asknod Elder
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asknod last won the day on January 11

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About asknod

  • Rank
    E-8 Senior Chief Petty Officer
  • Birthday 04/01/1951

Previous Fields

  • Service Connected Disability
  • Branch of Service
    USAF/ Air America
  • Hobby
    VA Nonattorney practitioner. HCV 100%; PCT 100%; anemia 60%;Cryoglobulinemia/Fibromyalgia 40%, Scars 30%: Tinnitus 10%

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  • Location
    Gig Harbor, Washington
  • Interests
    TR-6 Sports Cars, old guns that go rat-a-tat-tat.

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  1. This claim doesn't pass the smell test. Clear and unmistakable error must rest on the evidence of record at the time the decision was made. Further, it has to based on the statutory and regulatory laws at the time of the prior decision. It's impossible to have a FDC CUE claim. You cannot have a C&P exam and add that to the evidence of record in 2002. You can ask for an increase as a reopen on an FDC but a CUE claim must be bifurcated from a request for increase because it seeks to overturn a prior decision based on the evidence as it was know at the time not being before the adjudicators or a gross violation and disregard for the regulation controlling it. Moreover, the result has to to have manifestly changed the outcome. You may win an increase but your decision will not encompass a finding of CUE one way or another. That will be a separate decision based on an entirely different metric.
  2. <<Where did they get their call sheet from?>>> Where else? The same place the DAV, AmVets and the rest did. Within a month of my 100% rating in 2008, I got invites from a few to let them be my claimsmeisters. I just got this link from one of my members today and a little bit of research has opened up quite a bit of controversy. They're out of Gainesville, FL, not Arizona. I'm guessing they tied into a VA lawyer to hand it off to for another kickback. Now, re Broncovet's post (4/22/15), saying " Many Vets are skeptical of the "non attorney" (Vets) practioner[sic], that charges a similar fee as attorneys. Reason: Gee, if you want to get paid as a lawyer then get a law degree", I strongly disagree. I know several Agents or "nonattorney practitioners" as we like to be called. Many of us have more knowledge than some attorneys with over 10 years of experience. I have yet to find one who can recite SMC chapter and verse from 38 CFR and cogently express all the myriad possibilities. EAJA fees, on the other hand, are not based on the complexity of the case but being an attorney. An attorney can charge the lodestar based on an amalgam of all rates across the country which is a maximum of $187.50/hour. VA will not pay more than about $95.00/hr to a VA agent who prevails doing the exact same work. Similarly, we can charge up to 33% maximum if the case is very complex. I won't go over 20% which is the common rate because I have ethics. Most of what I make goes back into helping Vets because I am blessed and don't need the money. Broncovet and I have broken bread together several times and he knows my circumstances. We do it for Vets, not for our personal enrichment. I'd be interested in any feedback from Hadit members on a successful outcome with these folks. They don't seem to be too terribly different from Dr. Bash or Dr. Ellis-just the new kids on the block.
  3. JFrei is already rated at SMC (s). He wonders why he isn't at SMC (t). Here is the reason. SMC (t) is the same amount as (r2) or $8,506.47/month (married). In order to qualify for SMC (t), a Vet must have a full-time caregiver who watches over him/her to protect them from injuring themselves or others. The caregiver can be a wife or significant other and have no true medical training. The extra money above SMC (o) is to offset the cost of the full-time caregiver. This is where it differs from (r2) which requires the regular supervision of a medically certified caregiver or the supervision of your wife/sig. other by the medically trained caregiver. VA will also pay to give your caregiver proper training if necessary. SMC T is never permanent. VA hates to award it and checks you out about once every year to determine if you are getting better. In most cases, it is awarded for two years and VA comes up with an excuse or a C&P that you have recovered sufficiently to be down rated. I had a case where the wife decided to go back to work on a part time basis-about 3 hrs a day. Bingo. No more SMC (t) because the Vet's care was now not "full-time". I read about another where the Vet decided to volunteer at a food bank two days a week. Bingo- VA said if he's able to work at all (volunteer or paid), then he isn't eligible for SMC (t) and they axed him. He gave up the food bank gig and is still fighting on appeal (two years now) to get the SMC (t) back. Rots a ruck. If you are hospitalized while on SMC (t), they revert your pay back to SMC (o) and do not resume it until you return home. SMC (t) is not what it seems when you get down to the brass tacks of how it operates. SMC (t) is also only available to those Veterans who served after 9/11/2001 which is terribly biased. What's the difference between a guy who gets blown up by a satchel charge or 60mm gook mortar in 1969 at Dong Ha? He still has TBI and would qualify if it had happened after 9/11. This creates two unequal classes of Veterans who suffer exactly the same set of maladies. We have the WWP to thank for this inequity.
  4. er·go ˈərɡō,ˈerɡō/ adverb therefore. "she was the sole beneficiary of the will, ergo the prime suspect" I use it a lot in legal briefs. DROs don't know what it means. They have to look it up. Nobody takes Latin as a language course anymore.
  5. The answer is no. The decision states: Entitled to special monthly compensation under 38 U.S.C. 1114, subsection (s) and 38 CFR 3.350(i). 38 cfr 3.350(i) states: (i) Total plus 60 percent, or housebound; 38 U.S.C. 1114(s). The special monthly compensation provided by 38 U.S.C. 1114(s) is payable where the veteran has a single service-connected disability rated as 100 percent and, (1) Has additional service-connected disability or disabilities independently ratable at 60 percent, separate and distinct from the 100 percent service-connected disability and involving different anatomical segments or bodily systems, or (2) Is permanently housebound by reason of service-connected disability or disabilities. This requirement is met when the veteran is substantially confined as a direct result of service-connected disabilities to his or her dwelling and the immediate premises or, if institutionalized, to the ward or clinical areas, and it is reasonably certain that the disability or disabilities and resultant confinement will continue throughout his or her lifetime. Ergo, you are awarded SMC (s). Merry Christmas.
  6. I asked to view my c-file at what was then a DRO hearing of sorts back in 1991. I read it during the hearing. I requested a copy in 2009 after I filed for P&T and received it in 3 weeks. After the CAVC win in 2013, I asked for a new one. By then, it had mushroomed out to 10,078 pages and those five boxes. It took a while to get it. I think over 14 months. I've filed several more CAVC ex Writs since then so it's probably over 12,000 pages by now. Hell, the VR&E (left flap) is over 2,000 pages alone because of the greenhouse appeal. I'm just finishing up my paperwork to do the online access. They run a Criminal background check on you (again). They do one when you file to become an agent so it's rather redundant. Ben Krause of just went to the Fed. Circus for oral arguments on them forcing us to get style email addresses so they can monitor what we do. It's a whole new world of computer stuff now. Take your protein pill and put your helmet on, cowboy.
  7. I guess folks here need an update for 2017 on c-files. Here's the latest. Attorneys and agents can sign up for access to the c-files on line using VBMS. I do not know about NSOs as I am not one and have little contact with them except for the nasty letters they send me at my website. Access is granted when you have a signed copy of the VAF 21-22a filed with the Regional Office closest to the Veteran where his/her claims are being handled. We contact the Information Security Officer (ISO) and request access. We have to have a email assigned to us and only the agent or attorney with the POA can access the file-no paralegals, secretaries or other clerks. The computer we use has to be secure and there are a few other things regarding protection of information of the Veteran. It's a read only file and we cannot enter any info or delete any. It is instantly updated with anything sent in via the EIC in Janesville. Attorneys/agents do not use eBenefits-or at least I don't. It's like reading last month's newspaper or the 800-827-1000 Prize Redemption Center. Due to viruses and other internet glitches, I doubt Vets will ever get access to c-files on eBennies. Writing directly to the Records depository in St. Louis is now the preferred method using a VAF 21-3288.
  8. You will lose R2 if you go into a hospital as you receive care "in kind". To avoid that, it is suggested you get to the high ground of "permanently bedridden" if you end up in the ER or the hospital frequently. I've gotten several Vets R1 and R2 and it requires a few things most do not suffer.
  9. OGC made me get a letter from my doctor saying the brain box was 5 by 5. They hung me out for a year but I finally got the accreditation in late July. Study, study, study. Focus on part 14,19,20 and of course Parts 3 and 4. The test is often heavy on pension law and very light on parts 3 and 4.
  10. We VA agents and attorneys are, by law, are allowed to charge up to 33% but only for very complex cases. I feel uncomfortable with that and stick with the old 20% figure. If we "substantially prevail" in the clam, we can bill the VA $187.50 an hour for our EAJA fees which do not come out of the Vet's settlement amount. One thing many probably do not know is that VA also duns us $100.00 (handling fee) for withholding the 20-33% .
  11. Here's an interesting FYI for all of you to be aware of:
  12. Gastone makes a good point. If you have the ratings to support it (i.e. the P&T plus an additional 60% unrelated to the P&T claim), you qualify and it's like shooting fish in a barrel. VA cannot deny you. On the other hand, if your claims were not sufficient to reach the 100% (IU) + 60% rule, you'd need some pretty severe medical issues that keep you housebound like mobility issues or an inability to drive. As Gastone also pointed out, VA will never grant if you fail to appear for a c&p. That's the law, not VA vindictiveness. I've won claims with no c&p but I had a killer IMO in my pocket VA couldn't rebut. It sounds like you are good to go on the ratings so why the concerns?
  13. The test will be elementary. They will make a determination that you have effectively lost the use of your right upper and lower extremity which would grant you a 100% rating for it and subsequently give you SMC L for loss of use. That is not the same as A&A. The SMC (L) is the vehicle but the rationale will be loss of use rather than the need for A&A unless you are not ambulatory. Remember, SMC L is a multi-pronged tool. There are several reasons why they grant it. Moreover, they do not grant it if they can find a way out of it. All the Vets I've wrangled the higher SMCs for always go through a vetting process and boy howdy does VA try to wriggle out of it with some of the dangedest excuses. I had one for R2 where the Vet was bedridden (w/ bedsores) and they said he could make the transition (just barely) from the bed to his wheelchair- albeit assisted. VA insisted that if he could stand, however briefly, to make this transition, that it somehow unequivocally proved he had not lost the use of his lower extremities. This battle went on for a year. I finally got a private IMO to defeat it. Now we are battling for a 2008 effective date. They insist it's 2014. At $8,400 a month ($100 K a year), you can see why he's fighting for those extra six years of compensation at R2 or at least a Fenderson staged rating building up to it. The medrecs support him entirely but you know VA. They'll lip whip it with 500 attorneys for a decade in hopes of a delay and deny until he dies. Best of luck on your battle, sir and Merry Christmas.
  14. CUE

    No. You do not have to prove that your spouse had HCV prior to service. He was found fit to serve and not impaired by anything on his physical profile. That is called the presumption of soundness at induction. If they let him join, then they accepted that he did not have HCV. You need his service medical records and VA's c-file like yesterday if you hope to prevail. VA docs can't write nexus letters since June 2010. Most who did deliberately avoided a) looking at the Vet's contemporary records in the service but most importantly b) "forgetting" to include a reasoned analysis of why they believe it and the medical reasons that lead them to believe it. No "possibly" or "could have". No "rule out" or "might have been". You need a quick education on this and a lot of help to prepare for a win. Either that or a good VA attorney. The reason you haven't won is you don't have the same evidence they have to fight them. Attempting to file a CUE is futile. They'll eat you for breakfast. Your husband is granted the "combat exemption" that if he was in combat, everything he says is true. If he said he thinks he got it at the 3rd Army Field Hospital in Saigon, then VA has to believe him. They can't go off on a wild goose chase into what he was doing before he joined. Most of all, you need an IMO. A good attorney wouldn't hurt either.
  15. CUE

    Pdiddy, you do not want to do a CUE claim. You need a IMO from a gastro saying it is at least as likely as not that he contracted his HCV in service, Here's why you can get a doctor to say that. HCV runs in five stages (Metavir /scale-google it). Each stage takes approximately ten years- i.e. stage 0 runs from 1968-1978, stage 2 1978-1988 etc. It took forty plus years to get to a liver transplant when his liver became decompensated and quit working. I have a gastroenterologist who will do that for you for free. That is all you need to win. I've done this four times and am four for four on wins. Every one went to the BVA on appeal but the VA lost each one because the VA examiner's IMO was a joke-just like yours. Contact me on the private messaging feature here or send me an email at and I'll provide you with what you need to prevail. I'm sorry for your loss. It sounds like it was readily avoidable. VA bolluxed up four operations on me and I ended up with an ileostomy bag for a year waiting for all the sepsis to abate. They came very close to killing me several times over my one year inpatient status,