Transcript 0:00 [upbeat music] Hey, everybody, we're back. 0:31 Three weeks in a row you've got Ursula and Kerry. That's a record. Yep. We're glad to be here. Um, and so we're doing the new format again. We're very excited. 0:44 So since we're taking less, less questions, let's just go ahead and get right into it. All right. I'll take the first one. All right, this is from Kim. "I filed for low back pain in twenty fifteen. 0:58 Denial letter just stated lower back pain is not considered a disabling condition. No CMP, no medical opinion. Have several medical visits for back on AD or active duty. In nineteen ninety-two, Germany, my platoon 1:15 lost in woods with high uneven terrain over seven hours during sergeant's time. We had to use M16 as a walking stick, hills and steep incline. When we returned to barracks, the mess hall had closed. 1:30 Commander was very mad and made the platoon sergeant drop and do pushups. Several microtrauma injuries and X-rays for possible fracture in shins, got worse over time. Does it rise to a CUE level?" Um, depends. It may. 1:47 Um, so a CUE, like we've talked about before, is a clear and unmistakable error. Um, 1:55 if your service records show that you had back trauma and injuries, and you were seen for back trauma and injuries, and they say there's no back trauma or injuries and no diagnosis, and you had a diagnosis, 2:15 it could. 2:17 But that determination would also need to be outcome determinative, meaning that even if they went ahead and said, "Okay, yes, there was an issue with the back trauma," would that have made their decision different? 2:32 Um, so I'm gonna let Kerry jump in on this 'cause he's gonna be able to do more. And he's itching, I see him itching to take it, so it's all yours, bud. Oh, me. Uh, so 2:48 no, I, I don't think... Uh, I agree with everything you said about CUE, but I don't think it rises to CUE, uh, simply because of what you said there at the end. 2:59 Uh, there is no guarantee that service connection would have been granted, uh, had they not made the error, but it was a head up the butt error. Excuse my French and, and image. Uh, 3:19 to say that back pain is not a disability is a little bit ludicrous. Uh, in fact, it's just downright stupid. Uh, 3:33 they should know you're a layman when it comes to VA matters and medical matters and under the law and all that. So when you put on your claim form low back pain, you are claiming a low back disability. All right? 3:51 Something is causing the pain, and it's the disability causing the pain. So to tell you low back pain is not a disability, it's like them saying pain itself without some underlying cause is not a disability. 4:06 One, that's wrong in and of itself because there's case law out there that says pain alone is a disability. Uh, but that's not the point. The point is you are clearly claiming a low back problem, uh, 4:24 that's causing pain, and they're getting tied up with semantics of how you worded the claim and not thinking past the nose on their face. Uh, I would probably do an HLR 4:39 conference with it and tell the h- the DRO what happened and the fact that you're clearly not claiming pain alone, that you've got a low back disability. Uh, and they will- I don't think he can. It's-- or she. 4:52 Here, it's from twenty fifteen. It's- Oh, twenty fif- twenty fifteen. You'd have to reopen it somehow. Yeah. All right, I missed that part. 5:00 Well, then yeah, then you would file a supplemental claim, uh, on an O-Nine-Nine-Five. 5:06 Uh, give them some piece of evidence, X-ray or something, showing a diagnosis, uh, of something, and that would serve as new and relevant evidence to reopen it. So that's what I would do. 5:24 All right. Bill Hess. Uh, "I submitted a claim in November of 'twenty-one to the BVA. Uh, had my initial hearing in May of 'twenty-five. Still waiting for a judge to be assigned to review my appeal. 5:41 How long should it take for a judge to review my case?" That is a very good question. Um, see-- Wow, man, you had a hearing. Normally, it takes a long time to get the hearing. 5:57 Uh, like, you know, well, like you s- well, you found out, about four years. Um, I am surprised, since you've had the hearing almost-Well, almost a year ago that they don't have a decision yet. 6:13 I w- I would've thought you would've had a decision by now. Uh, so that's surprising. I, I, we-- nobody can say how long it's gonna take. I just, I am surprised it's taken that long. 6:26 Uh, it usually takes a couple of months for them to get the transcript back. My understanding that that timeframe seems to shift here and there. Um, but yeah, I, I'm, I don't know. 6:40 I don't, I don't know how much longer you'll have to wait for that. I would send... I would ask, I would write to the board and just say, "Hey, you know, what's going on with it?" 6:52 It really sh- they have to wait ninety days from the hearing in order for you to submit additional evidence, and if you submitted additional evidence, then that judge does need to review it. 7:04 But I think that that's, that's too long, and especially if they're working in docket order like they're supposed to be, you should be, be getting that. I, I would find out, send a, send an email. 7:17 I mean, uh, send in a memo. Yeah. And this is one of the reasons we don't like hearings. We... I, I will avoid asking for a hearing at all cost if I can, uh, for this very reason. Yeah. 7:35 Just takes a really long time. All right, Lori Collins, Rathburn. "My husband has inclusion body myositis. Hill & Ponton just filed his claim with the VA about a week ago. 7:50 He is currently on, uh, veteran-directed care program that pays for his caregiving. He's a complete quadriplegic with no use of his arms or legs. He needs assistance even to breathe. 8:01 If he gets approved a hundred percent service-connected disability, plus other add-ons such as A&A or R2, 8:10 is he able to continue the VDC program paying his caregivers, or is the add-on money intended to pay the caregivers?" So, um, Lori, we are very familiar with inclusion body myositis. 8:25 Um, I'm not sure if you are one of our clients or if you're doing this on your own. But just to- I think she, I, I think she said she'd follow up with Hill & Ponton. Okay. So 8:38 I can certainly answer a general question here, but if you do have questions, please give us a call, um, and talk to us directly on the team. But, um, so the VDC program is 8:50 a program that is separate from VA compensation, which is the R2 aid and attendance. It is separate from the caregiver program, which most people are, are familiar with, that happens through VHA. 9:07 It's a joint program through Social Security and Health and Human Services with VA that will pay a caregiver to come into the home to take care of catastrophically disabled veterans. 9:22 It is a program where service connection doesn't matter if a veteran is catastrophically disabled. You can receive all of these programs at the same time with no, no issues. So 9:41 while the additional money for the aid and attendance and R2 and all of that is designed to be able to give you additional compensation for the needs of that veteran, 9:53 you can still utilize these programs if they're available in your area. Not every state has the Veterans Directed Care program. 10:04 So it's not something that everybody can apply for, but if you are approved, you can use all of those resources. 10:15 The VDC program is special in a way that it allows you to hire out your own caregiver, either through a, a company, you wanna hire a s-specific nurse to come in, you can do that. 10:29 Um, I've even s-seen some veterans that will pay their spouses to be that person for forty hours a week or however many hours the VDC program says that they're approved. 10:42 Do keep in mind that different from caregiver and different from compensation, if a spouse or someone in the home takes the payment from the VDC program, it is a taxable income. 10:56 So you would have to file your taxes, and you'd have to pay taxes on that income that you get from the VDC program. So I hope that answers your questions. They're all separate. 11:08 You can get all of those payments just with different caveats and different, um, eligibility rules. I got nothing more on that one. Very well done. Uh, 11:25 Sandra, uh, one of two. "Hi." Hi. Uh, "If you file sleep apnea secondary to PTSD, will it be considered independent for SMC purposes under three point three five OF four for a half step?" 11:39 Uh, the short an- okay, number two, uh, "How does VA factor in SMC step increases once the code sheet is updated with the independent disabilities? Why do they lump conditions under, uh, P one?" 11:52 Okay, so go back to that first part. Um, so the short answer is yes, uh, it is independent. It's coded separately from PTSD. Uh, of course, y- I don't know what your total 12:08 rating is for SMC purposes. Um-So you have to be at L or higher, okay, for the half steps to kick in. 12:20 Um, if you're at one hundred or, or less, obviously, or if you're at SMCS, there is no half step there. So for example, if you had a hundred percent for PTSD, [phone beeping] 12:35 uh, say ten percent for tinnitus, uh, and fifty percent for sleep apnea, then that would give you a hundred plus sixty, and that would take you to SMCS. Um, it would not give you half steps, uh, beyond that. 12:50 Um, so all right, go to the next part. Uh, all right. So it, so it depends, you know, the, the lump conditions under P1. Uh, don't think of P... I-- This is a little-- 13:07 I'll try not to get too much in the weeds here, but don't think of P as its own SMC rate because it's not. All right? SMC or, or thirty-eight U.S.C. eleven fourteen P 13:21 has provisions in it, and the regulation that's downstream of that also has reg-- has, has instructions in it. Not the regulation has instructions. The statute has instructions 13:32 that use P to get to a different level of SMC. Uh, so you could go from L to L and a half on by using P. You could go from N to N and a half by using P. 13:49 Um, you can go from any rate to another rate, as long as it's L or higher, by using P. You've got the half step and the full step, both fall under, uh, eleven fourteen P. 14:01 You got the triple extremity rule, falls under eleven fourteen P. Um, but if you look at P in the statute, you will not see a dollar figure listed in the statute for the rate of compensation. 14:13 You will see a dollar figure for L and L and a half and M and, and all that, but not for P. So P is not its own independent pay rate. It's just used to get you to another pay rate. Um, 14:26 now as far as wh- you know, why do they lump things together, well, it depends on what, what you're talking about. 14:32 I-if you have multiple disabilities that are under fifty percent and they combine to a fifty percent, then that's considered a fifty percent for the half-step purposes. So you, you want them to lump that together. 14:48 Um, apart from that, I'm not a hundred percent... I may not be answering your question 'cause I may not understand all of what you mean, like why do they lump conditions under P. Uh, 15:00 but hopefully I- I think pretty much what you said is just understanding, like, why do you always see P, P1, and then you get to, you know, M and a half. 15:09 Just remember that P is the mechanism that allows you to do those steps. Mm-hmm. Without P, you won't be able to do those steps. So it's the rule that allows it. So that's why you see the P all the time. 15:22 If you didn't have P, you wouldn't be able to do those half steps. Yeah. I mean, you're talking about the code sheet. A very good point. One thing I didn't say, 15:31 if you look under that, if you're looking at a code sheet and it says P, P1 or whatever, you gotta read that paragraph. It will then say, 15:41 uh, you're getting at the, the rate between section L and section M, which means L and a half. And, and that's your rate you're getting paid, even though the very beginning of that paragraph, it says P. 15:55 Uh, hope, hopefully that helps. He lets you get there. Yeah. All right. Uh, J-JVR Aaron, Javarin. Okay. "Two of two. 16:09 Tester did not review my private exam and rapidly went through the Maryland test. I reviewed my vet records and saw some deviation from my initial to final hearing test. Can I get a new test? 16:24 I submitted a supplemental with the USMC test showing the hearing loss. Can I get a new exam with a private doc or get them to honor my private exam and show their test was a hundred percent reliable?" Okay, so three... 16:42 I guess it's just two of two. Okay. 16:45 So for-- if I'm understanding, you filed for hearing loss, you submitted some of your own documents, you went to a C&P exam, it was garbage, and then you got a decision that said, "We're not gonna service connect your hearing loss." 17:03 And you wanna know how you can get them to take a look at the private exam and say that the, um, the exam that you went to was, um, inadequate, essentially. 17:15 If you are in the appellate window, meaning it's been one year from that decision, I would file a higher level review, and I would put on that cover memo, you know, "I have this exam. It is good for rating purposes. 17:30 This other exam was inadequate because of XYZ," and have a higher level review person take a look at it. That would be, you know, what I would do. Um, there is case law and out there that, um, that says, 17:48 you know, they have to, they have to give you a good enough reason for it. So yes, you can absolutely do something. In a case like this, I would just go higher level review. I agree. 18:05 All right, Thomas, uh, "I'm rated for my right ankle and wear an ankle brace on both my right and left ankles. 18:15 How should I file for my left ankle?"Well, you, if you're claiming that one ankle is secondary to the other, you just state that. Um, if you've never filed that claim before, you do it on a twenty-one dash five two six. 18:30 Uh, and in the section on what you're claiming, you would state that I'm claiming service connection for my left ankle, secondary to my right ankle. Um, 18:41 you might wanna include a lay statement, uh, as to how you, uh, have to favor one ankle, and it's put more weight on the opposite over the years, um, so that, you know, VA understands what you're, what you're doing. 18:57 Uh, but that's pretty much that simple. Uh, anything else, Ursula? Nope. That's perfect. [upbeat music] All right. 19:13 Here I am to teach you guys a little bit. Um, so today, I wanna kinda touch on two things. Um, one being when we're dealing with, um, the board, after the board makes a decision. 19:28 I wanna explain that process and what your appeal options are when you come back from the board. Um, and then I also wanna talk about a case that's kind of come out that may affect a lot of veterans. 19:42 So I just kinda wanna put you guys on notice about that. So let me first start with appeals at the board. So, um, I'm only gonna go into the AMA appeals, so these are ones that are in the current system that we're using. 19:57 I'm not gonna talk about legacy appeals. And I wanna talk about what happens when you file an appeal to the board, and the board makes a decision. 20:07 So once you file that appeal, and you get a decision from the board, you are gonna get a c- a couple of answers. You can get a grant. 20:17 So they're gonna grant service connection, grant the effective date, grant a higher rating, depending on what issue you had before them. 20:27 So if you filed an appeal for service connection for your ankle disability, you will only get a decision on whether or not they're granting service connection for that ankle disability. 20:40 You will not also get included in a rating and an effective date in there, only if those were things that you were-- you put on your appeal form. So you can get a grant, 20:54 where they say, "We are granting service connection for XYZ." You could also get something called a remand. 21:02 So a remand is where the board says, "Okay, we took a look at your appeal, but it looks as though the regional office did something, and we can't make a decision on this until they fix it." 21:16 It could be something like their e-exams were inadequate, they failed to get records, um, they, they didn't do something they were supposed to do before they made the decision that they did that was then appealed. 21:32 So you can get a remand. That's what that's called. You can also get a denial, where the board can say, "We are denying service connection for your right ankle," or for whatever condition you have on appeal. 21:50 Sometimes the board will dismiss things. They'll say, "You know what? This isn't something that we need to deal with anymore, so we're dismissing the claim." 21:58 And that essentially means that that claim no longer exists, and they're not gonna see it, and it's not an issue before them. Where you may see something like this is if you filed, um, let's say, for 22:13 entitlement to unemployability. You filed that, um, and that was on appeal, but then at some point, as you're filing more appeals at the regional office, they grant the unemployability. 22:26 Because you wanted unemployability or entitlement to unemployability, and you now have that, there's no longer anything for the board to make a decision on. 22:35 If you disagree with the effective date of the unemployability, you would appeal the one at the regional office that granted the effective date of that unemployability. 22:46 So those are kind of the big things that you'll see coming back from the board. You can sometimes see, and often will see, a decision that has multiple of these. 22:57 The board can grant certain things, deny certain things, remand certain things, and dismiss certain things, all within the same decision and appeal. So you could get any combination of these things. 23:14 So let's talk about once it's granted, what happens. So once you get service connection granted 23:21 or an effective date granted, that appeal needs to go back down to the regional office, and the regional office needs to implement that. So if it's a grant for your right ankle, they grant service connection. 23:36 It goes down to the regional office. They may order exams to rate that condition. Um, they may ask for some other things, and then you'll get a decision from the regional office that says, "The board granted this. 23:53 This is the rating we're gonna give you, and this is the effective date we're going to give you." Okay, so now you have a new decision on that same appeal that just went up to the board, and 24:06 even though they granted service connection, if you disagree with either the effective date or the rating, you can still appeal that, 24:18 and you can appeal that either into the higher level review lane or the supplemental claim lane.I will caution you, however, that even though you are allowed to file a higher-level review on that rating and that effective date, VA likes to come back and say, "You can't file a higher-level review to a board decision," 24:44 even though that's not what you're doing. The board decision was the grant. Here, it's an effective date and rating issue, so you can actually go higher-level review, um, and that brings up its whole set of issues. 24:57 So if you've done that and you've gotten some letters from VA saying you can't file a higher-level review, um, that's not always true. 25:05 Um, and I think Kerry's gonna touch on that a little bit more in his little ranting thing, so I'm not gonna go into it. So those are the things you can do. 25:13 You can file appeals to the effective date and the rating when it's coming from a grant. 25:19 Keep in mind, the effective date is from the date of your original claim, so that effective date should go all the way back to when you first filed. 25:33 And also, the rating should be when you met that criteria for that rating. So they can't just give you, you know, ten percent because when you first filed it was only ten percent. 25:44 If that disability is now more severe, they need to look at all of those ratings. 25:49 So make sure you're looking at the entire appeal period from that, because VA and the regional office really likes to not get effective dates correctly, and you'll see it coming. 26:00 They'll set effective dates of, dates of the exam. So we have actually seen it come from the board, it's been on appeal for three years, goes to the regional office, it's granted. 26:13 The regional office gets an exam for the severity, and then they set the effective date as the date of that exam after the board decision. Um, happens all the time. 26:24 So make sure you are checking those effective dates and make sure that you are appealing your rating and your effective date if that's something you need to do. Okay, so now remands. A remand, um, means that 26:38 VA is sending it back to the regional office. There will usually be some pretty detailed instructions from the board in what the regional office needs to do. 26:49 So you can read that in your board decision, um, whether it's getting records, if it's another exam, you know, whatever the issue might be, you're gonna know what VA needs to do in order to, 27:04 to fix that and give you a new decision. Once you get that new decision, um, after the development, you have all of your appellate options are open again. You can go anywhere you want with it, um, 27:19 if it's denied or, you know, if the effective date is wrong, whatever it might be. Now, if you've got a denial, um, in AMA, luckily, you've got a couple of options. 27:30 Before, it was just kind of the end of it unless you could go up to the court, to the CAVC. 27:35 Here, if you get a denial from the board, you can go to the CAVC, which is an appellate process, um, if there's been an issue of, of law that has happened. Um, if you 27:49 need to get more evidence, you can also file a supplemental claim to that board decision within a year, um, and try to get another decision made. Maybe you need medical, uh, you know, you need to add more stuff in. 28:03 Again, that also continues the claim. So if you do eventually get granted, make sure that you're checking your effective date and it goes for the entire period that you kept everything on appeal. 28:15 So that's kind of the, the nitty-gritty of what happens after board things. I-- if you have a case up at the board, I hope that helps. 28:23 Um, and now I just wanna kind of talk to you guys about something that may affect a lot of people. It's, um, it's in the works. 28:31 It's not quite finished yet, but I do wanna kind of put you on notice because once it's done, you all might start receiving some letters. 28:40 So essentially, um, there was a case that went up to the CAVC and there has been a class certified, meaning that there's a class action, um, against VA, where between... and this is dealing with legacy appeals only. 28:57 So this is not AMA appeals. This is only appeals that deal in the legacy system. 29:04 So what happened was when people were filing their substantive appeals, which is a VA Form nine, meaning they got a decision at the regional office and they wanted to appeal it to the board, they would have to file a VA Form nine. 29:21 Between middle of December of twenty-nineteen to February of twenty-twenty five, VA's system glitched, and it automatically closed out appeals that were meant to go to the board from the regional office. 29:37 They just closed out. VA didn't do anything with it. 29:41 So there's a class action right now that is trying to get VA to pull all of those claims that were automatically closed for no good reason and have them readjudicate them or take action on them and reopen them. 29:59 So if you are a veteran that filed a VA Form nine and your claim was just automatically closed by VA, you are going to be automatically included in this class. There is no payout. There is no, you know, settlement. 30:16 It's not like a normal class action. 30:18 What this class action is asking for is that VA will go back and reopen all of those appeals that were closed and allow the clients or the veterans to get those reworked.Um, currently the status of it is they haven't come up with the settlement agreement yet. 30:42 It's in the final stages from what I understand, that they're working on the details of how VA is going to accomplish this. 30:50 So what this means for you is if you are in that class, VA is likely going to have to notify you and let you know that you, you had an appeal that was automatically closed, and these are the options, and this is what you need to do. 31:07 That's what that is. When this goes through and you see those letters, that's what this means and what that means for you. Um, I'm gonna have Nate link a website for you guys to go take a look at. 31:21 It's from the group that... 31:23 So Carpenter Chartered is handling, um, this class action, and there's a website that you can go to to read more about it to tell you whether or not you qualify, what's going on, how to handle things, what to do if you already have a representative, um, and there's just a lot of great information on there. 31:40 And so I do urge you to go ahead and take a look at that, um, because this could open up a lot of claims for people. 31:50 I wanna say the initial numbers right now are, you know, in the tens of thousands of people that these claims were closed out, and so it's, it's a lot of you guys. 32:00 Um, I'll try to keep you updated as we hear more, but, um, that's what's going on with that. 32:07 [upbeat music] You get to take the first question, 'cause I just did a bunch of talking. I will take the first question gladly, 32:24 'cause you did a lot of talking. Yeah. Very good explanation. Grace Smith, uh, "Should hypertension diagnosed first, then diabetes, then cardio? 32:37 Uh, so what, uh, so what are able to be claimed? How should I claim them? Uh, I've read the DBQ for kidney disease is, uh... and that was diagnosed after hypertension and diabetes. Trying not to screw up." 32:55 So okay. So there's no absolute right answer to this. It just depends on the case. Um, are we talking about, uh, for example, a herbicide case? 33:11 Uh, because in all circumstances of that, it's going to be, diabetes is gonna be presumptive, and so is the hypertension. 33:20 And most of the time, VA will service connect the kidney disease, uh, related to either the hypertension or the diabetes, possibly both. 33:31 Uh, but generally, i- if you're just asking on just a general claim status, uh, you know, if somebody's filing for it, say from some MOS exposure, I would say diabetes, hypertension, kidney disease. 33:47 Um, the kidney disease is almost always gonna be linked to either the hypertension or the diabetes. Uh, so if, if either of those came first and then the veteran developed kidney disease, 34:03 then that's normally how we see, uh, most of these come about. 34:07 Um, even without diabetes, if the vet just had hypertension and that was service connected and then developed kidney disease, uh, that would say that would almost certainly be related to the hypertension. 34:22 Uh, e- and, and even if he already had kidney disease before he had hypertension, which is more rare, then I would still say the hypertension could be aggravating the, the kidney disease. 34:36 So don't, you know, don't, don't forget about aggravation if the disabilities don't line up necessarily in your favor. Uh, but generally, I would think diabetes, hypertension, and kidney disease in that order. Um, 34:51 anything else on that, Ursula? No. I mean, these are all comorbidities. We see them together- Yeah... quite a lot, so I would claim them for sure. Yeah. Uh, Sherman Barker twelve fifty-nine, "Hi. 35:09 I have a C&P coming up for my..." Oh, f- I don't know how to say that. Onchomycosis. Thank you. "My examiner is going to be a doctor that specializes in gynecology. Is this a problem? 35:25 I called the eight hundred number and they say it was okay, it was scheduled by the compensation and pension people. Is this normal? Should I do a forty-one thirty-eight? Thanks." 35:38 Um, I believe the, the condition, that's a... Is that a hearing condition or is that an eye condition, Kerry? I think, I, I think that's a skin condition. I think. Yeah. Pretty sure. 35:50 Either way, I don't know that a gynecologist should be handling that condition. Um, unless the skin condition is in that area maybe, um, but if you are... See, here's the thing that VA does. 36:07 So I would say no, it's not okay, um, because that's not a specialty. Like, there's a big difference between audiology, ophthalmology, um, or, you know, skin conditions. 36:22 Now, someone who's a gynecologist, they are doctors, and they went through all of this stuff. They just specialize in gynecology and obstetrics. They are still 36:32 doctors, and they are still experts and probably know more about the human body than, than-Someone who's not an expert, just like, you know, lawyers are experts in what they do, but we kinda know a little bit of everything, but we just might not be great at it. 36:49 Um, so I mean, I, I would not be great with it. I would go and see. You never know. If it's a positive exam, it doesn't matter who does it. If it helps you, it doesn't matter who does it. 37:04 If it doesn't help you and it's a negative exam and it's terrible, then you have something to stand on to go, "Okay, well, a gynecologist looked at this. Let's get someone else," and you have a way to appeal it. Um, 37:18 that's my thought on it. It's really... This is really a, a personal call, I think. Um, yeah, it's a personal call. Kerry, what would you do? Yeah. It-- 37:31 I believe it's, I believe it's the, uh, fungus that gets in the toes. Now that I'm thinking more about it, uh, uh, pretty sure that's what it is. 37:38 Um, but e-e-either way, that skin condition, I mean, a gynecologist is gonna be qualified 'cause they're a medical doctor. I agree with Ursula. Yeah. It should not happen that way, but this is VA. They do it that way. 37:53 There's likely nothing you can do about it. Uh, we see complicated things all the time be addressed by nurse practitioners and physician assistants that we don't think should happen, but we can't stop it. 38:07 Uh, you, Ursula's right, you do need to still go 'cause they'll hit you for a no-show on an exam if you don't. 38:13 Um, but for a condition like that, it's not so complicated that, uh, any, any doctor, nurse practitioner, or somebody like that could probably evaluate it, come out with an opinion. Uh, 38:27 but yeah, we, we all wish that they would stick to their specialties more so than they do a lot. You know how I feel about exams, if you saw the last two episodes. All right. Denise 38:46 Is Eisenstein. Dennis. Dennis. Dennis. Eisenstein. It is Eisenstein. All right, we'll go with that. "Forty-year SC diabetes secondary for diabetic peripheral neuropathy, now at ninety percent. 39:00 I have a secondary claim for venous insufficiency and peripheral artery disease that just had CMP. Can this be one hundred?" It can be. Uh, it just depends on the severity. Um, 39:16 I mean, it certainly gets you to one hundred, uh, but I, I think it can be one hundred by itself, uh, if my memory serves me right. Uh, it, like, again, just depends on the severity. 39:27 They're gonna rate it based on, uh, claudication, uh, just, you know, basically symptoms when you start walking, how, how far can you walk, uh, before claudication begins and, and all that. 39:39 Uh, you know, I mean, it could lead to amputations and all that if it got severe enough, so it c- it can certainly be a hundred. Uh, doesn't necessarily mean it will be. I mean, you have to get service connection first. 39:51 Uh, but if you've had diabetes that long, uh, I, I mean, it, I, it, I would certainly, uh, fight that case for service connection. Uh, no doubt about it, so good luck with it. 40:05 Uh, I don't know if I've helped you that much, but yeah, it can be a hundred. And they should rate, they should rate each leg independently, just so you know. 40:20 TMAC: "I'm told the VSR should have made a permanent entry in BBMS as to why my private IMO and DBQs were deemed insufficient, and I should be able to do a Vera call and have them identify the required 40:38 note was made." Uh, uh, I don't, Kerry, answer. I don't-- I'm not sure what you're, you're saying. 40:45 I don't think they're required to put anything in there as long as they notify you of why they say that your exams were insufficient. They have to give you notification. But, um, 40:59 Kerry, you know the, the innards of VA a little better than I do. Uh, well, so the Vera call you're referring to is an HLR conference. It's not... Vera is a system they use. 41:12 Uh, so I wouldn't refer to it as a Vera conference or a Vera call. Nobody might know what you're talking about. Uh, but that's, that's basically requesting an HLR conference. Um, 41:24 uh, y- I mean, at the end of the day, should they state why, uh, they deem something inif- insufficient? Yes, they should. But don't conflate that with, "Hey, you submitted a private exam of whatever sorts." 41:42 They got it and go, "Oh, we need a VA exam," and they go out and they request a VA exam. All right? Doesn't necessarily mean they found your private DBQ or whatever inadequate. 41:56 They just may believe they are required to get a VA exam. Uh, we typically don't see them list in the VA exam why the private one was inadequate. We just see them requesting a VA exam. 42:15 Now, change that scenario up a little bit. If they get a VA exam, and they determine it to be insufficient, and they want another VA exam, then they would typically state 42:30 what was insufficient on the first exam so that it doesn't get repeated on the second exam. 42:37 Or they may tell the examiner, "Such and such examiner said this, this, you know, this doesn't, uh, coincide with this here, these facts in the record. 42:45 Can you take another look and, uh, and s- you know, give us your opinion?" 42:49 Um, but generally, just from a private piece of evidenceI mean, hell, we can't get them to acknowledge that there's private evidence in the damn file. Um, you know, much less tell us why it's not sufficient. 43:02 Uh, but yes, should they? Absolutely. Do they? No. [upbeat music] Okay, everyone. 43:18 Uh, I would like to talk to VA again. I know you're probably not listening, VA, but maybe someday you'll get bored, and you will say, "Hmm, let's see what this guy has to say, uh, the guy with the large grape." 43:34 So I, I would, I would like to tell you, for the DROC's, uh, and for those of you listening who don't know what a DROC is, DROC is a Decision Review Operations Center. 43:45 Uh, most of the HLRs are done at DRO- DROC's, all of them, as far as I know. And also, when the board, uh, sends a case back, either through a grant or a remand, it, it gets worked by the DROC's. 43:58 Uh, so for example, when the board grants a benefit, and the regional office comes back to award that benefit, it's the DROC, uh, that's doing that decision, not the local regional office. 44:11 Uh, there's one in Washington, D.C., there's one in Seattle, there's one in, uh, St. Pete. Um, there, uh, might be one in Waco, I can't remember. Um, but so Decision Review Operations Center, they handle appeals. 44:24 So DROC's, I'm talking to you right now. Please, for the love of all things good, stop letting intake specialists decide what a valid appeal is. 44:42 What do I mean by that? When the board grants a benefit, let's say service connection for diabetes, and the DROC comes back and gives a ten percent for that diabetes, 45:01 and the veteran is on medicine, on insulin, uh, a- and it has peripheral neuropathy that didn't get addressed, and has hypertension that didn't get addressed, and has, uh, all the bunch of other diabetic residuals that didn't get addressed, 45:21 what do we have there? We have a rating that's incorrect, a ten percent that should be higher. We have a bunch of residuals of the diabetes that's supposed to be rated independently that didn't get addressed. 45:35 So what is somebody like me gonna do? Well, I am going to file a higher-level review on a case like that and tell the DRO, because they don't have DROs do these implementations anymore, they have first-line raters, 45:52 and I'm going to say, "Uh, look, you underevaluated this for these reasons, and you failed to adjudicate service connection for all these residuals of diabetes." But what the DROC does when they get that form, 46:07 they send it through intake, which intake has its function, I get that. But then the intake specialist looks at it and goes, "Oh, well, that's from a board decision. You can't appeal a board decision, 46:21 so we're gonna issue you a request for application letter," which is a reject letter, "telling you you can't appeal this decision." What's wrong with that picture? All right. 46:34 In order to know what a valid appeal is, you need some kind of rating experience or appellate experience. Intake specialists generally do not have that. 46:46 But it's the intake specialist that's deciding, "Oh, this is not a valid appeal." So what happens? The appeal is canceled. We have had this happen over and over and over and over and over 47:05 since the AMA has come about in twenty-nineteen. We're in twenty-twenty-six now. You guys are still doing this one thing that I have sent message after message after message after message to the DROC, 47:22 telling you to stop and to r- re-implement the appeal that you canceled. Now, they always get reinstated because we chase you down until you do, until someone looks at it that realizes these are valid appeals. 47:40 'Cause what we're doing is not appealing the board decision. The board granted service connection. You implemented that grant, and you implemented it incorrectly, and we're trying to appeal your decision. 47:53 And your little reject letter will e- either say something like, "You can't appeal a board decision," which is incorrect, or, "You can't o-- have a higher-level review after a higher-level review." 48:04 We've seen a lot of those when there's been no higher-level review at all. It, it's just the implementation of a board decision, which is an appealable matter. Now, there was a time 48:19 every single time that we submitted one of these, and we know how to submit these. We're not submitting them incorrectly. We're submitting them correctly. You keep sending these letters. 48:29 I had to threaten the person that runs the entire appellate world in VA that if I keep seeing these, I'm going to the inspector general, and I hope to God they do a report that, 48:45 that really sheds light on all of this. I wanted to say something else, but I won't. And, and that actually slowed them down. That stopped them for a little while. It didn't stop them completely. 48:56 We still see it.And so if we as one, just one firm out here handling cases 49:06 see this in a good fifty percent or more sometimes of the appeals that we submit after a board grant, let me ask you, how many do you think 49:21 ha- that this has happened to nationwide? If there's a million plus board decisions, and I- I, um, sorry, not a million. 49:31 [laughs] If there's a million plus pending appeals, and I'm just grabbing that number, there's probably more than that. All right? And there's a hundred thousand of those are board decisions that come back, 49:44 and seventy-five thousand of those are appealed because of the... So let's just call it half of those are appealed. And you submit, uh, uh, you issue a re- a reject letter in, uh, I don't know, half of those, 50:03 then, uh, you-- we're talking ten grand, uh, ten thou- ten thousand or more of these cases potentially in a year, and this has been going on ever since the AMA began. 50:16 So there are tens of thousands of these cases likely, possibly more, out there where a valid appeal has been submitted. But you guys, in your infinite wisdom of letting a non-rating, non-appellate 50:33 intake specialist decide what a valid appeal is and reject those appeals, and vets out there who don't have somebody like us representing them all of a sudden have no appeal and don't know what to do about it. 50:48 And I would go as far as saying the VSOs, no offense VSOs, but you're probably not doing anything about it. It has to stop. And if you've had that happen to you, I'd kinda like to hear about it. All right? 51:04 We're interested in those cases because what happens? Twenty years goes by, somebody like me gets a hold of that case, and I see that the board issued a, a grant. 51:19 The regional office or the DROC implemented that grant and did something incorrectly. Incorrectly or not, the veteran has a right to appeal. The veteran comes back and appealed it, and you rejected that appeal. 51:32 Now here we are twenty years later. W- what does that amount to? That amounts to a claim, an appeal, that's been pending now for twenty years because you unlawfully rejected a valid appeal. 51:50 So if I get that case, guess what? Twenty years from now, if I'm still alive, I'm gonna make sure that you guys address those benefits going all the way back. 52:04 But it doesn't have to come to that if you guys would just stop rejecting otherwise valid appeals. So please, cut it out. 52:17 [upbeat music] All right. How are you feeling, Kerry? You got it out? I feel good. You feel good? Okay. Excellent. We got a couple more questions, so let's get into it. Um, we're ready. 52:34 I will agree. I, I wanted to address one thing. Somebody said, uh, uh, "VSOs are great, but overworked and underpaid." They are overworked, and they are underpaid. Uh, I'll, I'll, I'll meet you halfway on that one. 52:46 You are absolutely right. They have too many cases to work. They don't get paid enough to work those cases. Um, but, uh, but there are, there are some mistakes they make. All right. Happiness four seven o-o three. "Hi. 53:03 If the ANA claim is deferred, do you have advice to add additional evidence, or are they waiting for more medical records to come through or communicating with PCP?" 53:15 Um, so I'm assuming you're still at the regional office, and they've just said, "Hey, we're deferring this. We need additional stuff." Read their rating decision and find out what they've deferred for. 53:27 Um, it could be that they're specifically wanting additional records, um, and you can get those records and submit them if that will make things go faster, or you can, um, 53:41 you know, get the forms in that they're asking for when they send those out. Um, I, I'm not... It just depends. 53:48 Usually if they deferred it, they just need additional information, and what that additional information is, I don't know. So, um, you just gotta wait and find out what it is they're looking for. All right. 54:06 User TF four year seven QD. You guys and your initials. I'm gonna be stationed to ask you guys what all that means. Uh, "I have a claim that was sent back to the board. What happens to claims that was still denied..." 54:24 You know, I'm gonna start that over. Uh, "I have a claim that was sent back to the board. What happens to the claims that was d- still denied? I am in the legacy status. 54:36 And do I need to do anything to keep my appeal going?" All right. So if your claim is really in the legacy, uh, the board sends it back on remand, they end up still denying the benefit. 54:52 As long as they deny the benefit, okay, they issue a statement of the case or supplemental statement of the case, probably the latter-Uh, then you don't have to do anything for those issues to go back to the board. 55:05 They will go automatically. Uh, the regional office has to sort of recertify it to the board, the board will call it up. It will s- keep its old docket number and, and, and go in place of wherever they are in the docket. 55:18 Um, as f- f- that should happen to a- any that were denied. Now, keep in mind though, let's say you have, uh, 55:27 one that's on appeal for service connection and they, and they grant it at, say, ten percent, and that, that ten percent is completely wrong. It should be a hundred percent. They just totally screwed it up. 55:39 It's still a grant of what was on appeal. That issue will not go back to the board automatically because it's now been granted on remand. 55:49 You will have to appeal that rating independently in the AMA world in order to get that to the board. So just something to keep in mind. 55:59 Um, but anything that was denied on remand in the legacy, you should get a supplemental statement of the case, and that should automatically go back to the board. That's it. All right, George. 56:17 We'll just say George, one of two. How do you suggest to organize our claim information before submitting? For example, personal statement, evidence of service connection, medical literature, documents. 56:30 Given the limited space on section B of the five twenty-six EZ, how much do you write in those fields for service connection reason? Okay, so let me start with the form itself on the VA Form five twenty-six EZ. 56:46 It'll say, "What are your conditions?" And then there's these other little boxes for reasons. We are pretty brief on that. Um, sometimes I will write, you know, second-- like if it's, let's say, 57:03 neuropathy secondary to diabetes, that's already service-connected. I would just say peripheral n- neuropathy and then secondary to diabetes, or if there's a secondary thing. 57:15 If it's an exposure, I believe there's been an exposure, I will just say, "Exposure at XYZ." It's very brief on the form. I don't put a lot there. 57:26 The place that you can put more information is on a forty-one thirty-eight. You can say, "This is more of what I believe in," um, and just get that information to them. 57:40 It is VA's job to look at all avenues of service connection, whether raised or not raised, that are reasonable. 57:48 So if your file shows that you've been exposed, they need to develop that, get a Terra, do whatever it is they need to do. So keep it brief on the form. Go back to the first part, please, Benji. 58:04 Um, as far as organizing the claim, um, what I would do is if you know you're going to file a claim and before you've organized everything, go ahead and put in an intent to file. 58:19 What that does is it holds that effective date, and when you do have everything together, you can go ahead and get that, the effective date of the date of the intent to file, provided you don't file any other claims in between. 58:33 So get the intent to file in, get your form, fill it out best you can, and then get whatever information you want to submit with it and send it in. 58:44 You can send in evidence at any point before they make a decision on a five twenty-six. 58:51 So if you have just about everything, you've got everything you wanna send in, send it in, and then if something comes down the line later that you wanna send in, go ahead and send it in. 59:02 When you get your decision, make sure you look at the evidence section and make sure that they included looking at all the stuff that you sent in. Uh, make sure that it's listed as the evidence they looked at, um, 59:15 because they need to look at it. Um, so there's really no way to organize necessarily. Just make sure you get it all in before they make a decision. And don't wait to file the claim. 59:27 Go ahead and get in the intent to file so your effective date is preserved, and it gives you a year to file. Got it? One more question, and then we're gonna, we're gonna call it quits for the day. 59:40 We're gonna end on you, Gary. All righty. Uh, Bill Ott. Elliott. Elliott. Elliott? Bill... I don't know. There's three Ls there, right? Uh, my husband had a TBI on active duty in two thousand and ten. 59:59 He had a Nexus letter in two thousand and ten and rated him at forty percent. Now, his conditions has got worse. F- fast for- fast forward today, now, and they say it caused functional neurological disorder, a... 1:00:17 Oh, and are not related to the TBI. Really? That's... What would you do-- What should we do now? Uh, we should be entitled to SMCT. Well, I, I can't say one way or the other if you're entitled to SMCT, 1:00:34 uh, but if he had a TBI 1:00:39 that was basically service-connected when he got out of the military at forty percent, and he's now got a functional neurological disorder, uh, you know, and they're saying it's not related to the TBI, I, I, I would be willing to bet they're not saying what it is related to, if not the TBI. 1:00:57 Um, my guess is they're probably not saying anything like that. Um-You know, obviously you need to appeal it. Um, it depends on what resources you have. 1:01:09 You know, if you can get a medical opinion, uh, or your doctor to explain how, you know, what that neurological disorder is and how it's tied to the TBI, uh, you know, that's what I would do, then I would probably send it to the board, uh, on the evidence lane, just not full with the regional office on it. 1:01:29 Um, but yeah, I, I don't know how you, how you say a neurological disorder that, you know, that's just a progression of the TBI is not related to the TBI unless it's some separate disease entity 1:01:44 that someone can get diagnosed with that's got nothing to do with a TBI. 1:01:50 You know, I could see, I could see that in some scenarios where you just get diagnosed with some odd neurological disease that doesn't have a root in TBIs. Um, but if it's, you know-- 1:02:05 And are we talking symptoms or are we talking a disease process like that? Because even like Parkinson's disease is related to TBIs. Um, so, uh, yeah, I'd, I'd, I'd like to see the evidence. 1:02:18 Sounds like you've got a valid appeal. Uh, Ursula, you may have more to add to that. I don't without knowing more. I think you kinda-- you hit everything. 1:02:28 Um, I would say with something like this, if you may want to reach out to a representative, um, because SMCT can be difficult. 1:02:39 And just TBIs in general, when you're dealing with residuals and, um, the way it's rated, I know I've talked about it before in, in different live streams and different videos. Um, it's, it's complicated, and those lower 1:02:57 level-- not lower level as in the regional office, first-line raters, and even C&P examiners don't necessarily understand how it's supposed to be rated and what things are. So you may need a little extra, um, 1:03:11 extra help with that. So, um, but do appeal it for sure. Um, and definitely at least go higher level review, put someone else's eyes on it that might know a little bit more than just those first-line raters. All right. 1:03:28 So we are going to finish this up. Thank you guys, um, for hanging out with us. Again, we appreciate you, and I hope you guys have a wonderful weekend. All right. See you guys. 1:03:43 [upbeat music]
