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Asknod Posts

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  1. Yesterday
  2. You need to get a copy of your claims file. As I mentioned above, you will find every document in a claims file has a time/date stamp showing when it was entered. Sadly, they do not send you a claims file in chronological order. They used to do so back in the 80s and 90s. With the new VBMS, it's all chronological so you don't have to sort it out. When I get computer access now to a Vet's file after VA recognizes my POA, I can see every document s/he or their VSO ever entered. I can see everything VA raters ever did to it. I can see a lot of their notes and the old rating decisions. I am being given access to a new tool called Caseflow soon which allows me to literally look over the VA rater's shoulder in real time to see what they are doing... or not doing.
  3. Last week
  4. The reason you're getting a new c&p exam is elementary. When VA finally decides to grant a claim, they send you out for a c&p to determine what % to rate you at. I had a Vet who did the Good Humor job at Tan Son Nhut AB until it bent his brain. https://asknod.org/2015/08/20/the-good-humor-man-at-tan-son-nhut-ab/ He filed in 70, 75, 84, 2005, 2010 and lost them all. He's my neighbor. I did a new filing and let him get the denial. We got a professional IMO and sent it in 3/2018. Friday, now almost 15 months later, they schedule him for a new c&p. It sure isn't to deny again. There are certain things we as advocates see in the VBMS that are red flags to tell you that you won. I wish VA would give all of you the same access. It makes eBennies look like a Dick and Jane novel. Congratulations on the win.
  5. Earlier
  6. I don't require an apology, sir. You just need to understand that words have definitions. I took offense to the term 'mislead' and nothing more. Everyone knows who I am by now. It's no secret. VA sure does. All I ask is that folks think, research if necessary and pause one last time before pushing "submit reply". Knowing the law is one aspect of VA law. How to apply it in any given situation is what separates us as litigators from folks offering their opinion. Hadit.com has a stellar reputation as does asknod.org. Other sites have no original content created by their authors. These sites merely report what's going on or parrot the daily line about how screwed up VA is. The site I mentioned above (see screenshots below) that 86"d me in 2012 doesn't permit any criticism of VA. The administrators carefully remove any mention of me from anyone's posts on their site. I find that humorous because their logo at the top says "Just Vets helping Vets". Perhaps they should add the word 'lose'. It's inconceivable a Veterans Help site would purposefully prevent you from attaining knowledge that might help you succeed. A long time ago an old administrator on the site called Ye Olde Medic opined that anyone with Hep C should not waste their time filing because it's caused by injection drug abuse. This came from a medically trained person. If that is the quality of the advice advocated by the owners, you, as Veterans should demand a refund of any donations or fees paid to join. I published the BVA Purplebook on 7/4. Someone tried to insert it in that Vets website and it was erased within 24 hours. Does that sound right? A Vets help site censoring valuable tools to win with? Knowledge is power. If someone tries to prevent you from attaining that knowledge, they are decidedly not your friend.
  7. To Robert1954 Sir, I am an Officer of the Court. I cannot lie, mislead, shade the truth or condone fraud. You asked for advice-free, I might add. I gave it based on what you presented. You promptly came back to this forum and baldly stated "I had been mislead [sic] by someone who will remain nameless". I am on this forum regularly. I presume you wrote that with the sure knowledge I would see it. To mislead is to deceive-i.e. you are implying I purposely led you astray with not just incorrect advice but knowingly false advice. There is a vast difference between offering incorrect advice and offering knowingly misleading advice that might harm or disenfranchise a Veteran and his claims. I did neither but stand accused. Where I come from, that's looking me in the face and calling me a liar without even bothering to say my name. I could lose my accreditation over something like this. I don't need an apology. Murphy's First Law- 'No good deed goes unpunished.'- still holds true. This forum of Theresa's is a wonderful resource for all of you. No one is better or higher up than another. I am a Veteran just like all of you. I was enlisted-again much like most of you. I try to give back what no one before could give me in 1989- or even 1999. I was the FNG here in 2006. Unlike most of you, I made this a life calling after recovering from stage 4 Hepatitis C with cirrhosis. I post information here to help you. I give advice if asked -when I can. I don't do it because I like to hear myself talk. I have a lot of Veterans as my clients-many of whom I have met here, I might add. I'm not an attorney. I don't think like them nor do I act like them. I'm a "nonattorney practitioner" because I have been admitted to the Federal CAVC. That's a small step up from an agent. Nobody told me what I can't do in this business. That's why I look up DRO's telephone numbers in va.gov directory and call them. My attorney colleagues roll their eyes, tut-tut and blow bubbles. So please listen. I don't offer stupid advice. I practice what I preach and surprisingly, I'm still batting .1000 at this in my third year. You will also find about 1000 more alumni of the Win or Die Hepatitis C club who have won since I began teaching other Vets how to win jetgun claims in 2008. Remember what a Doctor's prime directive is-First, do no harm. Every bit of advice you offer should be correct. Don't shoot from the hip. Don't guestimate. Each and every claim is different. There may be some generalities in common but rarely specifics. Reciting your experiences with VA can be good advice. Try to refrain from saying "And this is why you should do it exactly like I did if you want to win". It took me almost twelve years to really learn what I do of VA law so far. I feel like a glass half-full... with ample room for the need for far more knowledge. SMC and CUE are two of the hardest subjects to understand-let alone fight and win-with VA. Reading VA regulations requires an understanding of VA terms. You can count how many of us agents/attorneys who excel on this type of claim (SMC) on one hand. CCK is the most famous. In fact, I learned the basics from none other than Robert Kirkpatrick himself. He was doing this pro bono in 1992. There are a wealth of his appeals in the BVA appeals site. SMC has more turns than the Mississippi River. It's not odd that Richard1954 has trouble absorbing this. What is odd is not believing me. This isn't Peggy's Pink Site with former DROs for administrators that are censoring comments and depriving you of things like Fergoogle and the BVA Purplebook. We're here to help the Veteran-not compete for members with other Vets help sites. When you're accredited, you have to watch every word that exits the pie hole. Please do not wreck my reputation. I spent a long time building it.
  8. Richard 1954, I have explained all this to you in several private emails over the past week. I went through it line by line and explained that if you have a separate 100% rating which is not part and parcel of the original rating (TDIU)-i.e. independent of the TDIU disability- that you would be entitled to SMC M due to the "bump" in §3.350(f)(4). I have re-explained it here for you again. Somewhere you have grossly misconstrued what I have explained to you and insist on mixing up the meaning and order of your TDIU award in 1996 and the later 100% schedular award in 2007. At some point you further muddied the water with discussions about SMC S and "housebound A&A". TDIU, once awarded remains. Obviously, if you are so disabled that you cannot work, that doesn't magically evaporate if and when you get a separate rating later (unrelated) for 100%. The 100% is not a TDIU, therefore it can be applied as a bump to attain SMC M. I have told you to read Buie v Shinseki where all this is explained clearly in the King's English. VA has a duty to maximize your award by law. Your case, as you explained it to me, perfectly mirrors the conundrum espoused in Buie. Moving on, VA made the mistake of awarding you the lesser bump to L 1/2 under §3.350(f)(3) which was CUE and which I have already explained to you over the course of 4 emails. They owe you the difference between L 1/2 and M for the period from 2007 to the present for that CUE. What part of that is so hard to absorb? I'm not sure how asking the same question, getting the advice, and finally, emailing that you understand what I explained warrants coming on here afterwards requesting further illumination to hear the exact same thing. Worse, saying the advice offered you was clearly wrong is grossly incorrect. The quote below shows you not only have not grasped the meaning or context of the SMC regulation, but purposefully continue to misinterpret it to the point of redundancy. My suggestion is if you cannot understand the regulation after being told where it is, had it quoted and explained to you chapter and verse, and, lastly , that SMC S is not a higher award than SMC M-despite the seeming incongruity that alphabetically they are not in order- that perhaps you probably should not attempt this without competent legal assistance. To be clear, SMC S is not a higher rating than SMC M. SMC S pays $3,491/mo. (single) versus $4,198/mo. for SMC M. <<< I had been mislead by someone who will remain nameless - who stated the TDIU could count as the 1st 100% and then 2nd 100% would get me to M.. But that person did not take into consideration that TDIU is only good for a Housebound rating .. not A&A and certainly not to get to M. Please illuminate us with your legal acumen, sir. What hat have you pulled this chestnut out of? I'm totally unfamiliar with any such codicil(s) in 38 CFR or 38 USC. Your attempts at interpretation of VA regulations are novel, to say the least. Please identify me by name in the future. I am not nameless. I stand behind my free legal advice. You have a TDIU rating. You have been awarded SMC L for A&A. You were also awarded a 100% schedular rating post-TDIU. Buie is on point. You are entitled to the bump from SMC L to SMC M under the authority in §3.350(f)(4). We can lead you to knowledge but you are free to reject any advice offered. That's your constitutional right. I have not misled you. Sadly, if you need more advice, you will have to seek it from others. I do wish you the best of luck. It appears you are going to need copious quantities of same.
  9. Being in Buck's position is to be given the benefit of SMC S. VA is increasingly trying to do the "combined" technique of using everything you have to get to 100%.
  10. Independently rateable at 100% means schedular. VA will not permit a finding of TDIU to stand in place of 100% under §3.350(f)(4) or, in M-21 VAspeak, IV.ii.2.H.6.c. The regulation is poorly worded. If you received another single rating for a disability above 60%, or amassed several with one 40% or more that added up to 70% or more, when you were already at SMC L, it could never be considered as an extraschedular TDIU. By law, you would have to already be at 100% (or TDIU) to approach qualification for SMC L. I have appeals I'm building for the CAVC to fight the M 21 application of forbidding application of the (f)(3) and (f)(4) regulations (or both) more than once. The regulation doesn't state that. And... I can also do an aggregate filing (class action). Cool beans.
  11. DROs beg me to use a 526 EZ to accurately capture the Vet's name, rank, airspeed and tail number in all those squares they are putting on the forms now. You can also file it on anything that floats your boat by law. VA has told us in the last month they are coming out with a new form for that in the very near future. Define "near future". Until then, you can buy one of those metal cutting computer-driven doomoflotchies and file it on 1/64" steel plate. Just keep the sheets down to 8.5" X 11". My favorite is those endless paper towel roles in VAMC bathrooms. Just keep waving your hand in front of the IR sensor until it's long enough...
  12. Before KIA (Killed In Action) the abbreviation was Killed by Hostile Action (KHA). BNR is Body Never Recovered. We were not in Laos militarily during the war, hence we couldn't carry in our dogtags, Military ID/Geneva Conventions Card etc. We were sheep dipped at the American Embassy in Vientiane. We left all our ID there. We were issued US Agency for International Development (USAID) ID and a Laotian Driver's license. If you crashed and surrendered, they executed you on the spot. That's why I always quote Theresa's logo- Leave no one behind. I had to do it once. It sucks. You'll dream about it the rest of your life.
  13. Well, then it's time to call CCK and ask to get in on the class action suit if you're up at the CAVC after a BVA denial, sir. And congratulations on making it home alive. Here's my July 4th, 1970 picture. More than half of these folks were KHA/ BNR. Happy Independence Day to everyone at Hadit and Thank you for your service.
  14. You want a copy of the Purple Book, Berta? One of my BVA "contacts" caused one to pop up in my email box last night. I promised never to divulge the origin. I'm going to publish it on my website and sit back and wait for Judge Cheryl Mason's call. Get this, it's numbered like the M 21 for "convenience" and they don't even recognize the Manual! Check it out--https://asknod.org/2019/07/03/the-bvas-purplebook-the-last-word-on-stare-decisis/
  15. I see c&p DBQs pop up in VBMS about 10-14 days after completion. It takes a VA examiner another two weeks to get back to it and analyze it. It takes another month to get a decision from it usually unless you are hardship, terminally ill or have a PH. Sometimes this provokes secondary claims due to inferred issues.
  16. July 11th? Do you have a time machine?
  17. Berta- Read Appellant's Brief on 18-6798 re hypertension. I saw this AM they have pulled any decision on the new presumptive off the table for now.
  18. A VA examiner (rater) doesn't necessarily focus entirely on the diagnosis offered by a contracted c&p audiologist or even a doctor.. While your husband may well have hg. loss and tinnitus, the examiner may determine it was not incurred in service. We all know they 'top sheet' a claim and rarely delve deeply into the STRs. This is also a test to see if you want to fight. If you do, they'll relent on appeal or a HLR and grant.If not, go to the BVA with all the evidence. Welcome to the VA insurance company. VA is notorious for using the Maxson v Gober argument. If you file 10-15 yrs after separation, it opens the window to the hearing problems being post-service. It's up to you to rebut by showing his job(s) do not entail hearing loss risk.
  19. Dear Mr. RetiredAt44, A BVA Judge is hamstrung by law. S/he can be the most pro-Vet trier of fact at 810 Vermont Ave. but if you arrive with your POA and little more than a plea for §3.102 and the benefit of the doubt, they have no repair order for you. The whole idea of the face-to-face TB hearing is to provide the critical evidence you were lacking prior to arriving-i.e. one of the three Caluza/Shedden/Hickson elements. If you put up a good argument, a VLJ will send it out for a new IMO. Sadly, we all know what the VA calls an 'independent' IMO. It will be done by a VA doctor. Yes, you'll probably lose. This is exactly what you don't want. Imagine the Titanic after it went down. We litigators are the "lifeboats" plodding through the waters trying to save some of you before you die. There are about 600-700 lawyers and 350 agents to serve millions of Vets. Worse, not all of us have deep pockets. Add in we're lucky if we see any remuneration from VA for a long time. I have one I began helping in 2013. I began by getting him his medals so we could prove he was a combat Vet. I filed 3/30/2015. I filed the NOD 8/4/16. We got a TB hearing 9/20/2018 and we were advanced on the docket to boot. It's at the Board and due for a decision literally any day now. If he won today, it would still be a month before he gets any $. I'll be lucky if I see it by November. VSOs call us bloodsuckers for charging Vets to help. VSOs tout that they do it for free. I can't argue with that. They also have a rather abysmal success rate compared to us. Anyone who thinks this is a fair fight doesn't know government. They have X dollars and gazillions of Vets. Over the years I've noticed the number of 100% schedular P&Ts and TDIU folks have remained static but the number of Vets has skyrocketed as has the number of claims filed. See the problem? VA artificially controls the number of top payees. The only way to win, and win rapidly, is to present an IMO at the BVA. If you try this at the VARO level, they may deny a perfectly good IMO by going out and getting one of their "independent" doctors to rebut it. If you present it to the VLJ with a cogent argument, s/he will gladly grant. They won't waste your (and their) time going out to get a new "independent" IMO. All I can say is plan ahead. Do not wait until you're dying of something to begin your fight. If you don't have the funds to do this right, try a financial path like GoFundMe. Be creative.You were taught how to fight a war. Use that knowledge to fight VA. We have a lot of info on this site and mine. I've looked at tons of Vet help sites and none matches this or mine by a mile. You need knowledge-not someone to cry into your beer with. Sure there are some here who can help or offer good advice but you can't invite us all in to your hearing with a Judge. You need to learn why you lost and how to fix it. I depend on mechanics to fix my car. I do not depend on anyone to tell me how to drive the car. Some things we have to learn for ourselves. I notice far too many of my clients insist on giving me the "back story" on what has already happened to them. Did any of you ever notice the windshield of a car is larger than the rear view mirror? It's more important to see where you're going-not where you've been. I don't need to know how mean and insulting the DRO was to you. I need to know what you're lacking and supply it. In order to be prepared for things like mechanical breakdowns in the VA hearing process, I bring a concise legal brief that encompasses everything I present to the VLJ verbally. I give it to him for the record at the end along with any IMO I present. This is one more way to CYA your appeal. Even if they lose the transcript, they still have a record of what you wanted to get across. I read transcripts and my hair stands on end to see a VSO say "Your honor, what we're asking for here is the BOD" The judge says "Fine. Give me some ammo to rebut what the rater said." Benefit of the doubt is called "equipoise". Your argument has to be at least as equally compelling as VA's. Judges have a lot of leeway and can slant justice towards you but you have to have a hot dog to put the mustard on. In answer to BroncoVet, my initial response was in answer to his comment "The best time to get a lawyer is after a BVA denial." I guess I missed the "could" or "should" discussion. I stand by my advice-get an attorney or agent as soon as you get denied. Do not wait. Go to the NOVA site and begin at "A" and call every one of them until you get one to rep you. If you still come up with a dry hole, one of two things is amiss. Either your claim doesn't hold water legally or you're faking it. To me, going to the CAVC is a last gasp proposition. Excluding CUE, you cannot "win" there because you cannot submit any new evidence. The CAVC is not a Court of equity. They don't cut the check. All you can hope to do is to win a remand to fight another day. My philosophy is to win before you have to go there. Chances are if you do prevail at the CAVC, you will find yourself back at the BVA or the AOJ obtaining the very same IMO you needed to begin with in order to win right where you should have won three years earlier. Why squander three years on it only to start over? And that's all I'm going to say about that.
  20. Likewise, I am not an attorney or a VSO-just a lowly nonattorney practitioner. Alex
  21. Let me explain that I am not the normal VA advocate. I saved and invested before I became ill. My SMC S carries the mortgage. My wife still works. I have no student debt. I take a certain percentage of monies from wins and set it aside to buy IMOs for my most indigent clients if need be. I don't have a law office and a staff. I have an $8,000 Konica Minolta Bizhub 224e that can scan a page a second. I have Adobe 9.5 with OCR. I can find stuff on a c file in minutes. I don't mind taking a financially challenged Vietnam Vet from start to finish. I just wish I could do more claims but I have a life outside this arena. Here's an example. A Vet who served at Udorn RTAFB at the same time as I was in and out of there (1970-71) came to me and said he doubted he'd ever win SC for Hep C. They'd lost his STRs or they "burned up" in the '73 NPRC barbecue. He'd admitted he snorted coke in the late 80s and was told by the VFW that filing was a dead end. He got a VA pension instead. I took him on and filed it for free back in '17. Of course he lost. I filed the NOD and he lost again. I planned it that way. I filed the VA 9 and we went to the BVA. I flew down on my nickel to Oakland on March 27 and put us all up at the Sheraton right around the corner from the Oakland RO. I bought dinner and breakfast. We marched over to the VARO at 0630 and were first in line. We did a Travel Board hearing live in front of VLJ Blackwelder at 0830. I presented the new IMO personally and explained why sharing a dollar bill snorting coke didn't give my Vet Hep C in 1988. His liver is shot. It takes fifty years to medically go from zero to full-blown cirrhosis even if you were chugging a fifth of Jack Daniels a day. 1970 to 2019 = 49 years. He wouldn't have cirrhosis until 2035 at the earliest if this began in 1988. He had a case of the clap while at Udorn. So what if the records burnt up? The antigen showing gonorrhea stays in your blood forever. I offered to go get a blood test and submit it into evidence within 90 days to prove my point. The Judge looked at me and said " Never mind the blood test. I believe you. This is extremely informative. I learned something today." I believe I made my case. We shall see. This is what Theresa means when she says "Leave no one behind." We will find out if we won in about three-five months. Most all of the folks I represent are advanced on the Docket for health or hardship. I will never do Videoconferences again-ever. I did one for my Vet in Puerto Rico with the VLJ in DC and myself and my interpreter sitting in Seattle in July 2018. We lost the connection twice in an hour. The San Juan camera was 10 feet away from my clients. At a TB hearing, you and your client are 3 feet away from the Judge. They say a picture is worth a thousand words. A TB hearing is one thousand times better. Personally presenting the IMO is the icing on the cake. They can't help but look it over right there while you're giving your brief. Believe me when I say they remember you at the next TB hearing. Gaining the trust of the Judge is very hard. A lot of VSOs come in and say all manner of crap- with none of it helpful. They beg for benefit of the doubt when they have no evidence. I've seen one use the f word right to the Judge's face in a transcript. Bad idea. A real attorney has the luxury of time. He keeps a constant supply of claims in the pipeline so he gets payouts at a measured pace. It pays to dawdle or take it to the CAVC for retro purposes. My game plan is simple-gitterdone. The sooner the better. I'm 68 and my heart is not a happy camper. I'm on a mission to do as many as I can before I crap out. If I can call up a DRO and say "Hey, I'll throw in withdrawal of these six claims for tinnitus, hemorrhoids, pes planus and the ingrown toenails if you'll agree to give my client TDIU P&T right now. " Sometimes they see the light. If not, we litigate. I simply threatened to get an IMO for one Vet in Waco last month while on remand back from the BVA and the DRO caved in and gave him the whole shooting match without a whimper. Win...or die trying. What do you have to lose? A DAV VSO called me a VA ambulance chaser at an event last year. I wear that moniker proudly. In some circles 20% is cheap. SSA claims and appeals lawyers demand 40% for doing exactly the same thing. Try this on for size: https://asknod.org/2019/05/25/memorial-day-2019-dirty-deeds-done-dirt-cheap/
  22. I respectfully disagree with BroncoVet on this one. I prefer to attack the VA the moment my client gets a denial at the local VARO level. It's far cheaper for the Vet and far less work for me to win at the BVA rather than increase the eventual 20% we charge our clients by litigating it all the way to the CAVC (and an additional year of retro). I am sometimes embarrassed to have a client arrive 90 days before the cutoff date for submission of new evidence prior to a decision at the BVA. I file an IMO and win (or sometimes just threaten to file one) and win a claim that has been continuously prosecuted for 5 years. My client has to pay me a huge sum (think $35 K) for 90 days of work to win his claim. I'm a fan of winning the claim, not litigating it to death. VA attorneys think the opposite because they get paid more by prolonging it.
  23. STRs are any treatment records generated while on active duty regardless of who authored them. If they relate to an event in active military service, they are considered STRs. Example: While in Thailand after I arrived in 5/70, the AF invited me to a briefing where I was asked to volunteer for a job with Air America in Laos. I remained in the service but was "seconded to AirAm or USAID as a French teacher. I got a GSW and had records from a "civilian" hospital and civilian doctor in my records with Sgt. Alex Graham in English at the top. As they occurred on active duty, they are, by definition, STRs. VA called mine PMRs (personal medical records) instead of SMRs for 12 years. One day in 2008, all my records were declassified and they became SMRs (STRs after 2010).
  24. Geekysquid You present a chronological exhibit with a tool we call a Chrono. See attached. It's tied to a specific claims file VA sends you. Each document is assigned a place on the chrono by date- i.e. 1/30/1968 --- hit by mortar blast in Hue. Purple Heart Awarded (RBA [Record Before the Agency] @ pg 2345. VA likes to salt in 1969 STRs right next to your request for GI benefits in 80 which are then followed by your 11/2018 NOD etc. I submit these to the VLJ to support my timeline of events. Once records- any records-have been associated with the claims file, they are constructively in the VA's possession. Bell v. Derwinski 1992-even if VA doesn't realize they have them. Bell is on point in CUE if the decision postdates the Bell 10/31/1992 decision date. I had a Marine LRRP with a 3800 + claims file with nothing in order. I'm presenting it to the Judge to help him follow the remand trail from the BVA back to the Seattle Puzzle Palace where they ( the Seattle DRO in 1992) demanded a new VA 9. Turns out the BVA Judge screwed up and wrote it as 'referred' even though he had accepted testimony on it at a Travel Board Hearing. Once that was permitted, the judge owned it and the VARO had to "fix it" so the Judge could re-decide. This one''s for SMC S from 1989 to 2012 when he finally prevailed. We contend it isn't CUE but just a pending appeal awaiting a SOC or SSOC since 7/1992. Everyone loves a road map in VA adjudication. When you do this, it makes it far easier on the Judge's staff attorneys to follow. If they are happy campers, it helps up your win probability. chrono example.pdf
  25. Well, this isn't quite true, sir. It would be considered CUE not to reconsider the claim under the auspices of §3.156(c). While VA litigators like me consider it a pending claim once the service department records are introduced (regardless if you just now found it in your claims file), the best way to file for it is a 526EZ to make it happen sooner. VA will try to consider it a forbidden freestanding claim for an earlier effective date. They will be the ones to recharacterize it as a CUE. Read Blubaugh v. McDonald here to get a really nuanced grip on §3.156(c) https://www.leagle.com/decision/infco20141209128 In addition, you could go to the CAVC in 2017 and read Kisor v. Shulkin to get the drift of where the VA would like to take this. But---- Kisor got cert at the SCOTUS and we're all waiting eagerly for them to spill the beans this month. Relevant has always been the reopening metric in §3.156(c)(1). The only thing that makes this unique is that they have to be service department records which no litigator from VA has ever set eyes on. Here, in the instant case we are discussing, it depends if the military ever put a copy in the claims file. If VA rated on the military's record without a c&P- all well and fine. But if they never went to St. Louis and the NPRC to get a copy of the STRs, then anything Kanewnut sends in are, ipso facto, §3.156(c) records. Since the M 21 has no provision for filing a freestanding claim for earlier effective date, they will automatically reinterpret any §3.156(c) filing as a CUE. I try to squeeze them into an appeal I'm working or scoot them in as inextricably intertwined at the DRO hearing. VA generally ignores them.Here's an example: Chris NOD.pdf extra NOD pages.docx
  26. Well, this isn't quite true, sir. It might be considered CUE not to reconsider the claim under the auspices of §3.156(c). Nevertheless, VA litigators like me consider it a pending claim once the service department records are introduced (regardless if you just now found some today that were introduced in 2015 in your claims file), the best way to file for it (CUE) is a 526EZ to make it happen sooner. Why fight CUE when you can use the less onerous §3.156(c)? Technically, you can file a CUE claim on toilet paper. There is no "proper form"controlled by §3.155 (2015 and later). Remember, you're asking for a Motion to Revise- not filing a claim for an entitlement. Before the §3.155 rule change in March 24, 2015, I used to put Tickle Me, Elmo stickers on all my 526s and 4138s. Most folks stub their toes on CUE and lose. It's a unique legal maneuver with a long list of explicit requirements. The biggest one is if you do not file for it, you can't claim CUE on its not being awarded . VA is not expected to go on a safari through your medical records in search of every little ingrown toenail. If it is on a list of injuries at your PEB/MEB, it's fair game for a CUE. If you're expecting them to dig it out and consider it an implied claim now, you'll never get out of the gate. You have to prove it would have manifestly changed the outcome. That, folks, you can never go back in time and fix. It's actually a piece of cake to file for it, win it and then file a NOD and ask for the earlier effective date. As we all know, you have one year to accomplish that. If you do not appeal by then, the ship sails without you. It sounds like Richard1954 had many opportunities to claim §3.156(c) as he won his claims. I routinely use this technique. Get your foot in the appeals door after your initial win and all viable arguments are on the table. Remember, if you don't appeal, it is a tacit admission you agreed with their decision. Ergo, it's right. The Fugo court characterized CUE as a "rare error". Yes and no. It's rare if you can prove it was outcome-based. It's rare for most Vets to even find one because they assumed VA is above moral reproach. CUEs are not rare. I can almost always find one in any efolder. It requires a keen eye and a lot of knowledge to spot VA's errors. Most antiques like this 1985 one above always go to appeal. Nobody wants their signature on a CUE for $950 K. It screws up your resume if you are asked to seek employment elsewhere. However, Shea v Wilkie was just decided two days ago at the Fed. Circus and they say if the condition is mentioned in the MEB STRs being used to rate something else, then the VA should have enough common sense to spot the inferred claim(s). Another big step for Vetkind. You can't use it for a 1985 CUE but it is great precedence going forward.
  27. Here's another approach to SMC errors (attached). I just filed it yesterday. I don't consider failure to award SMC a CUE. It's a pending claim awarded when the evidence supports it. As the CAVC said in Bradley and Buie both, you do not have to file for it as you would a claim. 10182 extra pgs PRELIM.pdf
  28. Read down this article to the bottom. There are three links to course material I got at the 2016 Las Vegas NOVA conference. Actually, the guy teaching the course (Alan Gumpenberger) didn't have an answer key. I had to look up every single question in 38 CFRs §§3, 4, 19 and 20. Every one of these questions were or are on any given test. VA is too cheap to make up new tests every year. Besides, remember they have to make it easy enough for VSO National Service Officers to pass. There were 28 questions and you had to get a score of 75% or better (in 2016). They gave me 90 minutes. It took 23. Join NOVA after you are accredited and your fellow attorneys will help you at no charge and offer killer advice. https://asknod.org/2019/05/25/memorial-day-2019-dirty-deeds-done-dirt-cheap/
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    • My claim went back to gathering of evidence after I had my second c&p exam for tbi initial. My vso the Dav said it was a dbq to differentiate the symptoms of tbi and PTSD as far as social and occupational impairment. I recieved at least as likely as not on all exams, PTSD, both tbi exams. Has anyone experienced this or know what it means? Is this a good sign my claim will be granted ? Thank you.
      • 20 replies
    • VA Claims requires a lot of note taking - What  I use for note taking
      Trouble Remembering? This helped me.

      I have memory problems and as some of you may know I highly recommend Evernote and have for years. Though I've found that writing helps me remember more. I ran across Tom's videos on youtube, I'm a bit geeky and I also use an IPad so if you take notes on your IPad or you are thinking of going paperless check it out. I'm really happy with it, I use it with a program called Noteshelf 2.

      Click here to purchase your digital journal. HadIt.com receives a commission on each purchase.
      • 1 reply
    • Do I have to quit my job?
      Hello everyone. See Below for what I received from VA

       

      A little about me currently. I have a job that is very low stress (work nights no people no stress) very secure because I work in a mountain so im surrounded by granite. I work on computers so it engages my mind and keeps me as active as possible and is my passion. So my question is do I have to quit my job? Thanks!

       

      June 23, 1999 June 30, 2019

      VA Benefit InformationSummary of benefit informationYou have one or more service-connected disabilities:Yes         Your combined service-connected evaluation is:100%               You are considered to be totally and permanently disabled due solely to your service-connected disabilities:Yes           The effective date of when you became totally and permanently disabled due to your service-connected disabilities:July 01, 2019

      major depression disorder, recurrent, severe, post traumatic stress disorder, insomnia disorder and eating disorder, NOS


                         100%


                               Service Connected



       

      SMC-S1

      Entitled to special monthly compensation under 38 U.S.C. 1114, subsection (s) and 38 CFR 3.350(i) on account of major depression disorder, recurrent, severe, post traumatic stress disorder, insomnia disorder and eating disorder, NOS rated 100 percent and additional service-connected disabilities of migraine including migraine variants, tinnitus, independently ratable at 60 percent or more from 07/01/2019.

      SMC-K1

      Entitled to special monthly compensation under 38 U.S.C. 1114, subsection (s) and 38 CFR 3.350(i) on account of major depression disorder, recurrent, severe, post traumatic stress disorder, insomnia disorder and eating disorder, NOS rated 100 percent and additional service-connected disabilities of migraine including migraine variants, tinnitus, independently ratable at 60 percent or more from 07/01/2019.

       

      Thanks all!

       
      • 61 replies
    • Progress Notes on C&P Exam
      Hey guys, 

           I don't know if I'm in the right place but i was needing some clarification. After fighting with the military for six years, the C&P examiner stated that my condition precludes me from any physical occupation. 

      I developed asthma back in 2012, while in service. Is that typical wording for pretty much everyone? I guess my English isn't that great and i would like someone to please explain to me what that entails? The examiner 

      also stated that there is a 50% chance or greater that my injury was incurred in the line of duty, does that mean that they service connected me? 

       

      thank you for responding. 
      • 25 replies
    • I have a 8 year appeal that was granted in May 2019. Entitlement to service connection for acquired psychiatric disorder, to include  post traumatic stress disorders and depression, is granted.

      I live in Missouri, but it looks like the San Diego RO has been tasked with assigning the rating. I am already SC for 10,10,and 10 for shin splints and tinnitus which adds up to 30%. I was trying to determine what would my rating be and timeframe backpay would be paid.

      My symptoms include : nonetheless the examiner opined that is not to say that his issues with pain and tinnitus have not exacerbated mental health symptoms. In this regard the examiner opined that the veterans chronic pain and tinnitus contribute to several depressive symptoms, including depressed mood, sleep impairment, irritability, diminished concentration and interest in activities, relationship problems, and outburst of anger.

      As such the examiner concluded both his tinnitus and issues with chronic pain (not simply limited to shin splints) Are judged to have aggravated and contributed to multiple mental health symptoms. Therefore the examiner concluded that “it is at least as likely as not” that the diagnosis of bilateral shinsplints and tinnitus has  aggravated depressive and overlapping PTSD symptoms beyond their natural course. My diagnosis includes Anxiety disorders too. 

      My grant is secondary to existing disabilities.

      There is a Remand for Inextricably intertwined with the grant of service connection for an acquired psychiatric disorder, granted in the boards decision herein, because it may be affected by the assignment of the disability rating and effective date for the grant of service connection. Once the disability rating and affective date for the grant of service connection for an acquired psychiatric disorder has been assigned, and after completing any other development deem necessary, readjudicate the claim of entitlement to TDIU are you in light of all pertinent Evidence  and legal authority.

      I am not sure but I hope my rating and backpay would be issued before they decide in another possible year for TDIU?

      I am also one of the ones who constantly check Benny’s for a rate change or any updates, but it is the same since May 23rd 2019. Has anyone received a deposit before benny’s Update. Since the new process has been implemented?

       
      • 14 replies
  • Most Common VA Disabilities Claimed for Compensation:   

    tinnitus-005.pngptsd-005.pnglumbosacral-005.pngscars-005.pnglimitation-flexion-knee-005.pngdiabetes-005.pnglimitation-motion-ankle-005.pngparalysis-005.pngdegenerative-arthitis-spine-005.pngtbi-traumatic-brain-injury-005.png


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