rakkwarrior

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

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I don't think you have a lot to worry about as long as the VA Rating Specialist can read. Seriously if every thing you're saying is a statement of fact you shouldn't be too worried...mist of the time the RO can identify and want to fast track the obviously easy claims. Did you have your last employer fill out a VAF 21-4192 or did the VA notify you they were doing the same? This will be a key piece in regard to obtaining information on why you left, and more importantly the date you last worked. All in all you seem to have a solid case.

Request they review you records from service and the complaints and findings of your condition within the presumptive period in accordance with 38 C.F.R. 3.156(c )(4), in the event they did not have the records at the time of the prior decision, additionally request them to consider the application of 3.303(d); 3.307(b); and 3.309(a) as it pertains to your condition. This should ensure they look at these regulations in context with your condition, which was noted in service and if documented within the first year, should have became compensable to a degree of ten percent or more within a year of leaving service. If this is not definitively shown by the evidence of record there is no CUE, but a medical opinion from your orthopedist (after a review of all relevant records from service, and current clinical findings) regarding your C-spine injury and later degenerative changes stemming from the in-service injury should serve to have the case reopened and unless clearly rebuttable, should end in a grant for the issue as sought. This advice if reviewed carefully should comport with the Board's reasoning and the legal standard for a grant of benefits.

John999 Excellent position...this is the last bastion of the old regime, the flawed and adversarial C&P examiner, there is no regulation in Title 38 Code of Federal Regulations, Part 3, 4, or 17 in regard to attitude of the C&P examiner, although there should be. In my opinion such a regulation should be equal to, or more decriptive as 38 C.F.R. 4.23. Those examinations which are hostile to the veteran should be considered inadequate for rating purposes, and returned for a proper examination by a different examiner. The original examiner should be counseled, and practices be monotored to ensure HE or SHE remembers why they are there, and that the majority of claimant are honest veterans who are seeking benefits to which they feel they are entitled...that the reviewing examiner in any instance should not allow their feelings to intrude on either the objective findings or the etiology of the condition where a nexus opinion is requested.

There is such a thing as a VCAA Notice Error, however, the Supreme Court held in Sanders v. Shinseki (2010), that the error must be prejudicial and in sum a "harmful" error where but for the error the outcome would be manifestly different...the burden of proof being upon the veteran to show how the Notice error was harmful. Relevant to the aforementioned, the Supreme Court held, "A specific statute requires the Veterans Court to “take due account of the rule of prejudicial error.” §7261(b)(2). In applying this statutory provision, the Veterans Court has developed its own special framework for notice errors. Under this framework, a claimant who argues that the VA failed to give proper notice must explain precisely how the notice was defective. Then the reviewing judge will decide what “type” of notice error the VA committed. The Veterans Court has gone on to say that a Type One error (i.e., a failure to explain what further information is needed) has the “natural effect” of harming the claimant; but errors of Types Two, Three, or Four (i.e., a failure to explain just who, claimant or agency, must provide the needed material or to tell the veteran that he may submit any other evidence available) do not have the “natural effect” of harming the claimant. In these latter instances, the claimant must show how the error caused harm, for example, by stating in particular just “what evidence” he would have provided (or asked the Secretary to provide) had the notice not been defective, and explaining just “how the lack of that notice and evidence affected the essential fairness of the adjudication.” Mayfield v. Nicholson, 19Vet. App. 103, 121 (2005)." The Court further held, "To say that the claimant has the “burden” of showing that an error was harmful is not to impose a complex system of “burden shifting” rules or a particularly onerous requirement. In ordinary civil appeals, for example, the appellant will point to rulings by the trial judge that the appellant claims are erroneous, say, a ruling excluding favorable evidence. Often the circumstances of the case will make clear to the appellate judge that the ruling, if erroneous, was harmful and nothing further need be said. But, if not, then the party seeking reversal normally must explain why the erroneous ruling caused harm. If, for example, the party seeking an affirmance makes a strong argument that the evidence on the point was overwhelming regardless, it normally makes sense to ask the party seeking reversal to provide an explanation, say, by marshaling the facts and evidence showing the contrary. The party seeking to reverse the result of a civil proceeding will likely be in a position at least as good as, and often better than, the opposing party to explain how he has been hurt by an error. Cf. United States v. Fior D’Italia, Inc., 536 U. S. 238 , n. 4 (2002) (Souter, J., dissenting)." Finally, the Court, "recognize[d] that Congress has expressed special solicitude for the veterans’ cause. See post, at 2 (Souter, J., dissenting). A veteran, after all, has performed an especially important service for the Nation, often at the risk of his or her own life. And Congress has made clear that the VA is not an ordinary agency. Rather, the VA has a statutory duty to help the veteran develop his or her benefits claim. See Veterans Claims Assistance Act of 2000, 38 U. S. C. §5103A. Moreover, the adjudicatory process is not truly adversarial, and the veteran is often unrepresented during the claims proceedings. See Walters v. National Assn. of Radiation Survivors, 473 U. S. 305, 311 (1985)." In sum, the Supreme Court reversed the Federal Circuit's precedent, and provided a thorough framework in which to navigate VCAA errors which are deemed harmful, and to that extent prejudicial, and in so doing the Court noted the burden shifts to the appellant to show how the error was harmful and but for the error the outcome would have been manifestly different. So while not a CUE, there are grounds to allege error due to VA's failure to comply with VCAA proviso under 38 U.S.C. §5103A.

Contact your local Congressman/Senator and request they inquire to the AMC, present them with a copy of your BVA decision, and any documentation you have on the current status and location.

VA Adjudication personnel have a "Work in Progress" list which prioritizes the cases they work based on the type of claim and the Regional Office's priorities, these priorities are established by VA management. In general, however the oldest cases are worked first. One example is that when the heart disease, Parkinson's ect. Were added to the AO regulations the Nehmer Court decision more or less enforced upon VA to stop processing most cases and focus entirely on those claims. This in general is why decisions for other claims are taking longer to adjudicate.

Then tell your NSO to withdraw it. Don't pursue a frivolous claim. If you have major depression then make sure your doctor knows, and that it's due to your knees (which are service connected right?) under the provisions of 38 C.F.R. 3.310. I'm sure he'll get the point. Tell him, if he doesn''t understand he should go over your request with his supervisor. However, understand it's his job to discuss and consider secondaries and presumptive conditions. He may have also been basing your situation if you are a combat veteran.

Call the 1-800-827-1000 number and ask for a STAR review. They're the ninjas that audit VARO Ratings, they determine whether CUE's are made on RO decisions. Typically you cannot requests these reviews although we DO ask for administrative reviews when we know the RO is wrong, but the decision should be granted based on an interpretation which the General Counsel may need to clarify....If the BVA denied the issue, saying you never appealed it, then the claim for that issue is likely dead unless there was a specific CUE in that decision, which a CUE based on continuous prosecution is going to be nil, because they did furnish appellate rights which were not acted upon. You know, it may be easier for them to look at you for an "S" award based on existing secondary disabilities if you have them, and they can be developed and opined as secondary. This is all about money, there might be an easier way to get you what you're looking for is all I am saying. The goal is to get you there and keep you there right? On a serious note, Philly kicks out pretty good Nehmer Cases, I worked with one of the project members, he's squared away and I've seen them give $150,000+ retro's when they could, it's all about the evidence.

DAV likely reviewed the file, the VA examinations and conceded the 30 percent based on the evidence of record, if you feel as though a higher evaluation is warranted, discuss the Rating Decision with your NSO and prepare a game plan to obtain the evidence to have the case reconsidered, then file under the FDC program via VAF 21-526EZ to have the case re-adjudicated in 90 days or so. When DAV reviews the file and sends a letter, the NSO has already reviewed the decision, and if required approached the Rating Specialist or Team in regard to the assigned evaluation. We do this in order to ensure the VA does not commit a CUE, and to additionally ensure that prior to the final decision, if there is a difference of opinion, once you follow up when the official notification is sent, we can advise on the evidence required to overturn the decision without appealing. Traditionally, the only option was to appeal or file a reconsideration which would take still a significant amount of time, working with your NSO will ensure WE develop the claim in order to know what to expect the next time around. Always review what is required for the higher evaluation, and provide said evidence by way of your treating doctor in order to ensure the decision is considered on the specific legal criteria for the next higher evaluation.

Well listen guys, if this isn't happening with DAV at the national service office in your area you need to speak w/ the Supervisors. We hold our staff at all levels to a high standard and if that is not being met we need to know. You also have to keep in mind, that we are as only effective as the relationship and receptivity we have with our clientele.

We routinely review C-files and in general prior to a final rating...where we see what was submitted by us and by the claimant on their own, what medical statements were submitted and weigh the evidence ...we see everything from induction documents, Art. 15's from service up to present day...we also conduct complete file reviews when composing legal arguments at the local level and prior to certification to BVA.

John 999 I am rescinding what I noted regarding total disability based on unemployability ratings being reduced on account of failure to return prescribed forms. I have reviewed the legislative history of the issue and the VAOGPREC Opinion 31-90 and will be writing a request for administrative review in regard to some recent practices by the VARO's. Thank you for compelling me look into this. VA General Counsel Opinion 31-90 states, The first sentence of the current section 110 of title 38, upon whose protective provisions the veteran relies, had its origin with Pub.L. No. 83- 311 (68 Stat. 29), and became effective March 17, 1954. This act provided that: "... a rating of total disability or permanent total disability which has been made for compensation, pension, or insurance purposes under laws administered by the Veterans Administration, and which has been continuously in force for twenty or more years shall not be reduced thereafter, except upon a showing that such rating was based on fraud." A review of the legislative history of this measure discloses its dual purpose: to spare a veteran the inconvenience, and the Government the expense, of repeated clinical examinations once a disability has been demonstrably static over a prolonged period of time, and, to prevent the reduction in monetary benefits upon which a veteran would understandably come to rely for support over the course of this length of time. Nowhere was this intent expressed more clearly than in the report on the proposal by the House Committee on Veterans Affairs: <br style=""> <br style=""> "The effect of the bill would be to prevent future physical examinations in the case of veterans who have had such a disability rating for 20 or more years. Under existing laws, veterans who have a total or permanent total disability rating based on conditions other than disabilities resulting from blindness or anatomical losses are apprehensive that an examination ordered at some future date may not adequately represent their true condition of health and that, as a result of such examination, a reduction in rating may cause them to lose the benefits provided for such total or permanent total disability." Protection was extended to less than total ratings under § 110 by Pub.L. No. 445, 88th Congress (78 Stat. 464) approved August 19, 1964, which provided that: "A disability which has been continuously rated at or above any percentage for twenty or more years for compensation purposes under laws administered by the Veterans' Administration shall not thereafter be rated at less than such percentage, except upon a showing that such rating was based on fraud." Despite the choice of slightly different language ("Continuously rated" as opposed to "continuously in force") from that employed in Pub.L. No. 83-311 for total ratings, the legislative history of the act makes clear that the purpose for its enactment was to extend the same protection to less than total ratings, and that the same rationales for so doing applied. Hearings before the Committee on Veterans Affairs, House of Representatives, 88th Congress, Second Session, February 19, 1964; H.R.Rep. No. 1407, 88th Cong., 2d Sess. 1, 2 (1964); S.Rep. No. 1324, 88th Cong., 2d Sess. 1, 2 (1964). HELD: This office is now of the opinion that section 110 of title 38 protects against reduction only those ratings for compensation purposes which have been the foundation for the payment of awards for a period of at least 20 years, such that recipients have grown to rely upon the payments and the rating authorities have had reason to monitor the level of disability for possible changes. To interpret the language requiring that ratings be "continuously in force" or that disabilities be "continuously rated" to include other than "live" disability awards for which benefits are being paid was not the intention of Congress. Congress clearly would not have countenanced the absurd results which can and have flowed from a strictly literal interpretation of §110, and such constructions are not favored when they lead to absurd results. United States v. Bryan, 339 U.S. 323 (1950); United States v. Second National Bank of North Miami, 502 F.2d 535 (5th Cir., 1974). ____________________________________________________________________________________________________________________________ This will now require me to take the aforementioned and ensure that VACO through proper channels is of the understanding that there has been a practice to attempt to reduce a 20 year protected veteran based on failure to confirm continued entitlement to TDIU for failure to furnish a VA form 21-4140. This is inconsistent with the General Counsel's holding and leads directly into the holding that such a "literal interpretation is not favored when it leads to absurd results". Absurd is correct...again John, thank you. PTSD kept me awake tonight, but at least I have some fire power for my next round table discussion.

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A claim for A&A is a claim for increase in all SC'd conditions. This is undertaken whether or not you are already reviewing the maximum rating for those conditions. A&A will be awarded on a factual basis or via 100+60 or under Bradley v. Peake (2008), and it requires all conditions relative to a finding of A&A be service connected. By what you've posted you have an excellent chance. If not already done have your doc complete a VAF 21-2680. Your appeal for TDIU may or may not hold up the claims depending on the overall assigned evaluation following app appropriate C&P examinations. Remembers issues which you have not claimed as secondary will need to be specifically cited in order for VA to take jurisdiction on those issues and consider them service connected.

I know when I gave you my recommendation it was to file the evidence and advise the Rating Board you have "no additional evidence to submit", I also advised you shouldn't file an NOD an issue where they did not have the evidence you are using as a basis for the NOD. Rather it would be more expedient to either allow then to review it in conjunction with your pending claim or ask for reconsideration under the FDC program (90-120 day turnaround). It is ludicrous to appeal something which could not be legally decided upon because you withheld evidence. Regardless, this is tiresome, I think there are veterans out there which will gleefully allow DAV to write their legal briefs while they themselves act independently of their representation. Nothing can be done there, but then again DAV will blamed for their failed claims and long appeals. Unlike other organizations DAV will not revoke representation. AMVETS and others will if you do not comply with their advice and directives. Do you circumvent your attorneys the same way you circumvent DAV? I'm done for the day.

Cool Breeze, You should be hearing from the office supervisor in the near future, let me know if you don't. Following up on your situation was one of my missions to complete yesterday when I went in.

If the only thing you see in DAV life membership as is an investment then I am sorry that joining held no other value for you...did they help you get your 100 percent or did you do that all by yourself? I understand that there is validity in many complaints regarding service orgs. and DAV is no exception. I truly think that communication is the sore spot, but then again you can't please everyone no matter what you. A couple of years ago one of our NSO's died, a gentleman came in the office and complained because he wasn't there and we were closed, and when we told him the office was closed due to his passing, he said he didn't care and wanted to see one of us, or change representation. We advised on allowing him to come during the next business day for an appointment, this wasn't good enough so I think he made his own choice. Point is, I respect your opinion, hope that your contentions are granted based on VLJ or Court review. It does saddens me that people see DAV membership as an investment...meaning they expect an favorable outcome because they join the organization. If this is why you joined, I wish you would have reconsidered. I joined DAV because I believe in the organization's mission on Capitol Hill, and because I believe in what DAV stands for, this was done far before I became a NSO for this organization. In no way was membership to DAV contingent upon favorable resolution of my claims, or for any other reason.

I would review the rating criteria for your SC'd knee condition, then evaluation whether or not you should be rated under arthritis or limitation of ROM, they cant pay your for both, however, should allow for which ever evaluation is higher. In regard to an NOD, you should ask your NSO whether getting another medical opinion is needed or whether or not the rating is in fact correct. Remember you have a year to either reopen or file an appeal. The appeal is the longer road, and effective dates for increased evaluations are based on when it becomes factually ascertainable the increase is warranted. Be careful, take your time, and make sure you and your NSO work together to be well informed of the facts. You can even print this and take it to your NSO, they should fully understand. ***One more thing, the issue should focus on depression as secondary to your knee condition and associated chronic pain, and reduced activities of daily living and occupation. The PTSD thing may but a bit too difficult to win, given RO attitudes and positions on training issues, unless it involved real fear of death, example parachute/airborne accident, helicopter crash ect. Once we had two incoming 1.5inch FFR rockets from a Kiowa Warrior hit near our position while on an Air Assault Training while at the 101st airborne Div. Ft. Campbell Kentucky. This would be difficult if not impossible for me to prove as a PTSD stresor, even though I know it happened...and scared the sh** out of me, well in a funny kinda way. Still, for another person it may be their PTSD claim. Depression as due to an SC'd condition is ultimately easier.***

You would be an excellent DAV Chapter or Department Service Officer, those wo are willing to work within their limits, and be certified by the NSO Supervisory staff and National Organization. I really enjoy training and developing people. I really do admire the amount of intelligence and sheer will of the people we have here. Thats why I keep writing. :-) One very close and dear to be was one of the last WAC's, she's awesome and like a second mother to me ;-) an amazing group of women!

The Disabled American Veterans (DAV) is a §501©(4) non-profit veterans service organization currently comprised of 1.4 million members, which was formed in 1920 during the aftermath of World War I by a small group of veterans in Cincinnati, Ohio to advance the interests of disabled veterans, injured in combat. Notably, whose disabilities required services such as vocational rehabilitation and employment, health care, and whose conditions left them with a lack of earning capacity due to their impairments. During those early years the DAV actively engaged and petitioned Congress and the White House to form an Administration, rather than a loosely connected conglomeration of "three different Federal agencies: the Veterans Bureau, the Bureau of Pensions of the Interior Department, and the National Home for Disabled Volunteer Soldiers" to care for veterans who became disabled in the line of duty. In 1930, after a monumental legislative effort, Congress authorized the President to "consolidate and coordinate Government activities affecting war veterans." The DAV was formally recognized by Congressional Charter in 1932 "to advance the interests of all wounded, injured, and disabled American veterans" and "to cooperate with the Department of Veterans Affairs… [in] advancing the condition, health, and interests of disabled veterans."  under the provisions of Title 36 U.S.C. §50302. DAV's mission and motto is to "build better lives for America's disabled veterans, their families, and dependents." Our National Organization is not paid on government grants, local, state, or federal funds, and operates for the best interests of our veterans, their families, and dependents. Our office space in VA building is mandated through our recognition and Charter in order to advance the interests of our clients before VA proceedings. In some offices I have been told our presence is likened to "squatters rights". Not at all cozy and friendly, on the other hand some VA Regional Offices and Management understand how we can help them achieve accuracy, consistency, avoidance of STAR audits, and increase their timeliness by effectively representing our clients, and streamlining the process for them. We are funded solely by those who believe in who we are and what we do, both individual, and a some corporate sponsors. DAV is a BBB Accredited Charity, the majority of our funds (approx. 74 percent) go to programs of service. If we were not effective in our efforts we would not be the premier veteran's service organization. This has been hard won by extensive training in VA law, regulation, Court and General Counsel Precedent. We do not need NVLSP training, NOVA training, or other outside assistance in our training requirements. We have in addition to a 16 month OJT program with college courses in legal writing, public speaking, and anatomy/physiology and medical terminology, we also have monthly and quarterly testing for our trainees. All NSO's senior associates, and Regional Management also undergo perpetual Structured and Continuous Training which is ACE accredited, and covers in depth the C.F.R., Court Precedent, and VAOIG opinions. We also routinely review and disperse FL's, TL's, DAD's and other internal circulars to ensure all staff members are not only ready to take cases to BVA, but also understand the RO's guidance on adjudication issues. Interestingly to some, we are not paid on par with VA employees, and while we are not volunteers, like in the service we do this because we love what we do, and feel a sense of compassion and commitment to the Organization's values and mission. There are no easy hours in this job, and it is not for the money. We do not as a rule oppose attorneys assisting veterans, some of my clients are civil and criminal attorneys. We do however, oppose attorneys representing veterans for a fee, because this inevitably requires the veteran to receive a denial and file an NOD before the attorney gets paid for his efforts. The appeals system is the most backlogged adjudication system throughout the VA, and as a rule I find the Appeals process to be largely ineffective until it reaches the Board of Veterans Appeals (BVA). Why do we oppose attorneys who charge for a fee? Because their interests are manifestly different than ours, Binder and Binder will tell you "We don't get paid until you get paid!". That's correct and the longer you have to wait the larger their paycheck at the end of the day whether or not they did much of anything to prosecute your claim. A claim for TDIU can be denied regardless of schedular or factual entitlement based on the medical evidence of record for failure to provide a complete VA form 21-8940. If a claimant is denied on this basis, an NOD will likely be the first option for most veterans. They will say "I sent this in and they lost it, APPEAL!!!". A better option for continuing the prosecution of the prior claim is to file for reconsideration IAW 38 C.F.R. 3.156(b) (which can now be done more quickly under the FDC program via a VAF 21-526EZ), and hold the Rating Team accountable for making a proper decision. This is done outside of the appellate process and renders largely more effective results. If I were working for a law firm, I would opt for the NOD because it's when I start to get paid. I would likely know it would be 12-24 months before a De Novo Review. DAV NSO' should provide guidelines, for IMO's based on regulatory criteria for increased evaluations, TDIU decisions, and claims for service connection. While we do not have a referral service for "hired guns" or doctors on retainer for such services, often the best advocate for a veteran is a treating physician. This will become easier in the future with the up and coming Disability Benefits Questionnaires (DBQ's). Recently DAV National Staff and key Supervisors attended a meeting with VA Central Office in Washington D.C. regarding the FDC program, we had concerns about the program and it was tweaked to ensure it complied with regulations pertaining to informal claims, and other aspects which we felt would prejudice the veterans community. While largely well recieved, our presence was met with one person's resistance, who felt defensive and my impression is that he felt DAV's influence was like termites moving into a newly built home. So, i would disgree that we are "cozy" with our VA counterparts, this does not mean we cannot forge effective relationships with those who have goals to meet, and do not want to beaten up by VAOIG and STAR review teams. It is much better for our offices to point out CUE's and rating discrepancies, than to allow STAR to catch it and beat the RO up on their deficiencies. I represent VA employees to include Rating Specialists, and VHA medical personnel who are veterans, their claims and our claims are held to a much close inspection than anyone on these boards or in the public at large. They come to us because of our expertise in VA law, regulations and the smart and efficient prosecution of claims, albeit all of our cases are handled across the country from the stations where we work, and are often the last cases to be worked. The largest and most significant issue I see is the lack of communication on our role in representation, and reciprocal expectations as outlined in our DAV Statement of Policy in Representation. We also sometimes fall short on follow up regarding phone calls, as we receive several hundred a day, and work after hours to return them. DAV senior management is aware that some offices have issues and are swift to make corrections, as you our fellow veterans are exactly why we are here. In closing following our review and corrective actions on VARO decisions we generally send a letter stating the outcome of the claim, part of the dialogue in the correspondence states, If you disagree with any part of this decision, you may file what is called a Notice of Disagreement (NOD) to initiate an appeal. Once you receive the official VA notification letter, you have one year from its date to file a NOD. The DAV may provide representation throughout this process. Prior to filing a NOD, we request that you contact your local DAV National Service Office. I wanted to clear the air so to speak, and allow for comment and suggestions. Do you understand our legal expertise in the field of VA law? Has that been communicated, can it be done better? Have your reviewed the statement of policy of representation? Does that help you understand our reciprocal roles? Does the statement above provided compel you to file NOD's on your own out of emotion, or does it compel you to communicate with your NSO? eBenefits will help with knowing the status of your claim, will that help in feeling more secure while waiting through the process?