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asknod last won the day on April 19

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

Previous Fields

  • 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. Well, yes and no. If you get a low rating or something is just flat out wrong, I can look up the rater, call him or email him and ask him what he's been smoking. I can do this as an agent. Most attys. wouldn't but I never went to law school. Nobody told me I can't talk to the "VA Examiner". But when you make this a nationwide gig (including the San Juan, Puerto Rico office), I have to search through VBMS rater's notes to find out who and where they cut the rating. Then I have to call that RO's Change Management Agent (CMA) who takes care of attorneys and agents and ask her/him to have the rater call me. I like the local VA Gomers because you get to know them and how/why they'll react. I/We have a great CMA in Seattle (Tina). I call her Supergirl. You can get in touch with her on weekends and ask a favor or request an informal DRO chit chat (off the record). I always can get a "reconsideration" on a rating because I can see it in VBMS in real time. VSO's get notified and have a three-day bye to review it and call BS on the rater. Attys and agents don't. But, we can call BS if we see it within the 3-day window. There are only 3-6 big cheese DROs including the Veterans Service Center Manager and his assistant at any VARO. You have to get to know them in my business. Now we have to deal with 57 VAROs X 6-8 DROs X the 2 VSCMs each. I hate the NWQ. New claims going in right now are having to be uploaded at all the VAROs by their low GS employee staff because the EIC in Janesville WI is overwhelmed in paper and e-requests/claims. Any good plan has a weak spot. You usually find it after you deploy.
  2. Following a BVA grant, virtually all appeals are returned to the RO level (but not necessarily your own RO) to be rated. The BVA doesn't rate you unless it's for an increase. As of Feb. 14th, there is no more RAMP. It's all the AMA now. As for all claims, they are put into the National Work Queue (NWQ) and rated in the order received. It's like a big Bingo hopper with all the claims. They pull yours out and rate it. That might occur at any of the 57 regional offices across the land. It's then sent to the Consolidated Mail Processing (CMP) center in Janesville, Wisconsin for printing and mailing-again in the order received. I've noticed Janeville's running about 3 weeks behind right now. The ratings procedure is running 3-5 months from the BVA decision unless it was advanced on the docket.
  3. <<<<<< any one with TDIU generally cannot work.>>>>> Remember, there is always a work around. I just got one of my clients IU even though he has his own accounting business. It's classified as "sheltered employment". For every VA regulation, there is a repair order-well, almost. You will need a good legal representative to succeed, though. It's very important to realize each Veteran's circumstances are unique. There is almost never a "one size fits all" rule. Witness the extraschedular scheme of TDIU if nothing else.
  4. asknod


    Bluntly started off the question with: I am currently 80% IU Based on this, the PTSD is the TDIU at 70%. The 20% for left shoulder and the 10% for L ankle sprain are "leftovers" for use with a SMC S rating... but only if he wins 50% for the headaches. The 20 and 10% here are not so incredibly disabling as to be combined with the PTSD in order for the rater to be able to call it "extraschedular" to grant IU. A legitimate argument should be filed to pin the IU strictly on the bent brain using Buie if he needs the ratings to get SMC S. Edit #1. Buie v. Shinseki decision created a paradox. What if you had a tdiu and then got a lot of new ratings. §4.16 gives you the minimum requirements- 60% alone or a 40 or 50 plus whatever to get to 70 or more%. TDIU is then just apportioned to the greater of a 70 or a 60. VA will always try to combine them if possible to make a homogenized (combined) 100%. When you do that you burn up a lot of ratings just getting to the 100% combined and lack enough to attain SMC. Always remember our old friend in 3.103(a)---"(and) it is the obligation of VA to assist a claimant in developing the facts pertinent to the claim and to render a decision which grants every benefit that can be supported in law while protecting the interests of the Government." See also AB v Brown 94(?) (Vet seeks the highest and best award possible and the claim remains in contention until the Veteran is satisfied.) VA is notorious for inserting ''shrinkage" to how they go about this.
  5. asknod


    If you attain SC for your TBI, the headaches would most like be assigned for the TBI. As such, a 50 % rating for headaches added to the shoulder and ankle ratings would give you the extra 60% needed for SMC S. A 30% rating for headaches would not be enough ( 30+20+10= 50%).
  6. This is for Jerrell. I promised him I would draw him a map of what we talked about on the show-https://asknod.org/2019/04/12/the-new-appeals-modernization-act-and-more/
  7. Berta, you won't find the decision at the BVA yet. I'm still fighting at the AOJ level on several of these. The repair order seems to be going back to the dr. after a c&p denial (using echo) and obtaining a statement showing cardio cath proof. I'll keep you posted when I win them. One lost a leg to PAD and I used that. NOT. It has to be in the coronary arteries leading to the heart. Period.
  8. I keep hitting the wall on IHD. I have a doctor say he has CAD. I get denied. I have a dr say Arteriosclerosis throughout (including the coronary arteries and peripherals). I get denied. I say Atherosclerosis. Denied. So now, I just get the 12 ga. out and have the nexus dr. do the whole gig. I try to get my guys to go to a private doc on Medicare and get the magic IHD words. I'm finding using IHD is too nebulous for VA. I don't even ask or want the doctor to opine. It's presumptive. I just want them to say the secret word =IHD. The only VA type docs who will do an IMO/nexus is the VAMCs that share a nursing school with the VA med center -i.e. Duke/Salem/Seattle etc. Those docs do not "work " for VA. But, if you do not have them say the magic words ('I reviewed the claims file') it's dicey. To begin, a VA medical examination report is entitled to no weight if it contains only data and conclusions. Nieves-Rodriguez v. Peake, 22 Vet. App. 304 (2008) If the VA Doc just says "It's more likely than not it's AO. " that won't win. Granted, AO is a presumptive and they aren't supposed to get in the weeds, but I'm talking about nasal cancer cases when they say it isn't in the respiratory canal or the lungs. If it's small cell carcinoma, it's AO in my book. VA doesn't agree. That's when I'm forced to go get a good IMO.
  9. https://asknod.org/2019/04/10/hadit-com-radio-show-the-ama-a-mobius-loop/
  10. SMC is a quality of life issue. You assemble it like Legos. Okay. There is no requirement to get to SMC S prior to ascending to SMC L. LOU (loss of use) of lower extremities is one SMC L. If you had LOU above the knees, It would be M. If the catheter causes you to need Aid and Attendance, that is another SMC L. Two Ls advance you to SMC O. If one of the Ls is for A&A, then you get R1. You could have two entitlements to A&A and get R1. The c&p for SMC is basic. You have to prove by medical records you have been dx'd with LOU of two extremities. VA does use the VAF 21-2680 for determinations. I've never heard of a SMC L c&p taking four hours. Generally, you medical records reveal the determination you have been dx'd with the LOU or the need for A&A- but not always. The M 21 states only a VA examiner can make a LOU/ A&A determination. Thus, even if a QTC/VES/LHI doctor says yes, VA can still say no. I am currently in that situation with one of our Hadit members right now. He deserves A&A and they refuse to grant. The good news is the Mariano v Principi decision. If you have a dr. saying yes and VA says no, that's equipoise and by operation of law, they have to grant it. Sadly, I almost always have to go to the BVA to achieve them.
  11. As a veteran who fought for SC for almost 30 years, and now accredited, I would ask you to review any and all DBQs and show me where there is a box that says "Is the condition at least as likely as not SC?" This option is available on the ones used by VES/QTC/LHI occasionally. However, regardless of what the VBA says, the general rule is as it states in your attachment ( VHA Directive 1134) above: 1. Service connection and disability ratings for VA benefits are purely legal determinations belonging exclusively to the Veterans Benefits Administration (VBA). VHA providers often do not have access to military medical records, and may not be familiar with all the health issues specific to military service, such as environmental exposure. Additionally, the issues of service connection and disability ratings are governed by statutory and regulatory provisions beyond the scope of VHA examination and/or primary care. Consequently, they are often not well suited to assess causality of a current condition in a manner helpful to inform the VBA adjudication process. VHA providers who wish to provide medical opinions that state causality must include clear and specific rationale citing evidence to support the conclusion reached, and should employ standard language appropriate for medical opinions (such as “at least as likely as not”, etc.) As for the second document (VHA Directive 2000-029), it is obsolete. It was issued prior to 2010. I don't wish to argue with you. I'm sure you feel I'm wrong. I litigate each and every day for Vets. I live and breathe VA law and study new techniques. I pay $3,000 a year to maintain that accreditation by taking the required CLEs. If I don't know the answer, I use Westlaw to confirm it. Westlaw costs $59 a minute to access. If I thought using VA doctors was a viable option, you would have heard about it years ago, sir. The CAVC and the Fed. Circuit would have tons of cites saying a VA doctor's word is gold. Now, if you are familiar with VA case law and precedence, you will know that a medical opinion is based on knowledge (the claims file and private medical records-or VA medical records). VHA doctors can fill out generic DBQs listed at the link above. If they do opine, it rarely has any bearing on a win. If they have not researched your case via the claims file, it isn't a probative nexus, sir. Try talking your VA doctor into reading a 2,000-page c-file and providing a IMO with supportive, peer-reviewed studies. I see hundreds of "nexus letters" by doctors. VA ignores them if they do not specifically note they have reviewed the claims file. You are welcome to believe what you will but speaking from experience, depending entirely on a VA doctor for a nexus is not advised. Here's a few from my file I find very much on point taken from Fed. Circuit and CAVC decisions: >The credibility and weight to be attached to medical opinions is within the providence of the Board as adjudicators. Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993). Greater weight may be placed on one physician's opinion over another depending on factors such as reasoning employed by the physicians and the extent to which they reviewed prior clinical records and other evidence. Gabrielson v. Brown, 7 Vet. App. 36, 40 (1994). >However, Dr. Bash did not address contemporaneous evidence, including VA and private treatment records from throughout the period under consideration, that note the Veteran was, in fact, ambulatory, albeit at times with the assistance of a walker or cane. His opinions are conclusory, inconsistent with contemporaneous clinically recorded data (which he does not acknowledge), and cannot be afforded any substantial probative value. >See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301 (2008) (stating that a medical examination report must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two); see also Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) (stating that a medical opinion must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions). To begin, a VA medical examination report is entitled to no weight if it contains only data and conclusions. Nieves-Rodriguez v. Peake, 22 Vet. App. 304 (2008) Remember, we are here to help Veterans win. Each must tailor his defense to win using proven techniques. As an example, if you try to submit a psychiatric evaluation from a private doctor at the beginning of your claim, it will be rejected even if it's probative. VA's shrink must always opine first. It's the law. VA c&p doctors/nurses offer their assessment of a disease or injury for the VBA adjudicators to study. It is not binding on VA. I've had hundreds who said "Yep. It's due to AO. A month later I get the denial saying it isn't. I take no pleasure in arguing with any of you here. My desire is to teach you what you need to succeed. As they say, you can lead a horse to water but you cannot make him drink. You are free to ignore my advice and it will not hurt my feelings. I've helped thousands over several decades attain SC-usually IU or 100% +. It's a recipe-just like baking cookies. If you choose to substitute baking soda instead of the baking powder called for, you don't get what you desire. Many tell me I'm wrong here at Hadit. Considering I have never lost a claim or appeal yet (knock on wood), I take it with a grain of salt. I wish the best for all of you. VA screwed me in '89 & '94. Every win is a b*tchslap for that treatment I received. They should never have said I was not in Vietnam.
  12. BroncoVet touches on an interesting precept with attys/agents. Most of us will never touch a new claim but will advise you to use a VSO to file it. The reason is simple. We are forbidden by law to charge you to file a claim. We only can enter in to the fray once a denial is issued. It also is a good experience to discover what "hands on" really means in claims development. I do not fault VSOs for their lack of ability. They are not trained to do this. They are glorified mailmen. They fill out your 526 and deliver it. I have learned to file an 8940 at the outset of a claim regardless of whether a client is working. I've won on a Vet being "marginally employed" in a sheltered work environment. He was a CPA working for himself and all but unemployed but for some of his oldest clients. The VR&E angle is good but time consuming if attempted after filing. With the new AMA, you want that in your file at the outset if possible. I advise you begin that asap and prepare it as a tool ahead of time. I never procure an IMO until I lose. Why waste the money? I'm an undying optimist that VA might be agreeable and give my client his due. Of course, I was convinced we were going to win in SEA in 70-72. As with all techniques, VA is learning to deny IMOs by sending out to get second opinions. This is called developing to deny and is forbidden by Mariano v Principi and §3.304. Thus, I always ask for a SOC asap and submit it to a VLJ. I just got back from a TB hearing in Oakland before VLJ Matt Blackwelder last Thursday. My client has Hep C and he admitted to snorting toot in 88. He has no medrecs. They burned up in 73 or so VA says. I had to explain to the judge that Stage 4 cirrhosis takes 50 years-not 30. 1988 doesn't fit the medical scenario. You could never accomplish a win like this without an extraordinary IMO presented in person to the judge. He read it while we sat there and nodded in agreement. I never forecast wins but I feel good on this one. Absent qualified counsel, he could never have won it on his own or with a VSO. A videoconference would never have conveyed my client's advanced debility from the cirrhosis. One thing I cannot impress on you folks here. There is no template for a claim. Each of you is unique as are your circumstances. There is some commonality in how it is done but each one must be produced based on the evidence you possess-and most especially- what you do not possess. I like to use this as the ultimate example of what you can create with absolutely nothing to work with but negative evidence-or worse- no evidence whatsoever. The gentleman was advised in 2015 by his VSO not to waste his time filing as he could never win it. We shall see.
  13. VA quit allowing their doctors to opine on Veterans' conditions and whether they are service connected back in 2010. You'll have to look to an outside source in the private sector to get the opinion [option]. You can use an PA-C, PA, or ARNP but an MD is the best. VA often uses registered nurses at the ROs to make the decisions. They are called "VA examiners". Good luck.
  14. First, to get to R1, you will need two (2) conditions entitling you to a rate between L and N. One of them must be A&A. Loss of use of lower extremities must be diagnosed by a doctor, not just your say so. VA often makes the mistake of using a VAF 21-2680 when they should be using a VAF 383. If you have proof (not your spouse or children) that you are unable to bathe or feed yourself unassisted, then that would qualify as one SMC condition (SMC L or A&A). This includes being a danger to yourself or others. Loss of use of upper extremities would also be a condition. Needing A&A due to the loss of or loss of use of your lower/upper extremities will not qualify. Each condition must be due to a separate disability. You could be in need of A&A for PTSD and also due to loss of use of the extremities. Two A&A ratings qualify for R1 but you will need at least one of the SMC ratings between L and N due to A&A of another person. Just because the rater says you need R1 is not a winner. The M 21 states only a VA rater can award SMC L-O or R1/R2.
  15. Happy Birthday Alex, thank you for all you do to help us!!!  H   🎂

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