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asknod last won the day on December 6

asknod had the most liked content!

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About asknod

  • Rank
    E-8 Senior Chief Petty Officer
  • Birthday 04/01/1951

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Profile Information

  • Military Rank
    Sgt. E-4
  • Location
    Gig Harbor, Washington
  • Interests
    VA law. Accepted to practice at the CAVC

Previous Fields

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a claim, or even part of it, based on M 21, that is a positive finding of fact ( a conclusion of law) that cannot be rescinded unless it is CUE.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

    Applying the Law in Effect at the Time

    There are only three pro-Veteran outfits that really help us. The National Veterans Legal Services Program or NVLSP; the Veterans Pro Bono Consortium and NOVA. They are there for us-for free.
  6. asknod

    Applying the Law in Effect at the Time

    NOVA = National Organization of Veterans Advocates. I belong as do most reputable VA Agents and attorneys. https://www.vetadvocates.org/cpages/home It isn't cheap but it gives me everything I need for my CLEs and does research for us, too.
  7. asknod

    Applying the Law in Effect at the Time

    By operation of law ( and Kuzma which superseded Karnas), you are entitled to the ratings criteria in effect at the time of your rating. If the laws change to a more beneficial interpretation, you are entitled to switch to the higher one. Conversely, if they become more restrictive, you are entitled to keep the more beneficial one. The VA can never come back and reduce you based on a changed regulation. The VASRD I attached was the original one from 1945. Nothing in it changed until after the Vietnam War was over in 1975. I'll ask NOVA if they have a better record of Part IV that shows the interim changes from '45 to now. Every time we discover a loophole, they slam it shut with a newer ratings criteria.
  8. asknod

    SMK Retro

    SMC K retro will be posted to your bank account within the next two weeks to two months. The retro will be at the old rate of about $105/mo. The new rate goes into effect January 1st at $108.57. VA is not very speedy about paying once they owe you unless you are terminally ill.
  9. asknod

    Applying the Law in Effect at the Time

    Here's a copy of part 4 -the VASRD. It changed very little for most diagnostic codes over the years. I use it for my old CUEs because it shows the older ratings criteria. As Berta mentioned, if you really want to be sure, use the BVA decisions from the early years (1992-?). I look for appeals for increases where they will list the criteria then in effect for the evaluation of the different levels of entitlement. 1964 VASRD-Ratings.pdf
  10. I did a claim for a 94-y.o. WW2 Marine back in 2016. I was born in 1951 so I'm ten years shy of the age of dirt, sir. You have an interesting problem. I've done this PIES trick three times now and struck gold each time for §3.156(c) claims. Gold being old records surfacing after everyone told you they barbeque'd them on Friday the 13th of July, 1973. I even had records VA raters cited to in order to deny that subsequently evaporated in San Juan in 1971. Gone-right out of the SJVAMC. Alien abduction. Then they told him the records were charcoal in 1993. Then in 2001, they accidentally mailed him some that had the holes at the top showing they had been in the c-file at some time in the past... ones he'd never seen before. Then they "found them all" at the RMC in 2014--- except for the clincher--a 1/1972 liver scan showing chronic Hepatitis. VLJ Matt Tenner is treating it as claims spoliation. It's advanced on the docket. Hearing was 7/22/2018. Should be out soon. Hey, if it's any consolation, I know records "evaporate" Most of my Air America stuff was in Laos when the poop hit in 72 but I got back a picture of the PC 6 I crashed in! Best of luck in your quest, sir.
  11. If you had no success finding them there, then file a VAF 70-3288 to the Evidence Intake Center for an "unredacted" claims file, any and all CAPRI records. I've found service military things at the NARA from 1942 claims I did. If it's VA records and they have "misplaced" them, you need some high power legal help to defend you. I also list places my clients were stationed and the approximate dates of inpatient status. Remember, STRs from inpatient status (military hospitals) during service are kept in a totally different place at the NPRC-not the Records Management Center. Some never make it back and stay at Naval or Army Hospitals forever like Beaumont Army Hospital Texas or Yokosuka Naval Hospital in Japan. I'm lazy. I send VA out to find them for me. It's called a PIES request on a VA Form 10-3101. PIES stands for Personnel Information Exchange System. I sometimes use my congressman when all else fails but I donate to his campaign. It's cheap insurance.
  12. Calling in the VAOIG will end up creating an investigation of you. I strongly suggest you go a different route. Go to the Denver ROI (Release of Information) office and ask for a complete set of all your records. Give them a date range -i.e. January 1989 to present (or whatever you need.) Anything from before March 1995 or thereabouts will be archived at the Records Management Center. They didn't begin using VistA programming until 1995. Chances are the records you desire are there but not in an electronic format. I had to obtain mine in 2008 and discovered they had none prior to 95. They were able to tell me they had the older archived ones, though. It took several weeks to receive them.
  13. To correct my earlier statement, I was forced to file a new NOD on the size. I have already won the greenhouse. The Director overruled the Seattle VRE and would only give me the 15 X 20 rather than the 24x28 size. I filed an "Administrative review" of the original offer of a 15x20 in 2016. It took until December 2017 to "redeny". The director himself denied it. So, I am forced to file the new NOD for a larger one. By law, they can never give me less than the 15 x 20 but it is not adequate for my needs. I explained all that when I filed in 2011. VRE officers have no oversight. Each VRE is a castle and the VRE Officer is Boss. They don't know the law. read this closely and especially 21.1-21.162 You need to know the law. I quote it to them and they give me the 1000-yard stare. https://www.law.cornell.edu/cfr/text/38/part-21/subpart-A
  14. If this claim is truly a RAMP claim, it was a DRO or senior RVSR who caught the CUE. A HLR, or Higher Level of Review, in the first phase of RAMP is a complete review of the entire claims file and a de novo decision. Basically, the first step in RAMP is a standard DRO review and nothing more. The "Rapid" part is going to be the Appeal phase in DC if you lose. Since the BVA will not begin doing RAMP Appeals until February 2019 (and that date is not cast in stone), it would be impossible for a Veterans Law Judge, or VLJ as they are called, to have contacted you. Every VLJ has between 5-11 staff attorneys working for him who do your appeal. They research the law, advise the VLJ, and he signs the decision. This is why I love to do Board hearings. You get to put in testimony just before the actual decision is made under oath about what is happening NOW, not two or three years ago when you filed your VA 9. A hearing usually occurs within six months-year of your decision right now. It is fresh in their minds and they also have a hearing transcript to read from. They say a photo is worth a thousand words. Well, a good hearing is even better. If you are extremely ill or terminal, you can get a Travel Board hearing face to face with the VLJ at your local RO within a month. I don't speak for VSOs- just as an Agent. RAMP claims are excellent appeals vehicles, or will be, when they open up the BVA for the promised 125-day adjudications after your HLR. Just be sure you submit all the evidence before you pull the pin. I suggest a thorough NOD with every possible medical file and a bulletproof nexus at a minimum before filing for RAMP. VA rarely looks for CUE unless you stick their noses in it and point it out. Seasons Greetings and best wishes on what appears likely to be a winner.
  15. Regardless of income or anything else, the important thing is for KC3 to get adequate mental health counseling -the sooner the better. I had a Vet I represent who filed five times from 1970 to now for PTSD. Each time he lost. VA, nevertheless, allowed him to use mental health counseling at no charge over those years. Unfortunately, he tried to use those MH records to support his claim for PTSD. VA uses "counselors" for these Kumbaya meetings rather than Psychiatrists/psychologists. All those years of counseling and the records were useless for providing a nexus. All they confirmed was that he had MDD. They did not provide the link to service. While it is important to obtain counseling so you do not end up being one of those 33 guys who sucks on a lead lollipop in the VAMC parking lot each month, it is imperative to get the ball rolling with a claim. It's easier to file a claim and then a NOD than get into a pissing match with a gomer down at the VAMC as to whether you need psychiatric help or not. I never filed (or sought help) when I came home from two years in Vietnam and I regret that decision. It cost me a marriage, my wife and my kids. I blame myself for that. Somehow I stumbled through and my second wife recognized the problem and was supportive. With all the assets available now, no one should have to go through this without a good support network. There's also a Catch 22 involved here. You cannot diagnose yourself. If you present there and say "My brain is bent", they'll say "No, it isn't." They're an insurance company. They don't want to pay out. I think all who commented here in this thread want the best for KC3 but have different ideas on how to approach it. I deal strictly with the compensation side of the coin and not the medical side at the VAMC. In fact, I have no authority as an advocate or representative to throw my weight around at a VAMC. I'd be 86'd permanently with my runaway mouth. My advice is to pursue a claim while continuing to pound on the door of your VAMC. If you have an honorable discharge and are indigent, you are entitled to free medical care-for life- regardless of Obamacare. That, I know for a fact. When you file, you're going to get a c&p assuming you have a bonafide stressor in service or a legitimate MST claim (documented or not). That automatically will get your foot in the door at the VAMC for counseling. I also strongly suggest this: https://www.veteranscrisisline.net/ I think I speak for all of us when I say we want the best outcome for KC3. We may have different opinions on how to reach that goal but the end result, regardless of how it is accomplished, is to help.

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