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asknod

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asknod last won the day on January 9

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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 #39029 POA Code E1P; Admitted to practice- Court of Appeals for Veterans Claims (CAVC)

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  1. This was a big week at asknod. I just wish my neighbor John had gotten R2 out of the gate. It ain't over until Secretary Bob weighs in when he reads my email Monday morning. One of the Vets, Andrew, is a member here- or should I say- his wife is. She found me here and I'm honored to have helped her. https://asknod.org/2020/02/22/va-baby-you-can-drive-my-car/ When I came home from Vietnam, I never ever thought there would be a day when I'd say I was proud to have served my country. It was ugly in 1972. Now, I'm overjoyed at the ability to pay it forward. Thank you Lord for the Internet. It's a Godsend to so many who are clueless. Leave no one behind. I still wish I could have named my site What would a Veteran Do? (WWVD). That's what wives are for. a
  2. Here's a link to the BVA's post-AMA performance. It's still slower than watching trees grow. I have higher hopes for all this after the glut of old Legacy claims are processed. The quality of the Veterans Law Judges have improved markedly and their attitude has also become more pro-Veteran. I'm especially impressed with Judges Crawford, Lane, Blackwelder, Clementi, Powell and Hennings. Regardless, we're light years ahead of where we were when I entered this area in 1989. We always faced three anti-Veteran judges with one wearing a Dr.'s hat as well. https://asknod.org/2020/02/09/bva-post-game-wrap-for-2019/
  3. The letter was issued in 2009. As with any interpretation, it has been superseded by a host of progeny-most notably Buie v Shinseki two years later.Nothing has invalidated Howell or Buie to date.
  4. Congrats on the CUE win. This one's interesting. They (CUEs) are few and far between. If you "misargue" or "under-argue" them as described in Fugo v. Brown, you have to start all over. The VA may be "Veteran friendly" but a CUE is a collateral attack on a prior decision. Them's fighting words. I have one very similar to this. My boy boogered up his index finger when he was 6. When he enlisted at 18, they noted the finger didn't bend all the way back and touch his palm but accepted him anyway. No deduction noted. He qualified with his rt finger (dominant) as M 16 Expert. Army tries to "fix" finger and screws it up four times between 81-84. They give up and finally give him the boot after 12 yrs. w/ $30 K for LOU disability. He gets rated 70% for LOU of Rt. hand (and has to pay back the $30K) but... VA deducts 10% from it for pre-existing and arrives at 60%. This was done in 1992. I see it in the c-file in 2017 and file the CUE. 70%-10%= 67%. 60%+10%= 64%. It's impossible using §3.322(a)'s stricture on following Part IV VASRD ratings table employing §4.25 to deduct 10% from 70% and come up with 60% unless, of course, you don't use VA math. The 1/2019 denial said his dominant hand NOW is his left hand. Try that out in front of a mirror with §4.69. You only get one dominant hand. It can't migrate back. VA says it can and 70-10=60% where they come from. We appealed with a 958 NOD on 4/26/2019 and opted to keep it in Legacy. This way I get a live Travel Board hearing in Portland, OR. They also took away a 26-year protected 20% rating on his leg in 1/2019. That's CUE #2. It'll get a SOC sometime this fall or early winter and then we get to go to the BVA and argue it in front of a real judge with a real Juris Doctorate. It's sad I have to fight this for four or more years but the Vet will benefit financially. And boy howdy does he need the $.
  5. Negatory on an actual button, sir. I can smell a denial or a grant from the appearance of little blue flags next to important DBQ opinions. In VBMS, you may see 12 DBQs for different facets of Parkinson's and then there will be one for the opinion. Could be if the rater doesn't like the answer, they'll ask for a supplemental opinion to get into the "not at least as likely as not" area. In a Veteran's profile section, they have a series of entries called "Flashes" regarding entitlement to fees, AO exposure, Vietnam boots on the ground, homeless. If I file it brand new and we win, I get nothing. If it's denied and I win, then I get paid. The entries will say 1) attorney fee when I file the POA. 2) is after I file a 526. It says attorney fees possible. 3) will never appear unless I file a 995 and win. Then it will have "attorney fees due". Funny thing is it will say that two weeks before I win. Go figure.
  6. I get asked by Vets what VBMS looks like and what we can see. The truth is we can see quite a bit. We can see about a week ahead when your claim is getting ready to be granted. Often we can see the denial brewing by the little blue symbols that look like a judge's gavel beside important documents. Well, here's a peek at our new Windows 10 version that came out several weeks ago. Of course, I woke up January 15th and realized I had no idea how to get in. I had to call IT for help. VA contracts out to an outfit called the Enterprise Service Desk. The babe who answered had no idea what to do either. Nobody had briefed her in yet. I finally stumbled through it until I got in. Anyway, just for the experience, I thought i would share it with you fellow members. https://asknod.org/2020/01/27/va-the-new-vbms-users-primer/
  7. asknod

    SMC?

    Back in July, I had a Vet go in for an increase on his 50% PTSD. This has been a long fight from 2017 to now from 70% all the way to IU in a sheltered work environment and now for SMC S. VA has fought me like a rabid dog at each turn. The doorgunner jumped out of his Huey gunship at An Khe in 69 to run across the PSP for a smoke while they did a hot refuel. He got t-boned by a M 151 jeep going 35 MPH. He woke up at Camp Zama about a week later. He got out of Beaumant in Texas about a year later and signed up for a new tour in... Vietnam. Three choppers shot out from underneath him in three years In 2016, he'd fought for his TBI up to 70% but VA wasn't buying any more things like Tinnitus or headaches. After the exam (this time by a shrink (not a neurologist), Dr. Judas declared he could not distinguish the boundary where his TBI symptoms were also being compensated for by his then current PTSD at 50%. VA pulled a fast one. They wrapped both the TBI and the PTSD symptoms all together and called it TBI. Whoosh! There went a 50% bent brain rating up in smoke. I guess I don't need to tell you folks but that's against the law at all 57 Fort Fumbles across our fruited plains absent a heapin' helpin' of §3.344 due process. They could have called CUE on themselves- but they didn't. I carefully reread the QTC shrink's note and it said the agoraphobia was the only mutually overlapping symptom. Now I'm sitting on the Group W bench at 1425 I street waiting for a face-to-face hearing date. VA has been told to tighten up the budget to make room for our new 88,000 Blue Water 12-Miler Club alumni. Expect to see a lot of this: "Oh, my. It would be pure speculation on my part as the VA Examiner to say which is which. Giving the Veteran the benefit of the doubt, VA is not going to reduce your rating. We'll just combine a few under §4.124a DC 8045 with a few of the ones from §4.130 DC 9411, rename it 70% as residuals of TBI and call it good." Bye Bye, PTSD and SMC S and a whole lot more later when you need it for a SMC P combo. Expect to see a lot more of this. I like to remind you Hadit folks. When some Asst. Veterans Service Center REMF calls me up and gets all cuddly with me and says 'we just want what's best for your client', right off I put my wallet in my front pocket...deep, hang some trip flares from the concertina, cock the Pig, get on the horn and scream 'DEFCON I' RFN. If you dawdle 30 days or more without pitching a b****h, VA considers that implied agreement with their actions. To avoid the due process problem, they'll throw in an increase for something else from 10% to 30% so it doesn't hit the trip wire provoking a §3.344 action notification. Sound complicated? It is. This is far more than a lot of you folks are taught. Read your decisions word by word. That's where I find their errors. Often, it's what isn't discussed than what is. It's been called implicit denial. It's invisible. You can't see it. Welcome to the VA poker game.
  8. It seems we have too many threads going at one time here. First, look at SMC. It isn't JUST SMC K for loss of use of a creative organ or SMC S because you have 100% + 60% in separate ratings. It can be SMC L for A%A and SMC L for LOU of upper or lower extremites. It can be SMC L for blindness. Even worse, when you start combining SMC qualifiers, you need even more knowledge to figure out how to add them up to get the most out of it. Read this carefully. https://asknod.org/2013/02/27/special-monthly-compensation-what-is-it/ In order to understand SMC-all of it-, you have to comprehend what it is, when it began and what you need to get there. Take SMC Q. Used to be if you had two or more 0% ratings that caused you problems, VA would give you 10% for them. That is no longer the case. By the same token, you do not need a 100% schedular or TDIU rating to attain any SMC K. An SMC rating is merely the gateway to the higher SMCs like A&A, LOU of extremities, blindness, being bedridden, R1 and R 2/T. To get SMC S, you have to be legitimately housebound by your disabilities and/ or have 60% or more in separate ratings not related to the 100% schedular/TDIU rating. I see the flaw in some of you folks thinking. TDIU is awarded due to a disability which is less than 100% but causes you unemployment. When VA grants TDIU, it isn't a new rating on top of the 70% for PTSD. It is TDIU for the PTSD. So, if you chose to use a "combined pathway" to get to 100%, you would add up all your ratings from largest to smallest. The moment you cross over 100% combined, you are technically 100%. But if you had 70% 10 years ago for MDD and they granted you TDIU, they do not rebuild it in 2020 when they grant some new stuff and try to make a 100% combined rating out of it. They'll just leave you at TDIU. Until you reach a 20-year protection under 3.951, VA is always going to be snooping around trying to whack you down and reduce your rating. Their M 21 computer has it programmed in to checky check every once in a while to see if they can whack you. I have a really good friend dying of liver cancer right now. VA was snooping around in 2017-18 and found he said he'd shot up some heroin after separation to "self-medicate" for his 70% PTSD. Whoa, hoss. That's willful misconduct and they began the process to strip him of the 100% liver cancer P&T rating. I had to jump in and point out the Purple Heart, CIB and the transfusion from the GSWs. They backed down but what if I hadn't been there? His wife would lose the DIC and I'd have to begin another 3-year battle to get it back. I have attacked VA via a new claim for Vets saying "Hold the phone. Johnny Vet qualifies for TDIU solely for his 70% PTSD. Thus if he has a 60 for IHD, a 40% for DM II, 20% in all four quadrants for PN secondary to DM II, blindness in one eye due to diabetic retinopathy, Tinnitus and flat feet etc., Buie v. Shinseki says give him the TDIU for the PTSD and then add up all the extras to reach SMC S. As I said above, VA will always attempt to fence you out of SMC S if they can by trying to use the combined 100% rating path. This is the difference between TDIU P&T/ 100% combined P&T and 100% schedular. In most cases, if VA pulls the trigger on 100% schedular, a P&T will be permanent. If you have TDIU or 100% combined, they'll always be coming back trying to find out if something got better. They have to find it before you cross over the 20 year mark and become protected. SMC Ks are listed in §3.350(a)(2). You can get as many as you qualify for and you don't have to be 100% schedular/TDIU or 100% combined. SMC is extremely complex VA law. It's confusing and seems to double back on itself. I can "smell" SMC S just like I can smell dog doo-doo on my shoe. I've been doing this since 1989. There are about 10-20 NOVA attorneys who are experts in this. Other attorneys will blow you off and say they're too busy to take you claim. That's BS. They're too dumb to figure out SMC law and too lazy to learn it. That's why I get their referrals.
  9. It doesn't work that way. When you reach a combined 100% rating, VA automatically switches you over from TDIU and announces it. With a combined 100%, they will never have to pay you for SMC because you used all your smaller ratings to combine to just get to "100% combined". §3.103(c) says they have to give you the most they can support by law. TDIU for 70% from TBI as a stand alone should be the basis for a TDIU. Anything related 2ndary to the PTSD/PTSD/TBI can't be used to build extras needed to reach SMC S. I'll be honest and say few have a 100% schedular. Last I checked in '17 there were 111,500 or so at 100% Schedular and 103,000 at TDIU. Over the years a lot of Vets have come to me and said "Jez, I've had this batch of ratings for 16 years and they just reduced my residuals of Prostate cancer down from 60 to 30%. I got a letter saying I'm not TDIU and my new rating is 50%. What do I do?" What you should already have is your most recent "Confirmed Rating Decision". Each disability is listed with a Diagnostic Code (DC) number. When they write up the narrative that grants you your TDIU, it will say why they gave it to you by saying "the combo of this and that is the basis of our grant." If you're 70% all alone, they'd just say your PTSD or what ever was enough to prevent you from working etc. The most common TDIUs are granted for heart, mental or back/leg muscle injuries. VA sends us the Confirmed ratings sheet but never gives the Vet one. Who knows why. You never see the DC listed on the narrative decision. VA often lets you get really close to the 20 year total protection day and then springs a c&p on you for all of your current ratings. They whack you down below TDIU and it takes two years to get it all back. Or worse, they reduce you below TDIU percentages and make a decision to increase on something else to qualify you again for TDIU. The difference is you before this all started, you had 10-year DIC protection for your spouse. The reduction and the new increase/new TDIU resets the 10-year clock for her to qualify. VA can be very ugly. The rating sheet below shows my Vet qualified twice with heart and PTSD. VA tried to say his PTSD alone didn't rise to the level of TDIU. I had to stick their nose in it and say no, but with a bum heart for 60% added on, he sure did. A month later they agreed and he got the TDIU. Ratings sheet..pdf
  10. asknod

    How to File SMC (S)

    Using the first post for information, and the listed disabilities as the predicate(s) for potential SMC S, this has a simple explanation. VA likes to take certain groups of ratings "combined" that lead to TDIU. In truth, they are required to presume the Rice v. Shinseki law that once you qualify for TDIU {at 60% (or 70% here or 40% + others that combine to reach 70%)} they have to consider TDIU automatically. Buie v Shinseki then states they have to combine them in the highest manner possible to attain maximum SMC. Here are your listed ratings Major Depressive 70% but receive TDIU 100% Permanent and Total Stress Incontinence 40% Migraines 30% Scars 10% Lumbar 10% Tinnitus 10% Breast 0% Knowing VA's propensity to lowball or screw you, it's apparent they have combined the 40% for stress incontinence with the Major Depressive Disorder (MDD)(70%) and call the combination of those two disabilities the reason to grant your TDIU. Obviously the two are inextricably intertwined because the incontinence is caused by stress which is is provoked by the Primary diagnosis of MDD. Ergo 70% + 40% in VAland equals 80%. Or TDIU at the 100% rate. P&T is granted because you probably are not going to get better. For the SMC calculation, the combo of the rest of your disabilities is 30%+ 10%+10%+ 10%= 50%. You need an additional independent 60% to qualify and you only have 50%. This is why you will not qualify for SMC S unless, or until, you can obtain an increase on the migraines, painful scar or lumbar disorder. Your scars are static and can't be increased unless you want to complain of pain. It is now a separate rating (usually at 10%) for VA standards and stands alone. An increase of 10% would get you to 60%. Your 10% for tinnitus is already at max so that is not available. I've never argued an extraschedular for tinnitus but I suppose I could win one with a good, $2 K IMO. An increase for migraines from 30% to 50% would get you to SMC S assumming arguendo you qualify for the symptoms. Or... keep headaches at 30% and file for increase in lumbar from 10% to 20% - again-presuming you qualify. An increase of 10% to 20% would then combine to 30% +20% + 10% + 10% = 60%. I could add more % choices but not here based on the privacy concerns of the member's medical nature.
  11. Dear Sir, One fact is amiss here. Yous stated: "I filed new claim and was awarded a 10% rating for arthritis, which put me at 100% schedular, but the VA did not make me permanent and total. I have had my ratings for over 10 years, which include 70% TBI (ptsd, anxiety, and depression is lumped under my TBI rating), 50% Sleep Apnea, 30% migraines, 20% Horners Syndrome, and four 10% ratings for scars and arthritis. " I'm not trying to be picky but this is not 100% schedular. An example is DC 7354 100% for HCV. How about 100% schedular for DC 9411 PTSD. Not all ratings go up to 100%. Some, like a back injury, top out at 60%. If the "combined amounts" of your disabilities equals or exceeds 100% using the VASRD §4.25, then you have what is referred to as a combined 100%. TDIU is less that 100% but is granted as an "extraschedular rating" to help you achieve a 100% paycheck. P&T is a different "rating" than TDIU and is obtained-usually after a period of five years- based on VA viewing the disability(ies) as static with no improvement foreseeable. If you're a charcoal briquette and obviously P&T in fact, they grant it instantly with the TDIU. A fellow came to me in 2012 and had 15 10% ratings. It takes 22 ten percents to get to a combined rating of 100%. He will never get P&T going this route because the sum of the disabilities doesn't render him unemployable nor "totally disabled" as a doctor would define it. Never let ratings percentages convince you that you are qualified for P&T. I get a lot of my Vets total because one or two diseases combine to render you unemployable. I'll never get them to a true 100% schedular for any one disease but I don't have to reach that argument. best of luck.
  12. Hi Asknod,

    Me again, WomanMarine. I think we are getting my disability squared away, but it is much more complicated then when I started on this path. I found out I was exposed to Agent Orange/TCE @ MCAS El Toro. It took a slipped disc and paralyzed left side to figure it out. And now that things look like they are going my way, I have to consider what I have been through and how I can help others avoid this nightmare I went through.

    Before this started I bought five acres on a very rural lake. My property is the only one with access to the 18 acre lake from their home. I have room for a coral, as I love horses, as well as build-able ground on the front of my property. Enough ground to build a large house or, what I prefer to call it, a 'bunk house' for a dude ranch 😎. I am anticipating a 100% P&T rating from my recent C&P and hopefully the SAH grant to get started. As well I have recently received my COE for my V.A. loan.

    I have been researching V.A. Foster care and would like to build a 'Dude Ranch' for Agent Orange survivors. I figure if the V.A. gives me A&A that it takes as much work to take care of one as it does for ... maybe four?

    I have an Independent Living assessment coming up this week and this is what I would like to 'pitch' ... 

    Do you have any thoughts or can point me in the direction to find Trigger, the horse that will curtsy so the vet can get on? 😂

    Lake2.JPG

  13. To get LOU of an extremity, you have to have a VA doctor say you would be equally well served by an elective amputation with suitable prosthesis. That doesn't mean you have to hacksaw it off to get SMC K for a bum foot. It simply means that you are so disabled that your LOU is equivalent to a Vet who did have his or her foot amputated and tries to hobble around on a prosthesis. VA also forbids "clinicians" to diagnose LOU. Oddly, it has to be dx'd by a VA examiner who has no medical training. Go figure. I get around that by getting the denial and then having my doctor(s) dx the LOU themselves to rebut VA. It's the old Caluza/Hickson/Shedden argument. Same applies for PTSD or other DC 9411 diagnoses of MDD. Let the VA deny using their own shrinks and then get your own IMO to rebut it. At that point, VA is hamstrung because they have already committed themselves and denied based on a specific reason (or reasons). They are forbidden to go shopping for more negative evidence (Hart v. Mansfield). That's why we call it VA poker. Remember, having drop foot can be from a multitude of diseases or injuries. The regulation says complete paralysis of the peritoneal nerve qualifies as LOU of a lower extremity. Many have severe-but not complete-dysfunction of the peritoneal and do not qualify. SMC is very exacting. On top of all that, there is the additional requirement that it be service connected or a secondary. It would be a stretch to say that foot drop under any circumstance could be a secondary of PTSD. This is what makes SMC law so complicated and why so few attorneys/agents take on SMC cases.
  14. §3.352(c) is not on point. It is only for R1 and R2. Tbird is going for SMC L A&A. The correct legal standard of review will be §3.350(a) only. Ignore (b) and (c).
  15. Check it out. https://asknod.org/2020/01/11/vba-fort-fumble-va-down-for-double/
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