Transcript 0:00 And Earth. 0:00 [upbeat music] Hi, welcome to Hill & Ponton's live Q&A. 0:19 I'm attorney Shannon Brewer, and with me is attorney Ursula McCabe, and we are here to answer your questions today. You wanna just get right into it? I say we just get right into it. Let's do it. You go first. 0:30 I'll go first. Okay. [laughs] Okay. All right. Uh, this is a long one. This is @douglasgroup, part one of three. I reached the 100% mark a couple of months back. 0:40 They say don't poke the bear, but I had several claims denied that are not well explained. The most important to me is a heart condition. I had an ICD put in two and a half years after leaving service. 0:55 My input was for aggravation, not cause, yet they focus on it not being caused by service and therefore denied it. At issue to me, if any condition most likely will be the most impact for me, this is the one 1:11 will be, so I want to know where my wife has a path for DIC. Is it worth pursuing or should I leave it alone? A lot of it has to do with your comfort level, um, and w- whether or not you want to file. 1:28 I personally, taking a look at everything, if it is the most impactful condition and it's something that is most likely going to set your wife up for DIC, it might be worth it to file. 1:42 Um, understanding you may not get any additional benefits or, um, you know, change your compensation in any way, but it very well might be worth it. 1:53 When it comes to the heart or hypertension, kidneys, I typically do like to file for those even if they're rated at 0%. That being said, 2:04 let's say you don't file for your heart and you end up dying from a heart attack, if you have other service-connected conditions that could have contributed to your death, um, your wife can still get DIC. 2:18 Your wife can also assert that heart claim for you in order to get DIC. So it's not the end of the world if you don't file for it. Your wife can still do that on her own if necessary. 2:34 I would remind you too that there is another way to get DIC. So if you're at 100% for ten years prior to your death, that's an, that's an automatic DIC. I mean, you have to apply for it. 2:44 They're not just gonna give it to you, but they will automatically grant it if you've been at 100% for ten years. 2:49 So, um, that, I don't know how far back your effective dates go, but if you're at nine years, you know, you, you just-- then that makes it less important to file that heart claim, in my opinion. 3:02 You just wanna be careful. Yeah. Or stick around for ten more years. I think that's a really good plan too. That's the best plan. That's the best plan. Yeah. Okay, this next one is for City Nights, uh, part one of three. 3:14 Please educate me on reasonably raised by the record implied inferred claims. Discharged in 2001, claimed feet conditions. I told the examiner that my foot pain kept me up, kept me up at night. 3:27 The examiner noted it on the exam. Was service-connected 2001, 0% for the feet. 3:33 Sleep trouble noted in my m- monthly counseling in service, recommended for med board twice in service medical records I turned down because family financial dependency. 3:44 I started receiving treatment at the VA for insomnia starting 2003, but was uneducated that I could claim it at the time. Insomnia on appeal now from denial, feet 30% since 2004, 40% 2008, 50% 2013, 70 as of 2019. 4:01 That's it. Okay. So l- let's go back to the first part of that question. Okay, reasonably raised by the record. So the first thing that you said is you were discharged in 2001, you claim the foot condition. 4:13 It sounds, uh, sounds like the examiner noted it. Part two, please. And then they granted you 0%. So whether it was reasonably ra-- I mean, it was actually raised. 4:29 You filed a claim for that, so that's not, um, reasonably raised, and implied claims aren't necessarily, um, a part of that because you did file the claim and they, they granted it. 4:40 Um, even though they granted it at 0%, that, you know, I don't, I don't have any way of knowing that there would have been a different rating, um, based on the evidence. That, that sounds like it could be right. 4:52 Um, and then the sleep trouble, you were recommended for a med board, so you were having the sleep problems already, but what you're saying is you didn't file for it because you didn't know. 5:00 And unfortunately, that is, uh, uh, that's really common. A lot of veterans don't know what they're entitled to and so don't file for things. But the VA is not gonna grant it unless you filed the claim. Um, implied, 5:14 uh, uh, they still have to have some idea, like reasonably raised by the record, implied, there still has to be some idea that they know that you wanted to claim that. So, um, I don't really see that here. 5:28 Um, go and then part three. There was one more issue, wasn't there? Um, no, that's still sleep and insomnia. Sleep, yeah. 5:36 So, um, as far as things that can be reasonably raised, I'll give you a, an easy example so this, this might help. So unemployability, for instance, that's a part of every claim really. 5:48 Um, but they're not going to just go out and grant it unless they see something in the record, um, you know, that the issue is raised by the record. 5:56 So for instance, um, if you've filed other claims and then your doctors are saying things like, "Cannot work due to this," um, then VA is gonna have to look at that as being reasonably raised by the record. 6:08 There might be other issues for things like, say, diabetes and your neuropathy's in the medical records over and over and over. The neuropathy is raised. Um, they, they know about that. 6:18 Um, I'm, I'm trying to think or-I'm trying to think of a more- Like, in this situation, the way I would see it being reasonably raised by the record is, is a couple of ways. 6:27 If you go in for the C&P exam and in that foot exam they actually say, "And this is causing insomnia" Mm... that would be reasonably raised. 6:39 Or, um, if you went in for a mental health exam and you were diagnosed with insomnia and that person said that the insomnia is due to your feet conditions, that's raised. That's someone saying, "Hey, this is part of it." 6:56 It can also be raised in a, a statement. If you had put in a statement that said, "Hey, I've got this foot prob- these foot problems, I'm having trouble sleeping. Now I have insomnia. 7:09 I can't sleep at all because of my feet," that is also reasonably raised. You may not have put it on an actual form, but it is raised. But it also depends on when you did all this. In 2001 you could do that. 7:24 Now everything needs a form. Right. So there's really no such thing as reasonably raised. It, it needs a form. Except for things like unemployability- Yeah... 7:33 or something that's not, that doesn't require that kind of form. Yeah. Yeah. That, that are kind of inferred by that. Um, unemployability is one that's inferred a lot. 7:43 If you, the record says, like Shannon said, you know, you can't work because of it, it's inferred and they will raise it for you, and sometimes then you end up with additional stuff on your rating decision. 7:55 But they also can't raise it just to deny it, right? That's a thing. Uh- Sometimes [laughs] There is such a thing as an implied denial, but it has to... I, I would say that's more if you've already raised it yourself. 8:08 Yeah. Yeah. So it, it's a tough issue. Um, I don't see it implicated here, but, um, it, you know, it's, it's the kind of thing, that's a very difficult issue. VA does not get that right a lot. 8:20 Um, people miss it, you know? And, and so it, it would take a real, um, thorough sit-down with your C file, when was this filed, what w- what was the V- what should the VA have known when? 8:32 Should they have known you were filing a claim? Should they have known you were entitled to something? So, um, it, it's, it's a tough issue. 8:38 Yeah, and each one of those is a class in itself, you know, that you can sit and for an hour or more and have an entire class on all three of those: inferred, reasonably raised. 8:48 And so they're not, not super easy issues to argue anyways, so hope that helps. All right, this is Colette5296, just C, one of two. 9:07 Currently, currently rated at 90%, 10% rating each for the right knee and left knee, 40% rating for his back condition, lower back strain with disc herniation and disc degeneration and lumbar. 9:25 10% rating for radiculopathy of the sciatic nerve, left lower extremity, right lower extremity, 50% for migraine including migraine variance, and 50% for feet. Okay. 9:40 Degenerative arthritis, okay, so that's all the left foot. Calcaneal spur with callus. Can I file SMC and/or aid and attendance? Currently have an intent to file. Um, you certainly can. Um, 9:57 being at 90% it seems like you have a whole lot of orthopedic conditions that are affecting everything from your feet to your, your back. 10:06 Um, and so if you are having trouble with mobility, getting dressed, showering, things like that, you can certainly file for aid and attendance. You don't have to be 100% in order to get aid and attendance. Um, 10:21 so in order to do that just file a VA Form 2680. Um, that's what, you know, you can put in to start that. 10:30 As far as filing for SMC, um, you know, when you file for the aid and attendance that's kind of what you're doing, and they need to give you the highest rating there is possible. Um, so that's all kind of 10:44 added in there with the file- filing for the aid and attendance. So if you need help with your daily activities, you can certainly file for aid and attendance. 10:54 I will, um, jump in and say Ursula's correct, absolutely, that you don't have to have 100%, but prepare yourself for a denial- Mm-hmm... because they will deny. 11:03 I've had denials for, well, the vet doesn't have 100% for a single condition. Yeah. Well, that's not the rule. Mm-hmm. So you can appeal that, so be prepared. 11:12 If you're only 90% you're probably gonna get a denial from the regional office. You can appeal it. You can appeal it to the board. The board actually recognizes that you don't have to be 100%. 11:22 The regional office- Yeah, they struggle... they, they struggle with that issue. They struggle. [laughs] They don't understand that, or, or they're just not willing to give it. I'm not sure exactly. 11:30 I don't wanna, um, say that they don't understand it, but- No, they, they con- Mm... they confuse it, I think, with the SMC-S rating. Yeah. 11:39 Like, so where with that SMC, which is housebound, um, you have to have 100% disability and then another disability 60%, and they confuse those two all the time. 11:51 And so when we're dealing with vets that have lower than 100% we have to make that argument quite a lot. So if you see that language in the decision, it's not true. Right. 12:06 But- They'll sound, it sounds believable It sounds good. Yeah. But- It sounds good, but it's not... yeah, that, that is not a requirement. You don't have to have 100% for a single condition. 12:14 You don't have to have 100% at all, but they, they, uh, will deny that, so just be prepared to appeal. Yep.Okay, this question is Tiny Tiny. "Hello, Attorneys Shannon and Ursula." Hello. 12:28 "I have a remanded claim that I recently had a repeat C&P for my lumbar spine. I believe it went very well. The examiner asked me if I had any questions after 12:38 the exam, so I asked her the likelihood of a service connection, and she replied that she would make it service connected. 12:43 She also indicated that many claims don't get service connected due to the examiner and that she is very pro-veteran. Should I be excited about this? 12:52 During the exam, she said out loud her range of motion measurements, and they were all 10 degrees." Um, sounds good. I will tell you that I have had real... 13:04 I have had examiners tell the veterans what they think they wanna hear, "Oh, yeah, we got this. You know, I'm gonna do this for you," and then get a denial, and get a terrible exam. 13:13 I've also had veterans who came out telling me, "It went awful. I felt really... They, they didn't look like they were listening to me. I felt it was terrible," and I get the report, and it's fantastic. 13:23 So unfortunately, what they say and their demeanor during the exam doesn't always mean anything. It sounds like she wants to help you. That's a good thing. Um, if... 13:33 You know, you, you'll have to get a copy of the report to see what she actually wrote down. 13:37 Um, sometimes, and i- and this sounds really like an odd thing to say about the C&P examiners, but sometimes I think that maybe they don't understand what it is that needs, 13:48 what they need to say in order for it to be service connected, 'cause they'll tell the veterans these things, and then they'll say, "Well, that's not connected to this." 13:56 So they give all these really good range of motion ratings, eh, or measurements, um, that would be, if you were service connected, that would be a really high rating, but then they don't service connect it, or they check the wrong box. 14:06 So it could be good. Um, but don't be disappointed if it's not, and as I always, always, always say, don't give up. Be persistent. That's how you win. So if you have to appeal it, you have to appeal it. 14:19 If you don't like the rating, appeal it. If you, if they say no, you can appeal it. So, um, I would be cautiously optimistic. I was gonna say all of those things too. [laughs] Okay. Exactly what I was gonna say. 14:34 All right. City Nights, one of two. "Yesterday, the BVA received a written argument for my BSO D- DAV. 14:41 Today, I called my BSO for a copy of the argument, and they told me they can't because five years ago the VA sent them a policy letter that they can't give veterans a copy of anything in their system, including the C file. 14:56 The supervisor couldn't tell me what was the title of the policy letter or the M21 reference of the policy." I bet they couldn't. 'Cause I don't know [laughs] that that exists. [laughs] Because they're so disgusting. 15:08 [laughs] Yeah. Uh, that's not true. You can, um, you can just put in your own FOIA. I don't know how long it'll take, but, I mean, those are your files. Um, it's, it's yours, and you should absolutely get a copy of it. 15:22 Um, everything that's in there, whether it's arguments or medical records or C&P exams, those are yours. They are absolutely yours. So, um, I would ask again. W- Ask somebody different this time. Yeah. 15:37 And worst case, you can always, um, put in your own FOIA for the C file. I know- FOIA is Freedom of Information Act, just so you know. Yep. Sorry. That's a request under that. Yeah. 15:46 I'm trying to use less acronyms because somebody called us out on it one day. Oh, did they? Okay. And so I'm trying to make sure I explain what things mean. Okay. Yeah. So, so do that. 15:53 Um, I know I never hold on to things once they've been sent in. I know I'm not super excited about sending things to vets before I send it in. You know, if for edits. Like, that's not, not a thing. 16:09 But if it's already been completed and sent in, there's no reason you can't get it. Yeah. Any- anything- Yeah... 16:16 that is submitted to the VA is a part of your claims file, and you are entitled to a part of your claims file and should get it. Mm-hmm. So- Yeah... ask again. Yeah. Go, go get it. Definitely. 16:29 Okay, this question is from EA Flores, part one. "My initial claim was in 2006 for readjustment disorder. I got 30%. I filed for increase, and this is what they wrote. 16:40 'Post-traumatic stress disorder, major depressive disorder, severe. Previously rated as adjustment disorder with mixed anxiety and depression. Effective date October 4th, 2024.' 16:51 In 2026, would I be protected with the 20-year rule? Thank you for everything you do." So that 30, so it's still a mental health rating. 16:59 They've just changed the diagnosis, which is very com- adjustment disorder is a temporary diagnosis, or it's supposed to be. Um, adjustment disorder can be something that goes away. 17:09 It can also be something that turns into something else like PTSD, anxiety, depression, you know, just depending on the symptoms. So that 30% rating they initially gave you, that is protected, um, once you get to 2026. 17:22 If they gave you an increase, and I'm not sure if they did or if they just added PTSD and other diagnosis, but if they gave you an increase in October 2024, that is not protected. 17:32 Um, only the, only the rating that they gave you 20 years ago is, is the one that would be protected. Yeah. And the service connection, so they can't sever it- Right... unless it was fraudulently 17:43 gotten, but that doesn't sound like the case. That's rare. Yeah. Doesn't sound like the case here. AC2074, US Marine Corps. "Claim for May 20- 2022. Got 80% and appealed to BVA. 18:01 In 2024, with your videos, learned I could file for GERD, got 10%. BVA just granted all the appeals dating back to May 2022, 94% total with some disabilities at zero and scheduled C&P exam. 18:17 Now 100% dated 2024. Wondering if the judge granted at zero, would it be back to the date of the 2022?"If I get 10% on all, on any of the zero, just had a C&P exam for them. 18:34 So I think you're asking the claim that you have that's currently at the board, you really just need like an extra 10% to get you to 100% from 90 all the way back to 2022, that the effective date of that claim at the board should go back to the 2022. 18:51 So whatever is there and you get a higher rating for, that should be the effective date if it was that severe when you first filed. 19:02 The thing is, when you're at 94%, you just need to get to ninety-five to bounce up, um, and at that point, VA math gets super, super wonky, and like an extra 10% could make a difference, whereas an increase from ten to twenty might not type thing. 19:21 Um, but there is a calculator on our website, and just, you can go in and, and play with the numbers and say, you know, right arm, 10%, this 50%. 19:31 Go through, do all that, and then you can see what that rating will be if you get a 10% or a 20%, if I'm understanding that right. Yeah? Yeah, I think so. 19:42 Um, just remember that they can give staged ratings, so it, you're gon- there needs to be evidence that the, that it was 10% back then. 19:50 Um, you know, sometimes they'll grant it, uh, I mean, in my mind, they should grant it, but, um, sometimes when they, when they give you a zero and say, "We're gonna do a current evaluation exam," that means they're planning to mess that up. 20:03 I mean, I j- I- I'm sorry, but they are. 20:05 If they, if they give you a zero and they say, "We need an at once C&P exam to evaluate the current diagnosis or the current severity," um, they're probably gonna initially at least give you the date of the new C&P exam for your increase. 20:20 But you can fight that, so if your medical records support a higher rating back then, you can appeal that, and I would. Okay. This question's from Isadoro Vasquez. 20:33 Just rated service connection for left lower, right lower radiculopathy as secondary to the service-connected disability of diabetes with erectile dysfunction. Primary care physician diagnosed as 20:45 neuropathy, documented on record. Both feet 10% each as mild. Moderate is constant burning, aching, tingling, sharp pain. It's daily, which I told the C&P nurse practitioner during the exam. 20:58 I know I didn't pass the sensitivity, sensitivity test for numbness. Are there other symptoms related to moderate? I wanna contest these findings. What do I need to do? For 20%, I need nerve damage as moderate. 21:11 How can I find out about nerve damage? Ask the primary care, care physician. Thank you. That's a tough one. Um, so that is one of the most vague rating schedule, rating criteria in the whole [laughs] VA. 21:25 Severe, moderate, moderately severe, moderate, I, s- severe, I don't know what those things mean. Nobody does, that I can tell. The best thing I can tell you is, you know, first of all, start with a s- a statement. 21:39 Describe your symptoms. Talk about the severity of them, um, you know, numb- whether it's numbness, um, tingling, pain, uh, in particular, um, pain, the pain and numbness is what I would focus on. 21:54 And you can have your doctor say, "I think this is severe." You know? "I think this is moderate." I don't... Th- but VA is, they are gonna be really wed to what the C&P examiner said on that. 22:06 It, that is, that one i- is very hard to fight because it is vague, and, um, they haven't given any real, um, unless you know of s- uh, Ursula, do you know of any guidance on what those mean? No. 22:19 Um, I know that it has to do a little bit with like the paralysis, so if you have incomplete paralysis is usually what it is. Then they're gonna go and do that. 22:30 When we've needed to get the rating up, um, I have actually resorted to a medical opinion for that, um, where they review everything, do an interview, talk about the functional limitations. 22:42 R- remember, everything is functional. 22:45 So, um, you know, if it's neuropathy in your feet and you're, now you have to wait before you can stand up or you have to hold onto something, um, or if it's in your fingers, you can't always grasp things. 22:58 So talk about those functional limitations. And then the more functional limitations you have, obviously the more severe it is, and we've had doctors just say, you know, "To me this is moderately severe. 23:11 They have incomplete paralysis that is moderately severe based on these symptoms." Um, it is the most vague, you know? I mean, it's really just- Yeah, it's hard to... 23:26 I, I wish we could tell you what that means, but it, there isn't a whole lot of guidance on it. Yeah. But do get a statement, for sure, and just talk about how bad it is. That, that's what you need to do. 23:36 You know, if you're stumbling and falling 'cause your feet are numb and you can't feel them, if you're, if it hurts and you can't walk for more than a few, you know, however long, just be specific about what's going on. 23:46 Yeah. Unable to sleep, stuff like that, yeah. Okay. This is from Channel of Love, Hope, and Faith. That's a really nice channel. That's nice. Okay. 24:01 100% permanent and total head cancer, so 100% with that. Cancer-free now. Congratulations. That's great. 100% without the cancer rating. They are now evaluating my GERD because no longer cancer. 24:15 Will they open up everything and just, or just look at the GERD? Reason I ask is they make it look like I put in for a new GERD rating by their messaging, but they are the ones that did. Ooh.Sorry, I'm about to jump in. 24:32 I'm like, "Oh, oh." [laughs] Oh, okay. Sorry, go ahead. No, you are chomping at the bit. I'll let you have it. Um- No, I just, I would withdraw that so fast it would make their heads spin. 24:41 I'd send them a letter and say, "I don't want you- I'm not filing a new claim for GERD, thank you very much." Well, let me ask you- Withdraw... so something to think about is it depends what kind of cancer. 24:51 If it was, like, some kind of esophageal cancer or something that could cause GERD and you're outside of... 24:58 Like, they have to re-examine you, six mo- Like, they're gonna re-examine you to see if your cancer is still active, and if it's no longer active, they're going to rate you on your residuals. All right. No? Well, yeah. 25:12 I mean, I just, I- I- I guess it does depend what kind of cancer and I- I'm just thinking if you didn't file something and they're saying that you did, I think you can withdraw that claim. You know? 25:25 If- if they're saying it's a new claim that you filed, 'cause you're saying you're looking at their messaging and that's what they're saying, I would at least attempt to withdraw the claim. Yeah. 25:33 Can you put a little bit more, uh, information in the, in the, the comments, and we'll have Benji or Nate go back and look? 25:42 'Cause I wanna know what kind of cancer it is and is it time for you to be re-evaluated, because then, um, it could have something to do with that. 25:51 But if they're just, "Oh, we're gonna raise this for you," absolutely withdraw that so fast. They can't do that. But put a little bit more in- info in there. 26:03 All right, this next question is for Trinette Gates: Does your C file have in it why your private DBQs were burned? If not, how can you find out? 11 months past decision. Um, I'm... 26:16 Private DBQs mean, I- if you're saying that they didn't use them or they found them not good enough, um, your C file may or may not have that in there. Um, usually the decision should have that in there. 26:29 If they've decided not to use your private, uh, DBQs, they should say something like, um, 26:35 uh, they found that their C&P exam was more, uh, informative, that they, you know, the, the, the evidence supports what their doctors say more than your doctors. 26:46 It's not necessarily true, but it's probab- if they're just, if... I- I'm assuming that you mean by burned that they're ignoring them, that they're, um, not using them. 26:54 If you're saying they were physically burned, I have no idea what that, why they would do that or what happened. But, um, yeah. 27:02 And your C file should have in it everything you need, but sometimes there's not a good reason for things, so it's hard to figure out, you know, why did they feel like their C&P exam was better than my private DBQ? 27:13 Um, because it's the VA and they favor the C&P exams, they do. Um, so you have to argue that out. 27:19 You know, you, you c- if you're 11 months past the decision, definitely you can still appeal it, so I would, I would make sure I did that. Do you have other ideas about what that might mean? Nope. Um, if... Yeah. No. 27:33 User J-Y-A-O-L... It's got a bunch of numbers- [laughs]... and some letters. Okay. Part one, filed BVA direct review for Barry SMC half steps increases on February 28, '25. 27:50 Filed for SMC aid and attendance supplemental claim on July 14th, 2025. The R- RO assigned 301 IEP since they put my BVA claim and supplemental claim for aid and attendance under the same umbrella. 28:08 They said they forwarded my supplemental claim to the appropriate team at the BVA for consideration since they have jurisdiction over the contention. 28:18 Does this mean that the BVA will consider the evidence for my claim from July 14th, 2024, even though window closed based on the NOD? Ooh, this sounds like a little bit of a procedural nightmare. Okay. So 28:36 when you file for an increase in S- SMC, you're f- that's what you're filing for, and aid and attendance is an increase. But in order for Barry, um... 28:52 I don't know why the RO would forward that over to the board. That doesn't sound accurate. 28:59 What may have happened, or what I could see them doing, is you file, you've got SMC at the board, and you file for the aid and attendance or a higher level of SMC, and they send you a letter, um, like a request for applic- not a request for application, but they say, "Hey, look, we can't accept this because this is already pending at the board." 29:20 That does not mean that they're forwarding that to the board. Um, to me, aid and attendance and a higher level of SMC under Barry are different issues, I think. Like, one you're trying to... 29:34 Well, not really, 'cause you're getting- I, I-... aid and- Aid and attendance is special mon- special monthly compensation all kind of gets lumped together, I think. But here's my question. 29:41 If you're already looking for half steps under Barry, that means you're already past L, right? Unless you've got two different Ls. Right. Unless you've got two different conditions that both get you there. Right. 29:53 So if you're looking at L for, like, loss of use of both your le- your feet, and you already have... Or if that's what's at the board and you've got just regular aid and attendance, that's the same benefit. 30:07 So filing for aid and attendance if you're already past L, unless it's a separate aid and attendance, you're really not gonna get anything because you already have the aid and attendance, right? Yep. 30:19 But we still haven't answered the la- the question, which is, um, will the, will the board consider your evidence even though their window closed? No. No, they won't. 30:27 And so this is, this is a common problem with w- we've had kind of a, speaking of procedural nightmares, that's pretty common for the regional office to say, "Well, the board already has, uh, jurisdiction over that."But they don't really have jurisdiction over that. 30:41 They've got jurisdiction over the issue with different effective dates. And so I would probably, um, push back on that. 30:50 Send the RO a letter, the regional office a letter, and say, "No, the board only has jurisdiction over these dates. I'm asking you to re-reassert, re-um, adjudicate this." 31:04 They may not, but I would at least just kind of try to keep that open, and then when the... 31:09 'cause when the board grants, if they grant, they're not gonna give you the effective date, but, um, that, that you should get, so it, you, you'll have to... 31:18 Although the board, if it's board's already filed, that might be an earlier effective date. But if the new, if there's new evidence- Go back. Did you file a supplemental claim, like, to reopen? Yeah. 31:29 Supplemental for aid and attendance. Go back one more. W- was it a supplemental to reopen or, like, a supplemental to appeal? So if you already had- He filed a supplemental A&A July 2025. 31:42 The board's one was on the F- SMC half-step increases. So- Yeah. Ugh. So no, they're not gonna consider that new evidence. Mm-hmm. If they deny, you know, 31:57 if they don't grant you everything you want, you can file a supplemental claim after that d- board decision come, you can file a supplemental claim to that board decision with your new evidence that you filed here. 32:07 I think you're gonna have a hard time getting them to reopen it, but I would at least try to point out to the RO, send them a letter and say, "This is not on appeal at the board, and here's why, because these dates don't match up, and I w- I have new evidence, so it's not the same issue." 32:20 And you can kind of write a little letter to the board with the claim that's already there and be like, "Hey, and they said this," but they're not doing anything with it, and the board can direct them to do something with that claim if it is indeed different. 32:33 So, I mean, I would, I would write a little note to the board saying something about it, like, "Hey, I tried to do this, and they said no." Just kind of preserve your rights as much as possible. 32:43 But you will always still be able to, once you get that board decision, you can file a supplemental appeal to a board decision with your new evidence. Yeah. 32:51 So it's, it's, it's not, even if they, if you can't get them to consider it, you still have options. Mm-hmm. Okay, next question is for M. Materney. Uh, board granted aid and attendance. 33:05 The RO did not list conditions that qualified for aid and attendance on the rating code sheet. How can I correct? Believe I should be rated higher, but outside of the CAR timeline and don't have a rep. 33:17 Um, if they granted a- they don't have, if they didn't say which conditions qualify you for aid and attendance, it means that they're considering all of your conditions as qualifying you for aid and attendance. 33:26 If you're trying to separate them out so that you can get additional, um, benefits, you'll have to appeal it. Um, a, a CAR wouldn't nec- I wouldn't file a CAR on this anyway, 'cause that's not an easy issue. 33:38 CAR is kind of, um, for very simple issues. Um, you know, just, it's like, oops, they made a mistake here. Um, the fact that they didn't list the conditions is not a mistake. 33:48 That means that they think that all of your conditions are implicated in your aid and attendance. So I very rarely see them list them out unless they are trying to separate it out and give you more benefits. 33:59 So if you're asking for more, you'll, you'll have to file the appeal. Yeah. And I would file, um, you can do a higher l- well, if the board granted A&A, you can't do... Let's see. You can't... Hmm. 34:13 If the board granted, you can't file a higher level review to that because that was the grant. Exactly. But it's not ex- hmm You could do a supplemental. I mean, because that's, that's the granting, you know? Yeah. 34:25 Like, that's not an effective date issue. Right, but it's w- what did they grant it on? So it's kind of a downstream issue, but not really. I would file a supplemental. I would write a statement- Mm-hmm... 34:35 as to which conditions you think cause your aid and attendance and ask them to reevaluate it with that information- Mm-hmm... and see if that'll get you anywhere. 34:43 But, uh, yeah, that's, I, I would definitely appeal it, but supplemental, I think, is the way to go. Mm-hmm. They're just gonna reject a higher level review appeal. 34:50 Yeah, they reject, uh, valid higher level reviews, and this one's kind of- On the line. Yeah. Yeah. All right. Remy86, "Hello, my appeal was sent back to VA as a partial remand. 35:06 The judge said to vacate a past decision of my bilateral shin splint not exceeding 10%. Also, that the factor of my limitations were not properly considered, pain and weakness, in the past decision made. 35:21 Does this sound like I'll be getting another C&P exam?" Yes. Mm-hmm. "Or they may make a decision with the evidence of record that they already have?" 35:31 To me, it sounds exactly like it's being remanded specifically for another exam. Yeah. Um- It pr- it may say that in the board decision, if you look at the numbered, uh, 35:40 iss- what the board tells them at the end, with the numbered h- do this, do this, do this. Yeah. 35:45 Um, so that's, they, they're needing to get that information very specifically, and so the RO's gonna put those board directives on the exam request. Um, and so those will go out. 35:58 Unfortunately, sometimes when there's very specific instructions from the board, you may have to go for multiple exams if the first examiner doesn't answer those questions correctly or with enough s- enough specificity. 36:13 Spec- I'm not even gonna try to say it. You said it right. [laughs] Um, so you may have to go to multiple, but yes, it does sound like they're setting you up for more exams. 36:23 Keep in mind, if VA gets to put in their own evidence, such as exams, you also get to put in your own evidence. 36:33 So if you have an ortho or someone like that, you can always pull a DBQ from the VA site and get that in as well and have your doctor put in stuff. So if VA can do it, so can you.Yeah. Anything else? Yeah. Nope, I agree. 36:49 Okay. All right. This one's from Sherman Barker: when you put in a sufficient Nexus letter in DBQ- Why? Oh, why do they schedule you for a C&P exam? We don't know. [laughs] If I knew that, wouldn't I rule the world? 37:04 [laughs] Um, so because you've got people m- maybe that don't understand, I think, what they're looking at sometimes. 37:12 VA has a tendency to feel like you always need a C&P exam because if you, if they don't give you one, and they don't grant, then you're gonna say you didn't, uh, that they failed their duty to assist, which is correct, they would have. 37:26 So it's, um, yeah, they, they order a lot of what I consider unnecessary exams. They are supposed to be cracking down on that. 37:39 I read things about that all the time, where they're, they are supposed to be looking into ways to cut back on the C&P exams. 37:47 If I were in charge of it, I'd have a lot of ways for them to do that, but unfortunately, I am not in charge of the VA or their C&P exams. It would probably run a lot better. I- I mean, it would... I dare say it would. 37:59 [laughs] So, but, uh, yeah. So I, I wish I could explain it to you, but there's not a good reason for it, and so there's not a good explanation for it. 38:07 They, they do it because they, VA, kinda the culture of it is whenever a claim is filed, we're gonna get a C&P exam if we can, you know, if there's any kind of, um, any, any way we think you might be entitled to benefits, we're getting a C&P exam. 38:21 They will almost never grant without a C&P exam. I mean, even if the C&P exam's negative, your Nexus letter and DBQ can, um, can be used to offset that, but they're still getting that exam. 38:34 And I wish they didn't, but yeah, I don't think you're gonna have any luck fighting that. Yeah. 38:38 Uh, but there is also rules out there, and I'm not saying to do this at all because it's a nightmare, but let's say you file for an initial claim and you don't show up for your, your exam. 38:52 Um, and there's sufficient evidence to both rate and service connect. Um, if you don't show up for that exam, they're gonna deny it. 39:00 They're gonna deny that benefit and say, "Well, there was information that we could have got from that exam, but you didn't show up." 39:07 Um, the rules are they're supposed to rate on the record if the record is sufficient, but they don't do that. 39:14 Um, and you know, it, it really is terrible for vets because they become beholden to the C&P cycle, um, especially when VA's ordering multiple exams for the same thing because they're not getting the answers that they need or they don't like it. 39:32 Um, and it, it's a very frustrating system. 39:36 But keep in mind, if you are scheduled, you should go because if you don't, they're just gonna deny the benefit, and you're just gonna make your entire process take so much longer than it needs to. 39:51 Um- Yeah, if you can make it, go. I- if there's a real reason, you know, I mean, we have had the, the odd case where I will say, "Okay, well, we'll just fight it. You know, don't go, and we'll see what we can do." 40:03 But that's the exception rather than the rule. I w- I almost always say, if you can, go to the exam. Yeah. And, and if it's an issue of transportation or not being able to get out the house or something, 40:16 when that company calls you to schedule it, you can say to them, "Hey, look, I can't make it, I am homebound," or you know, "I am in a wheelchair, and I don't have any transportation to get there," or, "That's five hours away from my house. 40:31 I can't drive there." 40:33 Make sure you're telling them those things, but then also sending in a letter or something to let them know why you canceled or why you weren't able to go because VA will al- well, not VA, this is the C&P places, like, they'll call and a veteran will say, "Hey, I'm out of town. 40:50 I'm gonna be in Japan that week. I can't make it in." And they'll, they will just cancel and be like, "Veteran canceled. No show." 41:00 And it's like that's not at all what happened, so do follow up and put something in the file to say why you weren't able to attend. Um, so that will help you keep things going and give you more legs to stand on. 41:15 Sorry, that was a lot of talking. A lot of talking going on here. Is this me? It's you. Okay. I am gonna skip this question if I could. Uh, Mr. 41:26 Brinson, you are welcome to call me after the, the YouTube Live if you have some questions. I'll be happy to answer those for you. Is this one of your clients? Yeah, one of my clients. Oh, okay. Okay. 41:38 [laughs] You can have a personal conversation with Ursula about this one. Yes. [laughs] She knows your ba- the facts of your case. All right. 41:43 Um, do you want me to take this one you, since you're gonna have a phone call after the- [laughs] No, I'll do it. I'll take Chris. ChrisA1975: thanks for all that you do. You're welcome. Thank you. 41:54 VA found an error in 2011 and submitted an internal form awaiting SSDI records for mental health after quality error. VA then decided migraines the following month, November of 2011. 42:08 VA then requested and received the SSDI records in 2011 and received them January 2011. VA never made another determination on these issues. So is that for the mental health? Yeah. Am I tracking that? Okay. 42:25 Again, 2011, would I be correct that this claim remains open and pending? I never filed an additional claim after, and recently found this. If there was a pending claim, 42:39 sorry, internal form said reopen September cla- the date of mental health. 42:43 So if you filed for mental health in 2011, and VA was supposed to go and-Get stuff and get records, um, and then it was never adjudicated, then I would say yes, that is still pending. It is never that cut and dry though. 42:59 I, I do know that. 43:00 Um, and if at any point after, I know you said you didn't, but if at any point after you filed for another type of mental health and it was denied, that earlier claim kind of gets eaten by the, the later denial. 43:14 So it, it just depends. If this is your situation, you filed for mental health, they were getting stuff, you never got a mental health decision, that's about as clear as it could be that that is a still pending claim. 43:29 Now, you can raise that a couple of ways. You can let VA know that that claim is still pending. Um, sometimes very difficult. 43:39 Um, if you need to file for mental health, you can file for mental health, and once it gets service connected, you can take it all the way back and say, "Hey, I've still got this pending claim." 43:49 You can still appeal that date all the way back. Exactly. 43:53 If you filed for mental health, it was granted, and it's now closed and you have the wrong effective date, you can file a queue to that one to say the effective date is wrong, it should be that over here. 44:06 Lots of options here for you. A lot of options. But like Ursula said, sometimes it's not as simple as it sounds. 44:14 I've seen ones where there was a letter and the, the veteran didn't realize that it meant that they weren't gonna, that something happened with the claim or it wasn't filed correctly or whatever, and so they thought it was still pending and they never got a decision. 44:25 Or a decision was sent to the wrong address, which still means that it's pending in my opinion. Um, if, if they had- Mm-hmm... 44:32 your correct address and sent it to the wrong address or the wrong representative, um, it could still be pending, but it, it is complicated. Yeah. 44:39 I've seen little, like, notes in there that, you know, they sent you something, you didn't respond, and, and you may not know or remember, but- And they consider it abandoned at that point. 44:48 Yeah So if you didn't respond to the questions they were asking. So, um, it's still worth a fight. You know, that sounds like a good case. Mm-hmm. I agree. Okay, your turn. All right. This one is from Jacob Samuels. 45:03 I am SMC L and a half for PTSD with incompetent HOP, I'm not sure what that is. Just forget that. Okay, rated at 70%, and disability is rated over 60% and SMC-K. Okay. So, um, let's see. Can I receive SMC-R1 for PTSD? 45:22 I don't think so. Um, I don't know what all of your other disabilities are rated at 60%. Um, and you don't usually have SMC L... Okay, so you have L and a half for the PTSD and the other issues is what you're saying. 45:36 Um, R1 usually requires some medical, uh, supervision, and PTSD is not usually the ki- That, that aid and attendance, I have never seen that one go up to, to, uh, R1 for just PTSD, because it's not... 45:54 While you might need assistance and you might need help keeping you safe from your environment, um, so aid and attendance I can absolutely see for that. 46:03 Um, R1 requires, um, a level of medical care that I don't think PTSD does. I'm not- S- so there's, there's two ways to get to the R1 as well. There is also kind of a statutory way, but 46:18 in order to get that highly rated at, like, an and a half plus a K, you're gonna have more loss of use type things to get you all the way up to even get to where R1 might be an option that way. 46:36 You're not gonna see it for PTSD. Really the only, you know, mental condition that's gonna kind of come close to R1 for those purposes is T, but that has to come from a TBI, and you have to, you know, 46:52 need a lot of care essentially. And an, if, if you didn't have aid and attendance, you were, you need nursing home or institutional care, which is very, very difficult. Um, 47:03 so you may be able to get to R1 if you service connect other things and your feet aren't, you know, working and your arms don't have any grip and you just happen to have a PTSD, but PTSD alone is I- impossible. 47:18 I- The only way I can see is if there's a point where you're, like, w- if you, if the veteran had dementia that is tied to the, the PTSD and you have to be in a nursing home because of that, um, that's a possible way to get to R1. 47:30 But unless you're needing that kind of institutionalized care- Yeah... I, I don't think so. Yeah. 47:35 The fact that you're watching YouTube and typing letters, like, and having this lets me know that there's, there's no way you would be able to, to get it right now. Not based just on the PTSD. Right. Agree. 47:50 Um, D McDaniel. Hi, I had an auto accident while getting my COVID shot to stay in the Marine Corps Reserves. We were issued official orders to get the shot or face separation. Would my injuries be covered by the VA? 48:06 I was given official orders to obtain a COVID shot or face separation. While carrying out the orders, I was involved... Okay, that's the same question. Yeah. Just different. Okay. Um, that's a really good question. 48:17 I know I haven't had that. The issue here is gonna be the reserves. Yeah. But- It's not active duty... unless you were called to active duty for reserves. 48:28 So there is that, but I think that's different than just being told to go do something, right? Yeah. I mean, hmm, that, that's tough. 48:40 If, if this were a case where you were an active duty Marine and they told you go get a COVID shot, then yeah. Easy. You know, that's an easy one. Um-With the reserves- You got the active duty for training. 48:53 So when you are on official orders, it does count as, uh- I want to s- Ooh, yeah... it depends what that order says. Whether you're being- Yeah. Mm. Ooh, I wanna see it. [laughs] Ooh, this is interesting. 49:08 It is interesting. Um- It's worth a shot... it's, it's possible. Uh, y- that's gonna be an uphill battle. Uh, it, that, that would be a really tough case but I, I would be interested in- It would be fun. I know. 49:20 I'd like to see those orders. [laughs] Yeah. Sorry. We get excited. We do. We're a little bit geeky about this. Yeah. But, um, that- We like new things... 49:26 that's, um, that's an interest- I, I would want to see the orders and what they say. That, that's an interesting concept. I like it. 49:33 If you end up figuring it out and, you know, it's not through us, please come back and give me an update because- Yeah, we'd like to know how, how that goes... for sure. Ooh, I got a good one. [laughs] All right. 49:45 I think you're the next one. All right. This one is from Waveland Crew. I put in for, or Waveland Crew. I don't know. "I put in for PTSD. I have a VA diagnosis with combat stressor. 49:58 Got denied twice and decision letter said no diagnosis both times. What do I do?" Oh. Love that. "Also have a mile-long paperwork of treatments through the VA for PTSD." Oh, my God. Yeah. I'm appealing that all day long. 50:12 All day. Um, it depends, it depends where you got denied. Um, you know, if it's at the regional office of the board. If the board's denied you that's gonna be harder and you're probably gonna need to get a, um... 50:26 I would get a private opinion on that. Um, if... Let's see. If you have a VA diagnosis and they're denying you for no diagnosis, then that's obviously a quick appeal. But, um, you're gonna... 50:43 What you need is the nexus, though. You need to make sure you have that. So if, if the C&P exam, 50:49 what I think is happening here is your VA doctors are diagnosing you, the treating doctors, with PTSD and the C&P examiners are saying, "Yeah, he doesn't have PTSD." Um, so that's kind of, um, 51:01 that's what's holding you up. But I, I would argue that and just make sure you have a nexus somewhere. 51:06 Make sure that some doctor that is treating you or you get a private opinion that says, um, that your PTSD diagnosis is connected to your service. All right. Just wanna make a real quick note. 51:20 You know, we are out here helping vets answer questions and so we wanna get to as many as we can. So if you're in the comments just kind of leaving some mean comments- Mm-hmm... you know, please don't do that. 51:32 We wanna get to all the, the questions that we can. What's the next one? Uh, AKU's- Oh, it disappeared. Okay. Okay. 51:47 Hello, VA BOA claim. Oh, it went back. Okay. Why does VA continue to conflate SMCS with EV- SMCL? 51:58 So I don't know why they do it, but, you know, they're both aid and attendance and housebound, so they're, they're a higher level of SMC. The housebound benefit is that S benefit. 52:10 So that's when you are 100% for a single disability, and then you have 60% for other disabilities, and they say, "Okay. Well, you are, you know, 100-plus disabled, so we're gonna give you a little bit more." 52:26 That is also the same regulation that allows you to do housebound. So if you are required to stay in your home because of your disabilities and you can't really leave, that's also housebound, which is SMCS. 52:44 The SMCL is aid and attendance. Well, there's two for that as well. The aid and attendance means that you need help with someone, help from someone in order to live your life. 52:54 And that's where they get confused because if you look at the 2680, which is the form you file, it says examination for aid and attendance and housebound, or housebound and aid and attendance. 53:07 So they kind of, when they just don't know the difference between them, they're just gonna get that wrong. That's just the, the, the whole reason for it. We see it a lot. 53:20 Your best thing is just to file a higher level review. 53:23 Those higher level reviewers do actually know what's going on with those two regulations, and so you just may need to take it to someone who knows a little bit better. Okay? Anything else? Um, no. 53:37 That's, that's how I would say it, too. Okay. Okay. Hello, VA Board of Appeals claim filed last week by the direct lane for aid and attendance housebound by my attorney. What are the current timeframes for decision? 53:51 That's, uh, there's not really a set timeframe. I think, uh, we've talked about this before. It, they're supposed to, to work them in order. Um, I don't think they do because I get decisions back not in order. 54:05 So obviously [laughs] they're not. You know, I've got appeals that I filed earlier that have not been decided yet, and I've got appeals, um, you know, where I'm getting decisions and they were obviously filed much later. 54:16 There's no explanation for that. VA is not supposed to do that. Um, what, the latest ones I've seen in the direct lane are one to two years, um, anywhere in between there. 54:30 I'm not see- They were taking a lot longer, but they seem to be, they seem to have sped up some. Yeah. Um, but the problem is we don't know when that'll stop again. 54:39 Or if they'll continue to speed up, that would be great. 54:41 We, you know, we wish they would do that, but w- we don't really have any control over it and we don't know, um, when they're just gonna stop working at that speed. 54:51 So currently we're seeing about a year or two, 18 months, two years. 54:56 Um, uh, some, some take longer than that.And, and that's not counting, um, you know, ones that are done advance on the docket where they decide them faster. 55:06 Um, the problem with this timeline is they're not deciding evidence lane claims right now, and they're not really deciding hearing lane claims very much right now. 55:14 So at some point they're gonna stop working on these direct claims, and they're gonna start working those, and that's gonna throw everything that... E- everything goes up in the air at that point, so we don't know. 55:24 We don't know. We wish we knew. Yeah. So I, I- Mm-hmm... you know, I, I usually tell people prepare yourself for a couple of years. Um, hopefully it'll be faster than that. It might not be. 55:35 All right, we got a couple more questions here. Um, we're getting close to 3:00, so- We'll do two more. 55:42 Do you have any info on the chatter going on about vets with disability ratings getting more than the 2.8 COLA in 2026? Um, I don't actually know anything about more than that. 55:56 Um, I typically don't know until they, they put it out, like what the COLA's gonna be. The cost of living increase is what that is. 56:03 So each year if there's a cost of living, they send out these notices, and they give you additional compensation each month. Unfortunately, I, I don't have any insider information. Nope. Mm-mm. All right, last question. 56:19 This one's from Jason Earhart. "If a VA... 56:21 If a vet was rated 50% for PTSD and then years later it went to 70, then three years ago it was rated at 100, does the 20-year rule start at the last rating of 100% or the first rating?" 56:33 So, um, the 50% rating, once you get to 20 years from that 50% rating, that particular rating is protected. When you get 20 years from that 70% rating, that 70% rating is, is protected. 56:46 Now, the, when you get 20% from the 50, you are protected from severance. They're n- they can't... I think we d- addressed this- Mm-hmm. We did... 56:53 earlier, but they can't sever the PTSD, but the, the rating is only, um, you know, 50%, uh, is protected for 20 years, then the 70% is protected after 20 years. 57:07 That 100% rating is not gonna be protected until 20 years after the 100% is granted. Um, so that's, that's that one. Um, okay. I think that- I think we're good... takes us to the end of the day. 57:20 Um, we really appreciate you being here. Thank you so much for your service. Someone will be back next week to answer your questions. Thanks. Have a great day. Thanks. Bye. 57:30 [outro music]
