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asknod last won the day on April 3

asknod had the most liked content!

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About asknod

  • Rank
    E-9 Master 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. 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. asknod

    Working Toward R-1

    Try this one on for size. I have two just like it on appeal to the Board. Double A&A for no condition considered twice under Breniser v. Shinseki https://www.va.gov/vetapp18/files8/18126101.txt
  2. Another warm tale for when you're self-isolating. Be safe. https://asknod.org/2020/04/02/ft-pea-gravel-arkansas-ozark-mountain-daredevils/
  3. asknod

    SMC-S For Surgery

    Correct. I would suggest a 526 form simply because it will capture all your metrics. However, because of the new AMA, the intake idiots (I call them the "booth bitch" regardless of gender) have begun a microscopic review of our c-flies to detect if you've ever filed for ____________ and been denied. If you have, well-hold the phone Ramone. We can't accept it on a 526. That's only for stuff you've never filed for before. What were you thinking? Send us the correct form and we'll upload it...soon. Maybe. But they never tell you which one is the "correct" form. That's legal advice and they are not permitted to dispense it. Remember, you are not getting "housebound" pay per se. You are getting 100% +60% which is §3.350(i)(1). A Vet can also qualify by virtue of medical/physical disabilities which intrinsically keep you from being able to go out. Perhaps you have a long term 5-port PICC line with an 18" kicker hose and give yourself IVs for a six-month or more period. I did back in 2010 after I got out of the hospital. I had to go back for antibiotic IV blasts every week, too. You don't go out and walk the dog with a PICC line. You don't scoop the poop for fear of an infection and sepsis. That will definitely get you a 100% kicker temporarily. Go to the VAMC ROI and get the records or assemble them from you private provider and copy and submit with the form du jour. With the VA officially closing out DBQs completed by your own doctor(s) last week, that leaves the 21-2680. I've submitted hundreds for my Vets and the VA will still send you out for a c&p. Their "2680" is about 8 pages compared to the VA form. I filed a CUE for a client down in San Juan, PR. It was a new CUE theory but I had filed a CUE back in 2016 trying to fix this. The BVA Judge (Matt Tenner) denied us. I then tore the c-file apart and found a VA form 3101 from the SJVAMC hospital to the SJ Regional Office asking them to begin "an original claim for hepatitis" . The date/time stamp said the VARO received it 12/28/1970. That's an informal claim under §3.155 back then. Better yet, he filed his official 526 less than a year later which preserved his "date of separation" effective date. The document was a one-pager- the very first in the VBMS queue because- duh- it was the oldest. In his paper c file, it's buried in the other 6900 documents somewhere. VA refused it because "it was on the wrong form. I sent in the 20-0995 to "fix" it and they denied with a one-pager four days later saying we hadn't submitted any new and relevant evidence. Denied. Next? "But, but, but gee, your honor. What about §3.304(d). I got it about 47 days after I separated from the Army. It takes Hepatitis about 40 to 100 days to show up after infection." Then they say well,then, thank you for your service, sir. Next? I'd suggest filing it on a 8.5x11 standard form (white). Give them all your data-name, rank, serial # and DOB at the top to keep them on task. And quiver in place safely, hear?
  4. asknod

    SMC-S For Surgery

    Understand that the regulations for SMC simply states that you need to show you medically qualified for the specific rate (most frequently for SMC S) in order to get the entitlement- even if it's temporary. There is no time limit to claim it as it isn't a claim with claim rules. SMC, quite simply, is due and owing at such time as you qualify for it. Period. No one can question having a surgery that rendered you 100% temporary for X months/year. You have to file for it to get VA's attention but you do not have to file it on a specific form because, as I said, SMCs do not require a claim filing. See Bradley v. Peake and Buie v Shinseki for some real SMC gymnastics.
  5. By the numbers- 1) your doctor did not state he had read your Claims file-even if it only consisted of 3 pages. 2) you are not given the benefit of the doubt if your records are missing or lost. You are only given a heightened level of review. 3) you lost because your IMO is defective. Your doctor didn't have anything to work with. He cannot opine on your illness/injury(ies) without some background evidence. You cannot recite your history to him and say "Yep. That's what happened." If you'd said "I was abducted by aliens and they screwed up my back.", you would be met with the same decision. 4) Intercurrent records from after service rarely ever prove an event or injury in service. They merely inform as to the subsequent damage. Ergo, they are only useful after you establish service connection. 5) a CUE filing would be useless here because you cannot dispute the evidence. Only if it is missing or was not before the adjudicator does that CUE prong arise. 6) Most CUE's are won because the VA did not follow the regulations in effect at the time of the decision. Basically, no STRs or service info = no dice. If you'd had Hep C and got it in 1970, you'd have cirrhosis by now. That would be evidence you could use to prove it happened in 1970. I just did that in front of VLJ Matt Blackwelder last spring. See attached legal brief and BVA decision. Always remember. VA claims require a level of expertise that most of us lack. It took me almost 19 years to figure out how VA screwed me and another 11 to win back almost half a million in retro. It's why I am now accredited to do claims. Every denial has the reason written in VAspeak. You need the expertise of the folks here to tell you what you lack. This is not easy. Steve BVA Win redacted.pdf Humphry brief.pdf
  6. Here's a great story to start Spring. Janet and Donald are my oldest customers. Janet found me here in 2014 before I was accredited. She waited and bided her time waiting for me to get my license to kill. https://asknod.org/2020/03/09/bva-r2-you-cant-always-get-what-you-want/ Nothing, I mean nothing, could keep this woman from winning. She also snagged all the goodies on SHA and the auto grant without me. I do hope Cupcake will be that aggressive on my account if I get this ill.
  7. Great story of another one of my neighbors. Glad I was able to be his Sherpa. https://asknod.org/2020/03/06/va-ama-20-0995-you-take-the-long-way-home/
  8. Imagine being a Senior Airman at E-4. You make Staff Sgt. at E-5. You don't have to choose between being a senior airman over becoming an NCO. If your pay for Married with children is $3,279 + rugrats, it's now $350 more with the same amount for spouse and wallcrawlers. SMC is a quality of life issue. The more you lack, the more they pay. Each 1/2 step increment is about $250 after SMC L. You also get SMC K until you hit SMC O.https://asknod.org/2013/02/27/special-monthly-compensation-what-is-it/
  9. Well, Hell yeah. Of course it does. Winning is fun. I still haven't lost yet (knock on wood).
  10. Bob was a Naval Radio Intercept Officer at the Consulate when the poop hit the fan in Hue during New Year's '68. He got his first V for Valor that week and learned how to operate a M 79 too. He may be Navy but he's my neighbor and he's a Vietnam Vet. Enough said. I took him on in Spring 2017. I didn't do it for the money as much as I did it for the mental exercise in calling b---s--t on the VA examiner. They whacked Bob from 100% for myelosuppressive disorder (MDS), a nasty form of leukemia from Agent Orange, down to 10% for anemia. He got his bone marrow transplant from his sister but it didn't sync. He went on heavy duty Prograf and the secondaries kicked his a-s. I fought him back to TDIU in 12/2017 and that's when they dug their heels in. I went up to the BVA with a shiny IMO saying DC 7003 leukemia , Note 1 says "other therapeutic procedures"... such as phlebotomies and Prograf. VA countered with a new rating of 100% for DC 7525 for s/p leukemia but no earlier effective date. We got 7 months of 100% and 26 at SMC S. It was a nice b***hslap to the Bozos who screw us. The $2 K IMO was well worth the investment. Notice Judge Cherry Crawford avoided the precedence of recognizing the definition of "other therapeutic procedures" in favor of finding it was an error of law to reduce when VA had not shown any medical evidence of improvement. I just sat and watched what they did in VBMS and struck back instantly each time before they could even mail it. We had the BVA hearing 9/20/2018. It was advanced on the docket and we had one remand of about 4 months. For BVA, this was almost lightspeed-seventeen months. Green BVA Grant 2-26-2020 redact.pdf
  11. 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
  12. 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/
  13. 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.
  14. 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 $.
  15. 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.
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