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asknod last won the day on July 24

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About asknod

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

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    Sgt. E-4
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    Gig Harbor, Washington
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    VA law. Admitted to the CAVC Bar

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    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. KanewNut- Here' how this works (re Rosinski). Mr. Rosinski asked to have permission to review Veterans' proposed ratings. VSOs are permitted to seek review (and ask for a revision) if they perceive an error and complain within the first 3 days of the promulgation of the rating. We attorneys and agents are not given that consideration. However, if we have access to VBMS, we can see the draft decision. The Secretary argued in the Rosinski Ex. Writ that if he (Rosinski) sought a change or revision of the rating, he could pursue it under the M 21 cite ( III.iv.7.B.3.a). The Court agreed. Personally, I don't agree. An error is an error and should not stand. This "reconsideration avenue" applies equally to you or Dawsonatl as neither of you are VSOs. Of course, by the same token, if you had a VSO representing you, you could ask him/her to do this-again within those first three days before (or after) issuance of an erroneous rating decision but no later. The legal term 'entitlement' is a broad brush term which encompasses ratings, findings of fact and conclusions of law. You have a right to cite to this M 21 codicil and ask for a "reconsideration" under this Manual provision. Some day, this avenue will be granted to all of us equally. Until then, we correct it as best we can. In a lot of cases, we have to go up to the BVA or the CAVC to accomplish change. Best of luck in resolving this dilemma. In offering my insight on your problem, I hope I have not offended or insulted you. If the shoe was on the other foot, I would hope you would do the same for me. As Theresa said "Leave no one behind".
  2. Good deal.I promise not to engage you again sir and you make sure you get some professional help for all that angst you're carrying around. That's not healthy.
  3. As this conversation has devolved into things that no longer involve case, controversy or operation of law, I'll let this go. It's obvious some here do not understand 38 USC/CFR. Any discussion or argument is futile absent basic comprehension. Again my apologies if I came across as all I have been accused of. It was not intentional. Theresa and I have been friends for years and her site doesn't need be dragged through the mud. One last point of order which has nothing to do with pride, but rather fact. When you are admitted to the Federal Court (CAVC), you are sworn in as an Officer of the Court. This is required of both attorneys and VA Agents. After an oath is administered, your title changes from VA Agent to Nonattorney Practitioner and you are granted the powers of an attorney in everything but name only. The VA now also recognizes me as an Officer of the Court. I swear to tell the truth in all I do as a litigator. The term 'litigator' is not synonymous with Esquire or JD at the CAVC , BVA and the DVA and I have never held myself out as such. It seems some have much to learn and I am not saying that sarcastically. I take my responsibilities very seriously. Shakespeare comes to mind here...Methinks the maiden complaineth too loudly. You seem to have a lot of anger,sir. I hope you get help. And that's all I'm gonna say about that. G. Alexander Graham VA #39029 POA E1P Admitted to the CAVC Bar 2/08/2018
  4. I apologize if I came across as superior in any way. I have a sarcastic streak and it appears it offends some. I have studied how to win claims for 30 years. I have been bringing that knowledge here free to all who ask for it now-both here at Hadit and my own site- for over 10 years. I am not proud of myself. I chose to help other Vets the best way I knew how. I chose to learn VA Law and become a litigator rather than just sit here offering advice. Don't confuse pride with commitment. The only thing I'm proud of is being admitted to practice at the CAVC without a Juris Doctorate. Only 46 have been accorded that honor. I'm proud of my three combat V's for Valour above and beyond the call of duty in less than 2 years. If anything, I'm proud I managed to survive two tours back-to-back in Laos and Vietnam. Many of my friends didn't. That's why I predominantly serve Vietnam Veterans before the VA. If you (or anyone) offer bogus advice, why sure, I feel it needs to be challenged. Do you suggest I just let you keep on misleading Veterans by pretending to be knowledgeable about VA law? In your own words sir- As I understand it the focus of this site is to help and support other veterans. Let's cut to the chase sir. If I offer poor legal advice to my client and act on it causing my client to lose, the OGC will revoke my accreditation-forever. If you offer poor legal advice and the Veteran uses it to his or her detriment, you are free to just enter a new claim thread and continue offering more of the same. In short, you suffer no censure or consequences. My attempt here was to clarify what is, and what is not, CUE. I merely try to correct that error using real legal cites and precedence. I will continue to gladly suffer your insults if it helps even one more Veteran succeed. I helped over 750 Veterans attain a minimum of TDIU or 100% before I became accredited in 2016. Free. No charge. I did all the work and wrote the legal briefs-and not because I'm proud of myself. It's satisfaction in a job well done. And, might I add, correctly done. As we live in America, you have a right to your opinions but you do not have a right to recklessly interpret VA law incorrectly. That is the crux of your problem with me. This isn't about pride. It saddens me when someone runs out of legal or logical arguments and finally resorts to hurling insults. That generally indicates they have no more cogent rebuttal to offer. Accept my profound apologies if I upset you. Were you to familiarize yourself with VA law, I wouldn't need to correct you nor apologize. I respect you as a Veteran and my motives are simple-to ensure you and others win. My advice was aimed solely at that metric. By my estimation, you are positive you are right. Had you been right, Dawsonatl's rating narrative would freely admit a clear and unmistakable error had been made in his decision. VA is not adverse to admitting CUE. See attached below as proof of my statement. When CUE exists, it is recognized-not glossed over or ignored in a VA ratings narrative. If you (or Dawsonatl) think the VA examiner just "forgot" to include the CUE discussion in Dawsonatl's decision, you are sadly mistaken. r1 redacted.PDF
  5. Dawsonatl states: <<< I have to respectfully disagree, if I would have followed this advice verbatim I would not have filed my CUE and won it.>>> Sure you would have. You could have sent in a letter and said "You screwed up my rating decision. Please fix it-pronto." Calling the color red black doesn't make it black just as calling an error CUE doesn't make it -ipso facto-CUE. I read over your entire thread, sir. You mentioned that the award "correction" failed to mention the phrase 'CUE'. This is exactly what I am saying. It is not a true CUE until it is poured in concrete (unappealable). That is why there is no mention in your award letter of any admission of CUE. It is also why Kanewnut will never see any admission of CUE-if and when he prevails. VA makes errors all the time. We all know that. Are they CUE? Yes, in a colloquial sense but not a legal sense. As for the comment our esteemed contributor Geekysquid submitted in Dawsonatl's thread : <<<38 USC is built on 38CFR which is built on Public Laws.>>>>, you may want to go back to law school, sir. I, too, got a good belly laugh out of that chestnut. I also liked your comment about the "First Circuit" (We also know the BVA, CAVC, and First Circuit frequently take a dim view of that habit.). I'm going to assume you mean the Federal Circuit which is identified as "F.3d" on legal cites. Do tell. Where do you come up these legal revelations, sir? I have said this repeatedly but it bears reiteration. Any here who essay to offer legal advice with no legal training can make matters worse. The legal axiom for doctors is "First, do no harm." Berta (and many others of you) have learned quite a bit of VA law and some are even well-versed in CUE. I admire all of you for that. All of you are also free to disagree with me and I take no offense but I do ask that we compare apples to apples and not oranges to orangutans. I will repeat- Dawsonatl did not have a CUE. He had an adjudications error that was subsumed by a corrected ratings decision granting his TDIU. That, folks, is not a Motion to Revise. You cannot cite to §3.105a. The error was corrected before the appeal period expired. In VA law, as in any kind of law, proper semantics (i.e. legal terms) are the defining rule. One who files a Motion to Revise is not a Veteran, a claimant or an appellant. S/he is a "movant". Feel free to bandy about the term "CUE" as much as you want but simply realize that until your time to appeal a decision runs out, it's an "adjudication error" and nothing more. You can always resolve it just as Dawsonatl did-without resorting to a CUE filing under the auspices of §3.105(a). And for the record, I strongly advise no one to use a HLR for anything-even an attempt to "fix" an incorrect rating. VA will accept a CUE filing but may not CEST it if it is not a true CUE. It depends on the rater and the VARO. Most will now, after the new AMA inception, refuse it and tell you to use a 996 HLR. Best of luck and I mean that sincerely. If I could, I'd represent everyone on this forum before the VA. Unfortunately, I do not have the time. Besides, there are quite a few VA Agents in-the-making here who should apply for accreditation. Any one of the regulars here has 10 times the knowledge of a VSO service representative.
  6. I see the disagreement. It is semantics. We speak of two different legal venues. CUE is a clear and unmistakable error that reasonable minds can agree is in error. One that, had it been decided correctly, would have manifestly changed the outcome. In order to overturn a final claim that is no longer appealable, one must file a Motion to Revise a previously decided claim based on a very precise and specific clear and unmistakable error or errors. A motion to revise is different from filing to reconsider a current claim which is what this thread is about. Above, in a prior post, I offered an M 21 cite which is on point here. M21-1, pt. III, subpt. iv, ch. 7, sec. B(3)(a) In essence, you are asking the VA Examiner to reconsider -not revise- a recent decision which is still appealable-i.e. one that is not final. This is not the same legal standard of review as a Motion to Revise. §3.105a only applies to final decisions. Asking to have the record corrected to match the facts in the evidence of record may well be a "clear and unmistakable error" of fact or law but VA will construe the more liberal interpretation (correction of rating decision) and issue a new rating if there is clear and unmistakable error. To put it simply, the legal rule of thumb is: All Motions to Revise are CUE but not all CUEs are Motions to Revise. If you file what you prefer to call a CUE claim during the active part of the pendency of your claim, you most definitely are not filing a Motion to Revise a prior final, unappealed decision. By operation of law, you cannot file a Motion to Revise a live claim stream under §3.105a. You are merely trying to file a NOD and calling it a Motion to Revise. Since we are now in the Brave new world of the AMA, and RAMP is lost and gone forever (except for the poor souls still in it), any "claim" you file now (post 2/19/19) must either be a claim for a new ailment, a supplemental claim for a denial (or increased rating), or a Higher Level of Review (HLR) for disputing a current denial. You are not allowed to submit any new and relevant evidence at a HLR. The option of filing a Motion to Revise is only available when, (and if) you fail to appeal the denial decision within one year of its issuance. In the above proposed filing, below the Exhibits list, you ask to revise the CUE and rely on §3.105(a)(1)Error in final decisions as your legal authority. The operable word is "final". Look up §3.160(d) on finality -et voila: (d)Finally adjudicated claim. A claim that is adjudicated by the Department of Veterans Affairs as either allowed or disallowed is considered finally adjudicated when: (1) For legacy claims not subject to the modernized review system, whichever of the following occurs first: (i) The expiration of the period in which to file a Notice of Disagreement, pursuant to the provisions of § 19.52(a) or § 20.502(a) of this chapter, as applicable; or (ii) Disposition on appellate review. (2) For claims under the modernized review system, the expiration of the period in which to file a review option available under § 3.2500 or disposition on judicial review where no such review option is available. I don't see your denial as being over a year old and unappealable so the cite is legally inapposite. I merely offer this as advice- not to be argumentative. Regardless of what you propose, I don't see the VA accepting it as a Motion to Revise. My guess is they'll refuse it and tell you to file it as a HLR on a 20-0996. I am interested in how this plays out though. Please keep us apprised of the outcome, sir.
  7. Again, I don't see a true CUE-merely an adjudication error that would normally be corrected with a HLR or a NOD to the BVA. Either one is viable but the HLR has a known denial rated in excess of 76%. CUE denial rates are far higher because the legal standard of review is so stringent. If everyone is totally gung ho on using M 21 cites to defend this, here's another one that really makes more sense: 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 Always remember, a true CUE is a motion to revise using §3.105(a). That requires, at a minimum, that the original decision is final. A CUE cannot exist unless or until it is a final unappealed decision. As this decision is still ripe for appeal, it is merely error and the correct repair order, by operation of law, is to appeal the error. But shoot- what do I know? I am preaching to those who insist on using a different legal standard of review. However, I do offer my best wishes for a successful conclusion in the shortest amount of time. And with that in mind, I will desist and accede to all the others here with far greater legal expertise.
  8. Berta- With the new AMA, this is a tempest in a teapot. If you are unhappy with the 7/12/2019 decision, you file a NOD at the BVA on a 10182. You type up a brief and explain why all of this is incorrect based on law. The VLJ rules in your favor and you win. Why try to fight with a Motion to Revise? That's like fighting with one hand and a leg tied behind your back. If you wanted to, you could file a 20-0996 and clear this up in a Higher Level of Review HLR lane and even ask for an informal telephone conference. The choice of CUE as the litigation tool of choice here escapes me. But that is not the end of the matter. The problem is the M 21 citations. If (and when) you lose at the AOJ, you go on appeal to the BVA. Trust me. The VARO pukes are going to fight like a six-toed cat on this. The VLJs do not use-nor do they recognize- the M 21 because it is not a regulation or statute. It is an "adjudication tool" -and nothing more- from a legal standpoint in their eyes. Your CUE has to be exquisitely on point as an error of case or controversy ( law or facts). As such, you need to use precedential cites, CFR or USC. M21-1 III.iv.5.A.3.e is nothing more than Colvin v. Derwinski (1991) stating that a Board must base a decision on the medical facts and not substitute their own opinion on the subject. If you are relying on this M 21 cite to say there's CUE, you are essentially saying the evidence of TDIU could be weighed both ways-i.e. creating the equipoise needed to achieve the benefit of the doubt. In a motion to revise, you cannot claim failure of the benefit of the doubt nor can you claim the evidence wasn't weighed correctly. If you are relying on M21-1 IV.ii.2.F.4.c as another predicate for a CUE, again, that dog won't hunt in my mind. This is a manual cite that asks the rater to make a decision on whether the Veteran qualifies for total disability due to individual unemployment (TDIU). Again, you are claiming CUE based solely on the rater citing "voluntary withdrawal from the labor market". This again falls into reweighing the facts. You cannot second guess a rater's determination that you were employable or unemployable based on just that one metric. Remember, the decision said " We took this evidence into consideration, but other evidence shows your disabilities do not prevent you from all employment." That is the VA's CUE escape hatch. The claim is winnable and Kanunut can keep the earliest effective date he can wrangle on appeal but it would have to be done as a regular AMA appeal. He can enter more new and relevant evidence by going to a private IMO outfit and getting an independent writeup. Then he has "equipoise"- one denial from VA and one new, well-reasoned rebuttal by a subject matter expert on employability. If you go this route, you'd submit it in the Supplemental lane on a 20-0995 using Hart v. Mansfield (2007). There's no way VA can legally go out and get another c&p opinion and you win. No Motions to Revise. No long battles. Clear cut CUEs can be won but why fight the hard way? This is a brand new post-AMA decision and if you lost at the BVA with no new IMO, you can still make a u turn and come back to the supplemental lane with a new IMO. This also preserves the filing date for the IU. Going to the CAVC will eventually be only Ex Writs and CUE appeals. And that's all I'm gonna say about that.
  9. I respecfully dissent with this argument for CUE. You can never introduce the §3.102 argument nor can you dispute how the evidence is weighed. Read Russell v. Derwinski (1992) to better understand CUE . Also read this: § 20.1403 Rule 1403. What constitutes clear and unmistakable error; what does not. (a)General. Clear and unmistakable error is a very specific and rare kind of error. It is the kind of error, of fact or of law, that when called to the attention of later reviewers compels the conclusion, to which reasonable minds could not differ, that the result would have been manifestly different but for the error. Generally, either the correct facts, as they were known at the time, were not before the Board, or the statutory and regulatory provisions extant at the time were incorrectly applied. (b)Record to be reviewed - (1)General. Review for clear and unmistakable error in a prior Board decision must be based on the record and the law that existed when that decision was made. (2)Special rule for Board decisions on legacy appeals issued on or after July 21, 1992. For a Board decision on a legacy appeal as defined in § 19.2 of this chapter issued on or after July 21, 1992, the record that existed when that decision was made includes relevant documents possessed by the Department of Veterans Affairs not later than 90 days before such record was transferred to the Board for review in reaching that decision, provided that the documents could reasonably be expected to be part of the record. (c)Errors that constitute clear and unmistakable error. To warrant revision of a Board decision on the grounds of clear and unmistakable error, there must have been an error in the Board's adjudication of the appeal which, had it not been made, would have manifestly changed the outcome when it was made. If it is not absolutely clear that a different result would have ensued, the error complained of cannot be clear and unmistakable. (d)Examples of situations that are not clear and unmistakable error - (1)Changed diagnosis. A new medical diagnosis that “corrects” an earlier diagnosis considered in a Board decision. (2)Duty to assist. The Secretary's failure to fulfill the duty to assist. (3)Evaluation of evidence. A disagreement as to how the facts were weighed or evaluated. (e)Change in interpretation. Clear and unmistakable error does not include the otherwise correct application of a statute or regulation where, subsequent to the Board decision challenged, there has been a change in the interpretation of the statute or regulation. Thus, citing to §4.6 or §3.102 is futile.
  10. Correct me if I am wrong here. The relief you seek is a claims file in your hands. Is that correct? If you file the Ex Writ and VA complies by supplying you with your claims file, why would you win the Writ? Once VA complies,they dismiss the Writ as being moot as there is no longer any case or controversy. Now, if VA did not comply and provide you with the file, the Court would grant your Writ and sanction the VA Secretary with a monetary fine until he complied. And they would still force the Secretary to supply the claims file under continuing sanctions. As for the VAOIG, their job is to investigate VA abuses, medical malpractice, the correct procedures for doing claims, timeliness in complying etc. They really have to power to sanction the RMC or the Secretary for individual mistakes or errors. There is a legal path to correct inequity and deprivation of due process. If anyone has any luck with OIG getting the claims file, please report back here and tell us.
  11. File an Extraordinary Writ of Mandamus at the CAVC. Free. It takes 45 days for the Court to whip the OGC into giving you a copy. About two weeks after the Judge gives them 30 days to poop or get off the pot, they'll say " Your Honor, we're mystified as to what the bitch is here. We gave his complete c-file records to him almost two weeks ago. Here's the certified mail receipt with his signature on it. We move for denial of the Writ." Here's a link to 64 articles I've written over the years and includes Ex Writs I've filed for myself (4) and for a client (2). I've also included some really interesting Ex Writs of other friends and neighbors. It'll give you the basics of how. When you file an Ex Writ, you are not the movant, claimant or appellant. You are the Petitioner. Always speak of yourself in the third person- i.e. "Petitioner begs the Court to..." By way of explanation, a movant is one who files a Motion to Revise (CUE claim). https://asknod.org/category/extraordinary-writs-of-mandamus/page/1/ On the other hand, you really only need to use the Court's informal claim process. Unless you have over $2 million stashed in a Swiss bank or the Cayman Islands, it's free. http://www.uscourts.cavc.gov/documents/Rules_of_Practice_and_Procedure_effective_Sept_15_2011_-_Form_4.pdf You can use regular stationary and ask (in simple language) the Court to make the Secretary give you your c-file. Since the Court has never set eyes on it-or you, you will need to send them all copies of any previous correspondence asking for the file. The Court likes it when you have a good paper trail. This also gets the OGC all in a dither and they start trying to get that claims file out to you lickity spit before the Court grants the Ex Writ. By way of explanation, only 11 people have won a Writ since 1990. A word of warning. Never get involved with the OIG. They'll be spending more time looking in your underwear than the bad guys'. Normal turnaround for me on a c file is about three months from the RMC. However, within 30 days of my filing the 21-22a POA for representation, I can see it all on VBMS with no restrictions. For some silly reason, VA gave me a Level 6 access instead of a 4 or 5. It lets me review all the HIPPA stuff unredacted like Psychiatric records. Shoot, I can even look at my own c file! That's a MegaBozo no-no at VA. If you're a VA employee, your VSO or attorney has to be in another state!
  12. Truth be told RangerWife, most idiots at the Regional office don't even know what this means let alone the old codes for it. Here's a screen shot of one of my client's old ratings from 1970. I was incorrect about the code meanings. #1 was no combat injuries whatsoever. #2 was compensable combat injuries; #3 was noncompensable combat injuries such as a 0% for a SFW/scar; #4 was for both compensable and noncompensable disabilities such as 10% for a SFW and 0% for tinnitus. The VA "technicians" now probably have that block on autofill with a default setting of one. PTSD was not considered a combat "injury" as much as a mental "disease" when they first put this entry on ratings forms. In fact, PTSD wasn't "invented" until 1981. Before that it was called a nervous condition or anxiety. If it's any consolation, my combat code says 1, too but then I didn't get all my medals until 43 years later along with a shiny new DD 215 to hang beside my DD 257 General Discharge.
  13. One problem I have with using §3.156(c) is that it is not an automatic guarantee of any reconsideration and an EED. Just because the STRs surfaced doesn't always guarantee an EED. The first prong of §3.156(c)(1) must be met. (1) Notwithstanding any other section in this part, at any time after VA issues a decision on a claim, if VA receives or associates with the claims file relevant official service department records that existed and had not been associated with the claims file when VA first decided the claim, VA will reconsider the claim, notwithstanding paragraph (a) of this section. Following that "test", §3.156(c)(3)(4) must also be met. If the records in question do not pertain to the disease/injury you appealed and won, you cannot win an EED. If you filed for them and lost in the past and want to reopen using the reconsideration aspect, the newer STRs have to prove entitlement sould have been granted in 1969 based entirely on what they contain. See Blubaugh v. McDonald. Say you got a SFW in Vietnam in 68. VA granted you 10% in 1969 for one muscle group when you got out. Say those 'new' lost STRs show you had retained metal frags in 8 muscle groups (MGs)-not just the one they awarded in 69. Say there's still tons of metal and documented muscle atrophy/damage, too. If they give you 10% for each MG now in 2019, then you can say 'Hold the phone, bubba'. The metal has been there for 50 years. Bingo- an EED of 1969 is due for each muscle group. My latest trick is finding Purple Hearts that were issued in 1970 but not on the 214. This has happened to three of my clients. That instantly provokes a §3.156(c) because of the §1154b combat presumption. Anything you say is the truth. If you were willing to die for Uncle Sam and damn near almost accomplished the task, then your testimony is unimpeachable. On every confirmed ratings sheet, there is a box marked "Combat code". #1 indicates you have no SC combat injuries. #2 means you do. 3 means you have both combat and noncombat injuries. I forget what 4 was for. So, if the 1970 combat code on your rating sheet says 1 and you show proof in 2019 of the Purple Nurple, it would have almost always changed the outcome of the 1970 decision. Learn how to play VA poker. You'll discover all kinds of tricks...
  14. Sounds like Sgtwish is entitled to some extensive SMC. Eventually,when the PD involves the lower extremity balance, you begin falling down. At that point most neurologists are willing to concede you have effectively lost the use of your lower extremities. If the shakes in the hands prevent most use functions like eating, taking medication, etc. you would require the aid and attendance of another. With those two "conditions", you would be entitled to SMC R1 At $7,896/month. I just got a Vet that last month. Especially if VA has all the records at the VAMC.
  15. asknod


    And the question about SMC is?
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