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rakkwarrior

Second Class Petty Officers
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About rakkwarrior

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  • Service Connected Disability
    90
  • Branch of Service
    Army

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  1. Rice's request in that instance, for reconsideration WAS NOT an NOD, it was a reopened claim...you cannot have it both ways...and his attorney (via flimsy argument) tried to have the Board consider issues which were not within their appellate jurisdiction, that the issue was not continuously prosecuted...i.e. a later NOD was not filed on the issues which were reconsidered, after the appellate period had become FINAL for FAILURE to prosecute.
  2. You have a PM from me.

  3. I don't think you have a lot to worry about as long as the VA Rating Specialist can read. Seriously if every thing you're saying is a statement of fact you shouldn't be too worried...mist of the time the RO can identify and want to fast track the obviously easy claims. Did you have your last employer fill out a VAF 21-4192 or did the VA notify you they were doing the same? This will be a key piece in regard to obtaining information on why you left, and more importantly the date you last worked. All in all you seem to have a solid case.
  4. Request they review you records from service and the complaints and findings of your condition within the presumptive period in accordance with 38 C.F.R. 3.156(c )(4), in the event they did not have the records at the time of the prior decision, additionally request them to consider the application of 3.303(d); 3.307(b); and 3.309(a) as it pertains to your condition. This should ensure they look at these regulations in context with your condition, which was noted in service and if documented within the first year, should have became compensable to a degree of ten percent or more within a year of leaving service. If this is not definitively shown by the evidence of record there is no CUE, but a medical opinion from your orthopedist (after a review of all relevant records from service, and current clinical findings) regarding your C-spine injury and later degenerative changes stemming from the in-service injury should serve to have the case reopened and unless clearly rebuttable, should end in a grant for the issue as sought. This advice if reviewed carefully should comport with the Board's reasoning and the legal standard for a grant of benefits.
  5. John999 Excellent position...this is the last bastion of the old regime, the flawed and adversarial C&P examiner, there is no regulation in Title 38 Code of Federal Regulations, Part 3, 4, or 17 in regard to attitude of the C&P examiner, although there should be. In my opinion such a regulation should be equal to, or more decriptive as 38 C.F.R. 4.23. Those examinations which are hostile to the veteran should be considered inadequate for rating purposes, and returned for a proper examination by a different examiner. The original examiner should be counseled, and practices be monotored to ensure HE or SHE remembers why they are there, and that the majority of claimant are honest veterans who are seeking benefits to which they feel they are entitled...that the reviewing examiner in any instance should not allow their feelings to intrude on either the objective findings or the etiology of the condition where a nexus opinion is requested.
  6. There is such a thing as a VCAA Notice Error, however, the Supreme Court held in Sanders v. Shinseki (2010), that the error must be prejudicial and in sum a "harmful" error where but for the error the outcome would be manifestly different...the burden of proof being upon the veteran to show how the Notice error was harmful. Relevant to the aforementioned, the Supreme Court held, "A specific statute requires the Veterans Court to “take due account of the rule of prejudicial error.” §7261(b)(2). In applying this statutory provision, the Veterans Court has developed its own special framework for notice errors. Under this framework, a claimant who argues that the VA failed to give proper notice must explain precisely how the notice was defective. Then the reviewing judge will decide what “type” of notice error the VA committed. The Veterans Court has gone on to say that a Type One error (i.e., a failure to explain what further information is needed) has the “natural effect” of harming the claimant; but errors of Types Two, Three, or Four (i.e., a failure to explain just who, claimant or agency, must provide the needed material or to tell the veteran that he may submit any other evidence available) do not have the “natural effect” of harming the claimant. In these latter instances, the claimant must show how the error caused harm, for example, by stating in particular just “what evidence” he would have provided (or asked the Secretary to provide) had the notice not been defective, and explaining just “how the lack of that notice and evidence affected the essential fairness of the adjudication.” Mayfield v. Nicholson, 19Vet. App. 103, 121 (2005)." The Court further held, "To say that the claimant has the “burden” of showing that an error was harmful is not to impose a complex system of “burden shifting” rules or a particularly onerous requirement. In ordinary civil appeals, for example, the appellant will point to rulings by the trial judge that the appellant claims are erroneous, say, a ruling excluding favorable evidence. Often the circumstances of the case will make clear to the appellate judge that the ruling, if erroneous, was harmful and nothing further need be said. But, if not, then the party seeking reversal normally must explain why the erroneous ruling caused harm. If, for example, the party seeking an affirmance makes a strong argument that the evidence on the point was overwhelming regardless, it normally makes sense to ask the party seeking reversal to provide an explanation, say, by marshaling the facts and evidence showing the contrary. The party seeking to reverse the result of a civil proceeding will likely be in a position at least as good as, and often better than, the opposing party to explain how he has been hurt by an error. Cf. United States v. Fior D’Italia, Inc., 536 U. S. 238 , n. 4 (2002) (Souter, J., dissenting)." Finally, the Court, "recognize[d] that Congress has expressed special solicitude for the veterans’ cause. See post, at 2 (Souter, J., dissenting). A veteran, after all, has performed an especially important service for the Nation, often at the risk of his or her own life. And Congress has made clear that the VA is not an ordinary agency. Rather, the VA has a statutory duty to help the veteran develop his or her benefits claim. See Veterans Claims Assistance Act of 2000, 38 U. S. C. §5103A. Moreover, the adjudicatory process is not truly adversarial, and the veteran is often unrepresented during the claims proceedings. See Walters v. National Assn. of Radiation Survivors, 473 U. S. 305, 311 (1985)." In sum, the Supreme Court reversed the Federal Circuit's precedent, and provided a thorough framework in which to navigate VCAA errors which are deemed harmful, and to that extent prejudicial, and in so doing the Court noted the burden shifts to the appellant to show how the error was harmful and but for the error the outcome would have been manifestly different. So while not a CUE, there are grounds to allege error due to VA's failure to comply with VCAA proviso under 38 U.S.C. §5103A.
  7. Contact your local Congressman/Senator and request they inquire to the AMC, present them with a copy of your BVA decision, and any documentation you have on the current status and location.
  8. VA Adjudication personnel have a "Work in Progress" list which prioritizes the cases they work based on the type of claim and the Regional Office's priorities, these priorities are established by VA management. In general, however the oldest cases are worked first. One example is that when the heart disease, Parkinson's ect. Were added to the AO regulations the Nehmer Court decision more or less enforced upon VA to stop processing most cases and focus entirely on those claims. This in general is why decisions for other claims are taking longer to adjudicate.
  9. Then tell your NSO to withdraw it. Don't pursue a frivolous claim. If you have major depression then make sure your doctor knows, and that it's due to your knees (which are service connected right?) under the provisions of 38 C.F.R. 3.310. I'm sure he'll get the point. Tell him, if he doesn''t understand he should go over your request with his supervisor. However, understand it's his job to discuss and consider secondaries and presumptive conditions. He may have also been basing your situation if you are a combat veteran.
  10. Call the 1-800-827-1000 number and ask for a STAR review. They're the ninjas that audit VARO Ratings, they determine whether CUE's are made on RO decisions. Typically you cannot requests these reviews although we DO ask for administrative reviews when we know the RO is wrong, but the decision should be granted based on an interpretation which the General Counsel may need to clarify....If the BVA denied the issue, saying you never appealed it, then the claim for that issue is likely dead unless there was a specific CUE in that decision, which a CUE based on continuous prosecution is going to be nil, because they did furnish appellate rights which were not acted upon. You know, it may be easier for them to look at you for an "S" award based on existing secondary disabilities if you have them, and they can be developed and opined as secondary. This is all about money, there might be an easier way to get you what you're looking for is all I am saying. The goal is to get you there and keep you there right? On a serious note, Philly kicks out pretty good Nehmer Cases, I worked with one of the project members, he's squared away and I've seen them give $150,000+ retro's when they could, it's all about the evidence.
  11. DAV likely reviewed the file, the VA examinations and conceded the 30 percent based on the evidence of record, if you feel as though a higher evaluation is warranted, discuss the Rating Decision with your NSO and prepare a game plan to obtain the evidence to have the case reconsidered, then file under the FDC program via VAF 21-526EZ to have the case re-adjudicated in 90 days or so. When DAV reviews the file and sends a letter, the NSO has already reviewed the decision, and if required approached the Rating Specialist or Team in regard to the assigned evaluation. We do this in order to ensure the VA does not commit a CUE, and to additionally ensure that prior to the final decision, if there is a difference of opinion, once you follow up when the official notification is sent, we can advise on the evidence required to overturn the decision without appealing. Traditionally, the only option was to appeal or file a reconsideration which would take still a significant amount of time, working with your NSO will ensure WE develop the claim in order to know what to expect the next time around. Always review what is required for the higher evaluation, and provide said evidence by way of your treating doctor in order to ensure the decision is considered on the specific legal criteria for the next higher evaluation.
  12. Well listen guys, if this isn't happening with DAV at the national service office in your area you need to speak w/ the Supervisors. We hold our staff at all levels to a high standard and if that is not being met we need to know. You also have to keep in mind, that we are as only effective as the relationship and receptivity we have with our clientele.
  13. We routinely review C-files and in general prior to a final rating...where we see what was submitted by us and by the claimant on their own, what medical statements were submitted and weigh the evidence ...we see everything from induction documents, Art. 15's from service up to present day...we also conduct complete file reviews when composing legal arguments at the local level and prior to certification to BVA.
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