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Asknod Posts

Showing all content posted by asknod and posted in for the last 365 days.

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  1. Last week
  2. I have no idea why VA will take one claim and zoom through it and then dawdle and take another and drag it out for years. I'm sad to say I was unable to get on Theresa's gala 22nd anniversary show this morning but I had a doctor appointment I could't put off. I apologize to all who I missed. I visit other sites that help Vets. There are quite a few out there. Some are snobby and stuck up. I don't see Hadit and asknod in that light. We generally help more than we hinder. Anyway, Here's a link to the win. Carla would have found this one to be a hoot-especially the business about the right hand. I attached the redacted ratings documents to it. I love it when I get to meet my clients. I'm even more glad when I can gitterdone quickly and save everyone a short ton of money. https://asknod.org/2019/01/19/lz-cork-sweet-home-alabama/ Once you get your SMC L foot in the door, getting A&A and then R1 is a lot easier. 2019 is beginning on a positive note.
  3. Earlier
  4. My apologies to Waynet if I have sickened him. In fact, my apology extends to any I have offended in this thread. Nevertheless, there are lots of things many of you do not know about RAMP. Did you know it is only one small part of Public Law 115-55? Did you know, of 553,000 legacy appeals, only 16,547 Vets have opted in? Did you know the VA has taken 10 (ten) Regional Offices "offline" and all they do is RAMP opt-ins? That means an RO that can do 150 decisions a day has so far averaged 1,647 Vets per RO since RAMP opened up. My POC in Seattle is twiddling her thumbs. They literally have nothing to do. No DRO reviews. No DRO hearings. No claims adjudication whatsoever. https://www.federalregister.gov/documents/2018/08/10/2018-15754/va-claims-and-appeals-modernization The BVA decided 81,500 (approx.) claims in 2018-up from 62,000-ish in 2017. Meanwhile 60,000 more claims came in-legacy appeals, folks. Why? Maybe they wanted to come into RAMP at the BVA but the system wasn't set up yet. Broncovet maintains all those legacy appeals will turn into pumpkins pulled by field mice at the stroke of midnight on February 14th, 2019. I do this for a living. I really couldn't care less if any of you opt into RAMP. However, this uninformed chucklehead would never suggest it to his own clients unless it was a CUE. I will not harangue you further with RAMP information. I don't need to. It seems a few here have misconstrued the data and feel they stand a far better chance in RAMP than out. As a commentator here, it irks me to see incorrect information disseminated without so much as a fact check. The truth is out there. Why the rush to give out bogus advice? Why not simply read the regulations proposed in the Fed. Register and make up your minds rather than accept an incorrect explanation? The object of Hadit.com and asknod.org is to give you the information you need to succeed. Handing out "fake news" is not acceptable. I gain nothing from attacking anyone. If I keep one Vet from making a mistake and losing, I can sleep at night. I help Vets win by litigating as little and as infrequently as possible. If I chose RAMP for my clients merely to shorten their claims, it would result in far more denials and refilings to "get it right" the second or third time. What have I gained? Or, better yet, what has the Veteran lost? Time. There is no shortcut to a win at VA. Please also remember that RAMP is still very much in a trial period. If it works, it will become the way we do this. If it doesn't, well, it's back to the drawing board for a new idea. I refuse to allow my clients to be guinea pigs. I see a lot of emphasis is directed towards CCK's assessments of RAMP. Here's another view from (gasp) attorneys who also know nothing (like me). https://www.woodslawyers.com/join-rapid-appeals-modernization-program-ramp/ Try becoming informed on the program before opining on what it is and more importantly, what it isn't. I have about 8 Vets in Legacy and I wait an average of 3 months for a Travel Board Hearing and another three for a decision. Granted, my clients are terminally ill and deserve to be advanced on the docket. However, if anyone thinks Legacy appeals will be subsumed by RAMP, they're smoking something stronger than tobacco. Legacy will always be available to those who desire it. In fact, if anyone here will bother to read the proposed program, they would know that. There are none so blind as those who wallow in ignorance. Some of you will only "see" it when you finally believe it. Richard 54 has "seen" a glimpse of it. As Yoda said in Star Wars "Do. Or do not do. To try is to fail." I refuse to leave any of my Veterans behind on that paper trail. I never try to win my Vets' claims. I win them. I don't have any degrees or awards to brag about. I am not smarter than any of you. I am simply more determined than most of you. I often wonder why many of you who are very well educated don't take the Agent's test and do this. I have trained two in just two years and they passed the test on the first try. I see too many armchair quarterbacks in my work. Much like a doctor, commentators here should first concentrate on doing no harm. That requires extensive research, something that is apparently in short supply. Try this for a starter-- https://www.bva.va.gov/docs/Chairmans_Annual_Rpts/BVA2018AR.pdf And that's all I'm going to say about that.
  5. I find Broncovet's assessment interesting (above) <<<You are essentially asking the attorney for "expert" advice, on a subject to which he has no experience. >>>> Who, pray tell, would you ask advice from if not an attorney with a Juris Doctorate? I lack one but am accredited to practice all the way up to the CAVC. Ergo I have been deemed to have extensive legal knowledge-including all the ramifications of choosing RAMP. Is Broncovet suggesting we rely on the VA or a well-known VSO like DAV for RAMP advice? As to RAMP, Richard 54 has illuminated many problems. The largest one being it hasn't even arrived at the BVA. How do you obtain a rapid BVA decision when the infrastructure isn't even in place yet? Remember, February 2019 is the ostensible date assigned for rollout. I would ask any of you Hadit members to come forth and tell us of innovative new VA programs that were ever operational on the day advertised. Last Spring, at the NOVA conference in San Diego, we listened to several points of view on RAMP-both from VA Judge Cheryl Mason and a NOVA attorney (Ralph Bratch). The consensus among ATTORNEYS, who do have legal training, was that it deprives you of innumerable due process protections. As for trusting the VA, their spokesfolks continue to try to induce us all to leap into this project and simply trust them. VA has even gone behind my back and taken to mailing my clients RAMP opt-in forms. As I have exclusive representation rights, they are forbidden to approach my clients without coming to me first. Speaking of Chisholm, Chisholm and Kirkpatrick (CCK), I had dinner with Robert Chisholm and Zachary Stolz, along with BVA Veterans Law Judge Brad Hennings at the Spring 2018 NOVA. Mr. Chisholm was extremely leery-as were all the CCK staff attorneys- about RAMP. I think I speak for NOVA in general and most attorneys/agents in particular when I say trusting VA to do something beneficial for us is a chimera. While Congress and the President might have meant well by creating the RAMP program, its implementation is going to be written and conducted by the DVA via regulations (i..e. 38 CFR). In case none of you have ever heard the term "Chevron Deference", you might not know the Courts will defer to the VA to interpret what RAMP is going to be. Since the RAMP track record, which has not even set up shop at the BVA yet, has already resulted in a 90% denial rate, any hopes of smooth sailing to a grant of benefits there is far too premature-regardless of Broncovet's enthusiasm. Broncovet is entitled to determine how he, personally interprets the new RAMP procedures, but Congress has unequivocally preserved our right to the legacy appeals process. That much is certain. Broncovet's statement that "My "interpretation is fully implemented in Feb. 2019 means it will no longer be optional." neglects to mention February 2019 is the beginning date for the BVA to begin considering RAMP appeals-not that everyone is doomed to the RAMP lane automatically henceforth from that date. Nowhere in the four corners of the Appeals Modernization Act of 2017 is there any mention of RAMP becoming the only appeals path and legacy appeals ceasing to be a legal recourse. Of course, I am open to being convinced otherwise. I did sit down and read the AMA from cover to cover and can find no future prohibition against the legacy appeals process. I want my clients to obtain swift justice but only if they are adequately protected by the Administrative Procedures Act (APA). That is my personal opinion only. CCK and I are not permitted to offer legal advice like Lucy's Psychiatric booth in Peanuts. No attorney/agent is. We can discuss the various venues RAMP offers but we would be remiss if we made blanket statements that the new process sucks or, conversely, the cat's pajamas. A Vet might take that to heart and lose and wish to sue me for bad advice. In short, not to hurt Broncovet's feelings, I must point out he is not accredited nor does he possess a JD. The informal consensus opinion among the accredited folks is that a) not enough Vets have opted in to even begin to understand the pros and cons; b) it hasn't even been implemented at the BVA yet; and c) the preliminary results (90% denial) do not bode well for us. It's perceived as nothing more than a shortline railroad to a quicker denial to alleviate the BVA backlog. In that respect, it's going to mimic the Fully Developed Claims scenario. I found they frequently ignore any evidence you submit and deny using imperfect logic. Sure you win on appeal but the FDC was supposed to cure that error. I do see one application for RAMP, though. Since a CUE filing is a cut and dried motion to revise an earlier final decision,, and no further evidence can be submitted, RAMP is the perfect vehicle to get your Motion to revise before a real "judge" lickity spit who understands law and can adjudicate it fairly. If he cheats and denies due to ignorance of §3.105(a), the CAVC will reverse him. CUE is simple. Either they screwed up or they didn't. There are no "do overs" with remands to cure a CUE deficit like a failure in the duty to assist. Read this intro on RAMP. https://www.va.gov/vetapp18/files7/18116573.txt
  6. Scratch the DM II and substitute CUE in the 2004 claim based on evidence introduced now (currently). Sorry Berta but I was trying to refer back to what Doc 25 and Hamslice were alluding to in the first page. Old timer's disease is my excuse. Anything that occurred in 2004 must be a stand alone CUE claim. It can't be appended to a current appeal of a decision or use a more recent decision to show error in 2004. When you have error in a pending claim or appeal, a CUE motion is not for application. A NOD or VA 9 is. CUE can only be a motion to revise an earlier decision that is final. I make a habit out of calling up the rater and asking him what was going through his feeble mind when s/he screwed up. Sometimes they issue a ratings correction. Sometimes they don't. If you really want to screw up a pending appeal, tell them you're CUEing it. I guarantee it'll take a year to straighten out. VA loves to play Semantic Rope-a-dope with you. CUE is almost as incomprehensible as SMC but then, I reckon VA made it that way on purpose. I'm hoping the SCOTUS tosses Chevron/Auer Deference in Kisor v Wilkie and reads a regulation as it is written. If the Secretary continues to write ambiguous regulations, we're doomed to an eternity of Auer. It's ever so difficult to determine CUE given one decision to look at. Bronco is spot on that you need the entire file to sort it out. Fly out here and visit me, Berta. I'll let you look at VBMS and really get a feel for VA shenanigans-in real time. We have plenty of room. Ask Loyal. For some silly reason, Cupcake insisted we build something that looks like a Best Western that you can see from outer space.
  7. Whoa there. Back the boat back up to the dock, Gilligan. RAMP is optional. RAMP in no way supplants the legacy appeals system. Here was the text of the bill. You can always file your appeal as a VA 9, be certified into the legacy system and obtain a hearing and submit a new IMO if you decline to use the RAMP system. Where did you get the idea "we all go into RAMP" next month? The bill permits a veteran to appeal within one year by: (1) requesting a review of the agency of original jurisdiction's (AOJ) decision by a higher-level adjudicator within AOJ using the same evidentiary record [basically a DRO review]; (2) filing a supplemental claim with a regional office that includes the opportunity to submit additional evidence and have a hearing [ a DRO Hearing with N&M E submitted]; or (3) appealing directly to the Board of Veterans Appeals with the opportunity to select an expedited review to submit new evidence but without a hearing, or to select a review with the option to submit new evidence and request a hearing. A veteran may: (1) maintain the original effective date of a claim if he or she submits new and relevant evidence within one year of the most recent decision, and (2) retain the services of attorneys and accredited agents who charge a fee when the AOJ provides notice of the original decision. The VA's statutory duty to assist a veteran terminates after the original decision. The bill: (1) requires the VA to issue decision notification letters, (2) permits certain veterans who initiated an appeal prior to the bill's effective date to opt-in to the modernized appeals system, (3) authorizes the VA to conduct a pilot program to test such system, and (4) requires the VA, prior to full implementation, to certify to Congress that it has sufficient resources and personnel to carry out the legacy and modernized appealssystems. RAMP really operates more at the local level than the BVA. If you choose the HLR lane, no new evidence may be submitted and you in essence just get a DRO review. At that point, if you lose, they issue the SOC and you automatically proceed to the BVA RAMP decision. No new evidence or a hearing may be requested and you will get a swift decision. You may not like it but that's RAMP. Once you opt in, that's all she wrote. If you choose the supplemental claims lane, you can submit new evidence and ask for a DRO review as you could before. If you are denied, you go up to the BVA and again, get a decision with no hearing or submittal of new evidence. Either way, you get the Shanghai Express. The problem I illustrate is that once you are denied, you cannot win without submitting N&M Evidence-usually an IMO. A denial means you forgot one of the three Caluza elements. You rarely win by rehashing the old evidence and trying to convince the DRO to grant. Remember. They use the M 21. Absent any new metrics to input, the M 21 computer will merely regurgitate a brand new SOC explaining to you what part of "No" you might not have understood in the prior original denial. With RAMP, the exact same process happens at the BVA. I've heard of insanity being explained as doing the same thing over and over expecting a different result. RAMP is no different. Attorneys tell me they are experiencing a 90% denial rate and we haven't even opened shop up at the BVA yet. Each path chosen leads to a specific end. Once you opt in, you have to continue. Imagine what would happen if a new CAVC or Fed. Circus decision came out in the interim and the BVA didn't consider it? You need flexibility in you legal posture. I've inserted IMOs with less than 90 days to be considered at the BVA-and won. If I'd RAMPed, I would have lost. Haste makes waste.
  8. Unfortunately, if you file a CUE on the decision in 2004, if the DM II evidence was not of record at the time, you will lose. It would probably be to your advantage to post this in the CUE area to get more exposure. Also read up on CUE to help you better understand it. https://asknod.org/?s=+quintessential+elements
  9. And, depending on which RAMP path you chose, you are not allowed to submit any new evidence to the BVA that might mitigate in your favor once you start down that road. The problem with RAMP is simple. You trade in due process rights-in this case, the duty to assist you in developing your claim(s)- for a speedier decision and an expedited decision at the BVA. Since the new system BVA RAMP part doesn't kick in until February 2019 (we hope), you could never get it expedited in the truest sense. If you are not permitted to submit a new nexus/IMO at the BVA, what, pray tell, would be the purpose of appealing? The sole purpose of the BVA is to give you another bite of the claims apple. This is the stage where more claims denials are overturned-many due to introduction of new evidence. RAMP is a feel good panacea to give Vets the illusion of a faster decision. Unfortunately, it strips you of protections accorded you under the old legacy situation. All this will end up doing is overburdening the CAVC with a huge backlog. USB Allison Hickey promised us a streamlined system in 2013 with the advent of VBMS and electronic claims processing. That led to Fully Developed Claims (FDC) where you do all the work in collecting the evidence. With RAMP, in essence they effectively forbid your doing even that. So... FDC gets you a 125-day decision with a 75% error rate. Add in RAMP and you get a denied appeal with no added evidence permitted within a month after you get the appeal(s) certified. If it were just a pure law argument like CUE where you are not permitted to supplement the record with anything new, it (RAMP) would be advantageous. This poker game is already stacked against us. RAMP is just one more tool to be used against us. One thing I see in VA law is when I get in front of a VLJ literally face-to- face rather than video conferencing, I win. Granted, I submit a new IMO, too. You want that interpersonal relationship. You need to get the Judge to view you as a Veteran and not a number. It's one thing to see an ASPCA commercial showing a shivering dog. It's another thing entirely (and far more poignant) when you come across a shivering dog in the flesh. A VLJ's compassion level goes up immensely face-to-face and even more so if your appeal is justified.
  10. Hoo boy did he get hornswoggled. RAMP is a hyperdrive motivator to denial.
  11. asknod

    To CUE, Or Not Worth It?

    The two major reasons a CUE claim will fail are 1) Re-interpreting the facts in the earlier (1973) decision is not a basis for CUE. It doesn't pass the "manifestly change the outcome" test. Two disparate, permissible views on how the evidence was weighed (assuming, arguendo that both were legitimate) can never rise to the level of CUE. In other words, you cannot come back and argue that the evidence showed you had bent brain syndrome. 2) Absent a diagnosis of a compensable psychosis in service or in the c&p examination post-service by the VA, your personality disorder (NOS) stands. You would have had to obtain a private dx of MMD and submitted it for there to be CUE. Remember, CUE is a violation of case or controversy. Either VA broke the law by misreading the regulation/statute or the evidence was not before the adjudicator. Either one is sufficient to open a CUE claim. Reasonable minds have to "see" the violation(s) and concur-unequivocally- that a different outcome would have ensued.
  12. asknod


    C&P docs are not allowed to make decisions. They measure and write it down. A VA examiner uses any dirt he can find to deny and sometimes just makes it up. I have a Vet who was, is, and always will be, right handed. He enlisted and signed with his right hand. The entrance Physical said Right handed. In 93, they said because of a medical "misadventure" in the Army (surgery) that he had lost the use of his right hand. They gave him a MEB. Then they gave him 60 % instead of 70% for it being the dominant right hand. The rater said (I'm not kidding) that since he now has to use his left hand, he's technically left-handed and not right handed. So he's fortunate not to have lost his "dominant hand". This is who you are dealing with, folks.
  13. asknod


    The c&p doctors see only the medical records and STRs. They never see military records. VA also "prepares" a records package of what they consider relevant to view. Many c&p doctors will agree with you but that isn't their bailiwick. They report. The rater decides. A rater could depend on a registered nurse's opinion at the RO (called the VA examiner) over a licensed medical doctor (MD.). That's why we have to file NODs so frequently.
  14. asknod


    Considering the two -three days of time @ 4 hrs a day to "accomplish" the show and tell Talent Management System (TMS) test and undergo the VA's idea of a last check ride to make sure you know how to get airborne, a quick visit for the official photo, a one last return 3 weeks later to pick up your shiny new VA Badge (see below) and you're good for a year until the next 2-hour security briefing. Every three years you have to undergo another VA Chinese water torture of the TMS test (and another security briefing). Now, if you'd built your own set of Cliff Notes ( as I did), you could breeze to the end and take the last one. It's insulting to have to learn how the VA arranges the M 21 and how to use it -just to gain access to the most useful tool in the VA's inventory. You find CUEs they know about and try to ignore.They're even bookmarked by RVSRs. When I present to a VLJ (always in person) at a Board Hearing, if I so much as mention the M 21, the VLJ will cut my throat and say "We don't recognize the "Manual" as established statute or regulation. Could you express that in a Part III 38 CFR adjudications regulation or withdraw the allegation?" The VBMS is chronological and boy howdy is it neat as a knitting bag.You can read 1970s rating decisions and why/how they denied. There are more CUEs than you can count. How could you not take advantage of this Godsend of intelligence? It's like the Rosetta Stone for an attorney or agent. Your very own Veterans Representative from DAV/VFW etc. can't even see this. Remember, there's one National Service Officer in town who signs all the 21-22s as the accredited VA representative. So he's signing for thousands of Vets. He is the only one who has the authority to look at your file besides you. Good luck. I'll let you guys and gals in on a little- known fact. In your VBMS file under "Profile" , the third tab down is a tab marked "Flashes". Click on it to expand and it tells you a lot about the Vet. If he's got a pissed off Congressman or Senator breathing down their neck, it'll have a CI flash for Congressional Interests. If you were in-country in Vietnam, it confirms you as a member of the Nehmer class. It tells where the file (original) is located (like RMC in St. Louis). It says if any are in Virtual VA abbreviated as VVA (the precursor to VBMS). If you have terminal lung cancer, it's usually flashed for "terminally ill". This helps me get my client instantly advanced on the docket. It's my hyperdrive motivator tool. I can even have my local Change Management Agent (our private VA POC) here in the Emerald City change it to terminal in Jackson, Mississippi or Roanoke, Virginia. You can find a problem on Monday and call the Change agent the next day at the RO in her/his state and save a year's work. I know about 20 now. Almost all are Veterans, too. Best of all, listen to this one. If a VA attorney or agent files a 21-22a POA, VA flashes it "Attorney Fee". If you file a Chicken Dinner Winner NOD and catch them out, the next flash (within a month) will be "possible attorney fees". Just about a month before the decision is issued, if I've won, the next entry appears " Attorney Fees Payable". It's like watching a rattlesnake lean back right before it strikes. You know it's coming because they alllllllways telegraph it. Best yet, we can look in VACOLS Appeals and print your decision the same day after it's issued. I know. There's always some mystique about the BBE. I remember the one I got in 2015 that gave me SMC back to 1994. I stared at it (pre VBMS) for an hour. If I'd still been a smoker, I reckon I'd have burned a few. It's still the thrill of victory even if you just see it electronically. I print them and send them to the clients. VA gets around to the BBE about two weeks later. I honestly feel like the fox in the henhouse. VA folks can't "hide" things anymore. It's in there somewhere and I've even found partial drafts of SOCs in progress in the "Go to Work Section" showing them developing the claim denial. I got this from a RVSR asking me about becoming an agent. "The same thing with VSRs and RVSRs. The employees "on the floor" have their hearts in the right places. Many of them are Vets like you and I. The problems begin with the whip-cracking Coaches (or managers in human-speak), less of which are Veterans. Then move up a little further to the Assistant Veterans Service Center Managers (AVSCM), which are the equivalent in our office to Officers that were never NCOs. Then there's the Veterans Service Center Manager (VSCM), the head honcho that fights tooth and nail against our unions to make it harder for someone like me to help Veterans. The VSR job isn't affected too greatly by the red tape, I was able to out produce everyone at my office with a 100% quality the entire time I was in the position. The RVSR job is a different story. As you already know, rating disabilities can frequently tread into very gray territory. Some claims just take time to get right. Rating claims is the backbone of the whole organization. So how does VBA handle this crucial element? They implement a lackluster training program then quickly put you on the floor rating claims under strict timeliness standards. Morale is low when your job is supposed to be to help Veterans get the compensation they are deserved, but instead you're being forced to kick claims out as fast as you can (and of course at 98% accuracy) so you don't get fired. So yeah, the VSRs and RVSRs that I've come up with are not trying to screw the Vets. We're among the Vets. We're trying to do our part while also fighting VBA's mismanagement." That's what you are up against, folks. They have to get 'er done or get fired. I'll take being a laid back, blood sucking agent any day. The best part is once you get the badge, you don't have to go through the metal detector or take your shoes and belt off. The card gets you through security. Period.
  15. In order for me to appreciate your changes, you need to incorporate them in a different font or color. Merely announcing you have made edits for spacing and continuity do not show your editing of the changes. How am I to possibly benefit from the alleged changes? The brief is far too long to inspect line by line. Please oblige me if you would. Everyone benefits from learning of their errors.
  16. A rating is not "substantially" protected until you have had it for 5 years. At that point, if it is shown to improve, they can and will rerate you. Look at 38 CFR §3.344. On the other hand, after 20 years, your rating(s) are protected from any reductions excluding fraud (§3.952). Think of it like this. VA changed the ratings for anemia in Part IV in the last Fed. Register of November 2018. They are effecting the holding of the regulation change in the VASRD on Mr. Watson, apparently. I also see another scenario. Mr. Watson might have had a surgery or convalescent rating for Polycythemia Vera under DC 7704. After a certain number of phlebotomies which cause extreme anemia, he may have improved and his RBC count came up enough to permit a downward rating to a stabilized 30%. There are many things here which influence a dynamic rating- antineoplastic (chemo) therapy being just one of a number of culprits. One thing is certain. No rating is substantially protected until 20 years-or until the disease/injury becomes static. I've had VA reduce my clients with not the least evidence of improvement both at 4 years and 9 months and even 19 years and 6 months. You have a 60-day window to file your complaint to abate the eventual reduction- but you must file the NOD within sixty days. That's a very short time to act. Here's a recent brief of an appeal I'm handling. VA reduced my Vet from 100% to 0% (he had a 10% before they started this) even though he's dying. I went to bat for him and got him TDIU/P&T as a stop gap measure but he really deserves 100 + 60 (SMC S). His 100% should never have been rescinded. To illustrate my point, I attach a BVA brief to Judge Cherry Crawford for his Travel Board hearing on 9/19/2018 who heard my appeal below. There is a science to ratings as well as reductions. It took me over ten years to learn this. I don't mean to insult anyone's intelligence at Hadit. My hope is to teach others how to do it. My ultimate goal is to inspire some of you to do what I do-become accredited and help your fellow brothers and sisters. It's extremely rewarding as Berta knows. Shoo doggies. If some chucklehead like me can learn to do this at 68, imagine what some of you could be doing right now who are in your 30s. Amended Rebuttal 9-19-2018.docx
  17. Sounds like a finite grant of SMC S for housebound for a short period of time. Note the beginning and ending dates. "1. Evaluation of primary iron deficiency anemia, which is currently 0 percent disabling, is increased to 100 percent effective 9/13/17. The schedule for rating disability has changed for this condition. An evaluation of 30 percent assigned effective 12/9/18, the date of the law change. 2. Entitlement to special monthly compensation based on housebound criteria being met is granted from 9/13/17 to 1/1/19. VA always writes in clear English and I would say they have here. He's been given 100% schedular rating for Anemia from 9/13/17 to 12/9/2018 and then it is reduced to 30%. On 1/1/2019, his SMC will end and he will revert back to 60+30+30+20= 90%. About that time, someone over at DAV ought to be discussing TDIU with VA.
  18. Sit tight, sir. I often have clients get split payments of two deposits. Sometimes the amount increases when they determine the most recent amount due. I had one where I won the client SMC L for loss of use of lower extremities at the BVA. When it came back to the regional office, I argued for R1 because he needed aid and attendance at the L level too. We won and they had to cut two separate checks. I had one in Atlanta like this too. They screwed up what was owing and made a second payment a week later. If you are not happy, you send in a polite request for an accounting of the settlement amount. One thing you can depend on with VA-they are bound to screw it up.
  19. Hmmm. $27,000 (or thereabouts) + 20% ($6,800) equals almost $34,000. First, VA never pays us for 3-4 months after a decision is rendered. You have 60 days to pitch a bitch after you receive the decision if you feel something is wrong or you feel you were overcharged/underpaid. It's virtually impossible to comment on your decision when no one can review it for accuracy.
  20. asknod

    To CUE, Or Not Worth It?

    That dog won't hunt. If you felt the nervous condition should have been appealed as a more serious psychiatric disease to include "depression", the way to do that was to file a NOD-even in 1975. Just because you were told not to file or the futility of filing a NOD, your failure to do so cemented the finality of the claim. A CUE assault would run aground when it becomes two equally compelling versions of how the evidence is/was evaluated. That would result in denial. However, I concur with Berta, as always in that the worst CUE is one never filed. I've floated a few for my clients and most are still in the pipeline. That's the problem with being an optimist. The only way to overturn this one would be with a contemporary psychiatric evaluation in the evidence in 1975 that unequivocally stated you had a major mental disorder diagnosed beyond the shadow of the doubt. You have two different opinions- PD and depression. Depression, as a stand alone diagnosis, is not, in and of itself, a psychiatric disability that rises to the level of a major mental disorder. Read the old DSM 2 to get a better understanding of how the old boys thought on that bent brain subject in 1982. That's when they "invented" PTSD etc.
  21. asknod

    To CUE, Or Not Worth It?

    The military and the VA worked hand in hand together to write DD 257s for General Discharges. The trick was to call it a preexisting condition (personality disorder) that manifested in service. Since it was preexisting, it could never qualify as a true psychological disease-and therefore compensation. I've turned over a bunch like this to get SC but never could call it CUE. It's too long ago, you did not appeal it and it's basically moot. The military and the VA made sure it was called a personality disorder. I, too, have one. Antisocial w/ passive aggressive tendencies. I was booted at 3 yrs +4 months.I don't reckon it had anything to do with two tours back to back in country and 3 Vs for valor. Purely a coincidence. I'd say you were wasting your time trying to win it but it all hinges on the records. If they forgot to issue a SOC in 1974 in relation to a filed NOD, then it's still viable. Every case is unique. Your claims file will be the last word on the subject. It's always worth while to investigate. You may have a chicken dinner winner and not know it.
  22. asknod


    Be careful on representation. You are only allowed to represent one Vet in your lifetime unless you are a National Service Officer of a recognized VSO or accredited. By announcing you "have an honorably discharged Vet" implies you are his legal representative and doing his claims. That's a far cry from "I'm asking because he asked me to ask." I do not say this to be mean but to protect you from the VA. This forum offers advice -and darn good advice in most cases. However, unless the author is accredited or a VSO, it's not advisable to announce ownership of the claim. Doing so can endanger your own rating. Best of luck on the Veteran, sir.
  23. 38 USC is the defining statute in all or most of this. 38 CFR merely "interprets" what the Secretary feels Congress intended. <<<< from Buck: so does this mean the M 21 is what we follow as the truth?" >>>>The M 21 is not law. It is merely assembly instructions for a claim. Medrano v Nicholson held that if VA or the BVA grants a claim, or even part of it, based on M 21, that is a positive finding of fact ( a conclusion of law) that cannot be rescinded unless it is CUE. Now, for Bronco's query about §3.352. Remember always, the term shall or will demands compliance. The term "may" is permissive (granting the Secretary discretion on whether to grant.) The term "or" is disjunctive. Any one of a number of disabilities listed when used with or implies any one of them are qualifiers. The term "and" on the other hand, is conjunctive and requires all the disabilities to be present in order to qualify for a specific % on a rating. § 3.352 Criteria for determining need for aid and attendance and “permanently bedridden.” (a)Basic criteria for regular aid and attendance and permanently bedridden. The following will be accorded consideration in determining the need for regular aid and attendance ( § 3.351(c)(3): inability of claimant to dress or undress himself (herself), or to keep himself (herself) ordinarily clean and presentable; frequent need of adjustment of any special prosthetic or orthopedic appliances which by reason of the particular disability cannot be done without aid (this will not include the adjustment of appliances which normal persons would be unable to adjust without aid, such as supports, belts, lacing at the back, etc.); inability of claimant to feed himself (herself) through loss of coordination of upper extremities or through extreme weakness; inability to attend to the wants of nature; or incapacity, physical or mental, which requires care or assistance on a regular basis to protect the claimant from hazards or dangers incident to his or her daily environment. “Bedridden” will be a proper basis for the determination. For the purpose of this paragraph “bedridden” will be that condition which, through its essential character, actually requires that the claimant remain in bed. The fact that claimant has voluntarily taken to bed or that a physician has prescribed rest in bed for the greater or lesser part of the day to promote convalescence or cure will not suffice. It is not required that all of the disabling conditions enumerated in this paragraph be found to exist before a favorable rating may be made. The particular personal functions which the veteran is unable to perform should be considered in connection with his or her condition as a whole. It is only necessary that the evidence establish that the veteran is so helpless as to need regular aid and attendance, not that there be a constant need. Determinations that the veteran is so helpless, as to be in need of regular aid and attendance will not be based solely upon an opinion that the claimant's condition is such as would require him or her to be in bed. They must be based on the actual requirement of personal assistance from others Clearly, the regulation applies to two separate conditions-i.e. A&A or being bedridden. One of the many conditions enumerated above is being bedridden. That qualifies you for §3.352 all by itself. Aid cannot be divorced from Attendance. Being bedridden can but you are still entitled to SMC L. I see a lot of discussion here about SMC S being a lower level of aid and attendance. It is not. SMC S is Housebound. VA uses a form (VAF 21-2680) to ascertain either one (SMC L or SMC S).
  24. Folks come to me with all manner of stuff they dig up. This one, FERGOOGLE, is a tool for VA raters but it is also a valuable tool for delving into the mysteries of the M 21. I find it useful insofar as you can find all the errors in how VA decyphers their very own regulations. Come on, 38 CFR §3.350(f)(3) and (f)(4) specifically state that they are both applicable in all situations. There simply is no "either/or but not both" argument. The M 21 says otherwise. I had that argument with a DRO in Fort Harrison Montana several months ago. She was powerless to grant both even though she agreed 38 CFR appeared to conflict with the Manual. https://www.fergoogle.com/ Here's a blog I just wrote about it. Enjoy. One more tool in the Vet's tool pouch. You will find some links appear to be dead but that is because the links are internal in the VBMS. If you don't have access, you can't view them. https://asknod.org/2018/12/08/dva-fergoogle-for-fergetful-rvsrs/
  25. I fight this battle for my clients every day. The legal standard of review is not that you have solely lost the use of your lower (or upper) extremities. While VA tries to frame the discussion in that vein, the truth is that if you cannot walk without kissing the concrete and incurring more damage, then, from a strict safety standpoint, you have effectively lost the use of the extremity(ies) in question. I now win these based on last year's Jensen v Shulkin decision. Basically, §3.809(c) says if you use "assistive devices" such as canes, crutches, wheelchairs etc., you meet the definition of loss of use. VA's M 21 tries to characterize that holding as applicable strictly to SAH, SHA or an automotive grant. Negative, folks. I just won this argument (again) at the BVA Sept. 28th. See attached decision and page three under Discussion. And, no. I'm not an attorney, just a lowly agent who refuses to take no from any RO chucklehead rater. You don't win many of these higher SMC ratings at the RO. The M 21 prevents that. You also don't win them because your have a stellar argument. You win them because you are right and they are wrong. If they are right only 27% of the time, you can almost rest assured that you are holding an illegitimate denial. Look at attached R1 redacted below. VA decided to CUE themselves nine times instead of fight me. That's rare. I have been accused of cherry-picking these SMC claims as easy and financially lucrative. Not. The average life span of one of my SMC claims is generally less than a year from the 526 EZ filing to the BVA grant because most are advanced on the docket at the VARO for me. I ask for a "terminally ill" flash on VBMS. That flash is a hyperdrive motivator much like being homeless or in financial trouble. A win generates about two-three months or so of benefits-not four years worth of baksheesh. That is how it should be. Money should never be the motivator for helping Veterans. Unfortunately, that seems to drive many to this calling. It embarrasses me no end. SMC claims are the hardest to win and the most difficult to fight for. There are only a handful of us who even understand all the permutations of SMC and know how to ensure a win. Small attorney outfits like quick, in-and-out filings with a DRO review and a partial win. They absolutely hate prolonged litigation or the intricacies of an SMC appeal to the BVA. Always remember, it's a recipe-just like baking cookies. Merry Christmas and leave no one behind. Never, never never. r1 redacted.PDF BVA grant 9-28-2018 redacted.pdf
  26. If and when the VA determines you are no longer capable of handling your own financial affairs, they will appoint a fiduciary. The normal course is to chose a spouse of other family member to administer your funds. They have to send in a report annually documenting what was spent on what. The VA sends out a Fiduciary assessor who makes sure you a) need a fiduciary and b) appoints one you choose. This is a requirement of law. It in no way influences the ratings you receive such as A&A. The examiner will usually contact you both via USPS and a phone call to remind you of the appointment. I'd have to check but I believe the fiduciary, if it is a third party, can charge a sum of $90 dollars per year and other hard costs of being your fiduciary.
  27. asknod

    Applying the Law in Effect at the Time

    There are only three pro-Veteran outfits that really help us. The National Veterans Legal Services Program or NVLSP; the Veterans Pro Bono Consortium and NOVA. They are there for us-for free.
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    • Question About Temporary 100% Rating for Hospitalization
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      Do not apply the provisions of 38 CFR 4.29 when a Veteran

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