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asknod

MUG
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asknod last won the day on June 23

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About asknod

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

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    asknod@gmail.com
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    Sgt. E-4
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    Gig Harbor, Washington
  • Interests
    VA law. Admitted to the CAVC Bar

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    USAF/ Air America
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    VA Nonattorney practitioner #39029 POA Code E1P; Admitted to CAVC; Member NOVA; CAVC Bar Association

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  1. I'm seeing or hearing this almost every week. With the corona virus in full swing, it was virtually impossible to meet with a VSO service rep to file a claim. Numerous VA telecommuting raters with nothing better to do at home, have been ordered to access the VBMS and began looking for claims for increase to CUE on old, out-of-date criteria. They are flooding the Vetsphere with these reductions. Everyone, even VA personnel in VBA, want to appear productive. Bingo. What's left to do? SOCs, SSOCs, dependency claims and reduction proposals. Now, the regulations concerning this are critical as several others mentioned above. Much like a hand grenade, you have a 30 day grace period to contact VA- even if it's only the 800-827-1000 Dial-A-Prayer line. Your call to complain stops the whole procedure and turns it into an investigation with a hearing rather than an automatic reduction proposal. You are entitled to a hearing to dispute it. VA raters prefer an informal telephone call with no recording of the event during the current crisis. Be polite and say you'll be scheduling when you can show up in person. Most folks looking for reduction guidance stop at §3.105(e) and see that 60-day hand grenade. Scroll down further to §3.105(i): (i) Predetermination hearings. (1) In the advance written notice concerning proposed actions under paragraphs (d) through (h) of this section, the beneficiary will be informed that he or she will have an opportunity for a predetermination hearing, provided that a request for such a hearing is received by VA within 30 days from the date of the notice. If a timely request is received, VA will notify the beneficiary in writing of the time and place of the hearing at least 10 days in advance of the scheduled hearing date. The 10 day advance notice may be waived by agreement between VA and the beneficiary or representative. The hearing will be conducted by VA personnel who did not participate in the proposed adverse action and who will bear the decision-making responsibility. If a predetermination hearing is timely requested, benefit payments shall be continued at the previously established level pending a final determination concerning the proposed action. In any event, the reduction letter will vaguely refer to 30 days about page 3. If you blow past the 30-day date, you can still get the hearing but they can reduce your entitlement in the meantime. The standard practice is to whack you with an effective date 6 months into the future from the date of proposal to reduce. They will make the rating decision almost immediately after the 30-day limit expires. If you file the protest of the reduction and the request for a hearing within the 60 days, they will eventually schedule it. But all is not lost. My Win or Die technique is to never let a reduction stand. If you give up and get whacked once, they'll almost always come back again later. I'm proactive on this. Even if my client is poor, I'll front the cost of a good IMO for them and file it as a 995 supplemental for an increased rating while I'm waiting for the hearing. Since VA can't find their own derrieres with a methane detector, I doubt these chuckleheads will catch on to my back door attack. By the time a hearing request call arrives, I can say "Thanks but we decline." You cannot legally reduce a Vet when he has a shiny new rating. That would require yet another c&p to blow a hole in the new IMO. Since I have no formal legal training, nobody has ever told me I can or cannot do something legal. My attitude is to try it and see how VA reacts. Most times, it slides right by them until it's too late. Stay safe!
  2. NOD, 

     

    Ebenefits just updated my benefits status with these Different SMC’s?

     

    Board of Appeals was completed by a judge on a (May 14,2019)  

     

    Judge  Granted :

     

    1). Compensation Issue

    2). Compensation Issue

    3). Compensation Issue

    4). Compensation Issue

    5). Migraines 

     

    Why 2 L’s?  Or just typo by ebenefits?

     

    Thanks

     

    Taylor 

    ECA7028D-C06C-48EA-830D-E15CF2A5A657.jpeg

    B6752D8F-C24E-48A8-B41E-1C0A52980FC3.jpeg

    1. Show previous comments  1 more
    2. taylor88be8

      taylor88be8

      Thanks GBArmy!   I’ve waited a long time for sure! 

    3. broncovet

      broncovet

      You are gonna have to wait for the envelope, guessing on ebenefits is rarely productive. 

    4. asknod

      asknod

      SMC is recorded differently than any other benefits. What you have been awarded is SMC L 1/2. That's the SMC P you see. P is a catchall for a bunch of things and each is described in the regulation but they could never list every possible combination of disabilities in P which will cover all the possibilities.

      They have given you SMC at the S rate in the past but you have qualified for it again at some point-hence the S-1/ S-2 designations. They don't pay it to you twice. They have awarded you SMC at the L rate for being so helpless as to be in need of  A&A (L-1). In addition, you have a rating that is over 50% that is separate and distinct from whatever you got the L for. This "kicks" you up a half-step under §3.350(f)(3). VA classifies this as SMC L 1/2 + K or SMC P. If you had a separated 100% rating unrelated to the A&A rating, they would bump you up a full step to SMC M under §3.350(f)(4). 

      The SMC L-1 is for another qualification for A&A (possibly) but it would be pyramiding to pay you for it. Nevertheless, they still list it. As the other folks said, wait for the magic paper- but it will say SMC P (L 1/2 +K).

      Be safe. 

  3. I always trust the Veteran to tell the truth. Conversely, I always expect the VA to hamburger the discussion. TDIU is what we call an extraschedular rating and essentially equal to a 100% schedular rating. You can loose TDIU if you a) get better and they reduce your rating; b) start working again while on TDIU; or c) obtained the benefit fraudulently. Permanent and total (P&T) is an acknowledgement that you are just that. You're toast and your condition is never going to improve. Thus TDIU with P&T awarded is a dynamic condition at best versus a 100% schedular rating with P&T. If any of the above conditions I talked about arise, TDIU, with or without P&T, can be rescinded as you can see in the instant case. What has happened to Kevin is simple. The VA reviewed his claim, decided to reduce him on one facet which dropped him out of TDIU and P&T because he no longer qualified via his percentage. They then awarded an increase for something else. Logically, you would think they would do this in such a way that it made no changes in his eligibility date but that would be your mistake. VA re-awarded TDIU and then issued a new P&T date ( May 7, 2020). It's becoming more common each day. His wife will be the DIC loser if he should pass away in less than 10 years unless the cause is service connected. In PTSD cases, as a general rule, you usually don't die from it. Trust me when I say I would not lie to you or any Veteran. As an officer of the Court, I am not permitted to lie, misrepresent the truth or mislead a client in spite of what many seem to think around here. I take this responsibility very, very seriously. If you came to me and asked me to file a claim I knew was unsupported by the evidence, I would refuse to. A VSO can, and will, file you for anything you ask for, including disease due to alien abduction or tinnitus in each ear for 20%. S/he can get away with it and never lose their accreditation. I can't. I always caution folks on Hadit to be very careful about what kind of advice they offer others here because the wrong advice can wreck a Veteran's claim(s). I filed my first claim in 1975 w/AmLeg. I lost. I filed again in 1989 w/ DAV. I lost. I filed again in 1994 with AmVets. I lost. I filed in 2007 w/ MOPH and it looked like I was headed down the previous paths. I began to try to figure out why I lost in the past. None of the Vet help sites discussed the Caluza/Shedden/Hickson requirements. My own VSO had never heard of Caluza until I mentioned it. Then it was "Of course you have to have a nexus!" It took a year of intense study but I figured it out and won. I finally wrote my book on the nexus subject and have helped thousands since. Now I do it legally. This is not my first rodeo. I have Vets send me their decisions and ask why they lost. VA will always tell you why in VAspeak. It's up to you to learn how to decypher VAspeak or hire someone to do it for you who can. I consider myself lucky that I did the VBMS schooling to have access to the system. Now I can call up the idiot who screwed you and get him/her to fix it in days-not years. In spite of this new tool, many attorneys and agents are too lazy to take the time to gain access. Maybe they do it for the $ so it takes longer. Who knows? I speak only for myself. I'm 69 and have a bad liver, bad kidneys and a bad heart. I want to help as many as I can before I punch out. So, if I seem a little cranky, it's because I hate to see Vets make mistakes or worse-"help" others and destroy their claims. And that's all I'm going to say about that.
  4. Reading comprehension is often the key to understanding. Sometimes it's right in front of your face. What I did was read the whole thread, sir. Mr. Kevin4993's original beginning post dated May 13, 2020 stated: <<<<<So I had a review for my mental issues this past week. I was rated at 70% prior to this past week, and with other combined service-connected issues I was rated 90% with TDIU too 100% This morning I logged onto e-bennefits to see if any changes was made. I looked at the disabilities listed and sure enough they have dropped my mental down to 50%, was dreading this and expecting that... after all they cut and cut benefits don't they. I was worried about loosing my TDIU so I pulled up my benefits letter with the details to see what if I could see my TDIU go "poof".. sure enough no TDIU... BUT, wtf is this?! Damn! (sorry) Copied and pasted straight from the letter: "The effective date of when you became totally and permanently disabled due to your service-connected disabilities: May 07, 2020" >>>>> I deduced this to mean Mr. Kevin4993 was saying his prior "existing" effective date for his TDIU had changed and was now May 7, 2020. Others here on the site may disagree with me. It's just my personal interpretation of what I thought he was trying to convey and I freely admit I could be wrong. If so, I apologize for my ignorance.
  5. Kevin4993's post w/ his RD is confusing. If he had TDIU before he got that decision dated 5/08/202, then look at the finding of fact. It says TDIU is established as of 5/08/2020/ This is the "reset" I've seen a lot of. They up one rating, drop another and call it good. If they drop it once, they'll be back. I see a lot of VA combining TBI w/ PTSD ratings-again just a simple readjustment but I had a guy with 70% PTSD and 70% TBI lose the TBI and VA say "Well, the symptoms overlap and we can't figure which is which so poof! Bye bye TBI @ 70% but not to worry. It won't change your paycheck." Ah... excuse me but what about the SMC S that just evaporated with it? Turns out SMC isn't a rating like a disease. It's a quality of life "entitlement".
  6. During this Corona madness, we are seeing a lot of reductions in ratings. Here's the gig. If they send you a reduction notice, you have 30 days to stop the action and request a hearing. If you do, they cannot adjudicate the reduction without doing a hearing. If you fail to respond within the 30 days, they will effect the reduction within six months. However, if you fight the reduction after the 30 day point, you get a total of 60 days to request the hearing. If you do not, the reduction stands and you have to file anew to get an increase back to where you were. I have a combat medic with a 50% for PTSD he just got in 2016. They whacked him back to 10% on one exam by a quickie VES exam last month. Sadly, he didn't get in touch with me quickly enough. Worse, it took 20 days to get my POA accepted. §3.344 forbids this. The reduction has to be based on a lot of factors they ignored but I'll end up fighting this up to the BVA. I'll be forced to go buy a good IMO and it (the reduction) will end up being thrown out. But... just to be an butthead, I'm striking back and filing a 995 and using the new IMO to get an increase to 70%. This way I let them know we're on the warpath and their actions have only stirred the hornet's nest. The eventual BVA decision throwing out the reduction will be anticlimatic but necessary to stop this foolishness. Another ploy I see in rater's notes in VBMS is scheming to reduce the rating on one injury/disease and increasing it on another. Thus they don't even have to go the regular §3.344 route for reductions. What you don't see is the fact that you didn't get TDIU. Example: Vet has 80% for 6 ratings. He files for new claims or increases. They grant the new stuff but subtly reduce some the Vet has had for almost 18 years. The end result was no change but not quite. The new or increased ratings would have logically put him into TDIU but VA avoids §3.105(e) with the reductions. I see they are whacking Vets at TDIU/P&T w/ 19 years and approaching 20 year protection of their ratings. The reduction can restart the effective date of the TDIU clock. If you die tomorrow, your spouse's DIC flies out the window because you haven't had it for 10 years. VA will act magnanimous and say even though they reduced your _______, at least you are still TDIU or P&T. Unfortunately, your new effective date is May 1, 2020-not April 1, 2002. P&T generally protects you and pulls the plug on these shenanigans but not always. I have had VA come back and try to screw with my clients using CUE and saying they just discovered that ___________ was illegally awarded in 1993 and must be revoked/reduced. I spend a year or two showing the VA has to abide by the same rules we do on CUE and it falls flat on appeal based on how the evidence was reviewed. But... that sometimes takes 3 years to fix. You would think at some point they'd pull a rater's authority to revoke arbitrarily. I think most is generated by computer automatically but not always. Jackson MI, Little Rock and Houston are famous for this crap. The problem is the NWQ. Now, a rater in Manila can pull the plug and you cannot just call up your Portland RO and say hold the phone Ramone. They'll tell you to take it up with Manila. The new AMA is starting to show its true colors.
  7. Mitchell v. McDonald, 27 Vet App. 431,440 (2015) (Cases “must be decided on the law as we find it, not on the law as we would devise it”) And no, Loyal. The OGC Precedent is not on point. <<<ADDRESS A SPECIFIC ALLEGATION>>> refers to belatedly raising CUE in an adjudication already underway where CUE was never alleged below. Here's a piece of judicial wisdom given to me by one of the acknowledged masters of VA litigation: A Motion to Revise will always entail CUE Conversely, a CUE will not always entail the filing of a Motion to Revise. I guess I can't explain it any better than that. Example: Johnny Veteran was just denied an increase for PTSD last week. The decision contained errors of law. Should he: a) file a new claim for a Motion to Revise his recent decision based on CUE?; or... b) file a 21-995 with supplemental evidence? or... c) file a 21-0996 HLR claiming CUE?; or... d) File a NOD 10182 to the BVA? or e) c or d only That is what this is about. As for the applicability of §14.632(c((d), you lost me. Could you be more specific as to which subsection below I'm violating? By operation of law, I need to self-report my violation anyway. We can kill two birds with one stone. (c) An individual providing representation on a particular claim under § 14.630, representative, agent, or attorney shall not: (1) Violate the standards of conduct as described in this section; (2) Circumvent a rule of conduct through the actions of another; (3) Engage in conduct involving fraud, deceit, misrepresentation, or dishonesty; (4) Violate any of the provisions of title 38, United States Code, or title 38, Code of Federal Regulations; (5) Enter into an agreement for, charge, solicit, or receive a fee that is clearly unreasonable or otherwise prohibited by law or regulation; (6) Solicit, receive, or enter into agreements for gifts related to services for which a fee could not lawfully be charged; (7) Delay, without good cause, the processing of a claim at any stage of the administrative process; (8) Mislead, threaten, coerce, or deceive a claimant regarding benefits or other rights under programs administered by VA; (9) Engage in, or counsel or advise a claimant to engage in acts or behavior prejudicial to the fair and orderly conduct of administrative proceedings before VA; (10) Disclose, without the claimant's authorization, any information provided by VA for purposes of representation; or (11) Engage in any other unlawful or unethical conduct. (d) In addition to complying with standards of conduct for practice before VA in paragraphs (a) through (c) of this section, an attorney shall not, in providing representation to a claimant before VA, engage in behavior or activities prohibited by the rules of professional conduct of any jurisdiction in which the attorney is licensed to practice law. TIA a P.S. I agree with you that Kanewnut should become a lawyer. Personally, I'd suggest agent as it's far less arduous than 7 years of college.
  8. An open letter to the readership of Hadit.com: I always prefer to respectfully disagree rather than attack. Semantics are ambiguous at best. I find it odd that BroncoVet has searched "ratings error correction" and cannot find it. Perhaps VA raters think they are above error. I included the exact quote from the Rosinski v. Shulkin decision in the post I put up to dispel any ambiguity on the term. You can read that decision here: http://www.uscourts.cavc.gov/documents/RosinskiDJ_17-1117.pdf Sadly, some of us disagree purely for the reason that they consider themselves correct and all others less schooled in VA law. I perform VA law. I do not "practice" it. I do it successfully. I have never lost a claim yet. I guess I'm lucky. I have one that might be characterized as denied but I have appealed it to the CAVC. You can see that case simply by going to the Docket Search section of the CAVC and entering 19-7301 in the search bar. I have helped Mr. Long for seven long years-including getting him his long-deserved Purple Heart and CIB. I even won him a CUE back to 1970 for a muscle group rating mistake during the pendency of his appeal. I continue to fight for him just as I have for quite a few of you members. I have fought and won more CUEs than Ms. Simmons will ever attempt in her lifetime just in the last 4 years alone. I hope to continue to do that until I punch out. All legal precedence I read about CUE describes it as a "finally decided claim"-i.e. unappealable. The key words here are "finally decided claim" as in expired, dead or otherwise unable to resuscitate. A recent, incorrectly decided claim is still viable and capable of being fixed. Is it a CUE? Yes. Do you have to file a new claim to fix it? No. A Motion to Revise (MTR) is the only can opener available to most of us for a final claim. I don't write statute or regulation. I work within that corral. I interpret VA law using many tools-including the VBM authored by NVLSP and published by LexisNexis. I buy a new manual every year. I go to every NOVA conference to obtain the most up to date legal interpretations of all VA subjects. In point of fact, I lose my accreditation if I don't obtain a certain number of continuing legal education hours (CLEs). To my knowledge, I have never met or been introduced to Ms. Simmons at one of these conferences. I have never perused the OGC list of accredited representatives to ascertain if Ms. Simmons is accredited. She very well may be. I spend, conservatively, over $10,000 per year staying abreast of how to do this. I think the idea of attacking me about my legal qualifications is hilarious. Here is my data free to all who ask. It is on the OGC accreditation site and at NOVA. I don't hide behind a nickname or a pseudonym. Gordon A. Graham VA nonattorney practitioner #39029 POA Code E1P Accredited to practice Veterans Benefits Law Admitted to the CAVC Bar (2018) Member National Organization of Veterans Advocates (NOVA) (2015) Office: 14910 125th St. NW Gig Harbor, WA 98329 (253) 313-5377 But remember, in order to attack my qualifications or irresponsible representation of you as a Veteran before the VA, you must have something called " legal standing". Standing means I represent you or have in the past. Ergo, if I have not represented you, you cannot complain and say I caused you (or another Veteran) to lose a claim. Nor can you allege that my advice is flawed. Fortunately we live in America and we enjoy the fruits of free speech. It seems my esteemed fellow Hadit elder is deficient in her comprehension of the First Amendment. Just as Ms. Simmons is free to discourse on what she defines or perceives as CUE, so too am I permitted to do so. As I have never represented Ms. Simmons, I fail to understand why she would choose to attack me or my professional qualifications. I have never had a Veteran client complain about my representation to the OGC. She is free to do so, but sadly it will fall on deaf ears. The VA Office of General Counsel's Accreditation section (014D), polices us and makes us adhere to the controlling regulations upon threat of expulsion. These can be found at §§14.628-14.636. Nowhere in the regulations does it discuss the offering of advice to a non-client as being prohibited by law. Ms. Simmons reads that which is quite simply not there into the Secretary's regulations. Chevron Deference grants the Secretary legal rights to interpret his own regulations absent any legal artifices not promulgated by Congress. Ms. Simmons is not entitled to Chevron deference anymore than I am. Like BroncoVet, I believe we can all live under one roof here and get along. Whether a Hadit member has a finally decided claim or a live one, the avenue for correcting it is there regardless of what you call it. I use the most expedient method to cure the fault that will result in the most money in my client's pocket-not mine. BroncoVet has sat at my table and dined with me. He, of all among you reading this, knows I do not need to prolong any Veteran's claims in hopes of reaping more money. Seriously, I know it sounds insane but I do not need the money. I do this solely for justice for all of you who lack a voice. Ego does not enter in-nor should it ever. I offer my clients a product-good legal representation. If Ms. Simmons continues to attack me or damage my professional reputation, she, of all people, should know I am free to seek legal redress for defamation of character. Recently, I was informed by her on this board that she was in contact with her attorney to prosecute me for some alleged infraction. To date, I have not heard from her counsel. I have abstained from reciprocating. We both have one job-you, the Veteran. This venue to help Veterans is an extremely valuable asset. Everyone has an opinion and should respect the opinions of others. Sometimes we disagree. I stand on my unblemished record. No two practitioners can ever agree on anything. Here, it is not two practitioners but only one. I have no desire to attack Ms. Simmons-either metaphorically, verbally or legally. The OGC declines to prohibit VetComp&Pen and similar VA help sites who charge 40% of the winnings for an IMO. Let that sink in. VA won't even defend us accredited litigators from pseudo wannabe VA help sites who illegally represent you for money. I beg Ms. Simmons to cease and desist from this tempest in a teapot and politely agree to disagree on the definition of a legal term. You members deserve better. Very Respectfully, Alex sends.
  9. You answer your own contention at the beginning of your thread with the M 21 cite: <<< M21-1, Part III, Subpart iv, Chapter 2, Section B - Revision of Decisions 1. Finality of Decisions - this discusses binding and finally adjudicated claims A finally decided claim is one that has been final for over a year-i.e. you have one year from a decision to appeal it by filing the proper form depending on it being in Legacy or the new AMA. Once a year has passed, it is unappealable and can only be attacked via the presentation of new service department records never before associated with the claims file §3.156(c)(1)(3)(4) or.... (Big Or) by the filing of a Motion to revise (MTR) the prior decision based on clear and unmistakable error (CUE). I suppose you can also say it's a pending or unadjudicated one too based on Richardson jurisprudence but that gets into a grey area as to whether it's still viable or truly a CUE. Akles v. Derwinski was the first to bring up CUE in a finally decided claim. Russell/Simpson expanded upon it. I use the M 21 to overturn an error in a viable claim when dealing with VA. You seem to look at CUE as one thing only. In reality, it could be 1)a true finally decided claim error or; 2) an error in an ongoing decision that you contest. From Rosinski v Wilkie correction of error According to the Secretary, a lack of access to draft rating decisions does not prevent the petitioner from representing his clients because he still has recourse to an M21-1 provision that provides for correction of rating decision narratives or code sheets even after promulgation of draft rating decisions. OA at 42:20-43:12; see also M21-1 ADJUDICATION PROCEDURES MANUAL, pt. III, subpt. iv, ch. 7, sect. B Snyder v. Nicholson, 489 F.3d 1213, 1216 (Fed. Cir. 2007). It does not, however, address what those agents and attorneys can or cannot access, or what actions they can or cannot take. Thus, the majority's attempt to apply this broad statute to the specific circumstances of Mr. Rosinski's petition is tenuous at best. Further, the "benefit" that the majority finds VA to have denied Mr. Rosinski is too nebulous to find that its denial constitutes a concrete injury. See ante at 5. Although the majority theorizes that time and effort might be saved by review of draft decisions, it offers no direct support for this proposition, which is especially problematic given that 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 According to the Secretary, a lack of access to draft rating decisions does not prevent the petitioner from representing his clients because he still has recourse to an M21-1 provision that provides for correction of rating decision narratives or code sheets even after promulgation of draft rating decisions. OA at 42:20-43:12; see also M21-1 ADJUDICATION PROCEDURES MANUAL, pt. III, subpt. iv, ch. 7, sect. B. Please note that the VA Secretary declines to call a current live controversy error a CUE and prefers to describe it as a ratings "error" correction. Thus I stand by my characterization of a CUE being a "finally adjudicated" error versus a live controversy. Shoot. I find "CUE" in a lot of my new AMA decisions. However, I do not rush to file a Motion to revise. I just call up or email the rater and tell them to fix it. VA is free to refer to it as a CUE but the CAVC doesn't recognize it semantically until the appeals period expires and you file the MTR. Since I fight CUE at the Board or the CAVC, I do not rely on M 21. You'd get laughed out of a BVA videoconference if you started quoting M 21 as law to a VLJ.
  10. asknod

    [[Template core/front/global/prefix is throwing an error. This theme may be out of date. Run the support tool in the AdminCP to restore the default theme.]] Put in for PTSD Increase and SMC L

    A brain is a terrible thing to waste...
  11. The only time the disease or injury being service connected that provokes or contributes to death is beneficial is when you have been P&T less than 10 years. After ten years, you can die of anything-SC or NSC- and the wife and kids will still get DIC.
  12. Yep. That wasn't a CUE. I try to teach that important fact. A CUE can only exist on a prior final claim.
  13. Is this your very first claim for these service connected disease/injuries of the foot or a reopening of an older one? I just want to make sure before I offer advice.
  14. <<<<<I filed for an increase for my husband’s knees and back due to things not getting better. In Jan 2018 they provided an increase for those items but lowered the % for migraines to 0% without a warning or exam. I immediately fled a NOD. They had continued to deny his increase even with his headache log, statement, medicine history and doctor and neurology notes in the system submitted by me. Sep 2019 we received another no answer and I filed a supplemental claim for headaches among other issues. It was filed 1/2/20. He had his C&P exam 2/20. Doctor wrote DBQ to get him increase.>>>>>>>> This is standard fare for VA. I've seen this trick a thousand times. You had a claim going. You're entirely correct. You did not file out of time. What you did was pseudo-abandon a live claim and file a supplemental claim during the pendency of the old legacy claim. In essence, to VA, you abandon a perfectly good substantively appealed (NOD) claim and, while awaiting some kind of adjudication on this illegal reduction, you simultaneously filed a parallel AMA claim for increase thinking you could ride two horses in this race. By filing the supplemental, you "short-circuited " your old claim which was awaiting your grant or denial w/ SOC under the legacy process. Essentially, you agreed with the prior reduction to 0%. You then entered the AMA with the VAF 20-0995 supplemental (abandoning the old legacy claim/appeal of the reduction) and began a new one on 1/02/2020. Your DBQ from your doctor was dated 2/20/2020 which now becomes the "first time" VA ever heard about it that he had presented new and relevant medical evidence qualifying him for 50%. In my opinion, the repair order is to file a VAF 10182 (VA calls it a 10-182) NOD with the BVA asking for direct review and explain that you never meant to short circuit your original claim for headaches. You always are presumed to be seeking the highest and best rating (AB v. Brown 1994). If you were pro se, a VLJ would grant this in a heartbeat. Comer v. Peake says it best in a brief to them: The Court has made clear that the VA adjudication process "'is not meant to be a trap for the unwary . . . a stratagem to deny compensation [nor] a minefield" for claimants. See Percy v. Shinseki, 23 Vet. App. 37, 47 (2009) (quoting Comer v. Peake, 552 F.3d 1362, 1369 (Fed. Cir. 2009). See also Gallegos v. Gober, 283 F.3d 1309 (Fed. Cir. 2002) (assuming that the Veteran desired appellate review, meeting the requirement of section 38 C.F.R. § 20.201 was not an onerous task). See, too, Acosta v. Principi, 18 Vet. App. 53, 60 (2004); Beyrle v. Brown, 9 Vet. App. 24, 27 (1996); Hamilton v. Brown, 4 Vet. App. 528, 531 (1993) (en banc), aff'd, 39 F.3d 1574, 1584-85 (Fed. Cir. 1994). The VA nowadays uses the NWQ to ship your claims all over hell's half acre. When things go haywire, the finger pointing begins. You will never get it straightened out via an HLR or, for that matter, anywhere in the regional NWQ system. They're paralyzed from the neck up since February 19th, 2019. VA just bounced me last month (February) for forgetting to check the opt-in box (in box 13A) causing my 995 to be "construed" as a VA 9 substantive appeal in Legacy. I got it changed within the 60 days but I had to fight to overturn it 4 times. Here. someone has purposefully ignored your viable substantive legacy appeal and misinterpreted your intentions in order to deprive you of the lawful EED. This was no accident. Please notice your effective date is the same as the DBQ date (in blue) officially announcing your evidence now proves entitlement to that effective date but no earlier. I hope that helps.
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