Long Overdue

Sorry for the lengthy delay in posting. I have been having difficulties but am better now. I appologize to all those who sent me questions and I have not responded before now. I will attempt to do better. I am also asking a friend to assist me as well so, here's to the future...


The following questions were posted to Disability Benefits Yahoo Group:

Q. I am retired from the military and I was just awarded 40 percent disability from the VA. Part of my rating (30 percent) was from combat. How do I apply for Combat Related Special Compensation and how will that be paid?

A. This office can assist you in filing for CRSC. Bring a copy of your retirement DD214 and your VA award letter. If you received a Purple Heart, the orders for that award will help. The VA will pay you for the 40 percent disability.
Currently, 40 percent compensation for a veteran with one dependent is $539 per month, tax-free. That amount will be subtracted from your retired pay. Your CRSC would be paid by the service and currently be $377 per month, also tax-free.
The bottom line is that you will be getting $916 per month tax-free and pay taxes only on your remaining retired pay.

Q. My service-connected disability became more severe, and the VA increased my compensation. I applied for VA Disability Insurance and was denied. Can you explain?

A. When a veteran receives a disability rating, there is a two-year window to apply for disability insurance. The description of the program is in the VA award letter that establishes compensation.
An increase of a previously rated condition does not establish a new two-year window for application. Also, the veteran must be in otherwise good health except for service-connected disabilities. You would have to have a compensable rating for a new condition to be able to receive disability insurance.

- George Compton, retired Army colonel,
is the veterans service officer for the County of Ventura, Human Services Agency.
Send your questions to Veterans Service Office,
1701 Pacific Ave., Suite 110, Oxnard CA 93033;
phone number: 385-6366;
fax: 385-6371;
or e-mail: George.Compton@ventura.org.

Copyright 2006, Ventura County Star. All Rights Reserved Copyright material is distributed without profit or payment for research and educational purposes only, in accordance with Title 17 U.S.C. section 107. Reference: http://www.law.cornell.edu/uscode/17/107.shtml

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Separating disabilities joined in a rating

Question:

I received a rating of 60%, but only received 20% for fibromyalgia even with constant and refractory symptoms and to top that off they included my IBS in that 20%. If I did not have fibromyalgia I should have gotten 30% just for the IBS. I am familiar with the final interpretation for Fibromyalgia, but I am unsure of how to appeal the combination of two seperate diagnosis. What is the best way to appeal the combination of fibromyalgia and IBS?

Answer:

To begin, I'll give you the citations that were used in my appeal and in the final decision by the BVA as conclusions of law warranting service-connected for IBS.

Service-connection for IBS is warranted under: 38 USCA 1110, 1117, 1131, 5107 (West 2002 & Supp. 2005) and 38 CFR 3.303, 3.310, 3.317 (2005).

First, when I appealed I was sent to get the typical C&P exam and I asked the examiner direct questions regarding their experience with FMS and IBS diagnoses and how they saw the two; as either coexisting conditions or part and parcel to the same disease (FMS). The examiner replied with the right answer. I did my homework before going by reading up on FMS and how it is diagnosed and the literature that unequivocally states IBS is a coexisting condition and not merely a sign(s) or symptom(s) of FMS. This is the key factor! Get the examiner to document in his C&P report that FMS and IBS are coexisting conditions and neither diagnosis is dependant on the other for an independent diagnosis.

Second, when the appeal is written it is imperative to provide the rheumatology diagnostic criteria for FMS and cite the most recent credible medical source for it. Also, it is equally imperative to provide the same for IBS and its medical category as a gastrointestinal disease – not a rheumatologic disease (which FMS is). Hence, they are two separate and distinct medical disabilities. When the descriptive diagnostic criteria are placed side by side it should be painfully clear to the VA that neither disease are the same and/or share the same sign(s) or symptom(s); thus avoiding the issues brought under 38 CFR 4.14 Avoiding overlapping of evaluations (or pyramiding). The recent changes can be found in the Federal Register Vol 68 No 28 Dated Feb. 11, 2003 and can be found online by doing a Google search for it.

Third, if the veteran has been seeing the same VA doctor as their primary care physician (or civilian primary care physician) who is familiar with their diagnosis (as they likely made them); have the veteran ask their physician to write them a letter in their defense explaining their medical opinion that while FMS and IBS often occur together as coexisting conditions, they are still separate entities which occur independently from one another; and that neither is a criterion for the other in order to make a diagnosis for each. Does this make sense? Also, don't let the terms “syndrome” and “symptoms” to be used interchangeably by the VA as they mean two different things medically as well as legally.

Fourth, it is also important to go online to the BVA and search recent decisions where FMS and IBS have been granted separate service-connections and ratings apart one another. When I was denied by two different regional offices both repeated the same denial, separating IBS from FMS cannot be done. By providing copies/references to actual BVA cases granting same it establishes the undisputable fact that IBS can be separated from FMS, given service-connected status of its own and subsequently rated. One important note is not to let the regional office ignore this evidence in support of the appeal by stating those decisions have nothing to do with the veterans case at hand. While the decisions may not be directly related to him/her and their current claim because they are someone else’s claims/appeal; notwithstanding, these cases are probative to the veterans case in the sense that they prove what the veteran is asking for on appeal and that it can be done.

Another point I drove home in my appeal and statement of the case was HR 1291 Veterans Education and Benefits Expansion Act of 2001, specifically Title II No. 6 where Congress made it perfectly clear that FMS and IBS were considered separate multisymptom illnesses/disabilities. You may also want to refer to Public Law 107-103 Section 202 Gulf War Veterans’ Chronic Disabilities whereby the definition of a “qualifying chronic disability” was expanded to include IBS separate from FMS and CFS.

I also addressed 38 CFR 4.2 Interpretation of examination reports because in one C&P report that was received by the VARO in my case the VSO misinterpreted it and in response stated that dated medical findings (my entire medical history at the VA up to the date of the latest C&P) were useless and not considered. Only C&P exams were considered as current in determining a decision for service-connection and/or rating. I pointed out their blatant error by referring to the part in 4.2 that clearly states:

“It is the responsibility of the rating specialist to interpret reports of examination in the light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of the disability present.”

Therefore, the VA is required to consider the veteran’s entire medical history as it paints a far more accurate picture than one 5 min “in and out” C&P exam conducted by a virtual stranger. Meaning, the primary physician’s reports should be given more weight than a C&P exam that is more often than not lacking thoroughness and a complete medical history workup.

It’s been some time since I’ve read it, but you may want to consult the letter/report dated April 14, 2003 that was addressed to Mr. Robert McFeteridge, Director at the Office of Regulations Management Dept of VA Washington DC in reference to: Proposed Rule to Amend Schedule Rating Disabilities – Musculoskeletal System. This letter can be found online by doing a Google search with the above name and title of the letter/report.

Lastly, throughout the appeal it should be repeated (in the appropriate places) that FMS does not equal IBS and vise versa. It’s important to be redundant in stressing they are two separate and distinct multisymptom illnesses with their own independent diagnostic criterion (and that neither sign(s) nor symptom(s) of each are overlapping) recognized by both the medical and legal communities.

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More VA useful links thanks to Gale

A wonderful list of VA links put together by a friend of mine, Gale, for the American Gulf War Veterans Association bulletin board. She agreed to allow me to share her vast knowledge here as well. If you would like to access the American Gulf War Veterans' Association website, go to www.gulfwarvets.com THANKS to Gale and every veteran and everyone assisting veterans!

• Aids for the blind http://www1.va.gov/vhapublications/ViewPublication.asp?pub_ID=397
• Appeals http://www.gulfwarvets.com/ubb/ultimatebb.php?ubb=get_topic;f=14;t=000030
• AUTOMOBILE ADAPTIVE EQUIPMENT PROGRAM http://www1.va.gov/vhapublications/ViewPublication.asp?pub_ID=340
• Benefits and Services Information for National Guard and Reserve Personnel http://www.seamlesstransition.va.gov/res_guard.asp
• Benefits Fact Sheet http://www.vba.va.gov/bln/21/milsvc/benfacts.htm
• Board of Veterans’ Appeals http://www.va.gov/vbs/bva/
• C&P Clinician's Guide 2002 http://www.warms.vba.va.gov/admin21/guide/cliniciansguide.doc
• CARES Commission http://www.va.gov/cares/
• Center for Minority Veterans http://www1.va.gov/centerforminorityveterans/
• Center for Veterans Enterprise http://www.vetbiz.gov/default2.htm
• Center for Women Veterans http://www1.va.gov/womenvet/
• Compensation for Disabilities Associated with the Gulf War Service http://www.gulfwarvets.com/ubb/ultimatebb.php?ubb=get_topic;f=14;t=000029
• Compensation Rate Tables, 12-1-03 http://www.vba.va.gov/bln/21/Rates/comp01.htm
• Department of Veterans Affairs Home Page http://www.va.gov/
• Directory of Veterans Service Organizations http://www1.va.gov/vso/index.cfm?template=view
• Disability Examination Worksheets Index, Comp http://www.vba.va.gov/bln/21/Benefits/exams/index.htm
• Due Process http://www.warms.vba.va.gov/admin21/m21_1/mr/part1/ch02.doc
• Duty to Assist http://www.warms.vba.va.gov/admin21/m21_1/mr/part1/ch01.doc
• Education/GI Bill http://www.gibill.va.gov/
• Electronic Code of Federal Regulations http://www.gpoaccess.gov/ecfr/
• Emergency, Non-emergency, and Fee Basis Care http://www1.va.gov/opa/vadocs/fedben.pdf
• Environmental Agents http://www1.va.gov/environagents/
• Environmental Agents M10 http://www1.va.gov/vhapublications/ViewPublication.asp?pub_ID=1002
• Environmental Health (EH) Coordinators http://www1.va.gov/environagents/docs/EH_Coord_Dir_List_July_2005.pdf
• Establishing Combat Veteran Eligibility http://www1.va.gov/vhapublications/ViewPublication.asp?pub_ID=315
• EVALUATION PROTOCOL FOR GULF WAR AND IRAQI FREEDOM VETERANS WITH POTENTIAL EXPOSURE TO DEPLETED URANIUM (DU) http://www1.va.gov/gulfwar/docs/DUHandbook1303122304.DOC and http://www1.va.gov/vhapublications/ViewPublication.asp?pub_ID=1158
• See also,Depleted Uranium Fact Sheet http://www1.va.gov/gulfwar/docs/DepletedUraniumFAQSheet.doc
• EVALUATION PROTOCOL FOR NON-GULF WAR VETERANS WITH POTENTIAL EXPOSURE TO DEPLETED URANIUM (DU) http://www1.va.gov/gulfwar/docs/DUHANDBOOKNONGW130340304.DOC
• Eye care: See "VHA EYE CARE" Fee Basis, PRIORITY FOR OUTPATIENT MEDICAL SERVICESAND INPATIENT HOSPITAL CARE http://www1.va.gov/vhapublications/ViewPublication.asp?pub_ID=206
• Federal Benefits for Veterans and Dependants 2005 http://www1.va.gov/opa/vadocs/fedben.pdf OR, http://www1.va.gov/opa/vadocs/current_benefits.htm
• Forms and Records Request http://www.va.gov/vaforms/
• General Compensation Provisions http://www.access.gpo.gov/uscode/title38/partii_chapter11_subchaptervi_.html
• Geriatrics and Extanded Care http://www1.va.gov/geriatricsshg/
• Guideline for Chronic Pain and Fatigue MUS-CPG http://www.oqp.med.va.gov/cpg/cpgn/mus/mus_base.htm
• Guide to Gulf War Veterans’ Health http://www1.va.gov/gulfwar/docs/VHIgulfwar.pdf
• Gulf War Subject Index http://www1.va.gov/GulfWar/page.cfm?pg=7&template=main&letter=A
• Gulf War Veterans’ Illnesses Q&As http://www1.va.gov/gulfwar/docs/GWIllnessesQandAsIB1041.pdf
• Hearing Aids and Eyeglasses: http://www1.va.gov/vhapublications/ViewPublication.asp?pub_ID=195
• Hearings http://www.warms.vba.va.gov/admin21/m21_1/mr/part1/ch04.doc
• Homeless Veterans http://www1.va.gov/homeless/
• Hot Topics http://www.va.gov/hottopic/
• HSR&D Home http://www.hsrd.research.va.gov/
• Index to Disability Examination Worksheets C&P exams http://www.vba.va.gov/bln/21/benefits/exams/index.htm
• Ionizing Radiation http://www1.va.gov/irad/
• Iraqi Freedom/Enduring Freedom Veterans VBA http://www.vba.va.gov/EFIF/
• M10 for spouses and children http://www1.va.gov/vhapublications/ViewPublication.asp?pub_ID=1007
• M10 Part III Change 1 http://www1.va.gov/vhapublications/ViewPublication.asp?pub_ID=1008
• M21-1 Table of Contents http://www.warms.vba.va.gov/M21_1.html
• Mental Disorders, Schedule of Ratings http://www.warms.vba.va.gov/regs/38CFR/BOOKC/PART4/S4_130.DOC
• Mental Health Program Guidelines http://www1.va.gov/vhapublications/ViewPublication.asp?pub_ID=1094
• Mental Illness Research, Education and Clinical Centers http://www.mirecc.med.va.gov/
• MS (Multiple Sclerosis) Centers of Excellence http://www.va.gov/ms/about.asp
• My Health e Vet http://www.myhealth.va.gov/
• NASDVA.COM – National Association of State Directors http://www.nasdva.com/
• National Center for Health Promotion and Disease Prevention http://www.nchpdp.med.va.gov/postdeploymentlinks.asp
• Neurological Conditions and Convulsive Disorders, Schedule of Ratings http://www.warms.vba.va.gov/regs/38cfr/bookc/part4/s4_124a.doc
• OMI (Office of Medical Inspector) http://www.omi.cio.med.va.gov/
• Online VA Form 10-10EZ https://www.1010ez.med.va.gov/sec/vha/1010ez/
• Operation Iraqi Freedom and Operation Enduring Freedom Seamless Transition Home http://www.seamlesstransition.va.gov/
• Parkinson's Disease and Related Neurodegenerative Disorders http://www1.va.gov/resdev/funding/solicitations/docs/parkinsons.pdf and, http://www1.va.gov/padrecc/
• Peacetime Disability Compensation http://frwebgate.access.gpo.gov/cgi-bin/getdoc.cgi?dbname=browse_usc&docid=Cite:+38USC1131
• Pension for Non-Service-Connected Disability or Death http://www.access.gpo.gov/uscode/title38/partii_chapter15_subchapteri_.html and, http://www.access.gpo.gov/uscode/title38/partii_chapter15_subchapterii_.html and, http://www.access.gpo.gov/uscode/title38/partii_chapter15_subchapteriii_.html
• Persian Gulf Registry http://www1.va.gov/vhapublications/ViewPublication.asp?pub_ID=1003 This program is now referred to as Gulf War Registry Program (to include Operation Iraqi Freedom) as of March 7, 2005: http://www1.va.gov/vhapublications/ViewPublication.asp?pub_ID=1232
• Persian Gulf Registry Referral Centers http://www1.va.gov/vhapublications/ViewPublication.asp?pub_ID=1006
• Persian Gulf Veterans' Illnesses Research 1999, Annual Report To Congress http://www1.va.gov/resdev/1999_Gulf_War_Veterans
• Persian Gulf Veterans' Illnesses Research 2002, Annual Report To Congress http://www1.va.gov/resdev/prt/gulf_war_2002/GulfWarRpt02.pdf
• Phase I PGR http://www1.va.gov/vhapublications/ViewPublication.asp?pub_ID=1004
• Phase II PGR http://www1.va.gov/vhapublications/ViewPublication.asp?pub_ID=1005
• Policy Manual Index http://www.va.gov/publ/direc/eds/edsmps.htm
• Power of Attorney http://www.warms.vba.va.gov/admin21/m21_1/mr/part1/ch03.doc
• Project 112 (Including Project SHAD) http://www1.va.gov/shad/
• Prosthetics Eligibility http://www1.va.gov/vhapublications/ViewPublication.asp?pub_ID=337 Public and Intergovernmental Affairs http://www1.va.gov/opa/

****Fact Sheets, Programs and Issues http://www1.va.gov/OPA/fact/index.htm

****Feature Items and Information http://www1.va.gov/OPA/feature/index.htm

****In the News - News Releases/Press Releases http://www1.va.gov/OPA/pressrel/pressarchinternet.cfm

****Intergovernmental Affairs http://www1.va.gov/OPA/iga/index.htm

• Public Health and Environmental Hazards Home Page http://www.vethealth.cio.med.va.gov/
• Public Health/SARS http://www.publichealth.va.gov/SARS/
• Publications – Manuals http://www1.va.gov/vhapublications/publications.cfm?Pub=4
• Publications and Reports http://www1.va.gov/resdev/prt/pubs_individual.cfm?webpage=gulf_war.htm
• Records Center and Vault Homepage http://www.aac.va.gov/vault/default.html
• Records Center and Vault Site Map http://www.aac.va.gov/vault/sitemap.html
• REQUEST FOR AND CONSENT TO RELEASE OF INFORMATION FROM CLAIMANT'S RECORDS http://www.forms.va.gov/va/Internet/VARF/getformharness.asp?formName=3288-form.xft
• Research Advisory Committee on Gulf War Veterans Illnesses http://www1.va.gov/RAC-GWVI/
• Research Advisory Committee on Gulf War Veterans Illnesses April 11, 2002 http://www1.va.gov/rac-gwvi/docs/Minutes_April112002.doc
• Research Advisory Committee on Gulf War Veterans Illnesses http://www1.va.gov/rac-gwvi/docs/ReportandRecommendations_2004.pdf
• Research and Development http://www.appc1.va.gov/resdev/programs/all_programs.cfm
• Survivor's and Dependents' Educational Assistance http://www.access.gpo.gov/uscode/title38/partiii_chapter35_.html
• Title 38 Index Parts 0-17 http://ecfr.gpoaccess.gov/cgi/t/text/text-idx?sid=1b0c269b510d3157fbf8f8801bc9b3dc&c=ecfr&tpl=/ecfrbrowse/Title38/38cfrv1_02.tpl
• Part 18 http://ecfr.gpoaccess.gov/cgi/t/text/text-idx?sid=1b0c269b510d3157fbf8f8801bc9b3dc&c=ecfr&tpl=/ecfrbrowse/Title38/38cfrv2_02.tpl
• Title 38 Part 3 – Adjudication Subpart A—Pension, Compensation, and Dependency and Indemnity Compensation http://ecfr.gpoaccess.gov/cgi/t/text/text-idx?c=ecfr&sid=1b0c269b510d3157fbf8f8801bc9b3dc&tpl=/ecfrbrowse/Title38/38cfr3_main_02.tpl
• Title 38 Pensions, Bonuses & Veterans’ Relief (also § 3.317 Compensation for certain disabilities due to undiagnosed illnesses found here) http://ecfr.gpoaccess.gov/cgi/t/text/text-idx?c=ecfr&sid=1b0c269b510d3157fbf8f8801bc9b3dc&tpl=/ecfrbrowse/Title38/38cfr3_main_02.tpl
• Title 38PART 4--SCHEDULE FOR RATING DISABILITIESSubpart B--DISABILITY RATINGShttp://ecfr.gpoaccess.gov/cgi/t/text/text-idx?c=ecfr&sid=ab7641afd195c84a49a2067dbbcf95c0&rgn=div6&view=text&node=38:1.0.1.1.5.2&idno=38
• Title 38 § 4.16 Total disability ratings for compensation based on unemployability of the individual. PART 4—SCHEDULE FOR RATING DISABILITIES Subpart A—General Policy in Rating http://ecfr.gpoaccess.gov/cgi/t/text/text-idx?c=ecfr&sid=1b0c269b510d3157fbf8f8801bc9b3dc&rgn=div8&view=text&node=38:1.0.1.1.5.1.96.11&idno=38
• U.S. Court of Appeals for Veterans Claims http://www.vetapp.gov/
• VA Best Practice Manual for Posttraumatic Stress Disorder (PTSD) http://www.avapl.org/pub/PTSD%20Manual%20final%206.pdf
• VA Fact Sheet http://www1.va.gov/opa/fact/gwfs.html
• VA Health Care Eligibility http://www.va.gov/healtheligibility/home/hecmain.asp
• VA INSTITUTING GLOBAL ASSESSMENT OF FUNCTION (GAF) http://www.avapl.org/gaf/gaf.html
• VA Life Insurance Handbook – Chapter 3 http://www.insurance.va.gov/inForceGliSite/GLIhandbook/glibookletch3.htm#310
• VA Loan Lending Limits and Jumbo Loans http://valoans.com/va_facts_limits.cfm
• VA MS Research http://www.va.gov/ms/about.asp
• VA National Hepatitis C Program http://www.hepatitis.va.gov/
• VA Office of Research and Development http://www1.va.gov/resdev/
• VA Trainee Pocket Card on Gulf War http://www.va.gov/OAA/pocketcard/gulfwar.asp
• VA WMD EMSHG http://www1.va.gov/emshg/
• VA WRIISC-DC http://www.va.gov/WRIISC-DC/
• VAOIG Hotline Telephone Number and Address http://www.va.gov/oig/hotline/hotline3.htm
• Vet Center Eligibility - Readjustment Counseling Service http://www.va.gov/rcs/Eligibility.htm
• Veterans Benefits Administration Main Web Page http://www.vba.va.gov/
• Veterans Disability Benefits Commission http://www.va.gov/vetscommission/index.htm
• Veterans Legal and Benefits Information http://valaw.org/
• VHA EYE CARE http://www1.va.gov/vhapublications/ViewPublication.asp?pub_ID=393
• VHA Forms, Publications, Manuals http://www1.va.gov/vhapublications/
• VHA Patient Advocacy Program http://www1.va.gov/vhapublications/ViewPublication.asp?pub_ID=1303
• VHA Programs - Clinical Programs & Initiatives http://www1.va.gov/health_benefits/page.cfm?pg=13
• VHA Public Health Strategic Health Care Group Home Page http://www.publichealth.va.gov/
• VHI Guide to Gulf War Veterans’ Health http://www1.va.gov/vhi_ind_study/gulfwar/istudy/index.asp
• Vocational Rehabilitation http://www.vba.va.gov/bln/vre/
• Vocational Rehabilitation Subsistence http://www.vba.va.gov/bln/vre/sa/06/safy06_rates.doc
• VONAPP online http://vabenefits.vba.va.gov/vonapp/main.asp
• WARMS - 38 CFR Book C http://www.warms.vba.va.gov/bookc.html
• Wartime Disability Compensation http://frwebgate.access.gpo.gov/cgi-bin/getdoc.cgi?dbname=browse_usc&docid=Cite:+38USC1110
• War-Related Illness and Injury Study Center - New Jersey http://www.wri.med.va.gov/
• Welcome to the GI Bill Web Site http://www.gibill.va.gov/
• What VA Social Workers Do http://www1.va.gov/socialwork/page.cfm?pg=3
• WHEELCHAIRS AND SPECIAL MOBILITY AIDS http://www1.va.gov/VHAPUBLICATIONS/ViewPublication.asp?pub_ID=342
• WRIISC Handbook http://www1.va.gov/environagents/docs/WRIISCHANDBK13030705.pdf
• WRIISC Patient Eligibility http://www.illegion.org/va1.html

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Compensation and Pension Exam

Question:

What is a compensation and pension (C&P) exam.

Answer:

Compensation
This benefit program evaluates disability resulting from all types of diseases and injuries encountered as a result of military service. The degrees of disability that are determined by VA represent, as far as can practicably be determined, the average loss in wages resulting from such diseases and injuries and their complications in civil occupations. Generally, the degrees of disability specified are also designed to compensate for considerable loss of working time from exacerbations or illnesses.

Pension
Pension is available to veterans, surviving spouses and children, if the veteran has qualifying service and there is financial need. Veterans must also have a qualifying disability which need not be service-connected.

Examinations
Physical examinations, when made by the VA, are done under criteria worked out by both the Veterans Health Administration and Veterans Benefits Administration.


If you combine all of these VA definitions, you will see that a C&P exam is designed to determine 1) if you still have a disability that may have started in the service, (2) is the current disability a result of the military service, and (3) to determine the severity of the disability. The rating specialist them takes the exam report and uses the following criteria to determine the proper rating percentage.
A veteran may have more than one C&P exam. Some of the reasons for this are conflicting medical opinions about the same disability, delay of time since the last exam, request for re-evaluation, and many others.
You do not have to attend a C&P exam alone unless you choose to. You can not be denied anyone you request to be present and, if necessary, sign a release for that person to be present. You are also allowed to take a tape recorder and if you let them know you intend to use it, you may record the exam. If, for any reason, you are uncomfortable or feeling violated, you may leave the room and request assistance immediately. If you miss an exam, you may request a reproceed to reschedule the exam but please try to make all exams.
Good luck!

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Clear and Unmistakable Error

Question:

What are the guidelines for CUE (Clear and Unmistakable Error)?

Answer:

§20.1403 Rule 1403. What constitutes clear and unmistakable error; what does not.

(a) General. Clear and unmistakable error is a very specific and rare kind of error. It is the kind of error, of fact or of law, that when called to the attention of later reviewers compels the conclusion, to which reasonable minds could not differ, that the result would have been manifestly different but for the error. Generally, either the correct facts, as they were known at the time, were not before the Board, or the statutory and regulatory provisions extant at the time were incorrectly applied.

(b) Record to be reviewed.

(1) General. Review for clear and unmistakable error in a prior Board decision must be based on the record and the law that existed when that decision was made.

(2) Special rule for Board decisions issued on or after July 21, 1992. For a Board decision issued on or after July 21, 1992, the record that existed when that decision was made includes relevant documents possessed by the Department of Veterans Affairs not later than 90 days before such record was transferred to the Board for review in reaching that decision, provided that the documents could reasonably be expected to be part of the record.

(c) Errors that constitute clear and unmistakable error. To warrant revision of a Board decision
on the grounds of clear and unmistakable error, there must have been an error in the
Board's adjudication of the appeal which, had it not been made, would have manifestly
changed the outcome when it was made. If it is not absolutely clear that a different result
would have ensued, the error complained of cannot be clear and unmistakable.

(d) Examples of situations that are not clear and unmistakable error.

(1) Changed diagnosis. A new medical diagnosis that “corrects” an earlier diagnosis
considered in a Board decision.

(2) Duty to assist. The Secretary's failure to fulfill the duty to assist.

(3) Evaluation of evidence. A disagreement as to how the facts were weighed or evaluated.

(e) Change in interpretation. Clear and unmistakable error does not include the otherwise
correct application of a statute or regulation where, subsequent to the Board decision
challenged, there has been a change in the interpretation of the statute or regulation.
(Authority: 38 U.S.C. 501(a), 7111)


§20.1404 Rule 1404. Filing and pleading requirements; withdrawal.

(a) General. A motion for revision of a decision based on clear and unmistakable error must be in writing, and must be signed by the moving party or that party's representative. The motion must include the name of the veteran; the name of the moving party if other than the veteran; the applicable Department of Veterans Affairs file number; and the date of the Board of Veterans' Appeals decision to which the motion relates. If the applicable decision involved more than one issue on appeal, the motion must identify the specific issue, or issues, to which the motion pertains. Motions which fail to comply with the requirements set forth in this paragraph shall be dismissed without prejudice to refiling under this subpart.

(b) Specific allegations required. The motion must set forth clearly and specifically the alleged clear and unmistakable error, or errors, of fact or law in the Board decision, the legal or factual basis for such allegations, and why the result would have been manifestly different but for the alleged error. Non-specific allegations of failure to follow regulations or failure to give due process, or any other general, non-specific allegations of error, are insufficient to satisfy the requirement of the previous sentence. Motions which fail to comply with the requirements set forth in this paragraph shall be dismissed without prejudice to refiling under this subpart.

(c) Filing. A motion for revision of a decision based on clear and unmistakable error may be filed at any time. Such motions should be filed at the following address: Director, Management and Administration (01E), Board of Veterans' Appeals, 810 Vermont Avenue, NW, Washington, DC 20420.

(d) Requests not filed at the Board. A request for revision transmitted to the Board by the Secretary pursuant to 38 U.S.C. 7111(f) (relating to requests for revision filed with the Secretary other than at the Board) shall be treated as if a motion had been filed pursuant to paragraph (c) of this section.

(e) Motions for reconsideration. A motion for reconsideration, as described in subpart K of this part, whenever filed, will not be considered a motion under this subpart.

(f) Withdrawal. A motion under this subpart may be withdrawn at any time before the Board promulgates a decision on the motion. Such withdrawal shall be in writing, shall be filed at the address listed in paragraph (c) of this section, and shall be signed by the moving party or by such party's representative. If such a writing is timely received, the motion shall be dismissed without prejudice to refiling under this subpart. (Authority: 38 U.S.C. 501(a), 7111)


[57 FR 4109, February 3, 1992, as amended at 66 FR 35903, July 10, 2001; 67 FR 16023, Apr. 4, 2002]

I'll be back with some of my own hints that I have acquired from some great minds....

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I.D. Theft

Well the latest in VA news is very disturbing. The theft of veterans' information from a VA employees home. Some helpful links and information:

Associated Press Article

Fox News Report

Firstgov.gov



At least that information will get you started if you didn't know about the theft. Let me know if anyone has any questions about this that I can help with. My prayers go out to each and every one of you alike!

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Statutory Disability or Presumptives

Question:

What is a statutory disability and what does it mean?


My Answer:

As far as I can determine, a statutory disability is a presumptive disability.

Presumptive Disabilities are those disabilities which if you have the disability and you meet the criteria set by the VA (i.e. for presumptive disabilities associated with Agent Orange, the veteran must prove that they set foot on land in Vietnam), then that disability will be granted as being service connected.

"Presumptive Conditions for Disability CompensationCertain veterans are eligible for disability compensation based on the presumption that their disability is service connected.
Prisoners of War: For former prisoners of war (POW) who were imprisoned for any length of time, the following disabilities are presumed to be service-connected if they are rated at least 10 percent disabling anytime after military service: psychosis, any of the anxiety states, dysthymic disorder, organic residuals of frostbite, post-traumatic osteoarthritis, heart disease or hypertensive vascular disease and their complications, stroke and residuals of stroke.
For former POWs who were imprisoned for at least 30 days, the following conditions are also presumed to be service-connected: avitaminosis, beriberi, chronic dysentery, helminthiasis, malnutrition (including optic atrophy), pellagra and/or other nutritional deficiencies, irritable bowel syndrome, peptic ulcer disease, peripheral neuropathy and cirrhosis of the liver.
Veterans Exposed to Agent Orange and Other Herbicides: A veteran who served in the Republic of Vietnam between Jan. 9, 1962, and May 7, 1975, is presumed to have been exposed to Agent Orange and other herbicides used in support of military operations.
Eleven diseases are presumed by VA to be service-connected for such veterans: chloracne or other acneform disease similar to chloracne, porphyria cutanea tarda, soft-tissue sarcoma (other than osteosarcoma, chondrosarcoma, Kaposi's sarcoma or mesothelioma), Hodgkin's disease, multiple myeloma, respiratory cancers (lung, bronchus, larynx, trachea), non-Hodgkin's lymphoma, prostate cancer, acute and subacute peripheral neuropathy, diabetes mellitus (Type 2) and chronic lymphocytic leukemia.
Veterans Exposed to Radiation: For veterans exposed to ionizing radiation while on active duty, the following conditions are presumed to be service-connected: all forms of leukemia (except for chronic lymphocytic leukemia); cancer of the thyroid, breast, pharynx, esophagus, stomach, small intestine, pancreas, bile ducts, gall bladder, salivary gland, urinary tract (renal, pelvis, ureter, urinary bladder and urethra), brain, bone, lung, colon, and ovary, bronchiolo-alveolar carcinoma, multiple myeloma, lymphomas (other than Hodgkin's disease), and primary liver cancer (except if cirrhosis or hepatitis B is indicated).
To determine service-connection for other conditions or exposures not eligible for presumptive service-connection, VA considers factors such as the amount of radiation exposure, duration of exposure, elapsed time between exposure and onset of the disease, gender and family history, age at time of exposure, the extent to which a non service-related exposure could contribute to disease, and the relative sensitivity of exposed tissue.
Gulf War Veterans: Gulf War veterans may receive disability compensation for chronic disabilities resulting from undiagnosed illnesses, medically unexplained chronic multi-symptom illnesses defined by a cluster of signs or symptoms such as chronic fatigue syndrome, fibromyalgia or irritable bowel syndrome and any diagnosed illness that the Secretary of Veterans Affairs determines warrants a presumption of service-connection.
A disability is considered chronic if it has existed for at least six months. The undiagnosed illnesses must have appeared either during active service in the Southwest Asia Theater of Operations during the Gulf War or to a degree of at least 10 percent at any time since then through Dec. 31, 2006.
The following are examples of symptoms of an undiagnosed illness: fatigue, skin disorders, headache, muscle pain, joint pain, neurological symptoms, neuropsychological symptoms, symptoms involving the respiratory system, sleep disturbances, gastrointestinal symptoms, cardiovascular symptoms, abnormal weight loss and menstrual disorders. Amyotrophic Lateral Sclerosis (ALS) may also be service-connected if the veteran served in the Southwest Asia Theater of Operations anytime during the period of Aug. 2, 1990, to July 31, 1991."
-2006 Federal Benefits for Veterans and Dependents

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