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When VA disability claims are denied, should I just reopen the claim?

By   /  March 3, 2016  /  341 Comments

Learn what your options are when VA disability claims are denied. Find out when you should file an appeal and when re-opening a claim can be a better strategy.

va-disability-claims2Veterans often wonder, when their VA disability claims are denied, should they just reopen a new claim. It’s understandable that the lengthy delay in the appeals process might lead vets to wonder about this option – but there are several key points to keep in mind:

First, if you reopen a claim instead of appealing it, and you are eventually given an award, it may only go back to the date you reopened the claim, and not the date you filed the original claim.
Second, asking for a claim to be reopened after a denial requires a showing of “new and material” evidence. If you don’t have something new and material that you didn’t show them before, you could be out of luck.

It can be a tricky decision on how to handle a denied claim. This is the time you should consider getting experienced opinions to fully review your options. Free advice can be provided by state veteran’s affairs offices and by Veterans Service Organizations. You may also hire an attorney to advise which option is best given your particular situation.

Final decisions

Once a decision is made on VA disability claims, you have one year to appeal. If an appeal is not filed within that time, the decision becomes final. The only way to receive reconsideration of a final decision is with Clear and Unmistakable Error, or to reopen the claim presenting new and material evidence.

It may help to understand that, from the VA’s point of view, there are only three types of claims:

  1. A new or original claim
  2. A claim for revision of a previous final decision based on CUE (Clear and Unmistakable Error)
  3. A reopened claim with new and material evidence

So, if you are still within the one-year window to appeal and you believe your claim should be approved as is, in theory an appeal is the appropriate route. The VA has admitted to having a high error rate, and errors and other issues often can turn your way on appeal.

If you wonder whether you might not appeal and instead try one of the other routes, in theory, this means either (1) there is clear and unmistakable error (this is a very high standard and something you should discuss with an experienced attorney or representative) or (2) you have new and material evidence that was not reviewed before which should therefore be grounds to reopen the claim. If you want to reopen a claim simply because you think you might save time from the appeals process, you are on shakier ground.

Effective dates – When considering your options with reopening and/or appeal, it is vital that you know the impact of all options on the effective date of your claim. If you eventually win an award, or an increase in your award, the award will be backdated to the effective date of your claim. The effective date is usually the date you filed the current claim (with some exceptions that allow the award to go back further). The distinction could cost you tens of thousands of dollars, depending on the award and the time different from your original claim to the reopened claim.

Reopening a claim that was denied

In general, when VA disability claims are denied, a veteran can always reopen a claim with “new and material” evidence. This applies when you are addressing the same condition.

“New” evidence is information not previously considered by the VA. “Material” evidence relates to an unestablished fact necessary to the claim. If the denial was based on lack of a service connection, then witness statements or other evidence can help resolve that question; of the denial was based on your condition, then new medical evidence or opinions may help.

There is little evidence that, given the choice, reopening a case rather than appealing it will improve your chances of approval, or your level of award. However, each case is unique and the distinctions can be highly confusing. You can often request a free consultation with an experienced attorney to help you understand the options.

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  • Dear SAF,

    You have one year to file a NOD from the date you receive a VA claim denial. Also, you may want to seek professional help through the services of an accredited VA attorney. Such an attorney can evaluate the merits of an appeal. If you don’t receive a letter of determination o mark the beginning of the year fairly soon, discuss with the attorney how to get one.

    Sincerely,
    Craig L. Ames
    Accredited VA Attorney

  • Dear Kristine,

    It appears you posted your question twice. Please see Craig Ames’ response to your first post.

    Sincerely,
    Kay

  • Dear Kristine,

    A physician’s report from a non-military/VA medical provider is helpful. But, in itself, it is insufficient to prove a claim. One needs to prove (1) there is an in-service medical event, and (2) there is a current medical diagnosis, which (3) links back to that in-service medical event. So what you need is a current medical opinion which states a written opinion that it is more than likely or in the alternative it is as likely as not that the current diagnosis was caused by or links back to that in-service medical event.

    Sincerely,
    Craig L. Ames
    Accredited VA Attorney

  • Dear Thomas,

    When you state you “reopened” the claim, this appears to mean you filed a new claim. A new claim is measured for benefit purposes from the date the new claim is filed.

    Sincerely,
    Craig L. Ames
    Accredited VA Attorney

  • Dear CC,

    Background information about the competency of the first doctor is not going to result in your being able to challenge the medical findings. This is not the type of information the VA is likely to consider. The medical records are a matter of proof and not conjecture as to the quality of your doctors and their medical opinions.

    Sincerely,
    Craig L. Ames
    Accredited VA Attorney

  • Dear Doug,

    When the VA makes a determination that a compensation award is to be paid, an effective date is also assigned. The effective date determines when benefits are payable. Effective dates can vary based on the type of benefit and the circumstances of the claim.

    In your situation, I surmise that your claim has not been pending for the entire 16 year period from when the claim arose. You probably filed a new claim after a prior claim denial within the last several years. Your claim is paid based upon that most recent application for VA compensation benefits, and your benefits are calculated based on the date your latest claim was filed.

    Sincerely,
    Craig L. Ames
    Accredited VA Attorney

  • LT girl

    Hi, ok question.
    I am 100% p&t from ptsd effective ill say august 2015, but I also have an appeal dating back summer 2014 (when I appealed) and june 2013 when I first filed.

    So if my appeal is granted, considering I’m already at 100%. Would I get back pay for before I was getting the ptsd benefits since I started my appeal before?

    Thanks in advance for any answers.

    • Kay Derochie

      Dear LT Girl,

      It is possible but unlikely that the VA will grant a benefit award greater than a 100% rating. For the VA to do so, the nature of the injuries sustained would need to be extreme. If you were to receive a higher award, the award of benefits would be retroactive to the date the VA date stamped your claim filing. Essentially, the VA processes the acceptance of the claim application the day it is received or within a short time frame of several days later.

      Sincerely,
      Craig L. Ames
      VA Accredited Attorney

  • Anthony P

    QUESTION: I filed a claim in 2011 immediately upon my separation from active duty. I missed my C&P exam, I called the VA 1800 number the next day and the VA rep noted in my file why I missed the appointment and that I requested the regional office to reschedule my exam, however, my claim was denied.

    I logged into my http://www.benefits.gov account to file an appeal. I couldn’t find an appeal button, however, I noticed a REOPEN button next to my denied claim, and reopened my claim thinking this was the way I could appeal it. I wasn’t shown a disclaimer explaining the differences, I wasn’t aware that appeals had to be submitted via USPS Mail and wasn’t available through Ebenfits.gov

    I finally had my C&P exam, the examiner annotated my claim was originally initiated in 2011. I provided my civilian medical records for 2012 to 2015 specifically being treated for the injury I had claimed. The VA approved my claim and gave me 20% service connection, however, my EFFECTIVE DATE changed to the date I REOPENED my claim.

    Is there any legal avenue I can take to get my effective date adjusted to reflect the date I initially filed the claim? Will I need to hire a lawyer and take this to Court? Can I submit my notice of disagreement and try to have my effective date adjusted on my own or could this have an adverse affect if I need to obtain a lawyer to fight for what Im rightly owed?

    Thanks in advance!

    • Kay Derochie

      Dear Anthony,

      The VA makes it easy to file a VA benefit claim. However, it is quite a different matter to understand the complexity of federal law and its many procedural rules that must be followed to be awarded benefits. When a veteran handles a claim pro se (by yourself) the VA assumes that and you are held to the standard that you know what you are doing. Unfortunately, you are stuck with the decision you made. The consequence of this decision means that the time clock starts the claim all over again. Since you took this course of action, you cannot reverse it now; however, you might want to seek a professional opinion based on a full review of your claim.

      Sincerely,
      Craig L. Ames
      Accredited VA Attorney

      • Edd Ferguson

        Hi, I am 80% disabled through the VA. 50% for Anxiety disorder 40% for TBI and a few other smaller ones total the 80%. I retired from the Army Jan 31 2004. When I retired I bought a beef cow with the intent of raising them and selling the beef. I was an E-8 in recruiting at the end of my career and I went to work late came home early and often times worked from home. I have not been able to work since retirement due to my anxiety. I have a VA therapist and psychiatrist that give me counseling and meds. I applied for 100% unemploability and was denied due to the fact that I finished my 20 years in the Army and I was able to work at my home caring for the cow. This was spring of 2015. I filed an appeal and haven’t heard anything. I am stressed about how I can continue paying bills and wish I was able to work. I do a lot around my house and I consider myself to be a hard worker. I just never leave the house. I cancel appointments I skip my kids sporting events and I even reschedule my kids doctor appointments and other important things due to my anxiety. Any advice as to whether I have a chance of receiving 100% and if so what is my course of action would be appreciated.

        • Edd Ferguson

          Sorry. Typo. I retired 2014 not 2004

        • Kay Derochie

          Dear Edd,

          The filing of a VA compensation claim is the easy part. The issuance of a favorable award is the difficult part. This is not an arena that a novice should tread alone. You need to consider the engagement of a VA accredited attorney to analyze your claim & to develop a medical-legal strategy to bring your claim to a potentially favorable result.

          Sincerely,
          Craig L. Ames
          Accredited VA Attorney

  • J E

    If I filed for adust mentioned disorder and was denied in 2008, but am filing a new claim this year for PTSD and Bipolar (basically refined diagnoses with better evidence), is there a chance that I qualify for back pay until the date of my first claim?

    • Kay Derochie

      Dear J.E.,

      No. A claim award, if issued, is dated from the date the new claim is filed and received by the VA.

      Sincerely,
      Craig L. Ames
      Accredited VA Attorney

  • Antoine Porter

    Can anyone tell me what this means from my c&p exams the veterans ptsd is at least as likely as not cause by or result of military service’ but then it ended with trauma are related to experiences during military service

    • Kay Derochie

      Dear Antoine,

      This is a medical opinion as to whether or not PTSD relates to military service. It is an opinion that the VA decision maker will take into account when deciding to ward benefits, if any.

      Sincerely,
      Craig L. Ames
      Accredited VA Attorney

  • Vet

    Issue 1: A primary claim was granted at a low rating and subsequently appealed. During the appeallate period another C&P examination was conducted and secondary conditions were indicated. Following that a formal letter was sent by the veteran indicating desire for service connection of a secondary condition found during the C&P examination, along with supporting evidence extending back to the time of military service. BVA granted service connection at a higher rating and referred the secondary issue back to the AOJ. What is the effective date for the secondary condition? Is it the date of the original claim or the date that the veteran submitted the letter? What statues, regs, laws support the action?

    Thanks for any clarification on this matter.

    • Kay Derochie

      Dear Vet,

      The start date of benefits is the date of the new claim filing so long as the veteran has filed a formal appeal.

      Sincerely,
      Craig L. Ames
      Accredited VA Attorney

  • Matt

    I filed a claim in 2014 and one of the things on was tinnitus due to direct flight line contact every day. I missed my first appointment in 2014 and was unable to reschedule. I eventually filed a new claim for tinnitus and was denied because the doctor opined there was no connection, likely because it was filed in 2016 and the Doc is probably assuming this condition just started. I believe the VA may have something on file from my first appointment that I never attended and is now using that against me to further deny the claim, which clearly doesn’t represent my condition. I submitted the NOD for the 2nd one but haven’t seen anything update in the system. Is there anything I should/could do?

    • Kay Derochie

      Dear Matt,

      You can obtain a medical opinion from a private pay physician rather than from a VA doctor. Obtain a medical report paid by yourself or by a private medical insurance and submit that report to the VA. That will hasten the process.

      Sincerely,
      Craig L. Ames
      Accredited VA Attorney

  • Edie Nussman

    I filed a claim for TBI among other things in January 2011. I was awarded 100% IU P&T but was denied TBI. Recently VA Secretary McDonald sent out memo to the various service organizations stating that some 24,000 veterans will get letters about retesting them because they were not tested by the proper doctors. The four qualified physicians should be a psychiatrist, a neurologist, a neurosurgeon, or a psysiatrist. I haven’t received the letter yet but was advised by DAV to reopen by claim. Should this be a reconsideration back to the original file date. Or is a CUE on the VA’s part for not having the proper doctors administering the test? Thank you!

    • Kay Derochie

      Dear Edie,

      The last question I will answer first. CUE is rarely granted. This is highly technical and it takes a skilled VA accredited attorney to determine if a case qualifies for this argument.

      Second, it appears you are stating you have a 100% rating currently. But it appears you want a higher rating for TBI. Also you are stating the VA has not reopened your claim by retesting you. I do not understand if the VA has not retested you and has not sent you a notice that you will be retested, it does not appear in your best interest to voluntarily reopen your claim, yourself by filing a reconsideration. When you file a reconsideration, you lose all back dating of your claim if you lose the case. This should give you great caution not to do so on your own without expert legal VA advice.

      Sincerely,
      Craig L. Ames
      Accredited VA attorney

  • OldGuard_ER

    I have been having issues with PTSD since 9-11. My company was tasked with search and rescue at the Pentagon, and the following month with search and recovery and security.

    I got out of the Army in 2004. My wife requested that I see help so I went to the VA. VA Psychologists documented that I suffered severe chronic PTSD due my military experience. I provided documentation that had in writing; awards and medals for SAR and recovery of all the remains. I filled out their PTSD evaluation and it was difficult. The attack on the Pentagon was not considered a combat zone/theater… nor were the bodies, body parts, remains from soldiers that were in “my unit”… wtf, how was I suppose to fill that out!?!

    Aside from upping dosages and making me a zombie, I did try to attend the clinics (2004-2006). I went through the claims process, sent the C&P claims in, and was denied PTSD about a year later, I appealed it (within the prescribed “appeal with in a year”). It was denied again. I gave up on the VA.

    I am still have issues almost nightly. My loss of sleep affects my work, I have no social life, my wife is on edge around me… I am paying out of pocket for counseling. This counselor sent me to the Disabled American Veterans. The DAV representative re-opened my claim 2 months ago.

    I’ve tried to contact the VA to set up appointments with their Mental health clinic for screening/help or what ever, but I don’t get return calls.
    How am I suppose to give them information when I am trying to get the VA to help me???

    I feel like I am wasting everyone’s time.

    • OldGuard_ER

      Before you say “You need to seek a VA accredited lawyer”… should I wait for the VA to schedule me more Appt.’s for supporting evidence? Should I ask my battle buddies from my unit to write letters of what they witnessed too? I thought I had everything right the first time.

      • Kay Derochie

        Dear OldGuard,

        As it relates to a VA claim, veterans are laypersons dealing in a medical-legal arena. Unless you are prepared to read, analyze and understand the 4,000 pages of VA laws and regulations, you are not going to be on an equal footing with the VA as to how to go about successfully processing your disability claim.

        Also, the overwhelming number of veterans who file a VA claim application tend to not be proactive in going about proving the contentions raised in the claim application, which means that most do not reach a successful result because they have not obtained their own medical evidence from private medical service providers. Reliance upon the VA to prove your claim, as is its federal statutory mandate, generally is not going to result in a successful rating determination. Over 70% of all claims are outright denied. In effect, you are filing a law suit against the federal government when you have been denied a disability rating and appeal.

        You do not need to engage the services of an accredited VA attorney who has spent many years studying the law, but, if you do not, you will need to devote the time, energy and resources to have a conceptual appreciation of the complexities of proving your VA claim.

        Sincerely,
        Craig L. Ames
        Accredited V.A. Attorney

  • Joseph Marty

    I feel everything is stacked in favor of the V.A. I complained for over twenty years about pain in my back and hips and the Battalion Surgeon, without sending me to an Orthopedic Surgeon would automatically give me Motrin for pain and swelling. Twenty +/- years of being in the Infantry as a U.S. Marine and after I retired in 1996, and seen an Ortho. Surgeon for the first time stated I had bad hips and a displaced L-4/5 vertebrae. I have since had both hips replaced and still awaiting back surgery when the displaced L-4/L-5 gets larger. I followed everything the V.S.O. in this area, Jacksonville, N.C. She even stated I had a great case. Then I get sent to a P.A. and other staff at Q.T.C. (All who work for the V.A.) and before I even walked in the door I knew I was fighting an uphill battle. This was after I did this eighteen years earlier and it was denied, with no reason(s) given. I received a 10% rating for ringing in the ears, something I didn’t even bring up in the physical. I think it is a waste of time to repeal their finding of denial a second time (I have until March 2016) because the deck is stacked in their favor. And yet I see former troops of mine get 80% for sore hips but I receive nothing at all. I just feel like throwing in the towel and blowing my brains out on the steps of the V.A. Administration in Washington, D.C.!!!

    • Kay Derochie

      Dear Joseph,

      You have relied upon self-help and free VA claim’s services from the VA. You need to consider hiring a VA accredited lawyer to analyze the merits of your case. VA accredited attorneys charge generally on the basis of a 25% contingency fee. You pay only if you win benefits. You can find such an attorney on the VA website at http://www.va.gov/ogc/apps/accreditation/

      Sincerely,
      Craig L. Ames
      Accredited VA Attorney

    • Grace

      dont give up, resend it in, I’ve been fighting since 1985 reopened 2003, remanded 3 times, judgement in my favor, Don’t give up. Lawyer won my case, through DAV , they win a remand, V.A. pays the bill!! Fight, fight.

  • Mike

    Hello Sir,

    I would like your best opinion (understanding you have not specifically looked at my case) but will lay out best I can.

    I have a hearing in about 2 months regarding my appeal for sleep apnea (2 years ago filed). Nevertheless, it is Finally scheduled to be heard!

    I have an official diagnoses of sleep apnea (given on 11/15/15) along with the issued CPAP machine. I do understand I must prove service connection. I do have VA Form 21-0960L-2 filled out by my PCM stating that my current disabilities of Lumbar degenerative disc disease (20%) and tinnitus (10%) cause my current sleep disturbances.

    Moreover, I do have a letter from my wife referencing my snoring while serving on active duty (met my wife while on active duty and married while active) and former platoon mate referenced my snoring in a email sent to me by him.

    With this evidence ready for submission, do you think it is enough for a decision in my favor?

    Thank you for your opinion
    Mike

    • Kay Derochie

      Dear Mike,

      Just submitting evidence is not sufficient. Proving a VA rating is a complex process that involves medical-legal issues requiring expertise if the contentions are not clear-cut. For example, if a person is sightless due to an IUD event, it is clear-cut. Your situation is not clear cut.

      You will be playing in a legal arena with your upcoming hearing. You should consider engaging an accredited VA attorney.

      Sincerely,
      Craig L. Ames
      Accredited VA Attorney

      • Mike

        I appreciate your opinion and reply. However, from what I have researched and read, submitting well established evidence (diagnoses and doctor opinion/nexus), coupled with witness statements that link my snoring had manifested in the military, or at least proving the problem did exist in service and/OR sleep apnea in my case is at least secondary to a currently rated disability, is what the VA is wanting to see. Is that not correct?

        Thank you,
        Mike

        • Kay Derochie

          Dear Mike,

          A VA application involves the interpretation of over 4,000 pages of federal statutes, VA regulations and rules. Each claim is subject to a determination, which means a value judgment.

          Submittial of a claim appeal when a claim determination is not favorable means persuasive case law analysis of those grounds in which a panel of judges will rule on the substantive matters of evidence. Proving a claim is not necessarily a sequential straight line process. A substantive claim is difficult to prove since about seventy percent of all claims are denied in cases where the VA has granted a rating to a veteran.

          Sincerely,
          Craig L. Ames
          Accredited VA Attorney

  • Paula

    Just a quick question if you please. I am currently receiving a total of 60% VA disability. 10% of which is due to a back injury during active service.
    I’ve had a spinal fusion and 4 years later the discs above and below have now blown and causing back and nerve pain. My surgeon has said this is not uncommon with a fusion. Your spine is not meant to be held in place like that. I was considering submitting for an increase of the 10%.
    Is that valid? I’m wondering if the VA would just deny the claim siting the condition is worse because of the surgery and not the original injury.

    • Kay Derochie

      Dear Paula,

      The only criteria for a claim submission is that the veteran submit a claim which is “plausible.” A plausible claim does not mean the claim will be approved. The VA will determine if the claim is meritorious or not.

      Sincerely,
      Craig L. Ames
      Accredited VA Attorney

  • Annie

    HI, I just checked ebenefits and see that my claim is closed after 8 months, but there is no other information showing if I have an increase on my PTSD or Unemployability claim, or Major Depressive Disorder. Does this mean my claim is denied? it closed yesterday, so today I see no update when I look at my disabilities. I am scared.

    • Kay Derochie

      Dear Annie,

      The VA does not deny a claim without providing a written decisional letter. You need to check with the VA Regional Office where you submitted your claim and inquire about whether a decision has been issued. If it has, request a duplicate letter.

      Sincerely,
      Craig L. Ames
      Accredited VA Attorney

  • leon williams

    I served in the army during 1974-1977. I filed a claim just before I got out(for a enlarged heart) VA later said it was not service connected. Many times since then I have ordered my service medical records, but all va ever sent was an entry and an ETS physical check list sheet nothing in between. There should have been x-rays, and so on. I just filed a claim for sleep apnea, heart condition, and more. My doctor wrote a letter said he diagnosed me with sleep apnea in 2003, and said even though sleep apnea was not well established back then(1974-1977) there was no doubt in his mind that I had the symptoms all along. A retired sgt. that I was stationed with also wrote a letter confirming this. My wife wrote a letter also confirming this. There are heart and sleep related parts of my record that are missing that I SAW WHEN I WAS IN THE SERVICE. I just got denied by VA for this claim. What do I do?

    • Kay Derochie

      Dear Leon,

      You have a choice. First you can proceed on your own without having any background in how to legally prove a medical compensation VA claim. Alternatively, you can have a professional review your claim to determine if it has merit and is viable as a claim for a VA rating decision. I suggest you check with the Disabled American Veterans (DAV) or American Legion, which are organizations accredited to help veterans. In the alternative, you can ask an accredited VA attorney to review your case.

      Sincerely,
      Craig L. Ames
      Accredited VA Attorney

  • David

    I recently retired from the military, 30Nov15. I filed my VA disability claim in June of 2015. Based on eBenefits, the status has yet to change. It states that it is requesting information . I have uploaded all supporting documents back when I filed a claim, 6 months ago. I was under the impression that the intent of the “new” program was to have the claim completed on or about the service member’s separation/retirement date? Also, is there anyone or process to help push this along or bring the claim to the forefront?

    • David

      It states that it is requesting information from “VA Medical Facility”

    • Kay Derochie

      Dear David,

      Under the federal law, the VA has the burden to develop information about your claim absent you agreeing to develop all information on your own and actually signing a formal waiver of all your federal rights to have the VA act in your behalf. So you will be at the mercy of the VA with its 1.25 million current claim backlog unless you are prepared to execute a formal waiver and you recognize the VA will not have any duty to find any documents for you. If you decide to do this, it would be advisable to get the help of an accredited VA attorney or and advocate from an organization such as the American Legion or Veterans of Foreign Wars. Alternatively, you can contact your Congressman, but this rarely helps move the claim forward at a pace you would like.

      Sincerely,
      Craig L. Ames
      Accredited VA Attorney

      • David

        Thanks,
        The old hurry up and wait game is still in effect…..

        • Kay Derochie

          You are welcome, David.

  • Duane Aman

    I was in the Army and flew helicopters in Vietnam 1970 and 1971 I have postate cancer and had melanoma skin cancer. I was treated at MD Anderson I sent my records to the VA and was turned down. I thought these cancers were presumptive conditions What can I do?
    Thanks
    Duane Aman

    • Kay Derochie

      Dear Duane,

      There are two types of Agent Orange claims: the first are certain illnesses that are presumptively associated with Agent Orange exposure and the second are those claims that are not classified as presumptive. The second category require proof that the medical condition relates back to boots-on-the-ground chemical exposure. You need to read up on these differences and hire an accredited lawyer to evaluate your claim.

      Sincerely,
      Craig L. Ames
      Accredited VA Attorney

  • Ron Wilburn

    Hi Kay. I was recently rated 50%, but 40% for pay. I was 0% for hearing in left ear and 10% tinnitus for left ear, but not service connected at all for right ear. Seems strange one side of my hearing was affected by my service but not other?

    I feel my ratings on left knee and back should be higher, and not happy with no real hearing loss rating.

    I have one issue I didn’t have records for with the initial filing, which I now do.

    So my question is this: should I just file an appeal for the initial ratings and then file a new claim for the other medical issue, or can I file them all together?

    • Kay Derochie

      Dear Ron,

      Your claim is complex. Your contentions will require medical evidence from a private/non-VA physician to determine if your contentions meet the requirements for a rating. You should consider having a professional VA accredited claims person or organization review your claim denial.

      Sincerely,
      Craig L. Ames
      Accredited VA Attorney

  • Ralph c

    I was Awarded 50% for ptsd in dec 2013 and i appealed that decision in October 2014 due to extreme increase in symptoms, causing work and home life problems i did my NOD and its been over a year and its still in the first stage at regional office. Should i just start a new claim or continue to wait this out? Thank you

    • Kay Derochie

      Dear Ralph,

      There are more than 1.25 million backlogged claims. The VA will take several years to process your claim. If you start a new claim and are approved on a new claim, which will likely take as long to process, benefits will start with the date of the new claim.

      Sincerely,
      Craig L. Ames
      Accredited VA Attorney

  • i filed a claim with the va for service connected disability, they got all my medical records. got rated for sciatic nerve 20 %,hearing 10 %, tnnitus 10 %. i also filed for bi-lateral knees, my medical records show i had surgrey on my right knee in 1986 at balboa naval hospital and spent 3 days there. somehow they by passed my surgery i had and said they couldn’t find any records of any medical treatment, it was in black and white, were they deliberatly not reporting it. i had my doctor who i gave all my medical records to review and she questioned how could they miss that.. i got a letter from her stating there was surgery done in 1986 and it is in my medical records, and i also submitted records for surgery i had done in 2007, claimed as secondary, i think i should have been rated higher around 40 or 50 % higher but they made a big mistake and didn’t see it. i’m still being treated. i still have a lot of problems with both my knees. can you give me some advice. thanks.!!!!

    • Kay Derochie

      Dear Charles,

      You need to be proactively involved in the claim evidence process by researching and filing supporting documentation of your in-service, appropriate medical records. In the alternative you need to consider engaging an accredited VA private lawyer to substantiate the claim for you.

      Sincerely,
      Craig L. Ames
      Accredited VA Attorney

  • My claim was denied twice for PTSD. I was awared 10% for tinnenous ,0% for skin and 0% for hernia. I went to a VSO he reopened my case.I was awarded 70% for PTSD.The award is fine the problem is I lost the effective date.He didnt explain that when we reopened the claim.The VA has nothing to do with that because I picked meat head. The question is should I file a NOD or chalk it up as a costly mistake?

    • Kay Derochie

      Dear LaMont,

      Any appeal will not address retroactivity of the benefit award date. That is not a valid issue to raise. It simply will be denied on that basis.

      The mere filing of your claim in the past triggered the effective date. This is the VA law; i.e., a “claim reopening” has the consequence of a new benefit eligibility date.

      Sincerely,
      Craig L. Ames
      Accredited VA Attorney

  • Joaquin

    Hello,

    I filed for disability for anxiety/depression, right knee, stress fractures on my legs cause by shin splits, and Pseudofolliculitis barbae right before leaving the service in 2011. I was denied for all of them. The va said none of them were service connected. I got plenty of medical records showing I did get seen for those symptoms while in active duty. I got permanent profiles for my stress fractures on my legs and my P. Barbae. Also records showing my pain in my knee was from over usage starting in 2009 and was going to start physical therapy. I didn’t have time since we left to NTC training. I was also seen by a social worker for my depression and anxiety in my records. I was also going to be seen by R&R but I ets before I got that far. I guess my problem was when I got out I stayed in TX and the address they had was my FL one so I didn’t receive their letter. I got denied because I missed my appointments and follow ups. Also since I didn’t provide any evidence when I first claim when I got out the service since I started a quick claim right before I eat. I told they would find evidence in my records but as I know now they didn’t look. I reopened my claim in 2013 and va send me to a health contractor that is helping them with the backlogs they are facing. They actually agreed with my claims saying they would turn around and tell the va. They said it’s up to the va to decide so it seems like I wasted my time going with them. They did have Me get xrays on my legs for stress fractures n said they didn’t see any. The thing is I still feel the same pain when I try to run so now I’m overweight because of that. I feel like I’m still facing the same pain I was when I had the permanent profile for no running. Also they said my knees where fine but they did find some abnormal spot on my right knee. I got records I have been seen for anxiety by multiple doctors since I got out and take meds for that. I’m also gathering statements from fellows soldiers that witness when I got depressed and notice a change in me while I was still in active duty. Also statements from fellows co-workers stating they witness my knee pain and leg pain. I was wondering if I have good enough evidence to reopen already or should I gather more. I tried getting help from a vso but I notice they work with a lot of veterans. I need someone that will take more time to build a good claim. I did receive a letter from them stating they needed more New evidence to support my claim back in 2013. Since I didn’t provide any when I first open my claim in 2011. I have just been putting it on the backburner since I felt like they will deny me anyways. I just really need to get this over with before I waste more time. Should I just send them copies of my medical records showing I did get seen for those claims while I was in active duty? To see if that will work and if not appeal with more evidence like my statements and what not. Maybe the best bet for me would be to build a good claim first with an accredited va attorney. I live in San Antonio, Texas and I was wondering if y’all knew good accredited va attorney in this location.

    • Kay Derochie

      Dear Joaquin,

      A VA claim is a highly technical medical-legal issue. First you must prove you have not only a current chronic medical condition but that the current condition has resulted in a medical supported diagnosis. Then you need to prove the current diagnosis directly relates to an in-service medical event, condition, illness or injury. Finally, you must have medical/legal evidence supported by third party records and professional opinions that there is linkage between the current diagnosis and what medical condition incurred in-service. There is much judgment involved in this sort of analysis. It is best to seek out a professional to assist in this process when you have been denied benefits.

      Sincerely,
      Craig L. Ames
      Accredited VA Attorney

      • Joaquin

        I understand and thanks for replying.

        • Kay Derochie

          You are welcome, Joaquin.

  • albert smith

    I file a claim for service connected compensation on april 25, 2014. The Veterans affairs made a decision August 22, 2015. On May 29, 2014 I had spinal decompression and instrumentation from L4-L5 L5-S1 and lumbar fusion was done. The VA decided to continued with all my current percent on my current disabilities, they denied 3 new service connected condition including my entitlement to indidual unemployability, with one disability currently at 60% another one at 40% and one more at 50%. VA also denied my entitlement to my temporary total evaluation 100% because of my surgery. the bases to come up with the decision was (all evdence were reviewed, however, it has been determined that these reports are not considered credible. We invite you to attend an examination at a VA approved Medical facility in the US. I lived in Panama. The hospital we used here is an approved facility. What should I do re-open or appeal. Mr. Jazz

    • Kay Derochie

      Dear Albert,

      I suggest you seek out the services of an accredited attorney to provide you with a free evaluation as to the merits of your claim. You describe you have a temporary total disability due to surgery. This description does not constitute “chronicity” within the meaning of a disability rating under the VA statutes. You may want to research the elements needed to prove a claim. The VA law is not designed to cover temporary medical conditions. The bottom line test is what constitutes an ongoing chronic medical condition producing a disability based upon linkage back to an in-service medical condition, illness, or injury. This is a complex area of disability claim law and you need to understand that a claim application needs specific medical-legal proof of a highly technical nature.

      Sincerely,
      Craig L. Ames
      Accredited VA Attorney

  • Fref

    I have a question? I saw aa VSO a few years back because I wanted to file for PTDS. He told me not to file for PTSD but file for depression instead. So I did, the claim came back denied and not service connected. At least a year later I saw another VSO and file for PTSD, VA sent me to my local VA to see C&P for the examination. The psychiatrist ask me about the depression claim, why did they give you depression and then take it back. I said no sure Sir. A few months went by and I got my rating for PTSD. One night I was looking over my files, checking out my rating for PTSD and I was looking at the decision that they gave me on depression. The information on depression almost looks like information for PTSD. I’m trying to figure out what is there a mistake made? I checked my records out I can clearly see I had depression when I filed for depression. So now they saying I have depression because I have PTSD, when I had all alone. VA should should have seen that I had file for depression and gave it to me secondary as as a part of PTSD. Did VA overlook this?

    • Kay Derochie

      Dear Fref,

      I cannot answer your inquiry properly without examining the entire case file. We cannot speculate as to the basis upon which the VA did or did not take into account one factor or medical opinion or statement. I suggest you contact a VA accredited attorney who can audit your case file and determine if a claim appeal has merit.

      Sincerely,
      Craig L. Ames
      VA Accredited Attorney

      • Jenifer Roberts

        How does it it take for the va to complete a reconsideration I just found out my claim was denied but the va won’t tell me anything till I get the letter I think they didn’t get my medical records from my military I have ordered them to resubmit it again

        • Kay Derochie

          Dear Jenifer,

          There is a huge backlog of pending claims and appeals. More than 1 million benefit applications are being processed. Absent a claimant being proactive by submitting his or her own evidence (which is not a requirement) the claim may linger for years within the VA system.

          Sincerely,
          Craig L. Ames
          Accredited VA Attorney

      • Susan

        I filed a claim for SC for my knees and hip. My claim was denied. I trusted the VA to access my medical information, thus did not bother to send anything. It has been over a year since the claim was denied. I found medical documentation stating that I injured my knees and hips while Active Duty. I’m a nurse we are on our feet almost 24/7. As well as IBA in Iraq. Not to mention the fitness runs etc. I am not sure if this information was found during my claims process by the VA examiner. How do I find this out? I have filed my claim again reopening hip/knees. This time I have sent the VA via ebenefits every piece of information I could find in my medical records referencing injury/treatment to my knees and hip. But after reading this thread I am not sure I am doing this correctly. I contacted a VSO after filing the second time, but they are not very helpful or forth coming w guidence. I have been doing this on my own and maybe not very well since I was denied the first time. I received a message on my ebenefits account requesting new evidence. I felt I had already done this at the beginning of my second attempt to reopen my claim. I have mailed and downloaded these documents. I am confused. Is the VA processing area receiving the downloads I send, if so why are they asking for me to send everything again.

        • Kay Derochie

          Dear Susan,

          Apparently, the download did not go through correctly. Always submit everything requested even if you think you already have. Also, it appears that you do not have a full understanding of the VA claim process. A VA claim is a medical-legal determination involving much more than proving you suffered an in-service medical condition. You need to seek professional help from an accredited VA attorney to establish how to prove a VA Compensation benefit claim.

          Sincerely,
          Craig L. Ames
          Accredited VA Attorney

      • steffan haskins

        Craig, being a VA Accredited Attorney, you may have an answer to this. I’ve been dealing with a claim, then appeal, for PTSD since November 2012. I went and saw a c&p doctor in July and a week later I got another Statement of the Case in the mail telling me I had 60 days to appeal. I went and saw my VSO August 3 and he filled out an in depth form 9 sl and told me it would go to D.C. from there. Well today I found out they made a mistake and didn’t send it in, with that being said I lost a 3 year battle and backpay due to this VSO’s incompetents. They said they will see what they can do but said I may just have to start over. Do I just have to accept the fact they messed up or if there some type of legal action I can take?

        Thank you,
        Steffan

        • Kay Derochie

          Dear Steffan,

          You can file an appeal to this benefit denial. Include a statement of the mistake by the VA. This may be hard to prove since it will be your word versus the VA unless an employee of the VA will confirm that, yes, that person did make a mistake. It will be hard to get an employee to verify in writing for you the occurrence of the mistake.

          Sincerely,
          Craig L. Ames
          Accredited VA Attorney

          • steffan haskins

            I have a singed copy of my paperwork by myself and the VSO dating 3 August. With that, do I need any more proof? Is it still my word verse theirs when I have a dated copy of the official document?

            • Kay Derochie

              Dear Steffan,

              You can file an appeal to a benefit denial. It will be difficult for you to affirmatively prove your allegation. It will be difficult to obtain a verified statement from a VA staff member as to what transpired. You will need names, dates and a background statement as to what happened.

              Sincerely,
              Craig L. Ames
              Accredited VA Attorney

  • Fref

    About my claim, I have filed 3 times on my neck & shoulder each time denied, each time showing new evidence such as MRI epidural and cortisone shots, but the va keep saying no new evidence. One thing I haven’t did you file an appeal. Re open it up again last January and they did not it again so I think I need to do it on appeal is that correct?

    • Kay Derochie

      Dear Fref,

      If you are getting nowhere on your claim, then maybe you should seek legal counsel as to the merits or lack thereof of your claim. Self-help does not seem to be working for you. You can contact the bar association of your state to get a list of accredited VA attorneys.

      Sincerely,
      Craig L. Ames

  • Fref

    Hurt my neck & shoulder in 1998 when I was in Summer Camp, went on sick call, it noted in my Guard Med records, Deployed to Iraq 2005 to 2006. I started have problems with my neck & shoulder again in 2007. So I filed claim VA, said not service connected, I set them a copy of my med records from the National Guard to show them I had the injury before. I think it was aggravated while I was deployed in the symptoms came back. What is my next step?

    • Kay Derochie

      Dear Fref,

      Please see my response of a few minutes ago to your prior post.

      Sincerely,
      Craig L. Ames
      Accredited VA Attorney

  • Rich E Maers

    I am rated 100% P&T for low back. I had surgery on both knees and was awarded two 30% ratings (bilateral), secondary to low back disability. This should be qualified for SMC-S, but VA did not award it. Is this grounds for a CUE?

    • Kay Derochie

      Dear Rich,

      A CUE (Clear and Unmistakable Error) is a special type of error. It is a claim for revision of a previous denial. It can be filed at any time, even years or decades after the claim was decided or the appeal denied.

      CUE exists when: (1) either the correct facts were not before the adjudicator or the statutory or regulatory provisions in existence at the time were incorrectly applied; and (2) the error is “undebatable;” and (3) the error must make a difference in the outcome. In other words, a CUE is not a disagreement with a decision or an argument that VA got it wrong.

      Please be aware that a CUE is rarely granted due to the technically narrow circumstances in which it applies. You will need to consider having only an accredited VA attorney review your claim to determine if such a claim appeal is warranted.

      Sincerely,
      Craig L. Ames
      Accredited VA Attorney

  • Becca

    So I put in a PTSD claim in June 2014, had an exam in May 2015 and was awarded 30% in June 2015. Unfortunately the psych examiner failed to address my MST, so they gave me another PTSD exam and it was more focused on MST issues. So now my second award letter they are giving me 50% now for PTSD/MST but they are only back dating the retroactive pay to June 2015( not June 2014 when the claim was initially put in) When I first got my 30% it was retroactive back to the original time I submitted he claim in June 2014. Can they do that and not back pay me from June 2014? It just doesn’t make sense.
    Thanks for your advice.

    • Kay Derochie

      Dear Becca,

      Just because a claim is applied for on a certain date does not mean that VA will agree that the medical condition produces a disability dating back until then. It appears that the VA determined that the disability first occurred when diagnosed in June 2015 and that the claim was not supported by any prior evidence of a diagnosis resulting in a disabling condition.

      Sincerely,
      Craig L. Ames
      Accredited VA Attorney

  • Josie Lou

    Hello –

    I filed a claim in 2013 and missed by doctors appointments due to homelessness. I was denied in 2014 and sent in a letter of appeal. Now that I have a place to stay, I would like to work on my case. Will the VA look at my appeal if I go to the appointments and send information or new material? Should I file another claim? Or should I just wait for them to get around and look at my appeal folder and respond? I’m so lost.

    Josie

    • Kay Derochie

      Dear Josie Lou,

      You have one year from denial of benefits to file an appeal; otherwise the claim is closed. If your claim is closed because a year has passed since the denial letter, you will need to file a new claim.

      Sincerely,
      Craig L. Ames
      Accredited VA Attorney

  • Gayle Rogers

    Hi, My husband is a Viet Nam Vet, he operated Quad 50s while over on the DMZ and that area. He had a hearing test done in 2008, they stated then that his hearing in the left ear was just about gone and the right ear wasn’t far behind. We put in a claim for disability and he was denied, so a couple of years later we contacted a VA Officer and he filed an appeal, which my husband did not go forth with because of reasons related to he didn’t think he deserved it, there were a lot of others that were injured that deserved it much more then he did. Now we are going to have another hearing test done, I am sure his hearing is worse, can we file a new claim with that new information or do we just reopen the previous claim. I also have some statements from him stating of how he was hit in the head during a fire fight and knocked out for a while and how he would be positioned down in the 4 caliber machine guns so he was sitting right down between where they were fighting. I never gave any testimony towards his claim of how his hearing has deteriorated since he came home from Viet Nam in 1971, I have been married to him for 44 years. I don’t know if all that can be used as new material. Please give me your opinion on this inquiry. Thank you very much!!

    • Gayle Rogers

      I meant to say he was sitting down between all 4-50 caliber machine guns while they were being fired off.

    • Kay Derochie

      Dear Gayle,

      Your husband will need to file a new claim. A new claim sets the date from which benefits would be paid, assuming the claim results in a rating of at least 10%. In the event benefits are denied and you do not already have legal services, your husband can contact me at (904) 374-2136 to assist him with his appeal. (You do not have to pay any legal fees up front and you will pay attorney fees only if you are approved for benefits.)

      Sincerely,
      Craig L. Ames
      Accredited VA Attorney

  • Eric

    I retired from the Navy in 2005. While I was on active duty I was experiencing what I suspected was sleep apnea. The loud snoring (according to my shipmates who had their racks next to mine), constant waking up, etc. It wasn’t until now that I finally complained to my doctor about it. She ordered some tests done and it was determined that I had a serious sleep apnea problem. My question is, can I still claim this even if it wasn’t on my medical record? What would I have to do if I still could file a claim. Here’s to hoping.
    Thanks for your time and appreciate all you do.

    • Kay Derochie

      Dear Eric,

      You will need to consider going to a specialist in VA Compensation claims, such as the Department of Veterans Affairs or the American Legion to find out how to prove the occurrence of an in-service medical event. If you have not been to a military clinic to seek services for a medical condition, it will be difficult to prove the condition has a relationship to serving as a veteran.

      Sincerely,
      Craig L. Ames
      Accredited VA Attorney

  • Ettish

    I started an ankle injury and PTSD claim with the VA 9/2011. Even though I was medically discharged because of my ankle due to a combat related injury, I was awarded 0% service connected and not service connected on PTSD. If I reopened the PTSD and supplied all relevant medical documents that the VA didn’t have at the time of my claim and get awarded service connected PTSD and an increased % for my ankle, will there be any back pay owed to me?

    I moved states after filing the initial 2009 claim and never received any correspondence with VA after that. No appeals, just a request increase ankle and reopened PTSD. I’m afraid I’ll lose out on all those years of back pay.

    • Kay Derochie

      Dear Ettish,

      It appears you will need to file a new claim, which will tart the time period and benefit entitlement date all over. You should have a professional review all your paperwork to sort out the issues for you.

      Sincerely,
      Kay

  • Hi and thank you for all of your helpful information. I would like to know a couple of things and will try to make it brief as possible but provide you with enough details that you could give me an answer or at least point me in the right direction.

    I received my disability rating back in July of 2010. I am way past the one year appeal mark, however, after recently looking through my paperwork of why they rated me only 30% I noticed a lot of the information is bogus or false and highly inaccurate.

    For example, headaches: I get on average 3-5 headaches, just in a one week period. Well and long before I gotten out of the military I have told at least, at the least, 3 doctors how often they occur. Upon recently looking through my paper work of why they rated me a 0% was because in their eyes I didn’t complain enough, or that I didn’t receive a headache except once every other month, which is absolutely false. Currently I have been keeping a journal of how often they occur and they occur very often! I either go to bed with a headache, wake up with one, or get one sometime during the day, again 3-5 times per week. On top of all this I am always low on sick leave and have no choice but to come to work and work with a headache because if I don’t work then I can’t get paid, if I can’t get paid then I can’t support myself and family. Currently, I have an appointment with the VA to be seen by my doctor and to go from there. I will also be showing my doctor my headache journal too.

    Skin fungus: My paperwork said that it did not occur while in the service. Again false information! What was also false information was that I was given prescription pills to treat it and I was given no such pills for this. I was not properly treated for this condition until I gotten out of the military and that is only because the doctors had absolutely no clue on what it was or how to treat it. But after I gotten out my doctor at my local VA hospital informed me of what it was and gave me a shampoo for my skin to suppress it by continual use of it. Once I stop using the shampoo it returns, I get redish brown plotches on my back, neck, and chest and am constantly scratching and irritated through out the day especially after any physical exertion and when the weather is too warm. When I see my doctor again I will be requesting more shampoo.

    Currently I have an appointment to be seen but only to receive more shampoo and to have them find out what exactly is causing my headaches if they can determine it. If they can’t then I will fight hard for 100%.

    My question to you: What do I do now? All I have currently is an appointment to be looked at by my doctor at the VA hospital but its not until the end of August and they are doctors not VA reps. Where must I go from here to be re evaluated or is it best to wait until after my appointment with my VA doctor so that my new information will be in my medical record?? Who do I need to speak with for them to re examine my case because the information is not true.

    Thank you for taking the time to provide all of your information and for us to ask you questions.

    • Kay Derochie

      Dear Carlyle,

      Since you did not file a Notice of Disagreement, your claim is closed. If you wish to pursue benefits, you need to file a new claim, which starts the claim for benefit process all over again.

      Sincerely,
      Craig L. Ames
      Accredited VA Attorney

      • Fabian BURKE

        I was currently denied for sleep apnea and the VA says it is not service connected. In wa medically discharged July 2011fromt the guard. In my meb board evaluation and finding it says I am medically fit for sleep apnea with a p2 profile. My question is ” Wouldn’t that constitute medical evidence?

        • Kay Derochie

          Dear Fabian,

          VA compensation benefit claims are complex. It is not a matter of submitting one record that indirectly references sleep apnea. You need to seek advice from an accredited claims professional such as the Disabled Veterans of America or American Legion for assistance.

          Sincerely,
          Craig L. Ames
          Accredited VA Attorney

  • Luis Cardona

    Perhaps someone can help me out. I filed a claim in July of 2013. My claim was was denied/close in January 2014 yet I had never received any documentation to attend any screenings or exams. There was also the issue that the VA claimed they had never received my original paperwork yet there was a time stamp from the the VA saying it was received.

    Would it be feasible or even prudent to hire a VA attorney to try and appeal the original claim since I was never informed in writing or by phone calls that I had any scheduled exam dates? The claim was closed in January 2014 and yet no one I have spoken to can provide me with any paperwork for the reason of judgement nor have I ever received any paperwork ever since.

    Could anyone advise me on what route to take?

    • Kay Derochie

      Dear Luis,

      If you know that your claim was denied, there must have been a way that you found this information out. The typical way of knowing this is that you received a Decision Letter from the VA dated in January 2014. If that is the situation, then it is too late to appeal the claim. On the other hand, if the VA did not send the decision letter to the correct address, then you need to prove that to the VA Regional Office. If you can do so, the VA may reopen the claim.

      Sincerely,
      Craig L. Ames
      Accredited VA Attorney

  • Donald Covert

    I just put in a claim for disability for my knees, and right ankle about 3 days ago and just 3 days later the VA has already declined my benefits. Shouldn’t it be a longer process to see if I should receive benefits or not?

    • Kay Derochie

      Dear Donald,

      It appears that you either did not file a proper application or possibly you have filed a new claim, which duplicates a prior similar claim. Also, you may not meet the eligibility requirements as a “claimant” under the definition of the VA law. You will need to have your claim denial reviewed by a professional, such as an accredited VA attorney.

      Sincerely,
      Craig L. Ames
      Accredited VA Attorney

  • Kay Derochie

    Dear Stringer,

    I did not let your post go public because this site is not a forum for political activism; however, it may be helpful for you to know that all benefit programs, not just VA benefits, have a time limit on appealing an adverse decision and the time frame is listed in the decision letter. It is up to the claimant to contest the decision during the time frame allowed. The decision is not final until the claimant fails to contest it.

    Sincerely,
    Kay

  • Oren

    Good afternoon,
    I filed a claim in oct 2010 and have appealed it since then with no break saying that the original diagnosis for 0% was incorrect.

    Based on a recent re-eval at a VA / QTC facility they awarded me 20% disability, and my appeal now says that my request for rating above 30% is denied. The effective date is the first of July 2015 for the 20%.

    My appeal was based on the fact that my disability met more than 0% criteria.

    My question is : is this normally how an appeal ends the soc says we are increasing your rating based on the last eval ,and denying your claim that it should have been higher ? If it was 20% from day one I wouldn’t have made the appeal on that rating.

    They also keep asking me to waive my 30 days so they can get me in front of a judge…? I keep saying no thank you. Like 30 days is a big deal after dealing with this for over 4 years.

    It sounds like my appeal is on going ,but that I now am rated 20% higher . Is this normal ?

    I can’t even tell if I won my appeal! They basically agree that I was correct but denied my claim ? … And increased my disability?

    I am seeing a friend that works on base ,and is a VA rep next week ,but didn’t want to show up completely in the dark.

    Your web sight was very informative … Thank you for your support !

    • Kay Derochie

      Dear Oren,

      You should have a professional VA accredited attorney sort this out for you. VA claims are complex and the decision letters issued by the VA require expertise as to what specific terminology means.

      Sincerely,
      Craig L. Ames
      Accredited VA Attorney

  • Virgil Medeiros

    Prior to exiting the service I had requested disability for my knees. I had years of documented issues while in the Corps but for some reason my claim was denied for this issue, but approved for some others. My EAS was in 2003 and now I’m finally getting MRI’s that may finally give new evidence to the issue. If they do in fact show new evidence would I be able to reopen my claim with the new evidence, or would I have to start a new claim since it’s been 12 years? If so, would they back date it to my EAS, or only from when I file the new evidence?

    • Kay Derochie

      Dear Virgil,

      You have to file a new claim. The date the VA accepts the claim is the date used to establish a benefit date.

      Sincerely,
      Craig L. Ames
      Accredited VA Attorney

      • Jim G

        My original claim award was given in 2010 as service connected with 10% for each shoulder classified as strains and 0% for a sleep disorder. Last week I filed a claim with the help of DAV. Until this year I was not approved for an MRI. The MRI found a torn rotator cuff in the right shoulder and a torn labrum in the left. The surgeon in his report stated surgery was due to “failure of conservative management”. I was also given a sleep study that resulted in a diagnosis of severe sleep apnea. A previous study given in 2009 was unfounded.

        Between 2009 and 2014 I was seen at 3 different VA facilities, all of which neglected to properly test for the symptoms I expressed. Amazingly this year at the 4th facility my health issues were properly addressed. From what I’m understanding is that the VA was able to avoid granting me an appropriate disability percentage by neglecting to properly diagnose and treat. I did my due diligence to seek care, the VA failed to provide it until I found a hospital that took the time to get it right. How can someone appeal when the evidence is not allowed to be found for over 5 years?

        • Kay Derochie

          Dear Jim,

          The way you have set up the context of your inquiry does not accurately describe the VA law and claim process. A veteran has some proactive responsibilities to seek out what must be done to not only submit an application for VA benefits but also to understand the unique requirements under the VA law as to what is required to develop the claim evidence and to prove an in-service related disability. I would suggest that you speak to your DAV representative who can explain these concepts of proof to you and how this relates to the date of benefit entitlement, if benefits are awarded.

          Sincerely,
          Craig L. Ames
          Accredited VA Attorney

  • Eric

    Also, I have a letter stating from a law firm that they could help me file for VA and Social Security disability back in 2010. Since my disability is PTSD I put if off until recently when my girlfriend helped me to apply online. Is there any chance in getting either claims back dated to 2010?

    • Kay Derochie

      Dear Eric,

      My reply is in response to both your postings. You cannot comingle legal concepts from a VA claim with a Social Security claim. There are different laws and principles that apply to each disability program. In a VA claim, the date of benefit eligibility is determined by the date a new claim application is received by the VA Regional Office. If you filed a new VA claim today, then today would be the date that a claim for benefits would be dated for an award, if you were successful.

      Sincerely,
      Craig L. Ames
      Accredited VA Attorney

  • Eric

    I recently got Social Security Disability, that was dated back to Oct 2014. This was when I became unemployed due to disability, could I try to get VA disability to go back to Oct 2014 even though I applied March 2015?

  • Joe Webb

    I am recovering from throat and prostrate cancer. Thank God cancer in remission. I still have health issues related to the treatment.

    I was in Army 1966-1970 I had a 31j20 teletype repair MOS.
    I was exposed to PCB in teletype equipment, electronics ( radio, crypto-gear and electrical cable. I was also exposed to cleaning solvents containing PCB.

    I was in USMC reserves (1979-1984) and worked as Aircraft Aviation Tech. I was exposed to PCB repairing avionics and weapons systems
    on Cobra Helicopters (UH1) and Bronco (OV10) fixed win aircraft. Do you have information on PCB compensation claims to VA?

    • Kay Derochie

      Dear Joe,

      A veteran needs to distinguish between a presumptive condition and a condition which the VA does not consider presumptive. The VA assumes that certain diseases can be related to a Veteran’s qualifying military service. They call these “presumptive diseases.”

      If the current medical condition is not presumptive, then you must directly prove your medical claim occurred in-service. If you have a current diagnosis of an actual medical illness that results from the following list of “presumptive medical diagnoses,” then your VA claim is fairly easy to prove. If you have a current medical diagnosis you are contenting arose while serving in Vietnam or via “Agent Orange” exposure, AND that diagnosis or disorder is not on the “presumptive list” below, you must prove your claim.

      “Agent Orange” is a catch-all term that represents a number of different herbicides the military sprayed for tactical reasons from 1962 to 1971, during Operation Ranch Hand. These herbicides were sprayed to kill trees and dense tropical foliage that provided cover for enemy forces during the Vietnam War. The name Agent Orange came from the orange stripe that was used on the containers in which it was stored.

      Some diseases have been presumptively connected to exposure to Agent Orange. If you were in a specific location during a specific time and you currently have one of those diseases, the VA will presume that it is the result of your exposure to Agent Orange.

      For purposes of disability compensation, the VA presumes that you were exposed to Agent Orange or other herbicides if you served in Vietnam anytime between January 9, 1962, and May 7, 1975 including brief visits ashore or service aboard a ship that operated on the inland waterways of Vietnam. You will also be presumed to have been exposed if you were in or near the Korean demilitarized zone anytime between April 1, 1968, and August 31, 1971.

      Given your prostate cancer and possibly your throat cancer (see presumptive disease list below), if you served in Vietnam or the Korean demilitarized zone in the time frames indicated above, you may be eligible for benefits based on a presumptive condition. If not and you believe that your condition is related to exposure to PCB, you will have to prove your claim, and it could be advisable to get assistance from an accredited VA attorney or organization qualified to represent veterans.

      PRESUMPTIVE DISEASES:

      VA has recognized certain cancers and other health problems as presumptive diseases associated with exposure to Agent Orange or other herbicides during military service. Veterans and their survivors may be eligible for benefits for these diseases.

      AL Amyloidosis: A rare disease caused when an abnormal protein, amyloid, enters tissues or organs

      Chronic B-cell Leukemias: A type of cancer which affects white blood cells

      Chloracne (or similar acneform disease): A skin condition that occurs soon after exposure to chemicals and looks like common forms of acne seen in teenagers. Under VA’s rating regulations, it must be at least 10 percent disabling within one year of exposure to herbicides.

      Diabetes Mellitus Type 2: A disease characterized by high blood sugar levels resulting from the body’s inability to respond properly to the hormone insulin

      Hodgkin’s Disease: A malignant lymphoma (cancer) characterized by progressive enlargement of the lymph nodes, liver, and spleen, and by progressive anemia

      Ischemic Heart Disease: A disease characterized by a reduced supply of blood to the heart, that leads to chest pain

      Multiple Myeloma: A cancer of plasma cells, a type of white blood cell in bone marrow

      Non-Hodgkin’s Lymphoma: A group of cancers that affect the lymph glands and other lymphatic tissue

      Parkinson’s Disease: A progressive disorder of the nervous system that affects muscle movement

      Peripheral Neuropathy, Early-Onset: A nervous system condition that causes numbness, tingling, and motor weakness. Under VA’s rating regulations, it must be at least 10 percent disabling within one year of herbicide exposure.

      Porphyria Cutanea Tarda: A disorder characterized by liver dysfunction and by thinning and blistering of the skin in sun-exposed areas. Under VA’s rating regulations, it must be at least 10 percent disabling within one year of exposure to herbicides.

      Prostate Cancer: Cancer of the prostate; one of the most common cancers among men

      Respiratory Cancers (includes lung cancer): Cancers of the lung, larynx, trachea, and bronchus

      Soft Tissue Sarcomas (other than osteosarcoma, chondrosarcoma, Kaposi’s sarcoma, or mesothelioma)

      A group of different types of cancers in body tissues such as muscle, fat, blood and lymph vessels, and connective tissues.

      Sincerely,
      Craig L. Ames
      Accredited VA Attorney

  • Jpa

    Have a question have a claim to increase for gout. Had x-Ray from my private doctor and labs and report. I had a va c&p aldo now. Now shows my private Dr they are using and VSR report no longer required. And pending decision. This sounds like it’s not good for me

    • Kay Derochie

      Dear Jpa,

      Your posting does not include a question. If you would like to repost with question we will attempt to respond.

      Sincerely,
      Kay

  • KBULL

    I’d filed a claim back in the 1980s for a tumor that destroyed my sinuses, caused proptosis of my eye and tore through the wall protecting my brain.
    In 2001 I submitted my inservice hospital report that the VA claimed they read, but it was later proven they had only read my sick bay records.
    I submitted those records and pointed out all the incorrect decisions they had made in the past and requested they be corrected.
    The VA had only granted me claim for 10% scars and 10% burhole back in the 1980s. They stated there was no damages to my frontal sinuses, no proptosis of the eye and that my maxillary sinuses were developmentally small.
    In 2002, the VA stated that the statement I had made in was the basis for them reopening my claim (although they listed those records I submitted as part of the evidence) so therefore the claim date was the date of the statement.
    The record directly states the damages to my sinuses and that the tumor entered my frontal lobe. And it states the proptosis of the eyes.
    The VA awarded me 10% for exophthalmos and another 10% for headaches. And they deferred loss of skull with brain herniation. These decisions had been done at a VA that my Jackson VA had outsourced my file to adjudicate.
    When the Jackson VA got my file back, they with my VSO talked me into filing for individual unemployability status. They then over a period of 5 months caused the scheduling of my exam for loss of skull with brain herniation to disappear.
    When I filed a notice of disagreement, the VA at first stated that the decisions granted me had no medical basis. They later stated my original claim had been for sinus tumor that had something to do with his eyes. The BVA remanded the claim back to Regional office and stated the VA had not properly adjudicated my claim that they had been in error (CUE) in their decisions in a 2009 Review Officer denial. The BVA brought up a determination I was filing a free standing appeal.
    Being that the Jackson VA limited the issues to the granted decisions, I have no leg to stand on in proving CUE.
    Do not a veteran under 38 CFR 1.56 have the right to reopen a claim by using service agency records, and if those records predate the original decision and on their own prove that the 1980 decision by the VA was wrong and my claim was correct, the retroactive date should be the date the denial was made or date of that original claim?
    Yet, I have read only proving CUE can be used in that manner. Is not correcting erroneous decisions by the VA, by using inservice records of a government agency the same as proving CUE? Has the regulation in using New and Material Evidence been deleted? I’m confused.

    • Kay Derochie

      Dear Kbull,

      There is a major difference between a request to reopen a claim based on new and material evidence and a request to reopen based upon a clear and unmistakable error (CUE). For the former type of claim, the veteran submits new evidence. That evidence must be material. If the VA does not find it meets those two requirements, then the claim is not reopened or it is outright denied. The date benefits start is the date the VA receives the request. The claim is not retroactive.

      On the other hand, a CUE claim cannot involve the submission of any evidence whatsoever. If the VA allows the claim to be examined, any decision is based on the then existing case file. So this type of claim is a collateral argument and not based on any new evidence. If the VA allows the CUE claim and overrules its prior decision, then benefits are retroactive to the earlier claim receipt date.

      Sincerely,
      Craig L. Ames
      Accredited VA Attorney

      • KBULL

        Kay Derochie
        Thank you for your answer, but I’m confused.
        In my case, as I stated, the VA denied claims that I had made. I submitted old in-service hospital records that directly proved the decisions in the VA’s original denial was incorrect, and the claims I had made in my original claim were correct.
        If I later find in-service hospital records that directly correlate with my claim and directly contradict their denial, Is that not filed as New and Material Evidence from a governmental agency?
        Then if that evidence and their examination proves my complaint are legit after reopening the claim, then because they are correcting the original incorrect decision in their original claim it should be retroactive to that date. Isn’t that the purpose for the special rule for submitting service department records?

        Thank you.

        I’m just still a little confused

        • Kay Derochie

          Dear Kbull,

          Retroactivity of benefits is not as simple as you believe it is and VA laws, regulations, and court case rulings are extensive. I suggest you seek an accredited VA lawyer who can evaluate whether or not you might have any appeal avenues. Going it alone on a complex legal issue is not a simple linear matter. An electronic communication cannot do justice to your inquiry without a complete case file review.

          Sincerely,
          Kay

  • Ranae

    Hello. My question is…. I filled my claim August 2014 in Texas. I moved to Florida that September 2014. I went to va and had my new address updated and even received mail saying va was still working on my claim sorry for the delay at the new address. So in March 2015 I received a denial packet saying I did not attend my C&P exams. But I’ve never gotten them. Come to find out va scheduled my appointments in Texas when I clearly moved. They had everything updated. So I called and they admitted to their mistake. So now I’m having my C&P exams and my question is will i receive back pay from August 2014 from my original file date or March 2015 when they reopened the claim even though the mistake of the scheduled appointments was on their fault and not mine?

    • Kay Derochie

      Dear Ranae,

      You need to put your claim in perspective. The examinations come first. The VA doctors will render an opinion which may or may not result in a favorable medical finding to you. Other documentations will be done and the claim can linger for years within the VA system. This claim process is a medical as well as legal process so a non-medical, staff rating-decision-maker will be rendering your decision and not a physician. If the rating determining is made in your favor, then and only then can a benefit be calculated. If benefits are awarded, the benefit generally dates back to the date the VA received your claim application.

      Sincerely,
      Craig L. Ames
      Accredited VA Attorney

  • Who can assist me with a Tort claim for injuries arising out of ect’s (shock treatments) from the VA…Memory, thought process, a lot of cognitive skills

    • Kay Derochie

      Dear Tom,

      Please see the VA attorney’s reply to your prior question.

      Sincerely,
      Kay

  • No story just a question. How does one file a tort claim? And are there any attorneys that will fight for a veteran with out fear from the government. Brief synapse. I was treated for depression with E.c.t.’s.. ( electro convulsive therapy) and the VA will not assist as they don’t want to admit their mistakes. Now I have both short and long term memory lapses, confusion in doing normal tasks, problems with putting my thoughts into words. I think the worst part is when a friend or family say’s ” Do you remember when?” and all I can see I nothing. Any advise would be helpful.

    • Kay Derochie

      Dear Tom,

      You need to check with the Bar Association of the state where you live in order to seek out the assistance of an attorney who practices in the geographic area where you are located. The local Bar Association can give you a referral to a qualified attorney.

      Sincerely,
      Craig L. Ames
      Accredited VA Attorney

  • Robert

    Need some help? While in the military I had a few injuries. I had several knee injuries and went to clinic and Hospital while in military. Once I was out of military, I started to have knees locking up and painful. I was diagnosed with osteoarthritis. I had about 11 surgeries on my knees. I filed a VA claim and trying to get medical help from the VA but Claims lost each time. I reapplied in 2006 for both knee injuries. Mysteriously my medical records lost and what they did have did show any type of knee injuries. VA gave me only 8 months and then closed claim until I had evidence of injuries. My parents had copies of some of my medical records from the military. I reopened my claim in 2014 giving the VA a copy of military records showing treatment overseas and at Fort Hood Hospital. I gave the VA a copy of all the surgeries I had. I am in Pending Decision mode now.
    My question is, I have been trying my best to get medical help with the VA Hospital for knees and hernia. Can the VA close my knee injury claim in 8 months? Does the VA go back to 2006 now that there is evidence showing the Knee injuries while in the military or to 2014 when I reopened my claim.
    The scary stuff is I had a Mesh put in me from the military for the Hernia’s and the Mesh failed 3 years after I got out on an Honorable discharge. I have had a total of 12 surgeries to fix the Mesh, hernias and testicular varicocele removed with left Tistical. I currently have a Hernia again. The VA surgeon said back in 2013 that it was too dangers for them to go in again and remove mesh or try to correct it. Currently I have been waiting to get a Hernia repair again and waiting for two knee replacements.
    The VA just this year did the QTC exam on everything and sent me to a Private Doctor for knees. He is a Pain management clinic. However, he was no longer able to see any veterans because of non-payment from the VA health net. I called and sent letter to VA and my senator. VA said they worked everything out with the doctor. But this past Thursday his office called and said he can no longer treat me because of cost and not receiving the money. So back to square one with knees.
    My Senators office J.I. , I feel they did nothing to help me and not sure if they were giving me BAD INFO as well. Quote (if a Veteran has an injury in military they have one year after they get out seeing VA or a private doctor or it is not service connected. Even if I have several reports showing injury or even surgery!!! Is this true? My hernia Mesh did not fail until 3 years after I got out, so I cannot file a claim or get treatment. So if I lost my leg or had surgery, I have to pretend it never happened in the Military. I have to say that this is the stupidest thing I have ever heard off or the Senators Office was not truthful and never did anything after asking 4 times for help. I could go to the Media (WSB) and give my story to a reporter I know and see if she could help me. But really hate doing this also. If I had to do it all over again, I think I would have never joined. I do know the Senator lost about 100 votes from us, and really think the Senators office needs a new VA representative is up to speed on VA stuff and someone who really cares.
    We decided to take out a 2nd mortgage to help pay for Hernia correction and get at least one knee replacement. I am very disappointed with my senators VA reperseative and feel this lady could give a Ratz bass about Veterans, even by her tone on the phone. I could get an attorney to help but that means I wait longer, VA gets PO with me and I am out of pocket for more money.
    Anyone having something similar to my claims and surgery? I do not know if VA will show service connected on knees after evidence given to them, but need the help for surgery for knees. Have to have Hernia repair or this will rupture as told by private doctor. Given VA copies of all the surgery I have had after getting out of military. It is not fare that I have paid all this money. Now I will have to take out a 2nd mortgage to pay for everything, really wish I had a Good Senator who has my back or any other veteran!!!!!!!!!!

    1. I have a 0% rating for testicular varicocele, Left, right Hernia, from surgery in military.
    2. I get 20% for hearing after gunfire ruptured eardrum and a small fracture on skull.
    3. Left and right knee (show not service connected) but have records showing service connected.
    4. Left foot, reattachment of small toe (still looks gross) (shows not service connected because military record on this lost, a foreign hospital did the reattachment.
    5. Applied for several deep scars.
    6. Applied for temp full disability for all the times I was out of work from surgery. One knee, I was out for 6 months and had a nurse come to house 3 times a week, bone had to be grafted from leg to knee.

    Kay, thank you for taking time.
    Question:
    1.Will VA go back to 2006 or when I reopen on Knee? New evidence.
    2. Can the VA close my claim in 8 mo?
    3.Will VA let me have treatment and send me to a VA doctor if they show it service connected, because I did not file after the year was up getting out of military?
    4. Do I need to go ahead and get an attorney if VA denies claim on knees and denies increase on Hernia, after about 23 surgeries outside the military for knees and hernia and removal of testical because of bad mesh (pins break loose all the time)

    Once again thank you and hopeful I can be put on the right track, just worried about my health and dangers that could make it worse each day I go without the surgery.

    • Kay Derochie

      Dear Robert,

      1. When you file a new claim the date of benefits, if awarded, dates to the date you filed the new claim.

      2. There is no policy as to how long the VA takes to deny a claim. The time line is specific to your individual claim process.

      3. When you file a VA disability claim has no relationship to a claim for treatment in a VA facility. Each type of benefit is independent of each other.

      4. Yes, you should seek the assistance of a VA accredited attorney if your claim(s) is/are denied.

      Sincerely,
      Craig L. Ames
      Accredited VA Attorney

  • Oliver

    In 1958 my right eye was damaged (detached retina) in the service, and, in 1969 I was declared (by the VA) 30% disabled due to a: “detached retina, [right eye] with early cataract [right eye].” Then in 1984 I was told by the VA doctor that I needed cataract surgery on [both eyes]. The VA doctor said that they would do the surgery on the left eye first, “in case there were complications with the [right eye].” When the surgery was completed the left eye was in worst condition than the [right eye] had been in before the surgery, and more surgery followed.

    In 1985, 1991 and 1994 I applied for a disability increase and was denied each time. Recently (2014) I applied again for an increase in disability; I am now in the process of appealing that denial. I was sent an “appeal process election” form and I selected the DRO review process; I faxed that form back to them on April 29 2015, but, on April 30, 2015 I received a letter and new forms to fill out; the VA said that they couldn’t accept my letter Dated: April 9, 2015 as a notice of disagreement for the issue of service connection for detached retina, left eye because the time limit to file a notice of disagreement has passed. This letter doesn’t make any sense to me for several reasons. Back in 1994, I received a denial letter saying that I have the right to appeal the decision; I didn’t file an appeal (notice of disagreement) in 1994. Also, after I filed for an increase in November 2014, the VA sent me to their doctor in Golden Colorado for evaluation for this (2014) claim; so why are they now saying that I need to start over?

    -My reason for filing for an increase is because both my eyes are damaged; it started with a detached retina in one eye (the right eye) and over the years both eyes had detached retina’s and cataracts that led to glaucoma in both eyes. I also suffer from depression, and other medical problems that are being treated by the VA over many years.-

    When I filled out the: Notice of Disagreement: “notification/decision letter date” 04-08-2015; under “B. Area of Disagreement” I checked “evaluation of Disability” and “other.” and under “C. Percentage (%) Evaluation Sought” I wrote: 100%.

    Over that years I have had many operations on both eyes (at the VA hospital). I have glaucoma in both eyes I take a total of 14 drops of eye medicine a day.

    It appears that the VA is playing games with me; I sent another fax to them after I received the letter indicating that I need to start over and they have not responded. What should I do?

    • Kay Derochie

      Dear Oliver,

      You should seek out a consultation with an accredited VA claimant’s representative for a review of your claim denials.

      Sincerely,
      Craig L. Ames
      Accredited VA Attorney

  • James McCants

    I was denied sc for sleep deprivation, depression to include anxiety and mood disorders and vertigo in nov 2012. Filed an nod in mar 2013 and selected dro review. To this date I have not had a dro nor issued soc. I reopened my claim for anxiety, sleep deprivation, vertigo and secondary abnormal heart in nov 2014. My claim is now in the prep for notification phase stating my disabilities: abnormal heart reopened/under appeal, anxiety new/under appeal, sleep apnea reopened/under appeal, meniere’s syndrone reopened/under appeal. My question is will I receive a decision on these claims or be denied awaiting appeal. I submitted new and material evidence.

    • Kay Derochie

      Dear James,

      When you submit what you believe to be “new and material” evidence, the VA will make its own determination whether it really is “new and material.” The VA does not reopen a claim just because someone submits other evidence. The VA will determine if it is new and material according to VA regulations. If so, it will eventually issue a ruling. But, if it finds the information is not new and material, the claim will be denied.

      Sincerely,
      Craig L. Ames
      Accredited VA Attorney

  • Craig

    I submitted a claim for my back, ankle, and knee problems that occurred while I was in the military(documented in med record). After seeing the Dr, I was awarded only for my ankle(10%). What can I do to substantiate my other injuries? Thank you in advance.

    • Kay Derochie

      Dear Craig,

      You will need to seek out the services of an accredited VA representative for a strategy to successful appeal the claim denial. This is not a straight forward process. You must prove three key elements: (1) occurrence of medical event in-service, (2) a current medical condition which results in a current disability and (3) linkage of the first & second elements.

      Sincerely,
      Craig L. Ames
      Accredited VA Attorney

  • Bernard

    Within one year after separating from the service, I filed a claim for my lower back which I injured in the late 70’s. I was denied then. I turned in a claimed in Oct of 2014 for the same problem and after months of evaluation, the VA finally awarded 50% service connected. The effective date is Oct of 2014.

    I do have the copy of the original claim which was denied. I turned it in within one year of separation. The original claim was filed in 1980 and consequently denied, but can I dispute the effective date of Oct 2014 with the following reg:

    38 C.F.R. § 3.400(b)(2)(i)

    Direct service connection (§3.4(b)). Day following separation from active service or date entitlement arose if claim is received within 1 year after separation from service; otherwise, date of receipt of claim, or date entitlement arose, whichever is later. Separation from service means separation under conditions other than dishonorable from continuous active service which extended from the date the disability was incurred or aggravated.

    Thank you so much for being so patient with our questions. You’re definitely a hero to many of us who needs help and your analytic mind.

    • Kay Derochie

      Dear Bernard,

      Do you have a question? If so, please pose the question and I will forward it to our VA moderator for response.

      Thanks,
      Kay

      • Bernard

        My question is can I dispute the effective date of Oct 2014? The original claim was made in 1980 and I think that should be the effective date. What are the chances of getting a positive resolution?

        • Kay Derochie

          Dear Bernard,

          You need to distinguish an original claim from a new claim. The original claim you filed within one year of separation is retroactive to the first day after your separation date. But, you abandoned that claim since you did not file an appeal. Your second claim application is a new claim. A new claim triggers a new benefit effective date, if and when benefits are awarded. Accordingly, you have no grounds to argue retroactivity to the date after your separation date.

          Sincerely,
          Craig L. Ames
          Accredited VA Attorney

  • CW

    Hello, Thanks for your time. I am confused and maybe you can clear things up for me. In 07′ I filed for back injury, service connected, and was denied due to not being service connected, the VA stated they can not find my SMR, so it is not service connected and they also further attempts to find SMR are “futile”…..DENIED. I thought if they cant find them how can I, and being new to VA system I just let it go. Fast forward 7 years I run into a VA guy that suggested I just call your old command hospital and follow the trail. 3 calls and 20 minutes later I find my SMR at VA records mgmt. center. I filed to reopen and it is in decision phase now. With my submission “new and material evidence” shouldn’t my effective date be 07′ per 38cfr 3.156(c)?

    • Kay Derochie

      Dear CW,

      When you file a request to reopen a claim based upon new and material evidence, that action constitutes a new claim filing. Accordingly, the clock starts again and you have lost the preservation of the original filing date.

      Sincerely,
      Craig L. Ames
      Accredited VA Attorney

      • CW

        That’s interesting, I must not be reading the CFR’s correctly. Should I file a claim for CUE? reason: my claim was closed due to lack of SMR on 4/28/04, however, I have a time stamp on my SMR that shows my SMR was recieved at VARO St. Pete on 3/24/07, just prior to closing my claim for lack of SMR. They had my records but still closed the claim for not having afore mentioned records. Does that case hold water?

        Thanks,
        CW

        • Kay Derochie

          Dear CW,

          You can file a CUE. However, a CUE is not a direct appeal to a claim denial. Rather it is a collateral attack which is a legal argument dealing with technical issues. A CUE argument is rarely granted. One must be a technical skilled lawyer or claim representative to determine if such an argument would have any merit. You should seek out the opinion of a VA claim professional to evaluate your situation.

          Sincerely,
          Craig L. Ames
          Accredited VA Attorney

      • CW

        Confused, this is my situation to a letter. M c-file has no SMR present, it was denied on grounds “not service connected.” Turns out they had SMR in the VARO per their own mail room time stamp. How can this not qualify for original file date?

        (c) Service department records.

        (1) Notwithstanding any other section in this part, at any time after VA issues a decision on a claim, if VA receives or associates with the claims file relevant official service department records that existed and had not been associated with the claims file when VA first decided the claim, VA will reconsider the claim, notwithstanding paragraph (a) of this section. Such records include, but are not limited to:

        (i) Service records that are related to a claimed in-service event, injury, or disease, regardless of whether such records mention the veteran by name, as long as the other requirements of paragraph (c) of this section are met;

        (ii) Additional service records forwarded by the Department of Defense or the service department to VA any time after VA’s original request for service records; and

        (iii) Declassified records that could not have been obtained because the records were classified when VA decided the claim.

        (2) Paragraph (c)(1) of this section does not apply to records that VA could not have obtained when it decided the claim because the records did not exist when VA decided the claim, or because the claimant failed to provide sufficient information for VA to identify and obtain the records from the respective service department, the Joint Services Records Research Center, or from any other official source.

        (3) An award made based all or in part on the records identified by paragraph (c)(1) of this section is effective on the date entitlement arose or the date VA received the previously decided claim, whichever is later, or such other date as may be authorized by the provisions of this part applicable to the previously decided claim.

  • First I would like to say that the attorney taking time to respond to these is wonderful and it is appreciated. I copied this from this page so to focus on what I am trying to express, I have mental conditions also, but I am not addressing them at this time, just letting you know, I am doing the best I can at asking this.

    It may help to understand that, from the VA’s point of view, there are only three types of claims:

    A new or original claim
    A claim for revision of a previous final decision based on CUE (Clear and Unmistakable Error)
    A reopened claim with new and material evidence

    Based on this, my question is: I was operated on 24 Oct 2012 for my cervical condition, at the time of my surgery I was awarded 30% by VA. After my surgery I submitted for Convalensent leave and I was granted it and paid by the VA, however they adjusted my Effective date to reflect when my status went from 30% to 100% back to 30% to 1 Feb 2013, but as you see from the first part of my statement, that is not one of the three types of claims VA recognized, Should my Effective date reflect the date I was first awarded the 30%?

    • Kay Derochie

      Dear John,

      An in-depth review of your complete claim file will be needed to determine what occurred and why VA ruled as it did. I suggest that you obtain a review with a knowledgeable professional.

      Sincerely,
      Craig L. Ames
      Accredited VA Attorney

      • Craig, thank you for replying, I figured it would be complicated and I am seeking professional assistance, but I was just hoping it was something little I was overlooking. Keep up the good work and thank you again

  • Jennifer

    Hello, a question for attorneys, if I have an attorney representing me on my appeal but I found out I could apply for new disabilities I didnt know I could, is the private attorney/rep will get a fee from the claim if it gets approved, even though they didnt help me at all through out the process of those claims or where even aware of me doing them? Thank you so much in advance.

    • Kay Derochie

      Dear Jennifer,

      When an appeal is filed, it is filed as one claim which may consist of more than one disability issue. The claim is a single submission which results in a single decision. So when an award of back payment is made, the attorney receives payment based upon that claim award.

      Since there about 700 diagnosis classifications for disabilities, each of which can result in 11 levels of rating, a VA claim is complex. It is not a matter of “new disabilities” since the VA treats the veteran as a whole person who can be eligible for multiple types of ratings. The nature of the disabilities often is not flushed out early in the appeal process. Often, other unknown disabilities become known based upon the review of the case and incoming medical records as the case proceeds.

      Sincerely,
      Craig L. Ames
      Accredited VA Attorney

  • Coron

    I was given a 0% rating for eye herpes simplex keratitis because the disease was inactive. I feel that I shuold have received a higher rating because of all the scar tissue in my eye. I have recently went to the doctor and it is now active, I am 2 months too late to file an appeal. What should I do now?

    • Kay Derochie

      Dear Coren,

      When you state you are too late to file an appeal, I presume more than one year has transpired since the date you received the 0% rating decision. If this is so, then you will need to file a new claim.

      Sincerely,
      Craig L. Ames
      Accredited VA Attorney

  • Robert Aldrich

    A huge meningioma, a slow growing benign tumor, was discovered following a grand mal seizure, in the right frontal lobe of my brain. I had a craniotomy & the tumor was surgically removed followed by status post frontal lobe syndrome that has caused severe congnitive problems. The tumor recurred & I have had radiation treatment. I filed for disability due to exposure to AO. My radiation oncologist, past President of the American Cancer Society & a chemist, researched meningioma vs. AO & found the evidence “compelling.” However, his following sentence said AO “could have caused” the tumor . He has reviewed the scientific studies again & is willing to revise his letter to state that it is more likely than not that the brain tumor was caused by exposure to AO. Can the revised letter be submitted? Will it have credibility in support of my claim?

    • Kay Derochie

      Dear Robert,

      You will need to seek the assistance of an accredited VA attorney who understands medical-legal VA issues and the burden of proof and standards needed to prove a claim for benefits. VA law and proof of a claim is a complex process.

      Sincerely,
      Craig L. Ames
      Accredited VA Attorney

  • Chester

    Is it possible to retain an attorney before submitting the application?

    • Kay Derochie

      Dear Chester,

      An attorney can help with a specific claim application, but an attorney is not allowed to charge a fee for that legal service so most attorneys will not handle an actual application. Some attorneys, like myself, will conduct a disability benefit review before an application has been filed for a nominal fee. For example, I charge $150 for an initial benefit consultation. The consultation is not a meeting on specifically how to submit the vet’s claim; it is a strategy meeting to identify potential benefits the vet can apply for.

      Sincerely,
      Craig L. Ames
      Accredited VA Attorney

  • Casey

    Hello. What a wonderful website! Thank you soooo much for helping us veterans. You have no idea how good it feels to know there is people willing to help us vets.
    Here is what I am dealing with…..
    I was a mechanic in the Army. I entered Iraq the first day of the war. For 90% of the time in Iraq, I was never with my unit. I was always attached to other units for maintenance support. This is where I encountered my combat experience. Please keep in mind, my unit never saw combat, so when the VA looked up my unit’s history, it said nothing about being in combat.
    Filed for PTSD, ankle pain, and shoulder pain in DEC 2004 while living in Texas. This was within my 1 year separation of DEC 2003. I have supporting documentation of this. I then moved to Honolulu for a job. The VA mailed my claim to the HONO VA. The HONO VA then lost my claim and SMR’s. They had me start a new claim. The effective date of that claim was now 2006 (instead of the dec 2004 date). It was quickly denied. I then appealed it and once again, denied. My case was denied due to my unit having no combat action (even though I did) and my lost SMR’s. Essentially, no supporting documentation.
    In 2011, I moved to California. I then RE-OPENED my denied 2006 claim with new supporting evidence. I was quickly awarded 80% disability (ptsd, ankle, and shoulder). The two factors that led to this award was the July 12th, 2010 change in not having to have concrete evidence of PTSD stressors and a simple piece of paper from another soldier agreeing with my “words” in my 2006 claim.
    I appealed to have my effective date backdated to Dec 21, 2003 (first date out of service) but was denied due to I had RE-OPENED the 2006 claim. I do understand that I had to RE-OPEN instead of appeal because I was past the 1 year mark of my 2006 claim denial.
    My question for you is, is there anyway that the ‘lost’ original claim filed in Dec. 2004 (within my 1 year separation date) can help me in back dating the VA’s finding?
    Couple things I should add…. All 3 claims (2004, 2006, and 2011) had all the same claims and supporting evidence (minus the 2011 with the letter from soldier). I called the VA today and in the “system” the operator on the phone could only find documentation on me starting at 2007, nothing prior to that. Like I said, I have the paper trail and hand written and typed letters from VA proving that I did infact submit a claim with in my 1 year separation. Seeing that this claim was lost and never completed, would it still be considered open?
    Thank you so much for all the help you guys are dispensing. Once again, you have no idea how much this means to us veterans.
    Have an awesome day! – Casey

    • Kay Derochie

      Dear Casey,

      It is rare to obtain reopening of a prior closed claim absent Clear and Unmistakable Error (CUE). If the VA accepts the reconsideration as a CUE then the claim can be backdated. However, VA will rarely do so. You will need to review what a CUE entails and how to file for this.

      Sincerely,
      Craig L. Ames
      VA Attorney at Law

      • Casey

        Thank you very much sir. I will get right on this.

        • Kay Derochie

          You are welcome, Casey.

  • David

    Hello,

    I received a decision letter stating that i was service connected for PTSD with an evaluation of 70% however, that same later stated that the VA denied my claim for insomnia “service connection for insomnia remains denied as insomnia is considered a symptom associated with your service connected PTSD in the absence of an a DSM diagnosis of insomnia”

    My questions is, if I am receiving allot of medican for insomnia which I have to take daily, why are they denying the claim? Also if they are saying it is a symptom of PTSD does that mean I cannot refile or do a reconsideration?

    (rating decision 03/02/2015)

    • Kay Derochie

      Dear David,

      You need to prove your claim which involves 4 elements. (1) You are an eligible veteran, (2) you have a current medical condition, (3) you had an in-service medical illness, injury or condition and (4) there is linkage of element 2 to element 3. Just having a current condition is not sufficient in your situation; you need to prove linkage of that in-service condition to your current condition.

      Often, a layperson is not able to have the technical skills to prove this matter in a medical-legal context. You may want to seek the services of a professional VA accredited attorney to review your claim denial. You do not have to pay any legal fees up front and you will pay attorney fees only if you are approved for benefits.

      Sincerely,
      Craig L. Ames
      Accredited VA Attorney

  • Wesley

    Hi, I filed a claim for my Dad thru the Vietnam Agent Orange, along with medical documentation from his primary care doctor and his surgeon that did his amputee of both legs. He was awarded 40% but was denied the total 100%. The VA didn’t use all his medical records when basing their decision on 100%. But we can file an appeal. My question is if I file an appeal and reconsideration will he lose what he has been awarded so far? Thank you!

    • Kay Derochie

      Dear Wesley,

      A request for reconsideration is a de novo review. This means the claim is literally treated as a new claim. Benefits can be increased, denial or decreased. All of these options are possible. You should consider obtaining an independent third person opinion such as from an accredited VA attorney. VA claims are complex and proving a claim is not a simple matter when there is a claim denial.

      Sincerely,
      Craig L. Ames
      Accredited VA Attorney

  • Tom

    Denied ptsd claim put in 2012. Lack of proof for having ptsd was reason. Reconsideration claim approved in 2014. Retro only paid starting in 2014. Should I be paid to 2012? Thanks

    • Kay Derochie

      Dear Tom,

      When you file a request for reconsideration, the request is typically treated as a new claim. The date of benefit eligibility is determined by the date the VA receives that new claim filing. Benefits are not retroactive to an earlier date.

      Sincerely,
      Craig L. Ames
      Accredited VA Attorney

  • Jeremy

    Hi,

    Since 2011, I had a rate of 60% dod and 60% va on TDRL. Then feb14′ I filed another claim that brought me to 70% va and still 60% DOD in june14′. Nov14′ was my TDRL exam which raised me to 70% DOD put on pdrl and another increase to 90%, which va awarded feb15′. My question is because of the increase to 70% awarded in june14′ then the increase to 90% feb15′, is it possible to mend these claims for back pay from june14′ to now because the previous claim hadn’t expired. DAV filed a reconsideration in dec14′ which to my knowledge should’ve went off of the june14′ claim, is this correct?

    • Kay Derochie

      Dear Jeremy,

      Anytime you file a new claim including a request to reopen an existing claim or a claim for increase in benefits, you trigger a new date of disability. Claims are not retroactive to a prior claim under review when a new claim filing overlaps on top of an existing claim. This is an unintended consequence of filing that new claim.

      Sincerely,
      Craig L. Ames
      Accredited VA Attorney

  • Robert S

    I had filed for knee injuries in 2006. The VA needed evidence that it was service connected. My Medical records should have showed this. I was unable to appeal claim because I had nothing. 2014 I was able to find copies of my knee injuries overseas and at Ft Hood. I reopened my claim, and once again they needed new evidence. I sent it to them and sent it again by DAV and downloaded it on My Benefits with a DBQ form from doctor. I had 17 surgeries on knees when I left the military and did try to get help but was turned away by VA. I asked for help from our Senator Johnny Isakson and now the VA sent me to a private doctor for treatment in days. However Doctor could no longer see me or any other Vets because of NON-PAYMENT too Doctor. He apologized but did give me a letter what was wrong with knees and what treatment I would need and then Knee replacement. Will the VA go back to 2006 or when I reopened in 2014 after finding on my own the military records showing injuries and service connected. Anyway, all this should have been my files but were not. Sometimes I think the VA just tossed my files in 1986, 1990, 2000. I have been set up too see QTC next week for exam?

    • Kay Derochie

      Dear Robert,

      Benefit payments are based upon the date you submit a current claim. Benefits are not retroactive to an earlier date. Also, you need to be proactive in obtaining evidence linking a current medical condition to an in-service medical event. If you are not able to do so, you will not be awarded VA benefits. You may want to seek a private surgeon’s opinion as to whether your current medical condition relates back to any injury which may have been incurred to your knees.

      Sincerely,
      Craig L. Ames
      Accredited VA Attorney

  • Darryl k Jones

    I separated/retired in 2003 after 21 years service. My medical record shows that I suffered with back/neck pains and have been treated for stress disorders while on active duty as result of documented car accident while stationed in Greece(service related). I never file a claim with VA because the pain was on and off, however was treated a few time after retirement for this same related injury. Over the years I just been dealing with injury with pain killer and trip to the doctor here and there. Would VA consider this as new claim some 12 year later. To date I am unable to be closed spaces like the back seat of car without suffering panic attacks. Now the pain is getting worst so I starting to get regular medical treatment.

    I pp

    • Kay Derochie

      Dear Darryl,

      You would need to submit a new claim to VA for its consideration. Benefits, if awarded, would be based as of the date the VA receives your claim submission.

      Sincerely,
      Craig L. Ames
      Accredited VA Attorney

  • kaycee

    Hi, I filed a claim in 2013 with the va for an injury I sustained in 2012. There are documented records of me seeing a doctor on base and him claiming I was in fact injured due to training. Now my claim was rejected in 2013 and my rep was not very helpful and I wasn’t sure what to do so I did not appeal. I have seen multiple doctors who could not pinpoint my injury so I assumed that was the reason for denial because while I was suffering there was no clear diagnosis that could be made. I recently saw a chiropractor who explained my injury to me and how it has caused the issues with my lower back and leg that ive been suffering from all this time. Is there a way to submit that to try to change the VA decision or do I have to file a new claim since it has been over a year.

    • Kay Derochie

      Dear Kaycee,

      Once one year has passed without your making a response to the claim denial, your claim is finalized. To pursue benefits, you would need to file a new claim.

      Sincerely,
      Craig L. Ames
      Accredited VA Attorney

  • kesha

    My original claim for my low back was put in on August 2005. It was of course denied because it stated that I did not have a record of my back condition while in service even though I provided military records showing me being treated and complaining about back pain. I immediately filed an appeal and have been appealing this issue up until now. I finally had an C & P exam after all the appeals in March of 2015. I did the exam and provided the records from the military to the doctor. The doctor reviewed the records, MRI, other medical notes and determined that my low back condition did occur while I was in the military and DDD as of 7/2005 as noted in my military records. My question is, will my effective date be the date I filed my original claim on 8/2005 or March 2015.

    • Kay Derochie

      Dear Keesha,

      It appears that neither of these dates trigger the effective date of benefits. If awarded, benefits, your effective date would be the date the last claim was filed with VA. In the context of your question, you do not state when the current claim was filed and what type of claim you filed, such as a request to reopen a claim or the filing of a new claim.

      Sincerely,
      Craig L. Ames
      Accredited VA Attorney

  • Hello again let me try to explain my claim better to the disability advisor I had a medical discharge November 22, 1997 I came home and file a medical claim December 17, 1997 this would be a no the later I was not in the service at that time the VA made a decision March 8, 1998 the denial letter said a medical board made a discision that my heart condition was prior to entering the military and I will need to prove the condition was cause or how did the military worsen the condition. Now how this condition existed before I got to the service when the Meps did a physical I had a clear bill of health plus I play sports In. High school which is going to play a important part in this new claim I file in September 2014. I admit I didn’t no any better back when was 20 years of age I didn’t file a appeal nor did press for medical assisted I accumulated a lot of personal hospital bills because I told I didn’t qualify because I ain’t spend anytime in Iraq and I did 1day I would have qualify in January 26, 2015 I receive a letter denieding 9 of 10 claims except the one they reopen was the heart condition which I was instructed they couldn’t denied anyway because its a medical condition which discharge me from the service is this information accurate? My next was to make trip back to my family doctor who had givin me numerous physical threw my childhood all the way up to I enter the service and never four d any heart conditions or heart murmur and he express in this letter back In 1997 before I enter the service there was no heart condition so with a medical doctor opinion is this enough evidents to show the Army cause and created this condition in 1997 so it is not prior is that consider a clear mistake made the VA does warrant back pay from the old 97 claim and not the new 2014 claim please reply and Inform what can I do or is thiscattorney this a 17 year old claim

    • Kay Derochie

      Dear Jerome,

      A request to reopen a claim based upon Clear and Unmistakable Error (CUE) is rarely granted by the VA. CUE is not a direct attack upon the reasons a claim was denied.

      A CUE is a special type of error and a claim for revision of a previous denial on the basis of CUE can be filed at any time, even years or decades after the claim was decided or the appeal denied. CUE exists when: (1) either the correct facts were not before the adjudicator or the statutory or regulatory provisions in existence at the time were incorrectly applied; and (2) the error is “undebatable;” and (3) the error must make a difference in the outcome. In other words, a CUE is not a disagreement with a decision or an argument that VA got it wrong.

      When CUE does occur and a claim is granted, the usual rules for setting the effective date of an award is by-passed. The effective date of a CUE claim goes back all the way to the filing date of the claim with the CUE. This can result in huge awards of retroactive benefits.

      Because a claim for CUE is a review of an already closed claim, special rules apply. First, the “duty to assist” does not apply. This means that VA does not help a claimant with a CUE claim. In addition, a CUE claim must contain specific and detailed statements regarding the error, how that error affected the decision, and why the decision would be different (more favorable to the claimant) if the error is corrected. Merely stating that CUE occurred or general statements similar to those in a benefits claim are not enough. For example, a decision awarding benefits based on a single gunshot wound when the veteran had two gunshot wounds is a CUE. A CUE claim asserting that a gunshot wound was more painful than VA concluded is clearly not a CUE.

      A true CUE is not common and is a difficult claim to win. Further, a veteran can only claim CUE one time for each decision. This means that if a claimant files a CUE claim and the VA finds it does not contain the required level of detail, that CUE claim is lost forever. For this reason, claimants who believe that they have a possible CUE claim are strongly urged to seek advice from an experienced attorney. You do not have to pay any legal fees up front and you will pay attorney fees only if you are approved for benefits.

      Sincerely,
      Craig L. Ames

  • eddie

    Hello,
    I filed two separate claims at different times, one for PTSD and the other for back pain and knee pain resulting from Parachute jumps. I was evaluated for both and denied for both even though both were confirmed by VA doctors. I appealed and submitted private doctor diagnosis, letters from friends and family, and xrays, CIB award. Today I received instructions on how to appeal to Washington for the pain due to my service files not showing I even went to Airborne school which is weird but I also did not receive anything on the ptsd. My online file says decisions were made on both. Any idea what I need to expect on the PSTD? I am hoping that I do not have restart that claim again.

    Thankd

    • Kay Derochie

      Dear Eddie,

      It appears the VA ruled on your entire claim file for compensation benefits on a consolidated basis. Your claim file would need to be reviewed by an accredited VA attorney to determine just what the benefit denial entails. You do not have to pay any legal fees up front and you will pay attorney fees only if you are approved for benefits.

      Sincerely,
      Craig L. Ames
      Accredited VA Attorney

  • Carlos

    Hello,

    I had a claim recently closed after receiving a letter in the mail from the VA stating they were unable to locate my service treatment records. When I originally filed my claim in October of 2013, I included any medical documentation I had in support of my claim since my discharge date. This includes documentation supporting my claim for migraines while I was active duty due to a brain tumor that I was diagnosed with in January of 2013 but never diagnosed with while active. I included a Nexus statement from my brain surgeon stating that in his professional opinion I had the tumor while I was active duty but never diagnosed. I’ve had two brain surgeries since my diagnosis along with radiation treatments which I also submitted with my claim. I’m very upset knowing that my STR’s magically and conveniently disappeared. I haven’t received anything in the mail as of yet letting me know the results of my claim but I am concerned that status went from preparation for decision to closed in a matter of 48 hours. As a side note, when I received the letter from the VA stating they could not locate my STR’s, I uploaded a document in support of my claim from my supervisor while I was active duty during the time of my treatments. Is this enough evidence or am I fighting a losing battle since my STR’s could not be located?

    • Kay Derochie

      Dear Carolos,

      It is always best to be proactive in a claim submission. You should submit all records that you can in support of your claim. It is not a matter of what is enough. You or the VA must locate all the records if at all possible. Also, you must recognize that there are about 1 million claims in backlog. Processing a typical claim can be prolonged, even over years, within the VA system.

      Sincerely,
      Kay

  • Ray

    Hello,
    I retired in 2006 and submitted a claim for among other things a hernia and sleep apnea. I had a hernia repair while on active duty but never received an answer for my hernia claim but was denied overall for my other claims. Same thing for my sleep apnea although I was never diagnosed nor complained of sleep apnea while on active duty since I accepted the issue as something normal despite my wife’s telling me I would stop breathing while sleeping. I placed the hernia repair and sleep apnea claim but was never tested for neither after retirement and never received a denial for either claim. Today I suffer from a recurring hernia ‘in the same location as when on active duty, however itssize has grown immensely. I have also been dignosed with the worst case of sleep apnea the physician has ever diagnosed. His writeup clearly states the sleep apnea is so severe that I’ve had it over a decade. He advised me to open a claim with the VA and include his diagnosis. My question is, can I still place a claim after all these years? If so, would I be successful? If so,how would I start? Thanks.

    • Kay Derochie

      Dear Ray,

      You would need to file a new claim. You can visit your Regional VA office to file a claim. You may want to have a non-profit organization help with a new claim such as the DAV or American Legion. There are a number of sources available to help a veteran file such a new claim. Whether a claim is successful is another matter. That is complex and a matter of proof involving many legal considerations.

      Sincerely,
      Craig L. Ames
      Accredited VA Attorney

      • Ray

        Thank you Craig. Would it help acquiring a lawyer?

        • Kay Derochie

          Dear Ray,

          I suggest that you contact the Wisconsin Bar Association.

          Sincerely,
          Craig L. Ames
          Accredited VA Attorney

  • Carlos Antunez

    I submitted a claim in back in 2003. I was denied because I did not go to the C&P exam. I appeal the decision and never heard back from the VA. I open the same claim again in 2013 and was approved at 70%after going to the C&P exam. The question is do I have a case for changing my effective date to the original claim back in 2003. I submitted an appeal with my VSO and am receiving a Statement of the Case (SOC). Which probably means they denied my appeal. Again same exact claim back in 2003, approved in 2014 as new claim. Missed the appointment back in 2003 by I appeal and never heard back from VA. Do I have a case?

    • Kay Derochie

      Dear Carlos,

      The effective date of benefits is the first month following the date the VA received your new claim application. Your earlier denial does not link to the new claim.

      Sincerely,
      Craig L. Ames
      Accredited VA Attorney

      • Carlos Antunez

        Just a follow up on my on question. The VSO says i DO have a chance of an earlier date because when I submotted a notice of disagreement NOD for my original claim back in 2003 the VA never reply back with a statement of the case SOC which by law they should have to sent after receiving a notice of disagreement.

        • Kay Derochie

          Dear Carlos,

          Yes, that is possible because not responding is a failure to follow written VA procedure to protect appeal rights of the claimant.

          Sincerely,
          Craig L. Ames
          Accredited VA Attorney

  • Eric

    Hi, I just have one question. I had a disability that was approved (2006) but at 0% rating because they’re reasoning was that I was receiving medication for my problem and it would get better. My question is, can I put in a new claim for the same disability because the problem hasn’t gotten better and the dosage of my medication keeps going higher. I now have additional documentation since that last VA physical showing this.
    Thank you for your time.

    • Kay Derochie

      Dear Eric.

      A claim denial is finalized after one year. So the only option is to file a new claim. (A request to reopen a denied claim can be made within one year of a denial otherwise it will be rejected absent the situation of a CUE (Clear Undebatable Error), which is rarely granted.) A 0% rating is very important. The reason why is that a disability has been proven. Now, the only issues to prove are (a) does that disability still exist, and (b) if so, to what extent has the current medical condition been exacerbated. One needs at least a 10% increase (as determined by the VA) to receive a income benefit.

      Sincerely,
      Craig L. Ames
      Accredited VA Attorney

  • Brent Patterson

    I placed my claim for PTSD back in 2011 and was initially denied because a stressor couldn’t be determined (even though I served 12 months in a combat zone and I was awarded my CIB). This past summer (2014) I was talking with a VA counselor about the possibility of entering vocational rehabilitation so I could go to school (I was stripped of my GI bill because I left the Army with a General discharge) the VA rep looked at my previous claim for PTSD and told me I should resubmit because there was a big time error so i did. I went to a C&P exam and the doctor told me that i needed to go talk to the DAV about getting an earlier effective date (assuming that I was granted a percentage this time around). When I was granted 30% for PTSD a few months ago I went and spoke to someone at the DAV and we put in a claim for a new effective date siting Clear and Unmistakable Error (CUE).

    Basically what happened was the original claim was misinterpreted and the rater somehow thought that everything that i claimed happened while i was stationed in Hawaii and not in Iraq. When I resubmitted the claim I was awarded a percentage for PTSD based off of no new evidence (literally the exact same thing that denied me for in 2011 they granted me for in 2014). Does this sound like a case of CUE? How long does this process usually take?

    • Kay Derochie

      Dear Nick,

      A Clear and Unmistakable Error (CUE) exists when: (1) either the correct facts were not before the adjudicator or the statutory or regulatory provisions in existence at the time were incorrectly applied; and (2) the error is “un-debatable;” and (3) the error must make a difference in the outcome. In other words, a CUE is not a disagreement with a decision or an argument that VA got it wrong. When CUE does occur and a claim is granted, the usual rules for setting the effective date of an award is by-passed. The effective date of a CUE claim goes back all the way to the filing date of the claim with the CUE. A (CUE) is a rare finding by the VA. A CUE finding is rarely granted. The situation you describe can pend for a long time due to the implications involved with a determination of CUE, and it takes a trained professional, such as a knowledgeable VA attorney to determine whether a claim of CUE is appropriate and to make the case because it involves legal technicalities.

      Sincerely,
      Craig L. Ames
      Accredited VA Attorney

  • Lori Warner

    I have a question about a NOD I filed for my husband. He is service connected for a deviated septum 10% and during the claim process the VA also diagnosed him with sleep apnea. The doctors at VA had commented that he was having difficulty with using the CPAP because of the nasal blockage. He filed a FDC claim for the the sleep apnea secondary to the deviated septum assuming that he would get a C&P exam which he did not-just a denial that the SA did not occur in service and there’s no evidence that the deviated septum has caused or aggravated his SA. My question is the NOD was dropped off in person at the VA and I was told it would be stamped by someone in the back but it’s been over a month and he hasn’t gotten a letter acknowledging receipt of the NOD. He also sent in medical article and requested a DRO review. How long should it take to get a letter stating they received the NOD?

    • Kay Derochie

      Dear Lori,

      The VA will probably not mail you a confirmation letter. You should have your copy of the NOD upon which you can make a note of the actions you took to file the NOD. If you did not keep a copy, you will need to go into the Regional Office to request a copy of the filed document.

      Sincerely,
      Craig L. Ames
      Accredited VA Attorney

  • Brad Andrews

    I have been trying to file a service related disability claim and the problem I am having is that my service and medical file cannot be found by the government. Due to this I have the inability to prove my surgery was done while on active duty. Anyone have any advice?

    • Kay Derochie

      Dear Brad,

      Proving your claim can be a daunting challenge since you have an absence of records. Additionally, there are a number of elements which must be proven to receive a benefit determination. One of the missing elements in your question is whether you have a current medical condition, diagnosis or event, that is disabling. If you do, that condition, diagnosis, or event must have linkage to an in-service event. It would take a skilled professional to determine whether there are any approaches available to prove an in-service injury. You may want to seek the services of a experienced VA attorney.

      Sincerely,
      Kay

  • Josue Merced

    In 1989 I had a very bad car accident determined in the line of duty. During that accident I had multiple fractures in face, femur, etc. Immediately after I began having Post Traumatic Headaches, Diplopia (double vision) and jaw problems. During the accident I also had a head injury with loss of consciousness for more than 1 hour. In 1993 I finished my 4 years in the Army an got out with Honorable Discharge. In 1994 I started various claims and in 1995 was awarded a combined 30% SC but was denied for the Status Post closed head injury with loss of consciousness. The reason was that “Although there is a record of treatment in service for a closed head injury with loss of consciousness on 1989, no permanent or chronic disability subject to service connection is shown by service medical record or demonstrated by evidence following service”. WHAT??? How about the headaches and double vision? Well the thing is that I was so depressed back then that I did not appeal. Clearly the VA was wrong. Well, my qur is if I should appeal it now, start a new claim for TBI or just reopen the claim? Thanks!

    • Kay Derochie

      Dear Josue,

      Based upon the information provided in the context of your question, you failure to act timely has resulted in a claim abandonment, the consequence of which is that your denial of benefits is “finalized.” This means your claim is closed and is not subject to being reopened under most circumstances. So when you state you may just reopen the claim, that is not a correct understanding of VA law. VA law is complex. A Veteran does not ever reopen a claim. Rather only the VA can decide to reopen a claim and this decision is discretionary on the part of the VA. A claim will only be reopened based on a submission of new and material evidence and such evidence must be submitted within one year of a claim denial. There is only one exception, which is when a Clear and Unmistakable Error (CUE) has occurred, but this is a rare event. A CUE is a special type of error. A claim for revision of a previous denial on the basis of CUE can be filed at any time, even years or decades after the claim was decided or the appeal denied. CUE exists when: (1) either the correct facts were not before the adjudicator or the statutory or regulatory provisions in existence at the time were incorrectly applied; and (2) the error is “undebatable;” and (3) the error must make a difference in the outcome. In other words, a CUE is not a disagreement with a decision or an argument that VA got it wrong. Thus, in your situation, you probably only have the ability to file a new claim.

      Sincerely,
      Craig L. Ames
      Accredited VA Attorney

      • Josue Merced

        Wow! I greatly appreciate your response Craig. I guess my only option would be to establish a new claim. Just one question though.

        When their denial stated, “Although there is a record of treatment in service for a closed head injury with loss of consciousness on 1989, no permanent or chronic disability subject to service connection is shown by service medical record or demonstrated by evidence following service”, when since the accident I was suffering from Post Traumatic Headaches, Diplopia, Paralysis of the Fifth Cranial Nerve (SC for all 3 conditions) wouldn’t that be considered permanent or chronic disabilities subject to service connection, plus they were shown by service medical record and demonstrated by the VA following service?

        What I mean is that wouldn’t their aknowledging of the event (head injury with loss of consciousness) that caused the conditions and such conditions being present since the accident while I was still in the service receiving treatment for the 3 conditions mentioned above be sufficient evidence for them to accept there was a CUE?

        Respectfully,

        Josue Merced

        • Kay Derochie

          Dear Josue,

          There are multiple elements that have to established or proven. Just because a medical event is incurred when a person in serving in the armed forces does not mean it is service-connected. For example, if one got into a fight off base in a bar and incurred injury in the fight while in the military, the injury would not been related to performance of duties in the service. Therefore, it would not be service-connected.

          When an event is service connected, it must also result in some medical event which is ongoing. Apparently the military ruled that whatever the medical condition or event was not considered to be service-connected. Alternatively, it could have been considered temporary and not current.

          There are other factors at play which involve how the medical event links to a current medical condition. This is why professionals get involved in VA cases to follow the necessary methodology to prove a rating. It requires more than a surface knowledge of VA rules and the application of common sense and life experiences to prove up a claim. It takes nuanced medical, legal expertise to appeal a benefit denial. Therefore, if you decide to appeal based on a CUE, it would be advisable for you to obtain an accredited VA attorney,

          Sincerely,
          Craig L. Ames
          Accredited VA Attorney

          This is why professionals get involved in VA cases as to the methodology used in proving a rating. There is more than a surface knowledge applying common sense and life experiences which are needed in proving up a claim. It takes nuanced medical legal expertise to appeal a benefit denial.

          • Josue Merced

            Thanks Craig!

  • Walter Sellars

    I filed for several service connected disabilities when I retired in 1997 after serving 28 years in the Air Force. They were all denied. I never questioned the VA (bad move on my part). I later filed another claim in 2011 for same disabilities and they were all approved as service related (50%). Are their any grounds to re-approach the VA for possible back pay for my initial filing in 1997?

    Thanks

    • Kay Derochie

      Dear Walter,

      In your situation, the general rule applies. Benefit payments are based upon the date your new claim application was filed with the VA. There are no retroactive payments.

      Kay

  • Paul Darvin

    Good morning. I had retired from the Navy in 2006 and had put in for several claims. My claim for foot surgery was approved for 20% but my claim for hypertension was denied because during my physical at the VA Hospital, surprise surprise, my blood pressure was normal.
    I failed to appeal during the one-year period. I am planning on opening up a new claim for this and will include any and all bp readings from the Tricare clinic that I go to and my medications which have gone up in dosage and also a trip to the ER by ambulance because my blood pressure spiked. Should I also have my current doctor write a letter addressing my condition? Would I have a better chance? Appreciate all you do and thank you for your time.

    • Kay Derochie

      Dear Paul,

      The VA is required to assemble medical information necessary to make a decision on a claim. This is known as a duty to assist, and you can certainly submit an application without any corroborating evidence and the VA staff may get around to helping you assemble the evidence for your claim in a year or two or more. Because of the large number of claims pending, it is always better for you to submit your own information to speed up the time it takes to document your application. This may enhance the claim decision.

      Sincerely,
      Craig L. Ames
      Accredited VA Attorney

  • Kevin

    I was working with a DAV rep, who said if my claim was denied we would just forward it to a video hearing. I went back after denial and was told I have a new rep, long story short that rep said “No” we will have your case reconsidered. My case was for hearing loss and chronic tinnitus, it was measured at 82db. I also suffer from anxiety and depression. I went out of service in 93, filed the first time in 95 and again 2001. I went to 3 different doctors that all wrote letters on my behalf stating that my tinnitus is more than likely a result of aircraft jet engines. I’ve seen these doctors over the years and really did a great job writing these new letters up. They were all stating the hearing loss is from military service. Also- I came across that fast pass letter that shows my MOS was highly likely for noise exposure.My tinnitus gets so bad that I was recently bed bound for 6 weeks, I couldn’t sleep, it just stressed me out so bad I ended up in the ER having chest pains and thought I was having a heart attack. I also was approved for federal disability and OWCP for major depressive disorder in 2001. I had no idea how bad my hearing was until my tinnitus became unbearable and I really sought help. Who, thinks they have hearing issues when your in your 30’s and early 40’s?? Should I just enter my new evidence and do a reconsider or go further back. I don’t care about the money, I suffer from depression and chronic tinnitus and just want treatment. Depression is from the tinnitus and thats well documented. Thanks,

    • Kay Derochie

      Dear Kevin,

      To answer your question I must first know which stage in the claim process you are at. I cannot determine that from the information you provide. So, my suggestion is that you visit the VA Regional Office and determine exactly which step in the claim process you are at and then ask the VA representative if you can submit new and material information such as the updated doctors reports to which you refer.

      Sincerely,
      Craig L. Ames
      Accredited VA Attorney

  • Justin

    I was diagnoses and rated at 50% for PTSD in 2011 back pay to 2009. i recently in 2013 filed for an increase, it took them a year to actually get around to talking to a doc. I should not have held back, but i had reasons, stupid ones. I was granted 10% for tinnitus however they have sent out a letter saying that they are in a pre-determination period to reduce my 50% to 30% and my overall from 60% to 40%. I have contacted a VSO and they said that they will file a letter to have the examination redone since i didnt feel comfortable. I am awaiting their decision to that. I think i should go see a outside psych to get a writeup to present as additional evidence. What is your advice? I have been thinking of getting an attorney but all they wanted was to “try to get me to 100%” and most would not take me since i was still working (badly, but working). VSO says i have a right to, but its probably not worth the money. I am confused as to what to do next. Since i am not filing an appeal at the moment, since what i and the VSO wants is to squash the predetermination for reduction altogether and go back a few steps and have the claim reopened and evaluated.

    • Kay Derochie

      Dear Justin,

      The VA has a duty to assist any Veteran in fully developing a claim. However, it is best for a Veteran not to leave all the work up to the VA. You may want to be proactive by obtaining your own medical examinations at your own expenses to help prove your claim. As to you considering engaging an attorney, you can either attempt to prove a claim on your own or you may want to consult an accredited VA attorney who knows what the requirements are to prove a meritorious claim.

      Sincerely,
      Kay

  • Kevin Byrer

    Hello, I filed for back injury, shoulder injury, ringing in the ears in Jan 2009, I have an LOD for my shoulder injury. I was denied for all 3 the shoulder injury was denied because it wasn’t service connected, I went through an X-Ray 3 months of rehab and they said I was good to go. I pleaded for an MRI without much success, My arm and fingers are partially numb so obviously there is nerve damage or something. My back injury wasn’t service connected, I rode around in a gun hatch for 6 years and wore a vest and pack for those 6 years also. So at 25 I was considered to just have a bad back with sever arthritis. My tinnitus was also denied because I missed my appointment. I missed it because I received my apt through the mail the same day of the appointment. I wasn’t thinking and didn’t file an appeal. SO I fought for 4 years on getting these issues resolved, My claims were refiled Nov 2013, well its 2015 and I finally will be re evaluated. What are the chances I will be able to win this case with really no new evidence. I basically gave up on the VA and just suffered and took over the counter meds to get by.

    Thanks for your time

    • Kay Derochie

      Dear Kevin,

      When the VA Service Representative reviews a claim, he or she will often contact the veteran to obtain clarification of events surrounding the benefit application. Also, the VA will request further information about the medical diagnosis, medical condition, and symptoms in order to understand the claim better. If one fails to respond to VA requests or if the veteran provides only partial information, the VA will base a decision only upon the information it has in the claimant’s file at that time. Typically, the decision maker will issue a claim denial because the claim is incomplete. So absent a veteran’s obtaining and providing additional information, the claim probably will not be reversed.

      Sincerely,
      Craig L. Ames
      Accredited VA Attorney

  • Rebecca

    I have a question regarding the CUE claim process. I was denied in 2010 for my claims and then in 2014 found out that the VA didn’t have my MMR’s AT ALL. So I made a copy of my own copy that I processed out with and submitted to the NY Regional Claims Office along with action to re opening the previous denied claims and also some new claims. I was emailed by the NYRO that the MMR was going to be placed for a reconsideration review for my 2010 claims. I also have proof that in my ebenifits there are new documents submitted in closed 2010 claim.(MMR). Fast forward a fee months and I asked again via email, and they told me that there is no reconsideration and that if I received any award money it will only be retroactive back to 2014 not 2010. Do I have grounds for filing for CUE because they should have had my MMR? If so should I do that before they close out my present claim? Or should I wait and see what they service connect me for and then file for back pay for the connections I first claimed in 2010?

    • Kay Derochie

      Dear Rebecca,

      CUE exists when: (1) either the correct facts were not before the adjudicator or the statutory or regulatory provisions in existence at the time were incorrectly applied; and (2) the error is “un-debatable;” and (3) the error must make a difference in the outcome. In other words, a CUE is not a disagreement with a decision or an argument that VA got it wrong.

      A true CUE is not common and is a difficult claim to win. Further, a veteran can only claim CUE one time for each decision. This means that if a claimant files a CUE claim that VA finds does not contain the required level of detail, that CUE claim is lost forever. For this reason, claimants who believe that they have a possible CUE claim are strongly urged to seek advice from a VSO, registered agent, or experienced attorney.

      Sincerely,
      Kay

  • Ray Ro

    In 2012 I received a 20% VA disability for hearing loss. A VA audiologist pointed out an obvious error on the C&P exam. My VSO counseled me not to appeal, but too wait a year for a reevaluation. I did and was awarded 30% and a different VA audiologist pointed out that the test result was not believable. She said that she has had many complaints of wrong tests by that particular sub contractor, but there is nothing she can do about it. The numbers from the local University Hospital shows 80% disability using the VA standards.

    The year for appeal is up in 2 weeks. Should I wait 2 weeks and apply for reconsideration or appeal. The back pay is not that important.

    Word recognition scores

    Feb 2013 72 56 Private Doctor
    Nov 2013 96 60 VA C&P
    Sep 2014 44 32 University of CO Hospital.

    The VA audiologist said there was no way that someone with my hearing loss could score 96%. The evidence for reconsideration would be the latest hearing test. There is a normal degradation of hearing with age as shown in the first and last test with the VA C&P showing a mysterious improvement.

    Thanks

    Ray

    • Kay Derochie

      Dear Ray,

      There is never any good reason to wait to refile a claim if you have medical information of a mistake in a report. There is only a downside. If a claim is not appealed within one year of a denial, then the denial is finalized. A new claim filing will result in the establishment of a new claim date. So it is never a good idea to delay a claim for which you have new and material information to submit to the VA.

      Sincerely,
      Craig L. Ames

    • Kay Derochie

      Dear Ray,

      If you do not appeal within one year, then your claim denial is finalized. This means that if you want to pursue the denial, then you must file a new claim or file a request to reopen the file based upon new and material information. In either situation, the date of that new claim or request to reopen a claim will start a new effective date. Thus, you will lose any retroactive date for benefit payments. On the other hand, if you file an appeal, you preserve the retroactive date for benefit payments. You have not provided any information about why the VA representative told you to wait at least one year to raise issue with the benefit denial. I cannot think of a reason why it would ever be in a Veterans best interest to delay contesting a claim denial. So you quickly need to make a decision as to which is the best way to respond to your benefit denial.

      You may need an attorney to assist you with your claim.

      Sincerely,
      Kay

  • Jerry

    I reopened claims in Sep. 2014, the unofficial decision includes a retroactive disability rating of 10% to 2004 that was first rated as 0%. This change would have resulted in me receiving an overall 50% disability rating in 2007 instead 40% when a 20% disability was awarded for a subsequent condition. I used the chart to check the ratings; in 2007 I have should have been rated using a 20%, 20%, 10%, 10% for each disability, vice the 20%, 20%, 10% that was used.
    If this decision remains and is finalized, will I be entitled to compensation back pay from 2007, or, are there laws that protect the VA from this type of financial action?

    I addition I was awarded another 20% disability, as such I am now I have ratings of 20%, 20%, 20%, 10% and 10%, finally after 10 years of work I may see an overall 60% rating.

    • Kay Derochie

      Dear Jerry,

      The purpose of a request to reopen a claim may be to obtain an increase in rating. When a Veteran files a new claim for increase of rating, the established date of benefit is based upon the date the VA receives the new claim. Benefits are not retroactive in this situation. The only exception is new and unmistakable error.

      VA law allows a veteran at any time to request that a decision be reviewed and corrected if VA committed a “clear and unmistakable error,” often called a “CUE”. This is a very powerful right. Unfortunately, it is also a widely misunderstood and misapplied right.

      A CUE is a special type of error and a claim for revision of a previous denial on the basis of CUE can be filed at any time, even years or decades after the claim was decided or the appeal denied. CUE exists when: (1) either the correct facts were not before the adjudicator or the statutory or regulatory provisions in existence at the time were incorrectly applied; and (2) the error is “undebatable;” and (3) the error must make a difference in the outcome. In other words, a CUE is not a disagreement with a decision or an argument that VA got it wrong.

      Sincerely,
      Craig L. Ames
      Accredited VA Attorney

      • Jerry

        Thank you
        In my case the VA looked into a 0% rating from 2004 that I did not reopen, in fact the VA did increase any ratings I reopened but did award a new 20% rating for a secondary condition I claimed, my overall rating was increased to 60%. I have been able to verify this on DFAS and the ebenefits site generates proof of benefits letters that now show 60% but I have yet to receive my official notification letter from the VA; as such I am still uncertain of what will happen regarding this change in rating back to 2004. The additional 10% would have resulted with 50% rating in June 2006, so I wait to see what the VA notification will contain regarding that.

      • Jerry

        In addition, the VA rating went from 0% to 10% effective from 2004, I may not have been clear on that.

  • James McCants

    I filed a claim July 2010 for sleep impairment, vertigo, mental condition to include depression, anxiety and mood disorder all secondary to sc tinnitus with iu. I was denied May 2012. Filed NOD with appeal pending March 2013, while selecting DRO. Reopened claim with new evidence presented Feb 2013 on Nov 2014. My question is will I get backpay starting Jul 2010 or Feb 2013 when new evidence became available or will the start date be Nov 2014 when I reopened my claim.

    • James McCants

      I must add that the reopened claim is fdc.

      • Kay Derochie

        Dear James,

        Please see my response to your previous post.

        Your claim reopened as “fdc”(fully developed claim) means that you have waived your right to have the VA assume a Duty to Assist. (The duty to assist is a burden placed by Congress on the VA to fully develop the claim rather than placing that duty on the veteran.)

        Sincerely,
        Craig L. Ames
        Accredited VA Attorney

    • Kay Derochie

      Dear James,

      Your situation depends upon how the VA will treat your post-denial actions and whether or not the VA finds that the information you submitted meets two criteria as being actually new information which is material to the claim denial. The VA evaluates the documents you submitted as actual information which has never appeared before in any of its records and evaluates how relevant it is to the case denial.

      If your new information is both new and material and information was filed within one year of the denial, then the VA can elect to reopen your claim informally. So long as a final denial is not processed by the VA, the VA may treat your new evidence as not impacting the established claim date which is July 2010. But, you state your claim was reopened on November 2014 which is outside one year of the claim denial, so the consequence of this date is that the claim may be treated as a request to reopen after a one year period since the claim was denied. This means a new claim date is established as of November 2014. So if benefits are awarded, the award starts the month after the new filing date which would be December 2014.

      I cannot tell from how you explain your situation without reviewing your C-file if the VA will treat your actions as being a new claim or not. So the established claim date might be either July 2010 or November 2014 depending on how the VA establishes a “new claim” being filed.

      Sincerely,
      Craig L. Ames
      Accredited VA Attorney

  • shea

    I was just wanting to know how does VA pay for the Secondary issues. My claim was settled but I found that several other issues I have been getting treated for were related to my lower back problem. I am getting % for my back will they backpay me for the 4 secondarys since they were related to the initial back problem? I filed the secondarys right away after the initial claim, I didn’t really know about secondarys.Im asking if the secondarys push this to 100% will they backpay me since the secondarys were connected to my initial claim date or will it pay only from the date I put in for the secondaries?

    • Kay Derochie

      Dear Shea,

      It appears you have filed a new claim. When a new claim is filed, the effective date of benefit payments, if awarded, are determined from the date your new claim is received by the VA Regional Office.

      Sincerely,
      Craig L. Ames
      Accredited VA Attorney

  • otis morris

    I submitted a claim in Apr 2014, regarding being stationed in Camp Lejeune for 3 years in the early 70’s in which the drinking water was found to contaminated, I retired in 1996 and had two bouts of bladder cancer (investigation showed that bladder cancer was on the list) VA denied my claim Sep 2014 saying not service connected my hematologist that treated me is from naval medical center wrote a letter to that effect, I have now received a letter from the HEAD of the NMC hematology dept. stating the same thing, what is the best way to introduce this new letter?

    • Kay Derochie

      Dear Otis,

      You will need to file a Notice of Disagreement (NOD) with the VA within one year of the claim denial. Then you can either elect to have the Regional Office informally review your new evidence or in the alternative you can elect to file a formal appeal with the Board of Veterans Appeals (BVA).

      The medical opinion you received is important, but it needs to link your current medical condition to an in-service medical event. How the medical opinion is worded is critical. You may want to have an accredited VA attorney review the recent medical opinion. There are important rights to protect and a skilled attorney can help you obtain material medical records supporting your benefit appeal.

      Sincerely,
      Kay

  • Mike

    Hello and thank you in advance for any guidance you can provide concerning my problem.

    I have a 70% disability rating for PTSD from my Navy service from 1979 to 1989. I tried back then to get help and was refused. It was not until December 2012 that I was finally able to get the VA to accept my claim and it was proven. The Navy denied that the events occurred because they were part of an international incident that was not acknowledged until 2005/6.

    I began receiving benefits for the PTSD in July 2013, though they only backdated the payment to December 2012 which I found odd considering I have lived (at best) a half life since all this happened in the Navy. I have literally lived in swamps, cold water shacks 50 miles from anywhere in Idaho, the desert in Mexico and under bridges on an off since I got out in 1989. those were some of the nicer places I have lived in all this.

    That set my “appeal by” date to July 2014.

    My question is that for my initial claim I also have a claim for hearing loss w/ painful tinnitus and apnea. The VA has verified both of those situations.

    The problem is that even though I requested all of my records in Dec 2012 I just received them Dec 18 2014. I should note that I have 5 letters from the VA, and the records centers in Millington Tenn. and St. Louis, saying they don’t have my records, and then this packet just showed up.

    In the packet is the Denial for service connection of the hearing loss. The tests results show the loss but the doctor stated that she could not connect that to my military service and that she looked at my medical records from 1979 to 1983, which is only my first enlistment.

    In the packet are 3 significant entries. 1) my “sick call” complaint about the ringing in my ears and loss of hearing (it ordered me to not work in that environment for 180 days) 2) an audiogram showing the acute hearing loss and 3) an odd entry that states my “baseline” has been reset.

    The hearing loss and values recorded by the VA test are what are shown in my medical record, essentially I cannot hear in my right hear over the ringing on the best of days, at least once a week it is so painful I cannot leave my bedroom as other noise acerbates it. The VA Doctor did not include that information in her report, and in fact it reads like I am complaining for no reason, even though the numbers show I cannot hear.

    I have had only 3 audiograms in my entire life, the one upon entry to the Navy, the one that shows the initial loss and the one performed by the VA. I do not understand what resetting my baseline means and I was never given a followup appointment (in the Navy) nor was I given an audiogram at my discharge in 1989.

    So can you advise me how to proceed? The terminology used on the multiple VA websites confuses me. Is this a re-opened claim or a supplemental claim?

    who do I actually contact and with what form?

    The pamphlet at this link http://www.bva.va.gov/How_Do_I_APPEAL.asp
    seems to indicate that I have to go to my local VA office and run through a gamut of hearings and decisions before it goes to a review board in DC, and that I have to decide when I file if I want an in person appeal to DC or a video conference appeal with DC or if I just want to trust the local people. How does someone decide that when they don’t know the outcome of the appeal?

    do I write a formal letter outlining my request? do I mention the “reset baseline” in my request? do I mention the medical records that are missing from what they sent me? do I label each attached document as an exhibit or do I just trust they will figure that out?

    As for the apnea, I am getting no benefit from that however the sleep study operator woke me an hour in to the initial period and had me wear the test mask. she stated that usually they wait 4 or more hours of sleep to test the mask but in my case the apnea was so bad she feared I would die in her care. I should note this started while in the military.

    I do not know how or what I can use to document this since I did not even know what apnea was in the 1980’s and complaining to sick call about snoring was never a consideration, though my roommates did consider throwing me over the side many times for my snoring and abrupt waking.

    I survive on my 1300 a month pension and my expenses are 1000 for rent, food and telephone, gas and insurance. I have no money for an attorney, so any advice on how I should proceed is most appreciated.

    thank you again for any guidance you are willing to offer

    Mike

    • Kay Derochie

      Dear Mike,

      You do need an attorney to sort out your case. Many VA attorneys take cases on a contingency basis. That means that you do not pay attorney fees until you have won your case and received benefits. At that time the attorney receives a percentage of your back benefits.

      Sincerely,
      Kay

      • mike

        Kay,
        Thank you for that, it is what I was afraid you were going to say.

        I don’t know how the contingency works but it sounds like what ever backpay they might get me would be eaten up by the fees.

        I will consider my options and let you know

        Mike

        • Kay Derochie

          Dear Mike,

          I thought a big more information about accredited VA attorneys and attorney fees might be helpful.

          VA accredited attorneys typically charge a 20% contingency fee based upon an award of back benefits to be paid only if back benefits are won. An attorney does not receive any portion of ongoing monthly benefit payments to the Veteran which can continue during the lifetime of the Veteran. So the majority of benefits are not subject to attorney fees due to the ongoing nature of VA benefit payments. Also, the Veterans Administration has a written policy for approval of attorney fees. Any VA accredited attorney must obtain and submit the written and signed individual Veteran Fee Agreement to the VA for approval as to reasonableness of the lawyer fee.

          To represent a veteran, an attorney must be approved by the General Counsel of the Department of Veterans Affairs. Once an attorney receives accreditation, then that attorney must submit an annual report of Good Standing and that attorney must participate in continuing legal education and submit certification of professional courses taken on an ongoing basis.

          With these protocols, any Veteran represented by a VA accredited attorney has assurance of a high standard of professionalism in representation before the VA in the claim application and appeal process. Since the overwhelming majority of claim applications are denied by the VA, it is prudent for a Veteran to seek the services of a trained professional in dealing with the VA. There are more than two million pending claims. A VA accredited attorney understands the complexity of the United States Codes applicable to military Law, the published VA Regulations, the complexity of procedures used by the VA, and the case law dealing with claim denials. A VA accredited attorney will be able to determine if a claim is meritorious. That attorney will know how to design a strategy to hopefully prove a disability rating.

          Sincerely,
          Kay

  • William M

    I was medically released from active duty on November, 26 2012 and placed on the TDRL with 60% disability from the Army and 90% from the VA after an exhaustive and mismanaged IDES Medical Board. I realized that my medical conditions had not fully stabilized and that there were several things left out by the Doctor during my first QTC appointment. I went through my local DAV chapter and filed a notice of disagreement(NOD) which was received by the VARO on November, 22 2013. I was notified in June 2014 that my award had been increased to 100% total and permanent due to new findings that were the result of a second QTC appointment. I have three questions. 1. Am I entitled to the difference in compensation between my original rating of 90% and the new rating of 100% dating back to my original date of claim which is November, 27 2012? 2. If so, what do I have to do in order to receive this compensation since it has been since June and I have received no notification or payment? 3. What is the title and date of the CFR that governs this clause so that I may obtain this information in order to be informed of the law and my rights?

    • Kay Derochie

      Dear William,

      The answers to your questions are not simply an “A, B, & C” sequential response. Your situation requires an in-depth file review.

      The general rule to determine the date disability compensation benefits are payable is the date the claim application was filed. By “filed”, the VA means the date the VA actually received the claim. However, if you filed an original claim application and that application was received within one year of the date of discharge then the original claim may be retroactive to the day after the date of discharge. But, these rules are complex and are impacted by the method you chose to respond to a partially favorable rating. There are multiple options for a Veteran to respond to a claim denial and each option can affect the dating of benefit payments, if awarded.

      By the context of your question, I cannot determine the method you took to protest your rating. For example,if you first filed an original claim and then filed a new claim or filed a request to reopen your existing claim, then your claim is dated as of the date you filed the new claim or the request to reopen that claim. On the other hand, if you actually filed a Notice of Disagreement (NOD) to an original claim denial; and further if the NOD was timely and the original claim was actually received within one year of your discharge date, your claim could be made retroactive to the day after your discharge date.

      The law is complex. It is not a matter of looking at one provision of the law. You would need to apply the VA statutes in the United States Code plus Department of Veterans Affairs Regulations as well as VA Policy Statements and case law. So if you feel the VA improperly dated your benefit payment date, you will need to file a formal response to that determination. But, remember that may impact the dating of benefit payments. In the alternative, you can seek the counsel of an Accredited VA attorney.

      Sincerely,
      Craig L. Ames

  • Jose Rodriguez

    Hello. Happy holidays. I had a brief question about appeal. I have a 40% on migraines and a 10% on anxiety. I started an appeal back in June 2010. My shrink at VA says I should have been awarded PTSD, since I have flashes of war and can’t deal with people. I am also in Puerto Rico and if or when I call them to ask about my status, they usually have nothing to say except that it was last looked at in feb this year. I am heavily medicated and I don’t leave my house. They say that my case is set to go to washington, to the board. But it’s been almost 4 yrs, how long does it take to get an answer on the appeal. Whatever I receive is not enough and I cant work, sometimes I want to give up.

    • Kay Derochie

      Dear Jose,

      Unfortunately, one cannot predict how long it will take for an appeal. Based on your comments, it appears you have filed an appeal to the BVA (Board of Veterans Appeals) or are in the process of filing such an appeal. There are more than one million cases pending within the VA so it is difficult to predict when your case will be brought up to the BVA.

      Sincerely,
      Craig L. Ames
      Accredited VA Attorney

  • ryan

    I am currently in appeal process of a claim for IU. I filed for it when i did a upgrade for my PTSD back in Feb 2014. I got my PTSD upgrade approved but my IU denied in July 2014, even though they said i qualified for it but needed more prove from my doctor that i couldnt work. My VA doctor wrote a letter and the VA also got my paperwork from Social Security for my SSDI that I have been collecting. Im using the DRO process and havent gotten anything information besides saying its still at the Regional Office. I can use that extra money for me and my family being at 80 % is really cutting it for me right now. Anyway i can get help from someone to see if they can move quicker since its been 5 months from the time i sent my NOD to them.

    • Kay Derochie

      Dear Ryan,

      By a “UI” claim, I assume you mean “total disability based upon individual unemployability” (or TDIU). Your TDIU claim can be sped up during the DRO process by submitting more complete medical as well as vocational information which might prove your claim.You need to consider that Social Security approval does not necessarily help get VA benefits. Unfortunately, if you are disabled under SSA rules, the VA may not give Social Security’s decision as much weight, since it’s not usually clear whether the approval is based on service-connected or non-service disabilities. Many veterans have a wide array of both types of disabilities, and the VA can be quick to attribute total disability to a host of non-service disabilities. The VA must be able to make a specific finding on what disabilities prevent employability. To convince the VA that the disability was caused by service-connected impairments, a veteran may need to hire a Vocational Expert to specifically attribute the unemployability to service-related disabilities and it would likely be helpful to have legal assistance in presenting the case.

      Sincerely,
      Craig L. Ames
      Accredited VA Attorney

  • Marie Dahl

    I am within hours of my one year deadline. I was preparing to send a NOD, but I called the VA 800 number to ask a specific question about what to include. She said NOT to file a NOD since this is my first time disagreeing with the decision. She emailed a form to file a Reconsideration (va form 4138) instead. She said this will stop the clock and I will be good to go so if they disapprove the claims from there, I can do a NOD, then appeal. Here is my dilemma: I was told a few months ago that once you file a Reconsideration, if the VA makes a decision after your one year mark (not the postmark date nor date they received it) and you disagree with that decision, you loose the ability to appeal. Is this true? Any advice would be greatly appreciated!!!
    Thank you!
    -Marie

    • Kay Derochie

      Dear Marie,

      For whatever reason, you have made a major mistake by waiting until the 11th hour to act on your claim denial. As a result your choices are extremely limited. You need to act immediately. You can either file a claim review as the VA staff member suggested. This is known as a DRO (Determination Review Officer) review. You will need to complete and file a VA Form 4138 – “Reconsideration.” This is an administrative review of a claim denial. You may want to do so since you are out-of-time to act otherwise. But, you do have another option. Alternatively, you can elect to file an appeal with the Board of Veterans Appeals (BVA). A BVA appeal requires that you file a Notice of Disagreement (NOD). A BVA appeal is a judicial appeal. On the other hand, a DRO is an administrative review.

      There are significant legal distinctions between these two approaches in responding to a claim denial. Veterans Law and its processes is complex. Often Veterans need the advice of an accredited lawyer for advice as to the distinctions in approaches to following up a claim denial.

      Sincerely,
      Kay

  • Angi

    I was AD 2002-2007 and denied for kidney stones in my initial 2007 claim that were in my service record from 2006. A couple weeks ago had kidney stone extraction surgery (likely) from that 2006 stone, so I am submitting the records from this surgery and previous ER visits, I still have a stone remaining that is not being addressed until it becomes a problem.

    Is it possible they may compensate back to 2007 or only from now? Would it help if I supply a statement along with my paperwork explaining how I have had issues from this stone since 2006 even though I was denied? If so, are there any key words or anything that would help to mention? Thanks!

    • Kay Derochie

      Dear Angi,

      Generally, an effective date for benefits to start for service-connected disability that is directly linked to an injury or disease that was incurred or aggravated by military service is the date the VA receives a claim or a later date if the disability is found to have begun after the date the claim was filed.

      Sincerely,
      Craig L. Ames
      Accredited VA Attorney

  • Michelle

    I was discharged from the military (lack of family care plan) in 2006.
    Since then, I had been treated off and on by my family doctor for depression. I finally filed for VA compensation in August of this year.
    Prior to the military, I had been treated for depression, but was not depressed at the time I entered the service. Last week, I had my first C&P exam by a company called VES. The doctor, although nice, did not ask me any questions about how the depression was service aggravated. Should I be concerned? Thank you for your response.

    • Kay Derochie

      Dear Michelle,

      Yes, there is reason for concern. Every action taken by the VA has consequences. It is more probable than not that the VA will rely on that examination as grounds to determine a service connection or lack thereof. You can be proactive in responding to any adverse result of a C & P Exam by providing a medical evaluation report from a medical expert to the VA at your own expense.

      Sincerely,
      Craig L. Ames
      Accredited VA Attorney

  • Jenae

    I am trying to find out if I missed an appointment but tried to reschedule and they told me that they had to send in a request. But the next day they sent my claim into the pending decision stage does that mean that I got denied for my compensation for missing that one appointment. Please help and thank you

    • Kay Derochie

      Dear Jenae,

      It could be that your claim is set to be denied. Call the claims examiner who asked you to attend the appointment. Explain the reason for missing it, apologize, and ask that the exam be rescheduled.

      Sincerely,
      Kay

  • Steve Amos

    I was denied my claim forPTSD in 1997 I reapplied in 2012 was awarded 30 percent PTSD. Will I get back pay from 1997?

    • Kay Derochie

      Dear Steve,

      You will probably not receive benefits back to 1997. When you find out the starting date they gave you, if it is not 1997, you should appeal the onset date.

      Sincerely,
      James Mitchell Brown
      Attorney

  • James

    Everything I’ve read states an approved claim begins the day after discharge in cases where the claim is filed within one year. After 26 years, I finally received approval for my claim. The VA states the claim date is 2011, however they are using April 29, 2014 as the effective date. They claim that is the date evidence was recieved to reopen my claim, even though they state they used evidence from 1988 on in their decision letter.

    Does the effective date make any sense whatsoever? Also, since I have three years of active duty service medical treatment, 26 years of private medical treatment, and my diagnosis has been the same from active duty until now, shouldn’t they retro my claim to the day after my discharge? Thank you.

    • Kay Derochie

      Dear James,

      You sound like you have a difficult case and the kind Congress does not want the VA to pay, especially since the recent election. You may need an attorney to put together twenty-six years of evidence. To show they are wrong, the issues are when did you apply? when does the evidence show you became disabled? and when can we prove you were disabled?

      Sincerely,
      James Mitchell Brown
      Attorney

  • Cecilia

    Is it possible to correct an approved disability 14 years later? I found out that my disability should have been something else than what VA approved it for. I was told I had a specific condition and 14 years later there’s a secondary disability that can be linked to the condition I thought I had been rated for all this time and come to find out the first disability was wrong to begin with.

    • Kay Derochie

      Dear Cecilia,

      You will need to file a new claim seeking an increase in your rating of disability compensation. This claim is known as a request for reevaluation or change for an existing benefit. This is the most common application made to the VA. You will need to provide evidence to establish the in service illness, injury or aggravation that was incurred in service and evidence that you have a current disabling illness or condition which links between the current disability and the illness, injury or aggravation incurred in service.

      Craig L. Ames
      Accredited VA Attorney

  • Dan B.

    In July 2003 while still on active duty, I filled out my original claim for several items for my upcoming retirement after 20 years. I checked sleep apnea. VA/QTC sent me to a psych to check for PTSD. I never had it and he agreed and said my insomnia was not due to PTSD, but he couldn’t answer what caused it as he was not a sleep doctor. VA approved my other claim for my spine and disapprove the insomnia. Back then I had never heard of sleep apnea. Scoot forward to last month, my local VA doctor had me have a sleep study and it came back very positive that I have sleep apnea and the put me on a CPAP machine. Seeing as I claimed sleep issues before I retired, can I put in a new claim for the sleep apnea? If so, can I make the argument that it should be back dated because I first claimed it 11 years ago, but they did not have me checked for it? How likely is it that they will still turn down my claim for sleep apnea now? If I pay out of pocket and have a doctor write a letter stating that I have probably had this all along, will that help to get it approved and back payed?

    Thanks for all of the time you put in here answering vets!

    • Kay Derochie

      Dear Dan,

      You can refile and see what happens. Does anyone say that the sleep apnea is service connected? If so, get a statement from them.

      Sincerely,
      James Mitchell Brown

  • Ralph

    I filed for disability in November 2012. Apparently there was a rating decision sent to me sept 2013. All of a sudden I started receiving money deposited into my account. I reached out to my VA contact and he said you were awarded 10%. This was March 2014. Now, it is 2 months passed my appeal date. Is ther anything I can do to appeal since obviously they didn’t send me my paperwork? Or is my only option to reopen the case? Also, they didn’t do any exams other than a hearing test, I filed for PTSD as well as medical issues with my back and knees. I only had a hearing test. Anything else I can do to get this retro to my original claim?

    Thanks so much!

    • Kay Derochie

      Dear Ralph,

      I suggest that you go to the VA and tell them you never received a decision. Ask if decisions have been made on the other conditions you claimed. If so, request permission to appeal. If decisions have not been made, ask why and find out if they need anything else from you.

      Sincerely,
      James Mitchell Brown
      Attorney at Law

  • dale gaulden

    I am in the process of filing Agent Orange on Okinawa for prostate cancer. heart CAD, Diabetic II insulin dependent not under control been told I am wasting my time DOD will not put Okinawa on list, Me and every marine, sailor, solider knew ao was used on the island. I know because I sprayed the hill side and fences there. in 1971. is there any help out there. did find where 3 men got approved for ao on the island

    • Kay Derochie

      Dear Dale,

      Your chances are slim, but file the claim.100% of the people who do not file claims never get benefits.

      Sincerely,
      James Mitchell Brown ESQ

  • Pauley

    I am 50% PTSD, 20% each left and right arm nerve damage and 10% for coronary artery disease. I was fired from my job of 15 years because I fell asleep and hit a pole because of the medicine I take. Given the nature of my work the company considered me a danger to others (and myself) so I was medically terminated. I filed for IU, got letters from both my VA Psychiatrist and VA PCP stating I am unemployable due to PTSD and the medication I take to control it. I also got a letter from my old boss stating I was terminated for PTSD and the medicine I take. Since all this happened, my condition had worsened. My VA treatment records show I have suicidal ideations at times, depressed, anxious, untrusting, can’t be around people and I never leave the house (except for VA appointments) and have anger outburst issues. My sister does all of my shopping for me. I live life a hermit because I am afraid to be in public. I also receive SSD for PTSD and non-service connected Bi-Polar disorder (But in my original C&P for PTSD the DR. stated that the PTSD and Bi-Polar disorder tend to aggravate each other). I received a C&P for my IU claim and the examiner stated I was employable in a sedentary setting. It seems no weight was given to the letters from my treating VA doctors, the letter from my boss stating why I was terminated and that I had issues with my coworkers (one of them reported me to our union because he was scared of me and I was talked to about this). I filed a NOD requesting a DRO review and resubmitted all my evidence again along with my SSD award and current VA treatment records showing my worsened symptoms. I am just wondering if anyone can tell me what my chances are of winning this DRO review monster. If it is denied again I think I will just give up. It is way too stressful to keep up with all of this mess and I don’t have the money to pursue it further.

    • Kay Derochie

      Dear Pauley,

      A VA attorney from Disability Advisor has emailed you to arrange a consultation.

      Sincerely,
      Kay

  • Andrew Clark

    Hello Sir
    I recently(9-29-14) received an appeal ruling after 5 years of waiting. For my back(10%), left thigh(20%) and skin(10%) Although I am thankful and grateful for the ruling, I feel that my low back disorder should have been rated higher because of DJD in my L5-S1, mild scoliosis, and other things my examiner listed on a letter he sent me informing me of the results of my x-rays. Also in April 2014 I requested a reopen for my sleep apnea because it as previously denied(2010) and I thought my DAV rep had submitted on my behalf for an appeal, but it was not listed on my appeal. I received an approval Sep 2014 for my sleep apnea of 50%, so I want to know do I have grounds for requesting a effective date of Jan 2010 when I file. The VA never requested a exam in 2010 because they were not denying that I didn’t have sleep apnea. It was they were trying to establish whether or not in occurred in the service.
    I retired in Mar 2009, In January 2010 I was diagnosed with severe obstructive sleep apnea and put a CPA Pressure of 13. When I visited the VA examiner on Sep 8 2014. He asked me when did I get out and when I was diagnosed, Did I fall the sleep at the wheel etc. Then he said he will review my records and document the facts and provide his opinion. On Sep 20, 2014 I received notice that My sleep apnea was SC rated at 50% effective April 10, 2014. I feel that it should be effective Jan 2010. They based everything off of the VA examiner

    I truly appreciate that you answer these questions

    • Kay Derochie

      Dear Andrew,

      You provided background about your situation, but did not ask any questions. Please pose your questions so that I can respond.

      Sincerely,
      James Mitchell Brown

  • Joseph Walton

    Hi I’m not a veteran but I do have a question about disability. When I was 18 I applied for disability and was denied, but I reapplied for it at 25 and was granted for the same problem, migraines I had forgotten I had applied at 18 is there any chance to get back pay back to when I was 18 I worked very little between and was fired from every job I had because of missed work sure to migraines

    • Kay Derochie

      Dear Joseph,

      I assume that you are inquiring about Social Security Disability (SSDI) or Supplemental Security Income (SSI) benefits. My response is based on that assumption. It is very unlikely that you could get your claim of seven years ago reopened.

      Sincerely,
      Kay

      • Joseph Walton

        Yeah that’s what I thought and yes it is ssdi well I got you have a great weekend thank you so much for your help

        • Kay Derochie

          You are welcome, Joseph.

  • Carmen G

    I’m filing a claim for MST and anxiety. Problem is, when I was depressed and asked for help, they referred me to the Chaplain, even though I told them I was not religious. The Chaplain helped me keep my mind off of issues but never referred me to a professional. I have emails and letters from friends and family members in which we speak about my depression issues. Will this be sufficient? IT makes me so angry because I ASKED For the help and they kept sending me to the Chaplin! IF I did not go to get medical help, but have written evidence, via email and letters of issues, will that help me?
    Thank you,

    • Carmen G

      I also, requested to get transferred out to Active duty, but I said it was because I was pregnant… I then had issues in the reserves, same issues.. MST, and asked to get placed in the IRR to stay away from the military. I have a friend who wrote a letter stating what he saw, sexual harassment and that I asked him to please follow me as much as he can because I did not feel safe. I have many Facebook messages talking about my issues with the SGT and also my depression.

  • Esteban

    I saw that you said the final process of appeal takes 4 years. You also mentioned 3 previous appeal process. Can you elaborate? I filed an appeal in 2010 in the Puerto Rico VA. And when I called they said my file was last looked at in march but it hasn’t moved after. So I have to appeal 3 more times before I can get approved? These current 4 years do not count?

    • Kay Derochie

      Dear Esteban,

      You can often win on your first appeal if the evidence is properly presented. I was only referring to the situation if you have to go the the ultimate final step. Most people do not have to go that far. You should call and ask when you can expect a decision.

      Sincerely,
      James Mitchell Brown

  • Here is my problem. After submitting my claim for arthritis degenerative, for three major joints and visible on x-rays from the VA with painful motion, I was awarded 50%. On the SAME award letter, it was lowered back to 20% (staged ratings). I still have pain and I still take medication prescribed by the VA (and arthritis does not heal as I was told). At my C&P exam, the doctor stated no painful motion although I told him where it hurt and have multiple private and VA doctors x-rays documenting the problems. They are all service connected though. Can I appeal this successfully? Thanks for helping us with our claims.

    • Kay Derochie

      Dear Anthony,

      We won’t know if you can appeal successfully without filing an appeal and waiting for the outcome. If you do not appeal you have no chance. The staged rating may have lowered if you are getting other percentages for other conditions. I would need more information to give a more complete answer. If you are unable to work because of your service connected conditions, then you must not ask just for an increase but for unemployability.

      Sincerely,
      James Mitchell Brown

  • Jason

    I put in a claim10 years ago for damage to my ankles in 2004. I had an accident while on a navy ship while in the Marines. I went to sick bay and was put on light duty. I also visited sick bay another time for ankle issues. When I filed the claim I did not have my medical record just memory of the incidents. I had been seen by a civilian Dr. who told me I had the ankles of a 50 year old and I was 24. I was unable to get off work in order to make the appointment and My claim was denied. I didn’t know anything about appealing back then and recently my new VSO pulled my denied claim and got me my medical record. My medical record states that xrays show degenerative joint disease and in the denial letter it states that they saw that I had degenerative joint disease but still denied my claim. What are my best options here? I could give a crap about money as I have a great job but I want to do some thing about my ankle and want to get the VA to help take care of it instead of paying for it all on my own. I feel so stupid for not following up on it then but I had a good job then too and was young and uniformed. Truly appreciate that you answer these questions

    • Kay Derochie

      Dear Jason,

      You have a very tough situation because it is ten years later. If your physician says your current problems are a result of what happened to you in the Marines, it would be helpful to your claim. If you have not yet requested you “C” file, do so at the VA as soon as possible because it could have some information in it that would support that your condition is service connected. Once you have gathered information, you could go to the VA to see whether they will let you file a late appeal.

      Sincerely,
      Kay

  • Lauren

    Hello everyone! I filed a disability claim through the VA in November of 2013. I was told by the VBA that my regional office (Oakland, CA) has an average claim processing time of 14 months. Will I get back pay for the time I have been waiting? This entire time I have not been working. Starting to get very frustrated… Thanks for any info!

    • Kay Derochie

      Dear Lauren,

      If you are approved, the VA will determine a disability onset date. It may likely be the date of application. If you are not approved with a date at least as far back as the date of application, then appeal.

      Sincerely,
      James Mitchell Brown

  • Karla

    I was awarded 50% for migraines due to some fuel filters that fell on my head and only 10% for ptsd. While I was in Irak I was put on suicidal watch twice and was medicated half my deployment. I cant sleep and I have this feeling people are following me, I cant leave my house. The pysd has progressed since then. I was awarded in 2009 adn I did appeal back in 2010, but I still havent received anything. The VA said they have people waiting for 15 years, how long does it take to get an appeal its september 2014? My shrink said my PTSD should be more than 10%. Thanks

    • Kay Derochie

      Dear Karla,

      The final level of appeal takes about four years. The first three appeals usually each take about eighteen to twenty-four months.

      Sincerely,
      James Mitchell Brown
      Attorney at Law

  • Roberts

    October 2013 I started a claim on ebenefits. I had a question and went to see a DAV rep. I told him I started the claim and he said no problem that he would help me through the rest. I was notified of my rating and it was far below what was expected. I started to do some research and learned that as of January 2014 the rating would change for sleep apnea and that the DAV submitted my claim in February not under my October claim. Is there anything I can do to correct this as my 365 days for the October claim date is quickly approaching.

    • Kay Derochie

      Dear M. Roberts,

      I suggest that you file an appeal and get your physician to give you a higher rating.

      Sincerely,
      James Mitchell Brown
      Attorney at Law

  • Joseph Casillas

    I filled a ptsd increase claim in 08/2011 and was denied in 08/2012. I quickly filed a NOD and the ruling was upheld in 11/2013. However, I filled another ptsd increase claim in 08/2013 while my claim was in the appeal phase. I ended up missing my C and P exam in 03/14 but my claim reopened under an administrative review on 05/2014, a day after my original claim was closed. My administrative review claim was a success a few days ago. My question is what should be my effective date? Shouldn’t it be back to 2011?

    • Kay Derochie

      Dear Joseph,

      The effective date of your claim will depend upon the medical evidence that you submitted and the date of the evidence.

      Sincerely,
      James Mitchell Brown
      Attorney at Law

      • Kimber

        My question is kind if complicated. I filed a claim u 2011 for PTSD. I went to my C&P appointments and the examiner refused to look at my records that I had with me. She stated she just wanted to hear my story of a stressor. I told her about a documented MST case and I had the police report in hand. I also had a Red Cross message that stated my brother killed himself the next day due to events that had to do with my attack. She didn’t look at it and she went on to write in her report that I make my own life difficult through my choices. She diagnosed me with reintegration issues and said that it was not service connected. I was given a raring of 50%, but no compensation due to not being SC.
        I appealed immediately and I am just now getting a C&P appointment. I went a week ago and I had the same evidence. The psych told me I had MST which caused me to have PTSD severely. He also stated that there was no way I should’ve been denied.
        My question is will they backpay me from 2011 or will they start from my appeal date? I made all if this evidence available to them the first time so no new evidence was presented.

        • Kay Derochie

          Dear Kimber,

          When you submit a new claim, the benefit effective date isthe date the VA receives and processes your new application. An appeal will preserve the earlier benefit effective date if the appeal results in an increased award.

          Sincerely,
          Craig L. Ames
          Accredited VA Attorney

  • Josh

    I was Honorably discharged from the Marines in 2002 and when I left I had a severely injured left shoulder that had not been repaired. I filed a claim with the VA on my own and was denied because the VA said there was no evidence of the injury in my medical records. I did not appeal at the time because I did not have any additional information. Fast forward to the present, and with all of the VA stuff in the news I decided to try this again and filed a new claim for the same unrepaired injury, but this time with the help of the American Legion. This time the VA scheduled a C&P. At the appt the doctor was looking at my military medical records on his computer and said he saw the records from the time of the injury. My claim has just been aproved from the date I filed this new claim. The VA made a mistake though, they should have aproved my claim the first time around back in 2002. So my question is if there is anything I can do about this to get my claim retroactively back dated to 2002? My second question is about my injury. Had the VA aproved my claim back in 2002 my shoulder could have likely been successfully repaired. Now that all these years have passed the success rate for this type of shoulder surgury is less than 20%. My injury has now become a permanent injury that I will have the rest of my life. What is the recourse here? Can I ask for a rate increase? Is it worth hiring a lawyer?

    • Kay Derochie

      Dear Josh,

      You have a better chance if you hire an attorney who understands the VA system. Make sure the attorney is a member of the National Organization of Veteran’s Advocacy (NOVA). You have minimal recourse, but a good attorney may be able to get you retroactive benefits.

      Sincerely,
      Kay

  • Gabe

    I have a herniated disc as a result of military service. The disc is impinging my sciatic nerve and causes pain to radiate into my left leg. Three years ago I applied for disability, it was determined to be service-connected but I was given a 0% rating. A year ago, I contacted the DAV and they reopened my claim because the pain had gotten worse. This time they included the radicular pain in my leg as part of the claim.

    The VA scheduled an examination, which I attended. Two months later, the VA denied my claim saying I did not attend the evaluation and that the pain in my leg was not related to my back injury nor was it incurred during my time in the service.

    I have tried to get a copy of my medical records but neither the private physician that performed the physical nor the company that scheduled the physical will provide them, citing their contract with the VA forbids them from doing so.

    I also have records from my time in service showing that the pain is service connected (MRIs, visits to Drs about the pain etc.).

    Upon the DAV’s recommendation, I filed a request for reconsideration citing the above mistakes. I also submitted the evidence showing that I attended the evaluation and medical records from my time in service evidencing the pain in my leg.

    A few days ago, I got a letter from the VA saying they will take no further action unless I appeal or point out an unmistakable error. I thought my reconsideration request pointed out an unmistakable error. So, what do I do next? And, how can I obtain a copy of the record of my examination since the VA has lost it?

    Thanks

    • Kay Derochie

      Dear Gabe,

      File another appeal and request your “C” file. The exam should be in the file. If it is not, you need an attorney to help get it.

      Sincerely,
      Kay

    • Dianne

      You can get an ebenefit premium account and you can access your records and schedule appointments and a variety of things like ordering/refilling prescriptions. The VA has changed so log on and check it out.

  • M. Austin

    My original claim filed in January 2012 I was only awarded 10% for my hearing. The portion pertaining to my knees was denied because they could not locate my medical records. In April 2014 I was finally able to track down my medical records and reopened the claim for my knees. I received a letter yesterday stating that I know have a combined percentage of 40% (30 for my knees and the 10 for my ears). My question is should I expect them to back pay me from my original claim date of January 2012 or from the date I reopened it, April 2014?

    Thanks in advance,

    M. Austin

    • Kay Derochie

      Dear M.,

      I suggest that if they do not reopen the claim with the original filing date that you file an appeal and contest the onset date. Use previously unavailable evidence as grounds for the appeal.

      Sincerely,
      James Mitchell Brown
      Attorney at Law

      • Juan p

        Hi my name is Juan padron I had a question about my va compensation I had applied on January 3 of 2013 and in the Los angeles va center then I had it moved to the Reno nv va center and I get a letter stating that they lost my records and can’t find them I also had a c&p exam and called to rescheduled it but never got another date for it so it was denied on March of 2014 then it was reopened on March 2014 and I got approved on February 26 2015 is there any way to appeal the back pay date since it started my claim in 2013

        • Kay Derochie

          Dear Juan,

          The effective date that benefits will start is the date of your request to reopen the claim in March of 2014. Your claim is not retroactive to the earlier filing date.

          Sincerely,
          Craig L. Ames
          Accredited VA Attorney

  • Laura Moore

    My husband, a Vietnam war veteran, was diagnosed in 1996 with myleodysplatic syndrome. His disability claim was denied because we could not show a medical nexus. We appealed and were denied again. Then in 2011, we were notified that the VA was reviewing his original claim. We were denied again.
    Fast forward to now. in 2013 The National Cancer Institute confirmed that exposure to dioxin (the toxic chemical in Agent Orange) is indeed a risk factor for MDS. Then in 2014, The aplastic anemia and MDS Medical Advisory Board strongly states that their is “considerable evidence” that exposure to Agent Orange is a risk factor for MDS. Would these respected opinions serve as “real and material” evidence. And if so, what should we do.
    p.s. My husband had a successful bone marrow transplant and is now cancer free; however he suffers from chronic and crippling rejection issue that are directly related to the transplant.

    Laura Moore

    • Kay Derochie

      Dear Laura,

      You should retain an attorney who is experienced in VA disability to help re-open your husband’s claim. You have evidence that was previously unavailable that you may be able to have considered. This will be difficult and complicated, which is why I recommend not doing it by yourself. Obtain an experienced attorney.

      Sincerely,
      James Mitchell Brown

  • Symone

    Hello, My question is I filed for PTSD/MST which was denied because of not enough evidence. The C&P Dr. did not say it was or was not likely related to active duty, so another Dr. at the VA reviewed the C&P exam his reports states he could not conclued if it was or was not likely related to active duty without mere speculation.

    The VSO told me to refile my claim as MST related to personal Assualt, As I was raped/ beaten while I was in the brig. My claim is now showing as a reopened claim. I did not submit any new evidence as I could not get any buddy letters and I didn’t report it because I am a male, I thought noone would believe me anyway, so I resorted to drugs and booze to mask the pain. I’ve not been able to keep jobs, relationships, I have no children because I didn’t want to raise children in this sick world.

    Please give any advise. on what I should do???

    • Kay Derochie

      Dear Symone,

      You need to get buddy letters (letters from anyone your told at the time). Also ask your doctors that are treating you if they have put notes in their records about the assaults and rapes; it needs to be in their records. Are you represented? That may help too.

      Sincerely,

      James Mitchell Brown
      Attorney at Law

    • Carmen G

      I am so sorry to read what happened to you! do you have a representative, I heard from many people that this helps. I submitted a letter from a friend, I hope it’s enough for me 🙁

  • Robert Sterling

    I had a left and right knee injury in military. The VA said it is not service connected and said to send in evidence. I did several times showing the injury and the doctors from the military, however these copies I have are not in my medical file….LOST. VA still turns it down saying I need to submit new evidence. The F-don’t look at what you send them or they would see, I had an injury in Germany sent to hospital and at Fort Hood. So what do you do? I asked for help with DAV and we sent in again, so I will see what will happen. I have copies of all my medical while in the military, however the Va has nothing other than the surgey I had for left and right hernia at 0% rating. All I want is help and treatment because I have to have knee repalcments now.

    • Kay Derochie

      Dear Robert,

      I posted your comment. If you meant to ask a question, be in touch again.

      Sincerely,
      Kay

  • orville k thomas

    I was honorable discharged from the navy in 1964 with seven years service. On my DD-214 it states “Unsuitability.” But I was never told the actual Separation Code was “Emotionally Unstable Personality.” I had a commendable service record, was promoted rapidly and recommended for Limited Duty Officer’s Program leading to a commission. I was a senior enlisted crew leader flying reconnaissance missions. On my last flight in 1961 before re-enlisting, our aircraft crashed killing six crewmen, five that were in arms length from me. I reenlisted and within a few months was having a lot of emotional problems over bad dreams and flashbacks. I tried to avoid going for help because I was afraid it would hurt my record. Fast forward to several suicide attempts in the navy, being discharged, going through joblessness, lost jobs divorce and finally hospitalized in the Phoenix VA Mental Health Unit in 1971. When they released me nearly two months later, they said I no longer needed inpatient but I should continue outpatient. However, since I was not service-connected, VA could not provide outpatient services. I filed a claim and it was denied because the NAVY had determined my condition was not service connected. In all the navy hospitals, and the Phoenix VA hospital, I told them again and again my problems started shortly after the plane crash. It was never acknowledge by the Navy or the VA. In January I was referred by my primary physician for a sleep apnea test. My history of nightmares came up and when they found out how long they had been occurring, they sent me to Mental Health. The VA psychiatrist, a PTSD specialist, said I have PTSD dating back to the plane crash. The DAV filed a claim reopening the 1971 VA Denial. I have provided a number of documents providing substance to doctors diagnoses. including several letters from family members,friends that knew me before and after the crash. Additional letters were provided by officers and other crewmen I flew with. Recently I was told by another veteran my claim would probably be denied in CUE review because PTSD was not yet an acceptable diagnoses in 1971. So whatever the VA’s assessment may have been at the time was the only diagnoses they could use. Therefore non-reversible. Is he correct?

    • Kay Derochie

      Dear Orville,

      Orrville,

      You have to wait for the decision to know what your next step will be. If they do not grant benefits the reasonsing may give you a roadmap of how to proceed on your appeal. You might need an attorney well-versed in handling these kinds of cases. You have a complicated but not uncommon situation.

      Sincerely,

      James Mitchell Brown
      Attorney at Law

      • orville k thomas

        Thank you James for your time and assistance. This is rare.

        • Kay Derochie

          You are welcome, Orville

          James

          • orville thomas

            I had my C&P for PTSD and this is the result: I was diagnosed with PTSD with the stressor identified as occurring in the 1961 plane crash. The VA awarded me 30% as a result of combining the PTSD diagnoses with the previous Navy diagnosis of a non-service connected personality disorder. Although the VA Claim was reopened, I was back paid to to May 2014 when I filed to reopen. I’m really having trouble understanding this. The VA now says my PTSD is service connected which means it existed when I was discharged in 1964 after 7 years in the Navy with a Personality Disorder and my Disability Claim was denied in 1970 by the same VA that now says I have awardable PTSD. Can you sort this out for me?

            • Kay Derochie

              Dear Orville,

              Your benefit payments are awarded only back to the date of your application/request to reopen the claim denial. Absent rare circumstances, which do not apply in the situation you describe, the payment date is the application reopening date. Benefits are not retroactive to the date your in-service medical event occurred.

              Sincerely,
              Craig L. Ames
              Accredited VA Attorney

      • Have an appeal, against the veterans administration for an
        increase on service connection. I was denied a couple of
        months ago and do possess a lot of data, on paper to support my claim. Thank you

        • Kay Derochie

          Dear Antonio,

          Do you have a question?

          Sincerely,
          Kay

  • Joel Clements

    I filed for disability almost a year ago, I was a little a little confused on the entire process to be honest. Well I received 30% but there were a few issues that I never claimed for. Will I able to claim for those unclaimed issues since I never went over them on the first initial visit?

    • Kay Derochie

      Dear Joel,

      File for the other issues as soon as possible. The longer you wait the more difficult it will be.

      Sincerely,

      James Mitchell Brown
      Attorney at Law

  • Cherie

    Dear Sir,

    I filed a claim in 2000 right after retiring with 20 years in the Navy. My claim was denied on everything except UTI 10%, Migraine and tension headaches denied and a few other conditions. I did not appeal. I filed a new claim recently and got some things granted Migraine and a few things deferred.

    I am now going to claim a CUE (clear and unmistakable error), I discovered my original application told the VA my dates of service were 1980 to 2000 with a copy of my DD 214 attached. The VA only ordered STR from 1980 to 1988 and never sent a request for the rest 1989-2000 (I have my full C-file from VA) and see the only request. I matched it up with my decision. They never asked for my STR’s from me, I have a copy of everything.

    Long story short I provided the STR’s and they should according to their manual grant S/C back to 2000 because they failed to get the STR’s for my claim. They only granted back to date of claim (DOC).

    I also have allergies and sinus infection more the 67 occurrences all in the service, and 1-2 infection every couple of months afterward. I gave the VA 14 years of sinus and allergy information they still denied. My claim is well grounded if I had them in the service and now show from a month after service they continued until the last 4 weeks when it took 6 weeks of medication to resolve the sinusitis. This is a CUE also.

    I will ask for a reconsideration based on CUE, and if that is denied I will file the appeal.

    Thank you for you time

    • Kay Derochie

      Dear Cherie,

      Do you have a question or do you just want the information you provided posted to the site.

      Thank you,

      Kay

  • robert

    I filed back in 2006 for ptsd , frostbite numbness and back problems all service connected. I was denied and at the time didn’t have proof. I recently obtained a copy of my medical book which clearly states when where and how my accident happened while in service on deployment. Can I reopen old claim or need to file new one. Granted I had no documentation intil 8 years later

    • Kay Derochie

      Dear Robert,

      You can tty to reopen on grounds of previously unobtainable evidence.

      Sincerely,

      James Mitchell Brown
      Attorney at Law

  • Joshua Zink

    First I would like to say that the attorney taking time to respond to these is wonderful and it is appreciated.

    I filed a clain as i was going on ETS leave from the army for shoulder issues. I spent the next 5 months job hunting from my home state where the claim ewas filed. I recieved 7 days notice of an appointment with a VA physician about 4 days from when it was due and had just accepted a job offer that started in colorado as of that date. The appt was on a Tuesday so Monday morning I called to have it rescheduled. The woman on the phone said it was cancelled and I needed to get a new appt scheduled in Colorado(where the job is.) In the meantime I had new evidence in the form of an MRI that showed a Tear in my shoulder that connected to my many documented visits during service for the shoulder. I was going to submit it with the Dr. at the VA Medical Review.
    I recently recieved a letter stating my claim was denied because i had no new records of care since leaving service showing chronic pain and that i was a no call no show to my appointment.
    Should I file an appeal, or simply reopen my claim with the new evidence in my new state?

    Thank you,
    Josh

    • Kay Derochie

      Dear Josh,

      Appeal or all will be lost.

      Sincerely,

      James Mitchell Brown
      Attorney at Law

  • John

    I retired Feb 2012 and submitted my initial claim at that time for my knee, my back, and my apnea. I received 10% compensation immedietly for my knee. I saw a VA dr July 2012 regarding my apnea and my paralyzed finger. He asked me if I had ever fallen asleep at the wheel or at work. I said no, I was in the military for 25 years. You don’t fall asleep. He said that means I don’t have apnea, and my finger isn’t bent far enough permanently in one direction to be considered paralyzed “enough”, then he left the room. I received a letter rejecting my claim in July 2013. I had provided documentation from a sleep study in 2004 showing the severe apnea and I had another sleep study done in 2012 which showed the same diagnosis. I also provided the medication documentation of the various treatments done on my finger and the diagnosis that surgery would not help, that it was paralyzed. I appealed the claim in Aug 2013 again including all documentation. I was told by my congressman in April 2014 when I asked him to look into the appeal that the VA was backlogged and I’d be waiting until at least 2018 before my appeal was even processed. I received in March 2014 a letter from the VA that I would be contacted by a doctor for an appt regarding my back condition. In June 2014, I received a letter from the VA denying the claim. No explanation, no appointment was ever given. My DAV rep isn’t much help. He held onto my appeal for the apnea and finger for 6 months on his desk from what I was told before sending it up. Is this wait time of 6 years an accurate figure? Would you suggest finding another organization to help with my appeal for my back claim, or is there something else I could be doing to move this along. Or will I be waiting until 2018 or 2020 only to get rejected again?

    • Kay Derochie

      Dear John,

      I suggest that you file an appeal and attach all new evidence. Give detailed explanation of why you missed the appointment and request that case be returned to the prior level for decision. This gives you more opportunities should they turn you down.

      Sincerely,

      James Mitchell Brown
      Attorney at Law

  • Corey

    I was diagnosed in 2006 with a lumbroscal strain and received 10 percent for my back. My diagnosis was changed from lumbroscal strain to lumbroscal strain or cervical strain. In 2010, I had numerous problems with my neck and could barely operate. I put in another claim in 2010 for a lumbroscal strain (or cervical strain) and was denied. I had many visits to the VA about this and I was told that there was nothing wrong with me. I finally had the va doctor refer me to get an MRI and I have DDD, pinched nerves, bulging disk in 3 places, as well as bone narrowing. My effective date of my claim award was May 1, 2014. I submitted to reopen my cervical strain In March of 2014 with new and material evidence. I believe that I am entitled to my cervical strain increase from 2010. Do I have a case.

    • Kay Derochie

      Dear Corey,

      I need more information to respond. Does the doctor say your DDD is service connected? Have you applied to have it included. Are you working?

      Thank you,

      James Mitchell Brown
      Attorney at Law

  • Tom

    I was discharged from the US Army in September, 1970. I filed a VA hearing loss disability claim immediately after being discharged. I never received a hearing test from an audiologist. The claim was denied in October, 1970. Not knowing any better…and…feeling big brother knows best…I did not appeal the denied claim. Recently (August, 2013) I refiled a VA disability claim for hearing loss and received a hearing test from a VA audiologist for this claim. The VA audiologist showed me during my appointment the audiology report from my original claim in 1970 from which the VA denied the claim. The hearing test the VA said I received in 1970 was a “whisper test” with no test information on the form which, I feel, is not a valid, accurate or scientific method of determining hearing loss. My new VA disability claim was approved (May, 2014) but the VA only paid me from the date of the refiled claim (August, 2013). I have researched my situation thoroughly and understand I did not appeal the original claim in 1970 within one year and with a refiled claim requiring new and substantial information the VA normally doesn’t have to pay from the original claim in 1970 but I feel I have a special circumstance and feel the VA should backdate the claim to October, 1970 because of a “clear and unmistakable error” (the whisper test)! Any information you could give me about what to do about this issue would be appreciated.

    • Kay Derochie

      Dear Tom,

      I would file the appeal and ask for the earlier onset date although they will probably deny it. Do you have any proof of your hearing loss from 1970? Is there an audiologist test that you had somewhere to support your claim? If you do not actually have some proof to verify the hearing loss the chances of prevailing are slim but you should give it a try. The burden is still on you to prove the case, not on the VA to disprove it.

      Sincerely,

      James Mitchell Brown
      Attorney at Law

  • Jose Puentes

    I just received a denial for compensation letter from the VA. The decision was completely wrong because I wasn’t seen by a Dr. I originally put in a claim back in 2005 and it was denied, I was misinformed about the proceeders to file an appeal. I had the case reopened in 2013 and have waited almost 2 years. I just recently I moved to a different city and had all my mail forwarded to my new address. Well I got all my mail about a week (sometimes later) late. I received a letter from the VA with information about a Dr. visit. Because I received the letter so late I missed the appointment. Instead of rescheduling me they denied me all together. How can I get this unfair decision fixed? Anything will help.

    • Kay Derochie

      Dear Jose,

      If you provide some additional information, I may be able to advise you as to your rights.

      1. How were you misinformed about your right to an appeal in 2005?
      2. Did you notify the VA of your change of address?
      3. What was denied and what type of benefit are you trying to receive?

      Thank you,

      James Mitchell Brown
      Attorney at Law

  • garza

    omar garza says:

    April 2, 2014 at 1:39 pm

    I filed a claim for PTSD on April 2013. I had the QTC exam done and a few weeks later I received a denial letter. The letter stated I was diagnosed with PTSD but they did not have any evidence connecting PTSD to the military. It also stated they sent letters explaining I needed to write a statement containing information about the stressor which caused the PTSD. I never received these letters. I went to a V.A. counselor a week before I received the appointment for the QTC exam and he instructed me to write the stressor letter but it was too late to turn it in. I need to know what route to take (and whatever other information you can give me). I have not had any luck with any counselors here in my town (always busy and they do not take appointments, it’s a hit or miss and with me it’s usually a miss). Thank You for your time and reply.
    Kay Derochie says:

    April 7, 2014 at 7:42 pm

    Dear Omar,

    You have the right to appeal if you are still in your appeals period. However, too often the diagnosis is made without any reference to the incident that caused the PTSD. To have a good case, the specific traumas have to be in the attending psychologist’s or psychiatrist’ or other mental health therapis’s clinical notes. Otherwise, it is very hard to get the claim approved.

    Sincerely,

    Kay
    garza says:

    April 21, 2014 at 8:40 am

    I have been in therapy for a year at my local V.A. clinic for PTSD. The stressor has been well documented. We talked about the stressor during the QTC exam which i’m sure he documented it also. Shouldnt the QTC examiner give his opinion on whether it was more than likely the stressor is related to my military service. Why was I denied? Thank You for your time and reply.

    • Kay Derochie

      Dear Omar,

      I don’t know why you were denied. Go to the VA and ask for your “C” file. When they send it to you, you might get answers.

      Sincerely,

      James Mitchell Brown
      Attorney at Law

  • Christian

    I just received an award of 20% for my back. I was denied for migraines because they said it wasn’t service connected. I know it is service connected and it is documented in my military medical records and I am currently being treated for the condition. Should I file a reconsideration or an appeal?

    • Kay Derochie

      Dear Christian,

      Yes, you should appeal. If you don’t appeal you will never have a chance. Does your doctor say the migraines are service connected? If so get a letter from the doctor.

      Sincerely,

      James Mitchell Brown
      Attorney at Law

  • Mickey j ribas

    Hi so I ets out of army 08/2010 filed sleep issues 10/2010 was diagnosed though by va sleep apnea 2012 and we turned in that paper work denied sleep apnea 04/2014 should I appeal it I open a new claim? The c&p lady said it had nothing to do with the military cause dr took so long to file sleep apnea even tho we filed sleep issues. Also my psychologist sent in 3 letters stating I should not be working because PTSD and we do not think my cap turned in those papers I only received 50% for PTSD help me please ?

    • Kay Derochie

      Dear Mickey,

      I recommend that you appeal. If you don’t they will say you were denied and did not appeal so they cannot consider the conditions. Did your doctor say the condition was caused by your time in the service or did you just came down with it while you were in the service? This is a big difference when they are evaluating you. The doc has to say service caused it.

      Sincerely,

      James Mitchell Brown
      Attorney at Law

  • Denise

    I need help. I filed a claim shortly after I got out the military in 1990. That claim for PTSD/anxiety/depression was denied. Over the years I have been unstable in my life and never followed up. In 2013, I filed again for compensation. When I was in the service I tried to kill myself and ended up in mental health for a few days. I have had many episodes throughout the years. I finally got a diagnosis of Personality Disorder, Anxiety, Mood Disorder and a couple other things. I am now being treated with medication to balance me out. On the VA website it shows reopen……… If I’m approved will they retro back to that claim???

    • Kay Derochie

      Dear Denise,

      The starting date for payment is unknown right now. It depends upon the ongoing care you have receive, the diagnoses the doctors have made, what information appears in their records, and how the claim has been kept open. Let’s first wait and see if they approve you and then worry about the onset date.

      Sincerely,

      James Mitchell Brown
      Attorney at Law

    • robert pressley

      be careful what you tell the va doctors .they are not your friends,they will pencil =beat you, by the way they word paperwork to hurt your claim later,,the va doesnot diagnos,took me from a 1994 claim to getting awarded in 2013,same paperwork,same story line ,only difference went to see outside doctor who reveiwed my file and diagnosed me as having ptsd from time of incidence up to now….the outside doctor i saw was a pro-veteran doctor..the local vso put me in touch with him..the va is nuthing but a fusad to make everybody think the vets are getting help…they submit you to numerous drugs until they find one that seams to work..also the main reason for so mant suicides.my meds made me suicidal..finaly told va i was going outside for help..i am now battling for retro pay to 1994,also they lost all my active duty records(go figure) goodluck

  • garza

    I have been in therapy for a year at my local V.A. clinic for PTSD. The stressor has been well documented. We talked about the stressor during the QTC exam which i’m sure he documented it also. Shouldnt the QTC examiner give his opinion on whether it was more than likely the stressor is related to my military service. Thank You for your time and reply.

    • Kay Derochie

      Dear Garza,

      Please clarify: What have you applied for? What is pending?

      Thanks,

      James Mitchell Brown
      Attorney at Law

  • I filled a claim for sleep apnea on 7/17/2012 my claim was denied on 10/16 2013 on 10/25/2013 without any knowledge of the VA system or any thing I Went out from behind my VSO and resubmitted everything I gave my VSO straight to the VA and asked for a reopen. At the time I also moved overseas with my job and my regional office was transferred. well on 3/25/2014 my claim was approved and I was awarded 50% in which I have already received back pay from original date and my letter and information supporting the reason for approval. Now I believed I submitted all the same information to the VSO but I think some of it never got received by the VA. Now on 3/26/2014 I filled for Dependents to be added, because my claim was only given at a single rate. now that claim is still at claimed received stage, and on 4/15/2014 I have a new claim that showed up saying administrative review. I have not done or requested any thing other than the dependents in which is still on the list. what do you make of this? I am worried because if they made a mistake or overturned my award. that would mean I have to pay back the money. and I have already spent it to relieve debt. Please advise? Thank you in advance

    • Kay Derochie

      Dear Mike,

      I have never seen the VA reduce an award once they have granted it. Dependent issues are tricky but I suggest filing the calm and waiting for an answer.

      Sincerely,

      James Mitchell Brown
      Attorney at Law

      • Craig Ness

        My award is being proposed for reduction right now. I was told the same thing from my VSO, they said that the VA won’t reduce, but they sometimes do.

        Anyway, waiting and hoping that they don’t reduce – waiting for my hearing (been a few months now waiting.

        • Kay Derochie

          Dear Craig,

          Do you have a question?

          Thanks,
          Kay

      • HELLO I HAD A MEDICAL DISCHARGE BACK IN NOVEMBER 1997 AND IN DECEMBER I FILE A CLAIM WHICH THE VA DECLINE BECAUSE THEY SAID MY HEART CONDITION WAS PRIOR TO ENTERING THE SERVICE WELL WE NO THAT ISNT TRUE BECAUSE I HAD A COMPLETE PHYSICAL BEFORE ENTERING THE SERVICE I AINT GET ANY HELP MEDICAL HELP FROM VA UNTIL SEPTEMBER 2014 WHERE IT WAS THEN I FILE ANOTHER CLAIM THAT REOPEN MY OLD CLAIM THEY SAID THEY COULDNT FIND SO NOW I PRESENTED NEW MATERIAL EVIDENTS WHICH STATES FROM MY DOCTOR MELVIN RUSELL MD I HE ASWELL DID A COMPLETE PHYSICAL BACK IN 1997 AND DID NOT FIND ANY HEART MURMUR OR HEART CONDITIONS AS I JUST STATES THIS EVIDENTS PROVE THE HEART WAS CAUSE IN 1997 AND WORSEN CAN I GET MY BACKPAY FROM 1997 OR WHEN I FILE AND THE CASE IN SEP 2014 BECAUSE I AINT APPEAL THE CLAIM IN 1997 I WAS 20 YEARS OLD NOW 37 YEARS OLD PLEASE ADVISE ME HOW TO HANDLE THIS MATTER I HAVE MY DOCTOR OPINION STATING THIS AND MY 1997 LETTER OF DENIED THANKS IN ADVANCE

        • Kay Derochie

          Dear Jerom,

          When you file a new claim, the date of benefit eligibility is the date the VA receives your new claim. Benefits are not retroactive to your dates of military service.

          Sincerely,
          Craig L. Ames
          Accredited VA Attorney

          • THANKS FOR RESPONDING AS SOON AS YOU DID. BUT QUESTION IF I FILE A CLAIM BACK IN DECEMBER 1997 FOR THE SAME HEART MURMUR THEY DISCOVER IN SEPTEMBER OF 1997 WHILE I WAS IN THE SERVICES I WAS OUT THE SERVICE THIS WOULD A MONTH LATER THEY MADE A DECISION IN MARCH OF 1998 WHICH DENIED ME BECAUSE THEY SAY IT WAS PRIOR BUT I DID NOT APPEAL SO IN SEPTEMBER 2014 I FILE A NEW CLAIM BECAUSE THEY SAY THE OLD ONE NEVER INSISTED BUT IT WAS DISCOVER TO BE ON A ELECTRONIC SYSTEM AND I DID FILE IN 1997 BUT NOW I HAVE A LETTER OF PROOF FROM MY DOCTOR SAYING THIS HEART CONDITION DID NOT EXSIST BEFORE I ENTER INTO THE SERVICE 1997 DOES IT MATTER WHETHER I FILE A APPEAL OR NOT IF I AM AWARDED BENEFITS WILL IT STILL GO TOO THE NEW CLAIM IN SEPTEMBER 2014

            • Kay Derochie

              Dear Jerome,

              The effective date of benefits is the date a new claim is filed by the VA. Benefits are not retroactive. The information you have can be submitted to the VA as new and material information. But, when the claim is finalized more than one year after the denial, then the only way, which is rarely granted, is to submit a claim for Clear and Unmistakable error (CUE). Please see my response to your next post of March 1 for more information about the possibility of filing a CUE.

              Sincerely,
              Craig L. Ames
              Accredited VA Attorney

  • omar garza

    I filed a claim for PTSD on April 2013. I had the QTC exam done and a few weeks later I received a denial letter. The letter stated I was diagnosed with PTSD but they did not have any evidence connecting PTSD to the military. It also stated they sent letters explaining I needed to write a statement containing information about the stressor which caused the PTSD. I never received these letters. I went to a V.A. counselor a week before I received the appointment for the QTC exam and he instructed me to write the stressor letter but it was too late to turn it in. I need to know what route to take (and whatever other information you can give me). I have not had any luck with any counselors here in my town (always busy and they do not take appointments, it’s a hit or miss and with me it’s usually a miss). Thank You for your time and reply.

    • Kay Derochie

      Dear Omar,

      You have the right to appeal if you are still in your appeals period. However, too often the diagnosis is made without any reference to the incident that caused the PTSD. To have a good case, the specific traumas have to be in the attending psychologist’s or psychiatrist’ or other mental health therapis’s clinical notes. Otherwise, it is very hard to get the claim approved.

      Sincerely,

      Kay

    • Rich

      Omar,

      It is baffling that they deny some things like this sometimes. I would recommend you go visit a different VA center/counselor in a larger city near you. You can go to any in the country, not just the one that you have dealt with so far. It may be good to get some fresh or more experienced eyes on the case.

      Good luck

      Rich

  • Stan Hunter

    On June 26, 2013, I filed for compensation for several issues under the Fully Developed Claim Program. One of the issues (stomach conditions) was previously denied back in 1997. ( I did not appeal the decision.) I recently received a letter stating that I was previously denied (January 1997) for the stomach condition and in order to reopen my claim the VA needs new and material evidence. About two weeks later I went to my C&P appointment for this issue (stomach condition). When I got there the same doctor who saw me back in 1996 saw me again. He said it’s obvious that I had chronic stomach issues back when I was on active duty. He said that he would write his report to reflect his findings. He said there was no need to perform another upper GI and I’m currently on meds to treat the condition. He said that I should hear from the VA in a couple of months. Now, the letter also stated that if I submit any new evidence at this point, I would be removed from the FDC program and process it through the Standard Claim Process. Question: 1. Under the circumstances, assuming that the VA will award compensation, what will be the date of award? January 1997 or June 2013?

    Stan

    • Kay Derochie

      Dear Stan,

      This is a tough question Stan. First of all we don’t know what the doctor whom saw you two weeks later wrote. The fact that you did not appeal in 1997 may preclude you from getting benefits going back to 1997. However, if, in fact the doctor did write something that was fully favorable, then you may have a valid argument to reopen going back to that date. Are you seeing any physicians now who would unequivocally support your claim and state that the conditions you are being treated for are service connected? If so, you might be better off filing the new evidence, though it might be difficult for a current doctor to say this if they have not been treating you for 15+ years.

      Sincerely,

      James Mitchell Brown
      Attorney

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