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asknod

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asknod last won the day on September 10

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About asknod

  • Rank
    E-9 Master Chief Petty Officer
  • Birthday 04/01/1951

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    asknod@gmail.com
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    http://asknod.org

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  • Military Rank
    Sgt. E-4
  • Location
    Gig Harbor, Washington
  • Interests
    VA law. Admitted to the CAVC Bar

Previous Fields

  • Branch of Service
    USAF/ Air America
  • Hobby
    VA Nonattorney practitioner VA #39029 POA Code E1P Accepted to practice- Court of Appeals for Veterans Claims (CAVC)

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  1. The answer is no. Your SA is secondary to your PTSD so VA will not count it as separate and distinct. 20+20+10= 42% which rounds down to 40%. Which is not to say they won't make an error and give you SMC s. It will create an overpayment and VA can recoup it at any time. P.S. As others have commented about the possibility of a grant of SMC at the (s) rate predicated on §3.350(i)(2), I will address it now as well. I presumed Ray AO would have discussed he had agoraphobia of other psychiatric disabilities (or potential risk of harm to himself or others due to insomnia or hypersomnia) had he wanted information on that potential entitlement facet (substantially housebound). As he specifically asked if he was entitled under §3.350(i)(1), I addressed that question as to whether the sleep apnea would qualify, not if he was substantially housebound. It would appear very clear that Ray AO is more than acquainted with 38 CFR than others give him credit for. He knows the potential disqualification of secondary conditions such as sleep apnea if they are not separate and independent. Ray AO would need to submit a VAF 21-2680 Housebound form signed by a doctor stating he is substantially housebound in order to be granted entitlement to SMC (s). I chose to read the complete post from start to finish. Ray AO clearly and unmistakably cited to that which he was inquiring about - entitlement to §3.350(i)(1). Nowhere in the four corners of his post could I ascertain anything else. "I’m going directly to the point after this. Do I actually qualify for SMC’s1??"
  2. I'd like to thank Theresa for letting me help other Veterans on this site. Some eventually come over and ask for representation if they keep losing. My Vet Ed here was not one of them but he regularly read the site posts The other three last week all began here. Hadit.com is an excellent resource for those novices who know very little and are eager to win their claims. For those who cannot fathom the ins and outs, there are always folks who will carry the water. I'm honored to be one. https://asknod.org/2019/09/05/vba-portland-ed-the-lrrp/
  3. Based on that information, I'd say you have a claim for an earlier effective date. SMC is always due and owing the moment the medical records support it. Bradley v Peake 2008 was the first prec. holding that equated TDIU as being the equal to 100% schedular. However, without the claims file in front of me for verification of all the criteria, I couldn't legally file it. You, being pro se, are free to do whatever you feel like. The only hole in this donut is whether you met the qualifications medically for A&A based on the symptomatology of the 70% rating for PTSD alone. Remember, the requirements for 100% PTSD are much higher and tend to be more likely to support a finding of the need for A&A. You have a rating decision narrative. Read it. It would be clear why A&A was due and owing from the reasons and bases statements. As you come to study SMC, you will find it to be the most difficult to navigate, the most confusing, with endless combinations not covered in SMC P and lastly, the fact that it allows pyramiding. Very few master all the nuances of it. I know about 15-18 VA attorneys who are good at it. Maybe 8 who are Jedi Knights.
  4. For SMC purposes, TDIU and a 100% schedular rating are interchangeable (See Buie v. Shinseki ( 2010)). I presume the L 1/2 was effective on 6/12/12 judging by the way you wrote the post. If they awarded it later then it would hinge on when you were awarded the additional 50% or more that qualified you for the §3.350(f)(3) "bump". SMC is due and owing the moment you qualify based on medical evidence of record-even if it was 1968. Getting VA to pay it may require some prodding.
  5. The SMC rating is correct. SMC L is awarded for the A&A. L 1/2 is awarded under §3.350(f)(3) as a 1/2 step increase to the intermediate rate between L and M due to additional independent ratings at 50% or higher. The migraines must not be related to the PTSD rating in order to get this as the GERD and tinnitus would not combine to reach 50% or more. VA expresses this as SMC at the P rate and parenthesizes it as SMC P (L 1/2+ K).
  6. Buck, he no longer has HCV but all the horrific secondary side effects from it- i.e. fatigue, malaise, cognitive dysfunction, cirrhosis, ascites, esophageal varices/bleeding and a host of other deficits. VA was hoping to deny based on the cocaine but they didn't plan on a agent stepping in. Secondaries are what we now use to win with-not the actual disease being present. I do see a lot of the Vets who did the old Interferon beginning to relapse so no one can say it's gone forever. The next shoe to drop for most of us is Liver cancer. There's no repair order for that one. My Vet will get a new c&p where they will dx all the present symptoms and issue a rating. He's pretty much comatoast for work options. We'll get 100% or continue to appeal. I don't say this to brag but there's a reason I have three Vs in less than two years over there- I don't give up. I'll be doing this until I seize up and kiss the keyboard. Theresa says it best... Leave no one behind-ever.
  7. Here’s a nightmare of a claim. The Vet had no STRs in his NPRS file except for his eye records. He admitted snorting the white lady in the late 1980s to a VA nurse in 2015. She immediately wrote down “HCV due to bloody shared dollar bill(s).” That pretty much put a fork in any potential claim. He approached the VFW about filing his jetgun claim in 2016. They laughed him right out the door. No attorney or agent would even talk to him the moment he mentioned the toot. And then he called me. Regardless of what you’ve heard about me, I refuse to arbitrarily deny representation to a fellow Vietnam or Thailand Vet when it comes to Hep C. I was there. I contracted it, too. It almost killed me by 2006. I told him to go ahead and file knowing full well he’d get denied. We obtained an IMO from one of my doctors for free due to his being indigent. It sank like a rock. We filed the NOD and got another "No". After filing the VA 9, we obtained an IMO from a good hepatologist but that was not going to be the winning ticket. I asked for a Travel Board hearing in Oakland so I could present my Vet and his lay testimony in person. We had the hearing March 28th, 2019 at the Oakland Puzzle Palace. The Judge, Matthew Blackwelder, wasn’t very receptive to a grant until he read the IMO while we were sitting there in front of him. He mused and said it was indeed an interesting case. The funny thing about jetgun cases is you could never win them at the local Fort Fumble under the old Legacy system. They’d refuse to grant even if you had a buddy letter from Jesus Christ himself. This one was really no different. We had nothing but lay testimony and some eyeglass prescription records that didn’t say much which was really nothing useful. Worse, he’d had an STD which wasn’t in the STRs because they were AWOL. When all you have is lemons, make lemonade. But...an STD like Gonorrhea leaves antibodies forever. I suggested we hold the record open for 90 days to obtain a blood test showing the presence of same. The Judge said “No need to. I have enough here to make a decision.” I was worried. I took that to mean we had a better chance of winning the Powerball Lotto. I was positive I was going to be arguing this one at the CAVC. We won Wednesday. Of all my wins, this is by far the best. It’s the only one I’ve ever won solely on the strength of the Veteran’s lay testimony . Don’t get me wrong. The IMO was very instrumental in the win but I doubt we would have prevailed without a face-to-face hearing. A picture may be worth a thousand words but a Travel Board hearing is worth a thousand pictures. Steve BVA Win redacted.pdf
  8. Here's the latest way VA approaches TDIU. This was a one-year battle to get them to look at both PTSD and IHD together rather than trying to deny based on only one of them. A NOVA attorney told me he recently did 4 HLRs and all were turned down. Each informal DRO phone call lasted exactly 7 minutes plus or minus 20 seconds. The VA examiner sent the VES doctor three requests in an effort to get him to say the Vet could work. The dr. refused. The grant decision came out three days after I submitted proof of two Purple Hearts. They weren't in the records or the 214. Here's an almost identical one from last week. VA made this Vet wait 20 months (Ed). TDIU redacted..pdf ed-redacted-100.pdf
  9. KanewNut- Here' how this works (re Rosinski). Mr. Rosinski asked to have permission to review Veterans' proposed ratings. VSOs are permitted to seek review (and ask for a revision) if they perceive an error and complain within the first 3 days of the promulgation of the rating. We attorneys and agents are not given that consideration. However, if we have access to VBMS, we can see the draft decision. The Secretary argued in the Rosinski Ex. Writ that if he (Rosinski) sought a change or revision of the rating, he could pursue it under the M 21 cite ( III.iv.7.B.3.a). The Court agreed. Personally, I don't agree. An error is an error and should not stand. This "reconsideration avenue" applies equally to you or Dawsonatl as neither of you are VSOs. Of course, by the same token, if you had a VSO representing you, you could ask him/her to do this-again within those first three days before (or after) issuance of an erroneous rating decision but no later. The legal term 'entitlement' is a broad brush term which encompasses ratings, findings of fact and conclusions of law. You have a right to cite to this M 21 codicil and ask for a "reconsideration" under this Manual provision. Some day, this avenue will be granted to all of us equally. Until then, we correct it as best we can. In a lot of cases, we have to go up to the BVA or the CAVC to accomplish change. Best of luck in resolving this dilemma. In offering my insight on your problem, I hope I have not offended or insulted you. If the shoe was on the other foot, I would hope you would do the same for me. As Theresa said "Leave no one behind".
  10. Good deal.I promise not to engage you again sir and you make sure you get some professional help for all that angst you're carrying around. That's not healthy.
  11. As this conversation has devolved into things that no longer involve case, controversy or operation of law, I'll let this go. It's obvious some here do not understand 38 USC/CFR. Any discussion or argument is futile absent basic comprehension. Again my apologies if I came across as all I have been accused of. It was not intentional. Theresa and I have been friends for years and her site doesn't need be dragged through the mud. One last point of order which has nothing to do with pride, but rather fact. When you are admitted to the Federal Court (CAVC), you are sworn in as an Officer of the Court. This is required of both attorneys and VA Agents. After an oath is administered, your title changes from VA Agent to Nonattorney Practitioner and you are granted the powers of an attorney in everything but name only. The VA now also recognizes me as an Officer of the Court. I swear to tell the truth in all I do as a litigator. The term 'litigator' is not synonymous with Esquire or JD at the CAVC , BVA and the DVA and I have never held myself out as such. It seems some have much to learn and I am not saying that sarcastically. I take my responsibilities very seriously. Shakespeare comes to mind here...Methinks the maiden complaineth too loudly. You seem to have a lot of anger,sir. I hope you get help. And that's all I'm gonna say about that. G. Alexander Graham VA #39029 POA E1P Admitted to the CAVC Bar 2/08/2018
  12. I apologize if I came across as superior in any way. I have a sarcastic streak and it appears it offends some. I have studied how to win claims for 30 years. I have been bringing that knowledge here free to all who ask for it now-both here at Hadit and my own site- for over 10 years. I am not proud of myself. I chose to help other Vets the best way I knew how. I chose to learn VA Law and become a litigator rather than just sit here offering advice. Don't confuse pride with commitment. The only thing I'm proud of is being admitted to practice at the CAVC without a Juris Doctorate. Only 46 have been accorded that honor. I'm proud of my three combat V's for Valour above and beyond the call of duty in less than 2 years. If anything, I'm proud I managed to survive two tours back-to-back in Laos and Vietnam. Many of my friends didn't. That's why I predominantly serve Vietnam Veterans before the VA. If you (or anyone) offer bogus advice, why sure, I feel it needs to be challenged. Do you suggest I just let you keep on misleading Veterans by pretending to be knowledgeable about VA law? In your own words sir- As I understand it the focus of this site is to help and support other veterans. Let's cut to the chase sir. If I offer poor legal advice to my client and act on it causing my client to lose, the OGC will revoke my accreditation-forever. If you offer poor legal advice and the Veteran uses it to his or her detriment, you are free to just enter a new claim thread and continue offering more of the same. In short, you suffer no censure or consequences. My attempt here was to clarify what is, and what is not, CUE. I merely try to correct that error using real legal cites and precedence. I will continue to gladly suffer your insults if it helps even one more Veteran succeed. I helped over 750 Veterans attain a minimum of TDIU or 100% before I became accredited in 2016. Free. No charge. I did all the work and wrote the legal briefs-and not because I'm proud of myself. It's satisfaction in a job well done. And, might I add, correctly done. As we live in America, you have a right to your opinions but you do not have a right to recklessly interpret VA law incorrectly. That is the crux of your problem with me. This isn't about pride. It saddens me when someone runs out of legal or logical arguments and finally resorts to hurling insults. That generally indicates they have no more cogent rebuttal to offer. Accept my profound apologies if I upset you. Were you to familiarize yourself with VA law, I wouldn't need to correct you nor apologize. I respect you as a Veteran and my motives are simple-to ensure you and others win. My advice was aimed solely at that metric. By my estimation, you are positive you are right. Had you been right, Dawsonatl's rating narrative would freely admit a clear and unmistakable error had been made in his decision. VA is not adverse to admitting CUE. See attached below as proof of my statement. When CUE exists, it is recognized-not glossed over or ignored in a VA ratings narrative. If you (or Dawsonatl) think the VA examiner just "forgot" to include the CUE discussion in Dawsonatl's decision, you are sadly mistaken. r1 redacted.PDF
  13. Dawsonatl states: <<< I have to respectfully disagree, if I would have followed this advice verbatim I would not have filed my CUE and won it.>>> Sure you would have. You could have sent in a letter and said "You screwed up my rating decision. Please fix it-pronto." Calling the color red black doesn't make it black just as calling an error CUE doesn't make it -ipso facto-CUE. I read over your entire thread, sir. You mentioned that the award "correction" failed to mention the phrase 'CUE'. This is exactly what I am saying. It is not a true CUE until it is poured in concrete (unappealable). That is why there is no mention in your award letter of any admission of CUE. It is also why Kanewnut will never see any admission of CUE-if and when he prevails. VA makes errors all the time. We all know that. Are they CUE? Yes, in a colloquial sense but not a legal sense. As for the comment our esteemed contributor Geekysquid submitted in Dawsonatl's thread : <<<38 USC is built on 38CFR which is built on Public Laws.>>>>, you may want to go back to law school, sir. I, too, got a good belly laugh out of that chestnut. I also liked your comment about the "First Circuit" (We also know the BVA, CAVC, and First Circuit frequently take a dim view of that habit.). I'm going to assume you mean the Federal Circuit which is identified as "F.3d" on legal cites. Do tell. Where do you come up these legal revelations, sir? I have said this repeatedly but it bears reiteration. Any here who essay to offer legal advice with no legal training can make matters worse. The legal axiom for doctors is "First, do no harm." Berta (and many others of you) have learned quite a bit of VA law and some are even well-versed in CUE. I admire all of you for that. All of you are also free to disagree with me and I take no offense but I do ask that we compare apples to apples and not oranges to orangutans. I will repeat- Dawsonatl did not have a CUE. He had an adjudications error that was subsumed by a corrected ratings decision granting his TDIU. That, folks, is not a Motion to Revise. You cannot cite to §3.105a. The error was corrected before the appeal period expired. In VA law, as in any kind of law, proper semantics (i.e. legal terms) are the defining rule. One who files a Motion to Revise is not a Veteran, a claimant or an appellant. S/he is a "movant". Feel free to bandy about the term "CUE" as much as you want but simply realize that until your time to appeal a decision runs out, it's an "adjudication error" and nothing more. You can always resolve it just as Dawsonatl did-without resorting to a CUE filing under the auspices of §3.105(a). And for the record, I strongly advise no one to use a HLR for anything-even an attempt to "fix" an incorrect rating. VA will accept a CUE filing but may not CEST it if it is not a true CUE. It depends on the rater and the VARO. Most will now, after the new AMA inception, refuse it and tell you to use a 996 HLR. Best of luck and I mean that sincerely. If I could, I'd represent everyone on this forum before the VA. Unfortunately, I do not have the time. Besides, there are quite a few VA Agents in-the-making here who should apply for accreditation. Any one of the regulars here has 10 times the knowledge of a VSO service representative.
  14. I see the disagreement. It is semantics. We speak of two different legal venues. CUE is a clear and unmistakable error that reasonable minds can agree is in error. One that, had it been decided correctly, would have manifestly changed the outcome. In order to overturn a final claim that is no longer appealable, one must file a Motion to Revise a previously decided claim based on a very precise and specific clear and unmistakable error or errors. A motion to revise is different from filing to reconsider a current claim which is what this thread is about. Above, in a prior post, I offered an M 21 cite which is on point here. M21-1, pt. III, subpt. iv, ch. 7, sec. B(3)(a) In essence, you are asking the VA Examiner to reconsider -not revise- a recent decision which is still appealable-i.e. one that is not final. This is not the same legal standard of review as a Motion to Revise. §3.105a only applies to final decisions. Asking to have the record corrected to match the facts in the evidence of record may well be a "clear and unmistakable error" of fact or law but VA will construe the more liberal interpretation (correction of rating decision) and issue a new rating if there is clear and unmistakable error. To put it simply, the legal rule of thumb is: All Motions to Revise are CUE but not all CUEs are Motions to Revise. If you file what you prefer to call a CUE claim during the active part of the pendency of your claim, you most definitely are not filing a Motion to Revise a prior final, unappealed decision. By operation of law, you cannot file a Motion to Revise a live claim stream under §3.105a. You are merely trying to file a NOD and calling it a Motion to Revise. Since we are now in the Brave new world of the AMA, and RAMP is lost and gone forever (except for the poor souls still in it), any "claim" you file now (post 2/19/19) must either be a claim for a new ailment, a supplemental claim for a denial (or increased rating), or a Higher Level of Review (HLR) for disputing a current denial. You are not allowed to submit any new and relevant evidence at a HLR. The option of filing a Motion to Revise is only available when, (and if) you fail to appeal the denial decision within one year of its issuance. In the above proposed filing, below the Exhibits list, you ask to revise the CUE and rely on §3.105(a)(1)Error in final decisions as your legal authority. The operable word is "final". Look up §3.160(d) on finality -et voila: (d)Finally adjudicated claim. A claim that is adjudicated by the Department of Veterans Affairs as either allowed or disallowed is considered finally adjudicated when: (1) For legacy claims not subject to the modernized review system, whichever of the following occurs first: (i) The expiration of the period in which to file a Notice of Disagreement, pursuant to the provisions of § 19.52(a) or § 20.502(a) of this chapter, as applicable; or (ii) Disposition on appellate review. (2) For claims under the modernized review system, the expiration of the period in which to file a review option available under § 3.2500 or disposition on judicial review where no such review option is available. I don't see your denial as being over a year old and unappealable so the cite is legally inapposite. I merely offer this as advice- not to be argumentative. Regardless of what you propose, I don't see the VA accepting it as a Motion to Revise. My guess is they'll refuse it and tell you to file it as a HLR on a 20-0996. I am interested in how this plays out though. Please keep us apprised of the outcome, sir.
  15. Again, I don't see a true CUE-merely an adjudication error that would normally be corrected with a HLR or a NOD to the BVA. Either one is viable but the HLR has a known denial rated in excess of 76%. CUE denial rates are far higher because the legal standard of review is so stringent. If everyone is totally gung ho on using M 21 cites to defend this, here's another one that really makes more sense: VA's M21-1 provides other avenues for quick correction of rating decision errors. See Jan. 26, 2018, Order at 7 (citing M21-1, pt. III, subpt. iv, ch. 7, sec. B(3)(a) (the RO "must . . . correct the Narrative section of a rating decision if after the claimant has been notified of the decision it is discovered that inaccurate information was provided such as service dates or entitlements)); id., sec. B(3)(b) (requiring correction of errors on the rating codesheet); id., sec. B(3)(c) (requiring referral of an erroneous decision "to a decision maker to issue a new decision" once an error has been identified). Fixing it-- III.iv. 7 B.3.c Rosinski v Wilkie 2018 - #0678 Always remember, a true CUE is a motion to revise using §3.105(a). That requires, at a minimum, that the original decision is final. A CUE cannot exist unless or until it is a final unappealed decision. As this decision is still ripe for appeal, it is merely error and the correct repair order, by operation of law, is to appeal the error. But shoot- what do I know? I am preaching to those who insist on using a different legal standard of review. However, I do offer my best wishes for a successful conclusion in the shortest amount of time. And with that in mind, I will desist and accede to all the others here with far greater legal expertise.
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