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asknod

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asknod last won the day on June 12

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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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    http://asknod.org

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

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  • 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. Here's another approach to SMC errors (attached). I just filed it yesterday. I don't consider failure to award SMC a CUE. It's a pending claim awarded when the evidence supports it. As the CAVC said in Bradley and Buie both, you do not have to file for it as you would a claim. 10182 extra pgs PRELIM.pdf
  2. Read down this article to the bottom. There are three links to course material I got at the 2016 Las Vegas NOVA conference. Actually, the guy teaching the course (Alan Gumpenberger) didn't have an answer key. I had to look up every single question in 38 CFRs §§3, 4, 19 and 20. Every one of these questions were or are on any given test. VA is too cheap to make up new tests every year. Besides, remember they have to make it easy enough for VSO National Service Officers to pass. There were 28 questions and you had to get a score of 75% or better (in 2016). They gave me 90 minutes. It took 23. Join NOVA after you are accredited and your fellow attorneys will help you at no charge and offer killer advice. https://asknod.org/2019/05/25/memorial-day-2019-dirty-deeds-done-dirt-cheap/
  3. This is an amazing story. I got a Vietnam Swift Boater (Dan) R1 last year. Sadly, he passed in early January. They got almost a year of R1- $93,600 -before he passed.. This Vet's wife (Dan's daughter) came to me in early December and asked me to help her. Seems the VFW in Arkansas doesn't understand SMC very well. They said her husband was maxed out at SMC M. But of course, they said that before he finally got SMC L. I was honored to represent this 11 Bravo 20 w/ CIB. Two R1s and two Vietnam Vets in the same family. That will probably stand as my personal best. Hoooooo, doggies I do love to litigate. Leave no one behind fellow members. Never. This is precisely why I chose to become a VA agent. I wanted to make a difference in a few Vet's lives before I punch out. Some of you will ask how much money I made. $36.75 for USPS Priority mail postage. The Arkansas Puzzle Palace didn't fight my Vet on it nor did I expect them to. Cool beans, huh? redact R 1.pdf
  4. Why not skip the HLR and go straight to the NOD at the BVA? It's just as fast as the HLR and you get real lawyers looking at it-not illiterate GS=10 VSRs. Without new and material evidence to submit to change the decision (assuming no CUE) in a HLR, you might as well go straight to DC. If you lose, the Judge will tell you why and you can turn around and go back to the supplemental lane and submit more evidence to win with. You still keep your effective filing date too.
  5. If you want VA (or Seattle RO) to take you seriously, hire an attorney/agent. We just call up the CMA (in this case, Tina in Seattle) and explain this type of insanity to her. Remember, with the new NWQ, it isn't necessarily Seattle doing you claim now. It may be Waco, St. Paul or another RO. Read Moody and then read any cites in Moody to other CAVC/CAFC cases. Moody stands for a sympathetic reading of the claim if you are pro se. Being repped by a VSO is still the same as pro se. I took over a remand back from the BVA. I politely asked the DRO to cut me a SOC and return it to the BVA so I could submit a professional IMO to win it. The DRO in Waco called me up several days later and said they'd taken a second gander at it and were granting the Agent Orange exposure based on the same evidence. I think the mere threat of the new IMO and the new representation by a real advocate ( instead of the Texas Vet Commission) was enough to convince them we were not going to go away. Sometimes just having real legal beagles working for you convinces them to grant.
  6. AMA is a work in progress. Most raters are not well-versed in this yet and may never figure it out. As for the VA sending out a 4192 and a 8940, they generally travel in pairs. If you file an 8940 for IU, you will automatically get a 4192 to give to your prior employer to ascertain why you are no longer employed there (in their opinion). As for 100% P&T, let me illuminate you. A lot of you think an IU rating is 100%. Some insist it's P&T forever. A rating is not substantially protected until you've had it for 5 years. It is not permanently protected until 20 years and even then subject to revocation if it was obtained fraudulently. I had clients at 19 yrs and 4 months get the revocation notice. They reduced one rating and upped another. The net effect, in their eyes, reset the 20-year clock as well as entitlement to DIC (the ten-year clock). I fought it and won but that isn't the point. IU is technically never truly protected. If you began delivering newspapers 20 yrs after you got IU w/ P&T and any income showed up on SSA records, your P&T would be gone with the wind. IU is not 100% except for pay purposes. VA is fond of slamming you with a reduction and knocking you below 40%+ others to get to 70% or reducing a 60% downwards resulting in revocation of IU. Always remember who you're dealing with. In VA's eyes, we all get better someday and are targets for reduction. If you do not appeal a unlawful denial, it becomes part of the 98% of claims they did correctly. When you take into account all legal decisions done on appeal, the error rate mushrooms to 75%. So much for VA's statistics. As I mentioned last Thursday in the Radio show, in January VA 86'd a 20% rating on one of my clients that was 26-year protected. They dropped it to 0% but simultaneously gave him another 30% for some other nitnoy crap. Net result? He was still at 80% and no IU. VA's logic was it wasn't a "reduction" but rather a "rearrangement with no net loss to incur a §3.344 reduction proposal". If they had done it correctly, he would have been 100% combined or at the very least IU. Half my work is running around fixing the VA's errors with NODs. With the AMA permitting us to skate to the BVA with our NODs now, it will be far better. Shoot, if you lose there, there's no need to go up to the CAVC. You just run back to the RO and file your 20-0995 within 120 days and start over.You keep your filing date. In this reduction case, I even called up the DRO in Houston and informed her it was illegal to reduce the protected rating. She gasped and agreed it would be very illegal. I can see her note in the VBMS from that conversation. Three days later one of her gomers punched print and made it official. The only fixer is filing the NOD and claiming CUE on that in addition to all the other errors. And VA wonders why 20 or more of you folks commit suicide every day? Helloooooooooooo? This isn't a conspiracy. It's ignorance. If you had a computer hooked up to your car and it told you the fuel injection was toast, would you question it? Hell, no. You'd throw a new injection pump on there and presume that was the repair order. Could be it was nothing more than a vacuum leak. The same applies to the M 21 computer. If it tells a rater to do it, he does it without question. He doesn't even need a second signature! The last time the M 21 was officially revised was 2006. Ever since then they've just been racing around behind CAVC precedence to input that and little else. The fact is, the M 21 is so wrong in so many respects on 38 CFR and the raters swear by it's dictum like it was the Oracle at Delphi. Boy howdy, try quoting M 21 to a Veterans Law Judge. You'll get the legal smackdown of your life. Judge Cherry Crawford did it to me last year and I will never pull that stunt again. You can refer to it but do not quote it as stare decisis. Any time a c&p reveals additional "contentions", VA will investigate them to see if they should be SC. You do not even need to file for them. This is the implied or inferred claim. See Moody v Principi to grasp the concept.
  7. I'm coming to find that new Veterans to this site often do not understand the verbal nomenclature we often use in these conversations. I think T-bird might consider putting in a dictionary of terminology to help the newbies. I have one labeled Vet's Dictionary on my site but it focuses on a lot of Vietnam War terms more so than VA terms. One thing I find confuses my Vets is medical evidence. When you file, VA wants to see what your medical records say from service (STRs -or SMRs pre-2008). Far too many think medical records post-service will help them attain Service connection (SC). It may show chronicity or degree of debility to satisfy that prong but it is not helpful in proving it occurred in service. If I tell my client to send me any STRs they have, I often get post-service stuff. Many confuse any medical (or military personnel) records you obtain at the National Personnel Records Center (NPRC) with their claims file maintained by VA. Some have sent me their VAMC records thinking these are c-file records. Not so in most cases. Even worse, if you filed a VA claim back in the 70s-80s, the NPRC often sent the original STRs to the VA and did not keep the original copies. When you ask for them via the SF 180, they'll write back and claim them have none. They also neglect to tell you VA has the only copies. Military records and inpatient hospital records are not stored with the STRs. They are in three different buildings. In a lot of cases, the inpatient stuff is still at the hospital in microfiche and was never sent to the NPRC. Even stranger, VA will often tell you they cannot find or obtain your records. I filed in 2015 for one of my Vets and found all his stuff still sitting in St. Louis untouched for almost 50 years. VA said they tried to get them in 1970 but couldn't find any. Of course, this created the largest §3.156(c) claim I've ever done. VA is lazy, I'm sad to say. They tell you things that are patently untrue. I had a Vet who filed five times between 1971-2015. He finally won 100% in '15 and asked me to do the appeal. You guessed it. They finally went back and got the NPRC records in 2014 and spotted their error. Bingo-100% but no earlier effective date back to 1971. That one's in on appeal as well for a 1971 date. In this Vet's case, they "lost" his VAMC records- the one showing a chronically infected (Hep. C) liver. They accidentally sent it to him in 2001 when he filed a FOIA claim. It still was not part of the record when I filed the appeal. I submitted it again and VA promptly labeled it a "duplicate filing". In law, we call this spoliation of the claims file-a recipe for an instant win. Having a claims file isn't as good as actually having access to the VA's computer, There, you can actually see in chronological order what they did from beginning to end. They cannot erase, cut and paste or shred in 2019. What they did in 1980 is poured in concrete. This is why it's so easy to go after them for antique CUEs now. Unfortunately, Vets do not have access to this valuable tool yet. I do hope it eventually is granted to them. You can ask your VSO to come in and privately review the claims file in person. VA rarely does this anymore but that would get you into the VBMS computer where you could ask them to print up copies of certain documents or you can take your camera phone in and screen shoot their entry into the VBMS for proof they failed to go get your STRs until 2016. VA law is now getting down to a Sherlock Holmes exercise of "what did they know and when did they know it" game. If you want to have a successful CUE, 99% of your evidence you'll need is right there in their files. You will never win without it. They are not going to volunteer their guilt. The name of the game in VA law is Evidence is King. Lay testimony is often useless without supportive records. I am now doing six (6) claims where VA introduced the STRs many, many years after the original filing and then granted entitlement...but without granting an earlier effective date. Each one is an ungodly amount of back retro $. The cheapest is $80 K. The largest is over $1 million. That's not chump change. CUE is the hardest legal path to win but often the most financially rewarding if you succeed. Of course, if you're like Berta and me, winning CUE isn't about the $. It's the vindication that you are, and were, right and VA screwed up royally and then continued to lie about it to CYA. Onward through the fog.
  8. An attorney's (or Agent's) job is to get you the highest and best rating attainable under §3.103. We get the VA " to render a decision which grants every benefit that can be supported in law while protecting the interests of the Government." If we are remiss in any way in that matter, we can lose our accreditation. A VSO can give away the farm one thousand times and never be prosecuted for it. There are about 750 attorneys who do this all the time. There are 350-375 agents who are accredited. That's about 1000+ advocates serving 3 million pissed off disabled Vets who are getting screwed. Do the math, sir. No offense and I apologize. Just remember, your attorney is your very best friend and he is required by law to ask you personally each time he opts to appeal or file a claim to protect your interests. A VSO can refuse to let you file. They even forget about automatic claims you can file legally for AO. Having an attorney, in most cases is extremely beneficial financially compared to a VSO. Actually, coming here to ask for advice when you are represented by an astute attorney makes no sense. It's almost like seeking another opinion on legal advice from your local bartender in some respects... Trust the attorney-most especially if he's a NOVA attorney
  9. There's something we are not seeing here. If he was was 70% solely for TDIU, this would be a slam dunk. My suspicion is that Dawsonatl has a combined rating of 70% with no single rating over 40%. That would be the only rational explanation for the denial. No one in the Ratings/Appeals section could make that basic an error - even with the screwed up M 21 manual. Perhaps the poster would be so kind as to show us his confirmed ratings sheet so we can opine on this based on facts rather than suppositions. Hoo-doggies.That's a pretty big put down of someone who has agreed to help you, sir. Do you have any idea what it costs to even become an attorney? Try $40-$70 K in student debt- after 4 years getting a degree in Pre-law. To hire qualified paralegals to work for you with medical/dental? Try $60 K a year per person. To invest in $5,000 copy/scan machines and the paper? An office building with $4000/month in overhead to keep the lights and telephones on? To get accredited or maintain accreditation? Every NOVA conference I attend each year costs a minimum of $600 for the training and over $2000 in air fare and hotel rooms (before food). No, of course you don't. Frankly, I don't know why any self-respecting attorney would give up an opportunity to make some serious money by representing Veterans at @ 20% rather than 40% for ambulance chasing in the real world. I do this because I am a Vet and paying it forward. Others I cannot speak for, but if one of my clients had your attitude, I would drop him or her in a New York minute.I enjoy contributing to this forum but find it despicable that any client would speak ill of the one who is attempting to help him. P.S. If he drops you, please don't call me.
  10. Mr. Williams, From 1946 until 2001, the metric on VA claims was whether it was well-grounded or not. If your claim had no merit or was unsupported by your service medical records, you would not be allowed to file it. VSOs and VA used this as an excuse for decades to fence us out. With the passage of the VCAA in 2001, all claims were considered without having to pass a test like this. Now, unfortunately, we are entering the same area again with the passage of the new AMA. If you are denied, the only two options are to "prove" it's well-grounded by filing with new and relevant evidence to support your contentions or to ask for a higher level of review which is nothing more than the old informal DRO review with no new evidence added. Possibly the only positive thing to come of this is you can get to the BVA on appeal much faster. There, you will get closer to true justice because it isn't designed to be a denial factory. Veterans Law Judges (VLJs) and their staff attorneys (with real law degrees) look at your claim in a whole new legal light. This doesn't absolve you of having to provide probative evidence of why you claim has merit. It is just a lower legal standard of review than the cattle drive at your local VARO. I am hearing from my fellow NOVA attorneys and agents of DROs refusing to even look at legal briefs at these HLR actions calling them a back door attempt to insert "new and relevant evidence". By law, we are allowed to submit a new arguments to show VA's error. It's illogical to appeal to a higher level and basically arrive with what you had at the outset. How, pray tell, can you explain the error to them?
  11. BroncoVet's answer is spot on. I have one case I began helping on in 2013. I had to start by getting his Purple Heart and CIB. That took a year. We filed 3/30/15 and VA sent his c&p request to an address he'd lived at 35 years ago. We had to regroup and won IU in 12/2015 with congressional intervention over the address snafu. I filed the NOD after I was accredited about then and here it is 2019. I even got him advanced on the docket and it's with the VLJ now... I haven't seen a dime yet. It's a good thing I'm getting SMC S and made good financial investments or I might have a zip code under a bridge overpass. Most attys. can't carry the water for 5-8 years- especially for 20% times 200 Vets. You can go out and chase ambulances for 40% and drive a Porsche instead. To be honest, I wonder how many of you Hadit members would be interested in this as a part-time career. You cannot even imagine how rewarding it is to help a fellow Vet. In 2006, I could built a house blindfolded but didn't even know how to turn on a computer-let alone know what 38 CFR was. 8 years later, my attorney told me I knew as much as him and wondered why I had hired him. Theresa should be awarded Sainthood for starting this site... leave no Veteran behind. Ever. Pay it forward. What do you have to lose? Put down the X box controller and learn how to kick VA's derriere. It's like fishing with M 26s. I'd be happy to send you a copy of what's on the test.
  12. Well, sir. Imagine this scenario. I get to work at 0800. Sometimes I have to get up and call VA raters and DROs and ask them why they screwed my Vet(s). If they're in St. Pete's, I have to get up at 0500 to call them. I also get calls from them answering my emails. I have to write legal briefs for upcoming travel board hearings before VLJs. I don't have any office staff to do it. Even if I did, I'd still be researching a claim-sometimes on Westlaw which costs me $59 a minute to access. Many big outfits use paralegals (unaccredited) to do intake and communicate with the Vet. It's not that we don't want to talk but that it isn't always feasible. I keep my caseload down to about 100 and it still eats all my time. And yes. I talk to every one of my clients if they call unless I'm with another Vet -but I'm the rare exception. If your atty. is winning your claims and they are very difficult, then 33% is a bargain. I won a Vet $188 K a year or two ago. He was pissed I got $37 K. That was 20%. If I'd lost, I would have gotten 20% of zero dollars even if I had worked my butt off. He still got $151 K but feels like I screwed him. That's the down side to helping anyone. Murphy's first law is " No good deed goes unpunished." As most know, I generally take those funds to offset the cost of helping other Vets for free... There are good attys and bad ones. Too bad they don't have Win/ Loss records!
  13. The VA also deducts $100 from our settlement for "dealer prep and destination fees". If you sign for 33%, that's your responsibility to pay the atty. directly. If your appeal was won before you signed w/ atty., ask for you money back. With that said, if atty. did win it and you jump ship and try to get another atty. to take it, you won't find one. Attys. hate claim jumpers. Worse, the first atty. may have a large amount of time invested and s/he would never sign off on waiving the fees s/he feel they legitimately earned. Succeeding attys won't touch it if they think the fee will be contested by atty. #1. If it were me, I'd be ironing out what's up legally with the win rather than asking for advice from us. We cannot see your case file. Going back to 1978 for an EED implies a CUE or §3.156(c) law. Both require extensive legal knowledge of contemporary VA law at that time.
  14. I must politely dissent with my esteemed colleague's assessment above. §3.156(c)(1) is unequivocal in it's instructions: 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, My disagreement is elementary- a claim remains pending until there is some concrete evidence it has been addressed and decided. Here, the mere association of the STRs belatedly to a claims file automatically triggers §3.156(c) as a freestanding claim and it cannot be CUE because the reconsideration which shall be accorded under §3.156(c) hasn't occurred yet. One could characterize it as a chicken before the egg conundrum. Granted, I've been forced to refile these as CUE to get them changed and even had to go to the BVA to do it. I get that. No DRO wants a ginormous six-figure 156c retro payout on their resume. Better to kite it up to the BVA and let them suck on that egg. The M 21 is a good advisory on this. The say you can file it on SF 8.5 X 11 (white). SF 8.5x11 stands for standard form 8.5 inches by 11 inches white computer paper-typed or hand written. I got this from my VA Change Management Agent ( I call her Supergirl) this morning. I had a CUE kicked out of VBMS last week because I used a 526 instead of a 20-0995. Okay, how can you use the supplemental claim with CUE? By operation of law, you cannot add new evidence to a CUE. filing, so.... Here's her response. You do not need a form for a CUE. Are you wanting to file a Supplemental Claim? Then you would need new evidence, but not for a CUE. III.ii.2.B.1.c. Benefit Requests Not Requiring a Prescribed Form prescribed claim form is not required for requests for · review based on clear and unmistakable error (CUE) · substitution · a finding of incompetency received from a first or third party, and · removal of a dependent. Anyway. to me an EED due to a §3.156(C) error requires a decision in the first instance and for finality to attach with no appeal. CUE might ensue after an adjudication of the applicability of §3.156(c)(3),(4) but not until there is an actual, promulgated decision. I'm sure Berta can understand the legal nuance I'm implying here. Semantically, the legal standard of review of a Motion to Revise (CUE) requires a fait accompli. Absent a reconsideration first- up or down- there can't be a CUE yet. A reconsideration is a powerful tool. If you were granted claims recently that you filed for 40 years ago and VA grants, you get to carry that back 40 years- assuming, arguendo, you can show your degree of disability arose then. CUE requires you go down the harsher road. That's a much higher bar to clear. Quite frankly, you are precluded from arguing how the evidence was weighed or decided in a CUE. Certainly, the evidence in the old STRs should fall into the " the evidence, as it was known, wasn't before the adjudicator" clause of CUE, but again, a reconsideration is not required to pass the next qualifier of CUE- i.e. 'manifestly changed the outcome" codicil in §3.105. Thus, I disagree with the applicability of the CUE standard of review. I filed this argument in a 2015 brief and VLJ Vito Clementi agreed with my legal standard of review argument. I also would say it depends on which judge you get as to how they would legally characterize this point of law. There are definitely two schools of thought on the subject-maybe more...
  15. VA has rescinded the requirement for annual filing of unemployment to prove entitlement to TDIU. I have two clients who have received the letters saying it is no longer required as they can see the SSA records on line now.
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