here. It was wonderful to see you guys today. Um, thank you for joining us. Kerry, you're on mute if you wanna say bye. You have to unmute. Sorry. 58:35 I was trying to quiet my dog down. Uh, yes, uh, we will see you guys later. It's been a pleasure and, uh, uh, I'm sure Ursula and I will be back soon. Yep. 58:49 [upbeat music]
