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asknod last won the day on February 22

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About asknod

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

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

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  1. Negatory, File a VAF 10182. Here's the link to download the document: https://www.va.gov/vaforms/va/pdf/VA10182.pdf The new regs say you can jump in after you get a SOC or SSOC. Read up on the instructions carefully.
  2. Found this on VBMS this morning. "Decisions appealed to the Board for direct review are accomplished in an average of 365 daysThis is a vast improvement to the average 3-7 years Veterans waited in the Legacy process." As for the denial, Loyal, look to the Howell decision and what you underlined. In spite of a 2680 declaring you housebound, that is the doctor's assessment. Remember that a VA "examiner" (i.e. a rater) made the final decision. He probably based it on an incomplete understanding of the M 21. I rarely see SMC S granted based solely on a 100% rating rather than the standard 100 + 60 metric. If you would, copy and paste the actual denial language. Often, it is couched in VA legalese and difficult to unravel. You've dealt with VA long enough to realize they are devious and vague. r a
  3. In order to offer advice, I depend on the individual seeking it to provide the situation, the narrative(s)and the Confirmed rating decision. If a Vet gives me or any of us less than enough intel to figure it out, then we are forced to theorize. Actually, I misunderstood the initial Caregiver's Stipend through the VHA program. After going back and rereading my initial post to you, sir. I apologize. You are not getting SMC T but were actually getting SMC S with a K. I'm pleased to hear you advanced to L 1/2 as you will need that income if you need the Aid and Assistance of another. You will not lose the funding for the A&A-ever. If you were to lose the use of either the upper or lower extremities, you would be additionally entitled to R1. The point I did try to stress before, and which is still valid, is that your rating would drop back down to SMC O if you were ever institutionalized as an inpatient. The VA will not pay you for a higher level of A&A and the hospital bills for being institutionalized. I pray you never are. SMC T is reserved for those who suffered extreme TBI-after 9/11/2001. By rights, those folks are dang near vegetables and require a far higher level of A&A at the R2/T rate. It is reserved for the absolutely most disabled. It's rarely awarded. I've only done one R2 since I began. The VHA Caregiver program is a three-step rate with the highest tier about $2000-2100. Unlike SMC T or R2, This program pays the caregiver the stipend directly. I wish you had mentioned that at the beginning so as to give us more information. While I'm apologetic about my advice, I'm certainly glad my misinformation did not harm you. You seem to be extremely well-informed or have studied this a bit.
  4. To autumn: Remember, there is a difference between a claim denied and an appeal. A claim denied remains viable for appeal for a year. An appeal is anything you file a NOD on. Once you file the NOD, you have completed the first step of what we call the "substantive appeal" to the BVA. After issuance of a SOC, you have 60 days to take the second step by completing the substantive appeal by the filing of the VA 9. Yes, a rebuttal filing to the SOC will delay the suspense date of 60 days by giving you 30 days from the receipt of a SSOC in which to file the VA 9. The important thing for all to remember is that you can have a claim denied this morning and then put it into the rocket docket to the BVA after the 19th. If it's a CUE, you would gain nothing by having a Supplemental review as you are prohibited from introducing new evidence. Likewise, a HLR, which is no more than a DRO review camouflaged in a new dress, is a dead end as well. I've won two DRO reviews- the Phoenix folks caved in and CUE'd themselves 9 times on a Vietnam Parkinson's disease denial and the second was the CAVC ordering the VA to pay me SMC back to 1994 in 2016. That's mighty slim pickings. I hear from all my fellow VA litigators that the RAMP at the local level is a chimera. Approximately one in five is getting a favorable outcome. CUE claims are excellent candidates for this process. First, you cannot add any new evidence. Second, VA invariably denies all CUEs anyway. Lastly, who wants to take a CUE through the 6-year system to the BVA? When you file a CUE, you are calling VA idiots out for screwing it up. You cannot add evidence so it's a brilliant way to unclog the system. VARO raters use the M 21 and it will almost always yield a denial. The BVA, on the other hand, is a Veterans Law Judge (VLJ) with real legal training. They can ascertain the truth in an unbiased decision. It used to be that VLJs pretty much toed the line and acquiesced to the VASEC and the OGC precedents. This is no longer true. With new precedence coming down from the CAVC or the CAFC almost daily, our legal chances of success in a true courtroom before a real law judge have increased 100-fold since the era of the 60s when the BVA came into existence. In my 30 years doing this, I have found one truth. Many of us look at our claims from our own point of view. This tainted view prevents us from considering whether it's actionable. I always take the devil's advocate stance and try to defeat my client's claim with logic and reasoned argument. If I can, then I won't take it. If it's plausible, I will always be tempted to fight it. Unlike some VA litigators, I keep my caseload down to a dull roar. I will never become a VSO with 250 Vets. 60-80 is more my idea of a manageable number. Besides, I like talking to my clients and sharing their highs and lows. With that number, when a real CUE barnburner shows up, I usually take it. RAMPing up to the BVA is the cat's pajamas in this situation. Why wait in VARO purgatory for years?
  5. On February 19th, the pathway to the BVA RAMP opens. I have 6 clients I'm putting into the process. Many are CUE claims. Obviously, if you claim a CUE in 1970 or 1993 as I am for my clients, they cannot artificially give a haircut to the CUE and arrive at an effective date of 2018. That's a mighty tall violation of due process. Not sure who is spreading the rumor about earlier effective dates. I did see some discussion to that effect in the SCR and HLR lanes but nothing in the Fed. Register or the published PL 115-15. I remain confident the time involved in litigating in the Legacy system of appeals will gradually diminish. After all, isn't that the point of RAMP-to reduce the backlog and clear out the "docket closet"?
  6. In order to qualify for SMC at the (o) rate, which is the gateway to R1, you need, at a minimum, two conditions between SMC (l)and (n), no condition being counted twice. This might consist of loss of use of the lower extremities and SMC (l) for A&A. To qualify for R1, you need to qualify for SMC (o) via §3.350(e)(1)(ii) and be in receipt of SMC at the (l) rate for A&A. The key word is two conditions and no condition counted twice. Thus you cannot claim need for a higher level of A&A (r1)due to loss of use of your lower extremities if the loss is not service connected. Lots of Vets need a higher level of A&A but do not qualify as they do not have two entitlements. You will never qualify for SMC R1 if you do not have entitlement to two (or more) conditions described in SMC(l) through SMC (n). Here's what you need for SMC at the (o) rate. (e)Ratings under 38 U.S.C. 1114 (o). (1) The special monthly compensation provided by 38 U.S.C. 1114(o) is payable for any of the following conditions: (i) Anatomical loss of both arms so near the shoulder as to prevent use of a prosthetic appliance; (ii) Conditions entitling to two or more of the rates (no condition being considered twice) provided in 38 U.S.C. 1114(l) through (n); (iii) Bilateral deafness rated at 60 percent or more disabling (and the hearing impairment in either one or both ears is service connected) in combination with service-connected blindness with bilateral visual acuity 20/200 or less. (iv)Service-connected total deafness in one ear or bilateral deafness rated at 40 percent or more disabling (and the hearing impairment in either one of both ears is service-connected) in combination with service-connected blindness of both eyes having only light perception or less. (2)Paraplegia. Paralysis of both lower extremities together with loss of anal and bladder sphincter control will entitle to the maximum rate under 38 U.S.C. 1114(o), through the combination of loss of use of both legs and helplessness. The requirement of loss of anal and bladder sphincter control is met even though incontinence has been overcome under a strict regimen of rehabilitation of bowel and bladder training and other auxiliary measures. (3)Combinations. Determinations must be based upon separate and distinct disabilities. This requires, for example, that where a veteran who had suffered the loss or loss of use of two extremities is being considered for the maximum rate on account of helplessness requiring regular aid and attendance, the latter must be based on need resulting from pathology other than that of the extremities. If the loss or loss of use of two extremities or being permanently bedridden leaves the person helpless, increase is not in order on account of this helplessness. Under no circumstances will the combination of “being permanently bedridden” and “being so helpless as to require regular aid and attendance” without separate and distinct anatomical loss, or loss of use, of two extremities, or blindness, be taken as entitling to the maximum benefit. The fact, however, that two separate and distinct entitling disabilities, such as anatomical loss, or loss of use of both hands and both feet, result from a common etiological agent, for example, one injury or rheumatoid arthritis, will not preclude maximum entitlement. (4)Helplessness. The maximum rate, as a result of including helplessness as one of the entitling multiple disabilities, is intended to cover, in addition to obvious losses and blindness, conditions such as the loss of use of two extremities with absolute deafness and nearly total blindness or with severe multiple injuries producing total disability outside the useless extremities, these conditions being construed as loss of use of two extremities and helplessness.
  7. The Regional VA centers have a different rating system when an appeal returns to them. If you are homeless, financially on the brink of disaster, terminally ill or suffer loss of use of extremities (plural), or have a fiduciary due to mental unsoundness, VA will "Flash" you in VBMS. You or your rep. have to ask for it. This puts you in a different "lane" and your claim/remand/appeal gets put in the top of the inbox.Otherwise, yours will sink to 3-month post-remand point assuming you do not need a new c&p because you got worse since you filed. Call the 800 number and ask the tech to get you flashed for whatever reason. If you have an attorney, make them ask for it. I have one AOD since the hearing in 8/24/2018. It's still at the Hearing Transcript stage. I have others that are either decided since 9/20/2018 or are in the final stages of post-case review. Used to be in 2006, you could get a AOD BVA decision out in less than 3 months. By 2016 it was about five.
  8. NOVA attorneys are now beginning to report back on our website about their experiences of opting into the HLR lane. They (me included) have always been in the habit of having an informal "discussion" on the phone with the DRO who is doing your Vet's review. If we have a formal hearing on it, I (most of us) also usually submit a "clarifying NOD Addendum" that just repeats the original NOD. Nothing is recorded or even admitted to on informal calls and it's strictly off the record officially. We bargain. It's a verbal handshake and both parties tend to honor it. With HLR, the DROs are now beginning the "informal" call by saying they will only accept discussion about errors of evaluation of evidence or violations of regulation/statute. No more back and forth discussion about being willing to withdraw claims for x, y and z and VA granting IU. No new evidence is allowed to be submitted. Remember- RAMP HLR is like a bullet. You cannot call it back once you pull the trigger. VA is not allowed to bargain on paper. Now, it appears, VA has a RAMP mandate to dictate the terms of the HLR. Gone is the bargaining avenue. This can only mean sixty more years of VA winter. Thus, most attorneys are not very impressed with how RAMP is shaping up. I avoided taking the plunge. I do have two CUE monsters which are absolutely perfect candidates for the February 19th, 2019 Inaugural launching of the new RAMP Rocket Docket to the BVA for a real HLR before a real law dog Veterans Law Judge for a real decision. Anytime someone comes up and says they have a better mousetrap, it's best to sit back and see first. There'll be plenty of time for filing. I'd go the supplemental lane-- always. It's at least the semblance of fair.
  9. DAV uses CCK to represent all their clients on appeal. VFW uses Bosley and Bratch. etc. etc. etc. Veterans are becoming big money. There are very few good VA attorneys or agents who can do complex claims.
  10. Actually, no. SMC is due and payable the moment you prove entitlement to it. It doesn't even require filing a claim by law (Buie v Shinseki). Once your medical records show you have loss of use of an extremity(ies), VA will pay you back to that day. It's dicier to prove A&A but you get the idea. If your records show you had ED and were entitled to LOU of Creative Organ in 2008, you'd be entitled to that date. This only works for SMC. SMC is supposed to be deduced from the evidence of record when you are rated. If they miss it, the entitlement doesn't go away.
  11. <<<There is no such thing as a "financial hardship" or "hardship" claim or any other shortcut around the backlog for initial or reopened claims. Despite widespreadmisinformation, there is little, if anything, that a veteran can do to "speed up" his or her initial or reopened claim at the regional office level. This does not mean that some raters will not take such circumstances into consideration if they know the claimant's situation. But because severe financial circumstances, a terminal illness, or other hardships do not qualify a claimant for any special treatment, a claimant cannot demand such treatment. The only exception is for the claims of veterans that are or on the verge of becoming homeless. In such cases, the Secretary has directed expedited treatment of claims. Even this action is not a legal requirement, only a VA internal priority.>>>> Ah, you know so little, Padewan. I have been doing this for 30 years. Indeed, there are many ways an attorney or agent can expedite these things, be they original or increases. Maybe not CUEs but I've even gotten them expedited. You can too if you know the words t o use. VA has a cold heart but they have regulations. Or we can call Jesse at Channel 7 and have him bring the camera crew to the hospital. My last for R 1 began with the POA on June 5th, 18. The RO in Montana denied the LOU of the lower extremities July 15th. I asked for, and got, the next travel board hearing available on 9/18 here in Seattle. Hell, in fact, I got three Travel boards in front of Crawford on the 18th, 19th and 20th-all with advancement on the docket for terminal illness or medical exigency. I flew one Vet over (Fort Harrison doesn't do Travel Board hearings). VLJ Cherry Crawford issued the BVA win ten days later (9/28). The DRO in Ft. Harrison picked it off VACOLS for me on 10/04/18 and I got the A&A and the R1 on 10 /23. Now let's not hear any more of this 'can't get it expedited' crap. This is my specialty. Ask Mr. Gustad or Cory. I've done homeless claims in Seattle and the DRO or the Director always expedites them. Hell, Pritz probably has me on his speed dial. It's not good to disseminate untrue statements. Vets might believe you. There are many reasons you can ask for advancement of a claim. In fact, Vets from here on Hadit come to me with really big problems like needing A&A or the higher ratings frequently. You just need course knowledge.
  12. Seattle is now a RAMP regional office and no longer does claims or appeals, Jamezam. Everything is put into the NWQ and can be adjudicated darn near anywhere. There are 10 RAMP ROs. Seattle, Waco, San Diego, Atlanta etc. I see a lot done in Houston and Winston Salem. It figures. Just about the time I get to know all the DROs in Seattle and then they change the rules. Oh well, now I get to know them all over the US and Puerto Rico. I see you used JohnPaul and his sidekick Cory. Good people.
  13. asknod

    SMC S??

    <<<<<<I won sleep apnea then i filed depression secondary won.>>>>> Based on this statement, the Depression could only be secondary to the sleep apnea. VA would rate the Depression as TDIU but the ratings sheet is going to say the Depression is secondary to service-connected sleep apnea under §3.310. Based on that scenario, the SMC S is not attainable solely on a 100+60 basis. The sleep apnea for 50% would not be independently ratable from the depression. The use of the word 'secondary' may be incorrect or misleading. You could have two different disabilities with two different etiologies. You could have filed for the SA first and won. Then came back and filed the Depression and tinnitus as the 'second' batch of claims you've ever filed.
  14. asknod

    SMC S??

    Hey, if the SA isn't secondary to the MDD, then 50 +10 = 60%. He's in for SMC S based on 100 + 60.
  15. My two cents. In the 2009 claim that was denied, VA specifically stated you did not have evidence of a chronic disability. [The reason for denial per the statement of case is that Service Treatment records show no evidence of complaints regarding or treatment for this condition. No evidence was submitted showing that I have a current, chronic bilateral ankle pain condition that began during or was caused by military service.] That is what they will hang you on. Remember, when you file a claim, you have the responsibility of proving your claim. This is a two-way street. Just having a mention of it in your STRs is not the automatic chicken dinner winner. Remember this, too. We teach everyone there are three ingredients to a win. 1) a disease/injury in service (annotated); 2) a current disease or injury that is similar or identical; and 3) a nexus to tie #1 to #2. I strongly suspect you used a VSO to file the earlier claims and they just sent it in with no supportive medrecs showing it to be chronic since separation. Bingo-no CUE. If VA didn't have evidence showing it to be chronic, they can legitimately say the evidence, as it was known, was not in the claims file because you did not submit it. In the instant case here, you have #1 and #2- but not #3. VA did not acknowledge that there was a connection between your injuries in service and what you were filing for in 2009. You would have had to provide VA with a medical record in 2009 of a continuous, chronic disability from separation to 2009 showing it met the requirements of §3.303(b). Hence, by law ( §3.105(a)), you do not have a CUE. Absent a nexus/IMO from either a VA examiner or your own private doctor in any of the prior filings, you did not have the three ingredients. Thus, you cannot reach the "manifestly change the outcome" clause. You cannot introduce new evidence now of a well- documented chronic, injury. The time to do that was in on of your prior filings in 2002, 2004 or 2009. VA often uses the "you didn't report for the C&P" to deny anything. When you run into a situation where you cannot attend a c&p, always clear it up as soon as possible to avoid this situation down the road- in this case 2019. With that said, I'd probably still file the CUE but I doubt you'll ever win it. I won't address any §3.156(b),(c) arguments as there is nothing to discuss in the evidence section or what you have told us.
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