Need advice regarding ratings (big problem I see)

Got my ratings...40% DoD and 100% VA

One failing condition is rated by the Army at 30%, however the VA denied the condition as congenital (QTC doc called it congenital which is incorrect)

Do indeed to do a VARR? Will this create an issue if the ratings get accepted by me and sent forward!

There is no financial gain to be had, just looking for the quickest exit.
 
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What was the condition? How many years of active duty do you have?

Mike
 
Condition is Homynious Hemianopsia (visual field defect, left sided). It is combined with Retinal Hemangioma (retinal hemorrhage). Conditions are due to traumatic brain injury from a blow to my occipital lobe. The discovery, diagnosis and treatment came from both the VA Medical Center Long Beach, CA while undergoing treatment for TBI (through Tricare). And a civilian Neuro-ophthalmologist.

There is some verbiage on the 199 that concerns me, I can forward it to you if you would like to see it.

12.5 years active duty time, 22 years overall. I have been on active duty since Nov 2007 without a break in service, previous periods of active duty were Jan 2003-Dec 2003, Dec 2004-July 2006
 
It is possible for a condition that is congenital to be compensable by the military but not by the VA. This can happen when it is truly a congenital/EPTS condition. Since you have eight years of active duty, and are on active duty, congenital conditions are compensable by the military via 10 USC 1207a.

That being said, I seriously doubt your condition is congenital as the VA defines a congenital condition as one that does not change. It certainly sounds like your was not this severe before entry or you would not have not been allowed in.

If the condition was not noted on your entry physical, the VA must presume it incurred in service unless there is clear and unmistakable evidence (undebatable) to the contrary. Was this condition identified when you came on active duty? Did the VA provide clear and unmistakable evidence to the contrary? You certainly need to make this point in your VA reconsideration.

Who actually rated it at 30%? Did the VA provide the rating despite them saying it was EPTS or did the Army have to do the rating?

What is the verbiage on the DA 199 that concerns you?

Mike
 
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gsfowler said:
Got my ratings...40% DoD and 100% VA

One failing condition is rated by the Army at 30%, however the VA denied the condition as congenital (QTC doc called it congenital which is incorrect)

Do indeed to do a VARR? Will this create an issue if the ratings get accepted by me and sent forward!

There is no financial gain to be had, just looking for the quickest exit.
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Off topic and I am sorry but...

It truly concerns me when medical healthcare providers annotate the convenient "congenital" verbiage to a medical condition without any confirmed medical evidence to support their position. But, the DoVA D-RAS shall use that medical information to their advantage (if feasible) to rendered an unfavorable DoVA rating or no rating (e.g., denial) during the evaluation process.

OK, back on track...

Nonetheless, never default acceptance to potential injustice! To that extent, the submission of a VARR if accepted by the USAPDA PEB then forwarded to the DoVA D-RAS shall definitely extend your timeline in the U.S. miltary. In my opinion, if you accept the DA Form 199 via official payroll signature without any annotation in your DoD IDES case file formally disagreeing with the "one failing condition is rated by the Army at 30%" there could potentially exist some issues if you pursue correction upon military disability retirement; I am not saying that it won't be corrected.

Hmm, if I may ask, did the DoVA D-RAS rating the one failing condition at 30% then the Army adopted their rating as the DoD (Army) proposed rating?

Thus, I quite often comment that "possessing well-informed knowledge is truly a powerful equalizer."

Best Wishes!
 
VA denied the condition and did not rate it, however PEB rated it at 30%. Since DRAS rates the conditions and the PEB decides whether or not they meet/fail standards, I want to make sure that this does not get kicked back by USAPDA.

I know that 30% is the appropriate rating for the condition of Homynious Hemianopsia, however there is also the condition of Retinal Hemangioma (which may or may not lead to more than 30%)

The verbage from the Army reads "We are proposing that the following "unfitting" disabilities are not related to your military service, i.e. not service connected.

Retinal hemangioma (also diagnosed as homonymous hemanopsis) 30%

The discrepancy has me a little concerned.
 
Yes, it definitely sounds like the Army is saying the condition is EPTS as well but are compensated per the requirements of 10 USC 1207a. Did either the Army or the VA provide clear and unmistakable evidence to overcome the presumptions of service connection and service aggravation. There has been a huge problem with the Army and the VA failing to do this. Was this condition noted on your latest entry physical in 2007?

Mike
 
I spoke with the PEBLO, she stated it was rated and is considered unfitting per AR 40-501.

The condition is not congenital and I have the option for a VARR if I wish. A VARR will not change the final disposition, however it is up to me if I wish to request it.

A VARR will push me out 3-6 months, she did mention it is more retirement points if I choose to go this route.

This condition was not listed on any physical ever, nor has it ever been diagnosed. It was caught by treatment for post concussion syndrome. Occupational Therapy did a vision screen and discovered the visual field defect. A referral was submitted to Tricare and I was referred to a macular specialist who found that I hada retinal hemorrhage in my right eye and I have been getting treatment for it for the last three years while in the WTU.

LOD yes for the condition as well.
 
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gsfowler said:
I spoke with the PEBLO, she stated it was rated and is considered unfitting per AR 40-501.

The condition is not congenital and I have the option for a VARR if I wish. A VARR will not change the final disposition, however it is up to me if I wish to request it.

A VARR will push me out 3-6 months, she did mention it is more retirement points if I choose to go this route.

This condition was not listed on any physical ever, nor has it ever been diagnosed. It was caught by treatment for post concussion syndrome. Occupational Therapy did a vision screen and discovered the visual field defect. A referral was submitted to Tricare and I was referred to a macular specialist who found that I hada retinal hemorrhage in my right eye and I have been getting treatment for it for the last three years while in the WTU.

LOD yes for the condition as well.
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All right, good deal!. This is indeed good news in reference to the non-congenital disposition of your specific medical condition.

So, what's your intent at this point in time; submittal of a VARR request or proceed forward to military disability retirement?

To that extent, whatever decision that you make, I commend your dedicated efforts to date for remaining positively proactive throughout the DoD IDES MEB/PEB process.

As we know, it's not an easy task being in the DoD IDES process, but potential favorable military disability compensation benefits shall result if successful for sure!

Thus, I quite often comment that "possessing well-informed knowledge is truly a powerful equalizer."

Best Wishes!
 
It will absolutely affect your VA compensation. It appears the VA and the Army both erred when they ignored the presumption of soundness and aggravation rules. If this condition was not on your entry physical, they are required by law to provide clear and unmistakable evidence to overcome these presumptions. Again, this is an all too often occurrence and it royally screws wounded warriors. Again, the Army was forced to rate the condition, despite them finding it EPTS w/o aggravation, due to 10 USC 1207a.

One of the first wounded warriors I assisted was a young Army captain who was found unfit and separated for Ankylosing Spondylitis in early 2006. This was before the IDES. The Army PEB stated his condition was EPTS w/aggravation and ordered him separated without benefits. When he filed for VA benefits, the VA stated his condition was EPTS w/o aggravation based on the Army PEB determination. Both the Army and the VA refused to provide the evidence needed to overcome the presumption of soundness/aggravation.

Multiple attempts to get the VA to fix this issue resulted in the VA refusing to do so without providing any rationale to justify their EPTS w/o aggravation. The captain had to file with the VA's Board of Veteran's Appeals (VBA) which is a multiyear process. He finally had his VBA hearing earlier this year and just this week he was notified the VBA ruled his Ankylosing Spondylitis service connected. The VBA stated the VA regional office failed to provide the clear and unmistakable evidence to overcome the presumption of fitness and aggravation. It took 7.5 years to get the VA (via the VBA) to enforce a law that has been on the books since 1946! The medicine need to treat his condition cost $600 a week. While he did secure employment with health insurance, I am sure he spent a small fortune on co pays. BTW: Jason took the Army to federal court for their EPTS w/o aggravation ruling. This is a work in progress but is on a very favorable trajectory based on the interim court decisions which basically stated the Army had a lot of explaining to do.

I warn you that you need to get on top of this issue and get the VA to fix it sooner rather than later. Because this condition was found unfitting by your PEB, you have a golden opportunity to fix it quickly via the VA reconsideration process. You need to clearly state in your reconsideration application that the VA failed to adhere to 38 USC 1111 by failing to apply the presumptions of soundness and aggravation.

I will be glad to review you VA reconsideration application prior to submittal. When does it have to be submitted?

Mike
 
Did the VA rate you 100% P&T? Did the VA (or the Army) provide any evidence that overcomes the presumption of service aggravation?

Mike
 
I am rated 100% VA based upon the combined ratings of the claimed conditions I have. When I do the combined math and just pull off one of the. 10% rated claimed conditions, then I drop to 94% and risk not having Chapter 35 for my dependents (the only real benefit that I am fighting for).

If the 30% is present, the there is a small amount of breathing room. I also have a 20% condition not rated because C&P did not evaluate it, however I am told it is not subject to VARR because it is not unfitting (I am told the VARR only applies to unfitting conditions).


I will mention the 38 USC 1111. The 28th is the day I am to sign the 199 and request a VARR. I'll put what I need together for the soldiers counsel this weekend and get the request completed Monday (for some reason the soldiers counsel always like to wait until the last day)
 
I have hot read anything that stated the 100% is P&T so I an not going to assume. The language on the paperwork reads:

What the VA is Proposing

We are proposing the following unfitting disabilities are related to your military service (cervical spondylosis 10%) the following unfitting disabilities are not related to your service (retinal hemangioma (also diagnosed as homynious hemanopsia) 30%

Combined rating 40%

We are proposing the following claimed disabilities are related to your military service (service connected
70%
50%
30%
10%
10%
10%
10%

For purposes of entitlement to DoVA we are proposing to grant DEAD

We are proposing that your total combined rating for fitting and unfitting claimed service connected disabilities is 100%

Then it goes on to state some conditions claimed that are not related to military service with a denial reason

Back Pain (not a diagnosed disability)

Retinal Hemangioma (considered congenital or developmental defect, which is unrelated to military service and not aggravated by it) with the following explanation "the VA examiner stated that although you have subjective loss of left peripheral vision the objective factors show retinal hemangioma of the right eye. The examiner also stated that this retinal condition is not due to the slipping and falling incident in 2005 but is a congenital condition"
 
I totally agree whit MAPMAKER
It is possible for a condition that is congenital to be compensable by the military but not by the VA. This can happen when it is truly a congenital/EPTS condition. Since you have eight years of active duty, and are on active duty, congenital conditions are compensable by the military via 10 USC 1207a.

That being said, I seriously doubt your condition is congenital as the VA defines a congenital condition as one that does not change. It certainly sounds like your was not this severe before entry or you would not have not been allowed in.

If the condition was not noted on your entry physical, the VA must presume it incurred in service unless there is clear and unmistakable evidence (undebatable) to the contrary. Was this condition identified when you came on active duty? Did the VA provide clear and unmistakable evidence to the contrary? You certainly need to make this point in your VA reconsideration.

sorry to ask but one question why the VA proposed 100% SC 70,50,30,10,10,10,10 is 90% in va math. 93.7 round?
 
gsfowler said:
I am rated 100% VA based upon the combined ratings of the claimed conditions I have. When I do the combined math and just pull off one of the. 10% rated claimed conditions, then I drop to 94% and risk not having Chapter 35 for my dependents (the only real benefit that I am fighting for).

If the 30% is present, the there is a small amount of breathing room. I also have a 20% condition not rated because C&P did not evaluate it, however I am told it is not subject to VARR because it is not unfitting (I am told the VARR only applies to unfitting conditions).

I will mention the 38 USC 1111. The 28th is the day I am to sign the 199 and request a VARR. I'll put what I need together for the soldiers counsel this weekend and get the request completed Monday (for some reason the soldiers counsel always like to wait until the last day)
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Indeed, you make a very good point here with the potential lowering of a DoVA 100% rating by the removal of a lower DoVA rating or any DoVA rating; it's definitely feasible. A buffer zone (as I call it) is needed even if a DoVA total disability rating (e.g., 100% P&T rating) is rendered in my opinion...remember the DoVA "protected rating" applicability criteria!

To that extent, this is the very exact position I explained to my PEBLO (and other DoD IDES personnel) a couple of months ago since he kept saying that "you have a VA 100% rating, it can't get any higher...why are you requesting a VARR." I was in the same predicament, but now have a greater buffer zone due to the partially favorable VARR request results. Upon the finalization of DoVA ratings, the buffer zone shall potentially increase even more!

That all said, most individuals even don't perform an assessment of a DoVA 100% rating to see when it potentially drops below the 100% rating (e.g., the 95% rating actually due to the roundup factor).

Good job, and never default acceptance to potential injustice!

Thus, I quite often comment that "possessing well-informed knowledge is truly a powerful equalizer."

Best Wishes!
 
Well, after discussions with Mike Parker, I went ahead and requested a VARR for the condition of Homynious Hemanopsia and Retinal Hemorrhaging. From what I can tell, the condition was presented to QTC (VA C&P contractor) and they diagnosed me as having the condition of Retinal Hemangioma (sounds similar to retinal hemorrhage but not the same condition).

If you research the condition of retinal hemangioma, it is a vascular tumor of the retina and choroid. This condition is considered to be genetic in nature and is associated with von Hippel-Lindau disease.

Now, whether or not I get the condition service connected or not, it will not make any monetary difference, however there is a point to proven because it is an error and should have never occurred.

Basically the talking points that Mike Parker and I had were that the VA, is continuing to make hasty judgements based upon inaccurate information. Had the DRAS followed the CFR then they would have not made any decision other than to call the condition (even as misdiagnosed) service connected. There is a substantial burden of proof the the VA must meet to deny service connection (presumption of soundness and aggravation rules).

What I recommend to anyone who reads this, pay very close attention to your VA C&P evaluation, if it is not accurate, get your MSC on the phone and make him/her get it fixed. Do not take some bullshit like "if it is in your Military Medical Records, then it will be fixed" because it will not.

The VA (especially in Seattle) is rushing through the ratings process, I know for 100% fact in my own personal case! the only thing they used in my rating was the QTC C&P evaluation. What was in the evaluation, dictated my rating 100%.
 
gsfowler said:
Well, after discussions with Mike Parker, I went ahead and requested a VARR for the condition of Homynious Hemanopsia and Retinal Hemorrhaging. From what I can tell, the condition was presented to QTC (VA C&P contractor) and they diagnosed me as having the condition of Retinal Hemangioma (sounds similar to retinal hemorrhage but not the same condition).

If you research the condition of retinal hemangioma, it is a vascular tumor of the retina and choroid. This condition is considered to be genetic in nature and is associated with von Hippel-Lindau disease.

Now, whether or not I get the condition service connected or not, it will not make any monetary difference, however there is a point to proven because it is an error and should have never occurred.

Basically the talking points that Mike Parker and I had were that the VA, is continuing to make hasty judgements based upon inaccurate information. Had the DRAS followed the CFR then they would have not made any decision other than to call the condition (even as misdiagnosed) service connected. There is a substantial burden of proof the the VA must meet to deny service connection (presumption of soundness and aggravation rules).

What I recommend to anyone who reads this, pay very close attention to your VA C&P evaluation, if it is not accurate, get your MSC on the phone and make him/her get it fixed. Do not take some bullshit like "if it is in your Military Medical Records, then it will be fixed" because it will not.

The VA (especially in Seattle) is rushing through the ratings process, I know for 100% fact in my own personal case! the only thing they used in my rating was the QTC C&P evaluation. What was in the evaluation, dictated my rating 100%.
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Indeed, great advice for sure! :)

As such, for my case too and this is exactly what I have been stating since my enrollment onto this site!

To that extent, never default acceptance to potential injustice; I hope you receive favorable VARR request results upon adjudication by the DoVA D-RAS!

Thus, I quite often comment that "possessing well-informed knowledge is truly a powerful equalizer."

Best Wishes!
 
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