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Everything posted by asknod

  1. 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.
  2. 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?
  3. 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"?
  4. 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.
  5. 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.
  6. 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.
  7. 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.
  8. 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.
  9. <<<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.
  10. 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.
  11. 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.
  12. 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.
  13. 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.
  14. asknod


    Got it. The 70% represents your TDIU rating. If you can get an additional 50% to go with your 20%, then you'll have enough to get SMC S.
  15. asknod


    Who told you?
  16. I have no idea why VA will take one claim and zoom through it and then dawdle and take another and drag it out for years. I'm sad to say I was unable to get on Theresa's gala 22nd anniversary show this morning but I had a doctor appointment I could't put off. I apologize to all who I missed. I visit other sites that help Vets. There are quite a few out there. Some are snobby and stuck up. I don't see Hadit and asknod in that light. We generally help more than we hinder. Anyway, Here's a link to the win. Carla would have found this one to be a hoot-especially the business about the right hand. I attached the redacted ratings documents to it. I love it when I get to meet my clients. I'm even more glad when I can gitterdone quickly and save everyone a short ton of money. https://asknod.org/2019/01/19/lz-cork-sweet-home-alabama/ Once you get your SMC L foot in the door, getting A&A and then R1 is a lot easier. 2019 is beginning on a positive note.
  17. My apologies to Waynet if I have sickened him. In fact, my apology extends to any I have offended in this thread. Nevertheless, there are lots of things many of you do not know about RAMP. Did you know it is only one small part of Public Law 115-55? Did you know, of 553,000 legacy appeals, only 16,547 Vets have opted in? Did you know the VA has taken 10 (ten) Regional Offices "offline" and all they do is RAMP opt-ins? That means an RO that can do 150 decisions a day has so far averaged 1,647 Vets per RO since RAMP opened up. My POC in Seattle is twiddling her thumbs. They literally have nothing to do. No DRO reviews. No DRO hearings. No claims adjudication whatsoever. https://www.federalregister.gov/documents/2018/08/10/2018-15754/va-claims-and-appeals-modernization The BVA decided 81,500 (approx.) claims in 2018-up from 62,000-ish in 2017. Meanwhile 60,000 more claims came in-legacy appeals, folks. Why? Maybe they wanted to come into RAMP at the BVA but the system wasn't set up yet. Broncovet maintains all those legacy appeals will turn into pumpkins pulled by field mice at the stroke of midnight on February 14th, 2019. I do this for a living. I really couldn't care less if any of you opt into RAMP. However, this uninformed chucklehead would never suggest it to his own clients unless it was a CUE. I will not harangue you further with RAMP information. I don't need to. It seems a few here have misconstrued the data and feel they stand a far better chance in RAMP than out. As a commentator here, it irks me to see incorrect information disseminated without so much as a fact check. The truth is out there. Why the rush to give out bogus advice? Why not simply read the regulations proposed in the Fed. Register and make up your minds rather than accept an incorrect explanation? The object of Hadit.com and asknod.org is to give you the information you need to succeed. Handing out "fake news" is not acceptable. I gain nothing from attacking anyone. If I keep one Vet from making a mistake and losing, I can sleep at night. I help Vets win by litigating as little and as infrequently as possible. If I chose RAMP for my clients merely to shorten their claims, it would result in far more denials and refilings to "get it right" the second or third time. What have I gained? Or, better yet, what has the Veteran lost? Time. There is no shortcut to a win at VA. Please also remember that RAMP is still very much in a trial period. If it works, it will become the way we do this. If it doesn't, well, it's back to the drawing board for a new idea. I refuse to allow my clients to be guinea pigs. I see a lot of emphasis is directed towards CCK's assessments of RAMP. Here's another view from (gasp) attorneys who also know nothing (like me). https://www.woodslawyers.com/join-rapid-appeals-modernization-program-ramp/ Try becoming informed on the program before opining on what it is and more importantly, what it isn't. I have about 8 Vets in Legacy and I wait an average of 3 months for a Travel Board Hearing and another three for a decision. Granted, my clients are terminally ill and deserve to be advanced on the docket. However, if anyone thinks Legacy appeals will be subsumed by RAMP, they're smoking something stronger than tobacco. Legacy will always be available to those who desire it. In fact, if anyone here will bother to read the proposed program, they would know that. There are none so blind as those who wallow in ignorance. Some of you will only "see" it when you finally believe it. Richard 54 has "seen" a glimpse of it. As Yoda said in Star Wars "Do. Or do not do. To try is to fail." I refuse to leave any of my Veterans behind on that paper trail. I never try to win my Vets' claims. I win them. I don't have any degrees or awards to brag about. I am not smarter than any of you. I am simply more determined than most of you. I often wonder why many of you who are very well educated don't take the Agent's test and do this. I have trained two in just two years and they passed the test on the first try. I see too many armchair quarterbacks in my work. Much like a doctor, commentators here should first concentrate on doing no harm. That requires extensive research, something that is apparently in short supply. Try this for a starter-- https://www.bva.va.gov/docs/Chairmans_Annual_Rpts/BVA2018AR.pdf And that's all I'm going to say about that.
  18. I find Broncovet's assessment interesting (above) <<<You are essentially asking the attorney for "expert" advice, on a subject to which he has no experience. >>>> Who, pray tell, would you ask advice from if not an attorney with a Juris Doctorate? I lack one but am accredited to practice all the way up to the CAVC. Ergo I have been deemed to have extensive legal knowledge-including all the ramifications of choosing RAMP. Is Broncovet suggesting we rely on the VA or a well-known VSO like DAV for RAMP advice? As to RAMP, Richard 54 has illuminated many problems. The largest one being it hasn't even arrived at the BVA. How do you obtain a rapid BVA decision when the infrastructure isn't even in place yet? Remember, February 2019 is the ostensible date assigned for rollout. I would ask any of you Hadit members to come forth and tell us of innovative new VA programs that were ever operational on the day advertised. Last Spring, at the NOVA conference in San Diego, we listened to several points of view on RAMP-both from VA Judge Cheryl Mason and a NOVA attorney (Ralph Bratch). The consensus among ATTORNEYS, who do have legal training, was that it deprives you of innumerable due process protections. As for trusting the VA, their spokesfolks continue to try to induce us all to leap into this project and simply trust them. VA has even gone behind my back and taken to mailing my clients RAMP opt-in forms. As I have exclusive representation rights, they are forbidden to approach my clients without coming to me first. Speaking of Chisholm, Chisholm and Kirkpatrick (CCK), I had dinner with Robert Chisholm and Zachary Stolz, along with BVA Veterans Law Judge Brad Hennings at the Spring 2018 NOVA. Mr. Chisholm was extremely leery-as were all the CCK staff attorneys- about RAMP. I think I speak for NOVA in general and most attorneys/agents in particular when I say trusting VA to do something beneficial for us is a chimera. While Congress and the President might have meant well by creating the RAMP program, its implementation is going to be written and conducted by the DVA via regulations (i..e. 38 CFR). In case none of you have ever heard the term "Chevron Deference", you might not know the Courts will defer to the VA to interpret what RAMP is going to be. Since the RAMP track record, which has not even set up shop at the BVA yet, has already resulted in a 90% denial rate, any hopes of smooth sailing to a grant of benefits there is far too premature-regardless of Broncovet's enthusiasm. Broncovet is entitled to determine how he, personally interprets the new RAMP procedures, but Congress has unequivocally preserved our right to the legacy appeals process. That much is certain. Broncovet's statement that "My "interpretation is fully implemented in Feb. 2019 means it will no longer be optional." neglects to mention February 2019 is the beginning date for the BVA to begin considering RAMP appeals-not that everyone is doomed to the RAMP lane automatically henceforth from that date. Nowhere in the four corners of the Appeals Modernization Act of 2017 is there any mention of RAMP becoming the only appeals path and legacy appeals ceasing to be a legal recourse. Of course, I am open to being convinced otherwise. I did sit down and read the AMA from cover to cover and can find no future prohibition against the legacy appeals process. I want my clients to obtain swift justice but only if they are adequately protected by the Administrative Procedures Act (APA). That is my personal opinion only. CCK and I are not permitted to offer legal advice like Lucy's Psychiatric booth in Peanuts. No attorney/agent is. We can discuss the various venues RAMP offers but we would be remiss if we made blanket statements that the new process sucks or, conversely, the cat's pajamas. A Vet might take that to heart and lose and wish to sue me for bad advice. In short, not to hurt Broncovet's feelings, I must point out he is not accredited nor does he possess a JD. The informal consensus opinion among the accredited folks is that a) not enough Vets have opted in to even begin to understand the pros and cons; b) it hasn't even been implemented at the BVA yet; and c) the preliminary results (90% denial) do not bode well for us. It's perceived as nothing more than a shortline railroad to a quicker denial to alleviate the BVA backlog. In that respect, it's going to mimic the Fully Developed Claims scenario. I found they frequently ignore any evidence you submit and deny using imperfect logic. Sure you win on appeal but the FDC was supposed to cure that error. I do see one application for RAMP, though. Since a CUE filing is a cut and dried motion to revise an earlier final decision,, and no further evidence can be submitted, RAMP is the perfect vehicle to get your Motion to revise before a real "judge" lickity spit who understands law and can adjudicate it fairly. If he cheats and denies due to ignorance of §3.105(a), the CAVC will reverse him. CUE is simple. Either they screwed up or they didn't. There are no "do overs" with remands to cure a CUE deficit like a failure in the duty to assist. Read this intro on RAMP. https://www.va.gov/vetapp18/files7/18116573.txt
  19. Scratch the DM II and substitute CUE in the 2004 claim based on evidence introduced now (currently). Sorry Berta but I was trying to refer back to what Doc 25 and Hamslice were alluding to in the first page. Old timer's disease is my excuse. Anything that occurred in 2004 must be a stand alone CUE claim. It can't be appended to a current appeal of a decision or use a more recent decision to show error in 2004. When you have error in a pending claim or appeal, a CUE motion is not for application. A NOD or VA 9 is. CUE can only be a motion to revise an earlier decision that is final. I make a habit out of calling up the rater and asking him what was going through his feeble mind when s/he screwed up. Sometimes they issue a ratings correction. Sometimes they don't. If you really want to screw up a pending appeal, tell them you're CUEing it. I guarantee it'll take a year to straighten out. VA loves to play Semantic Rope-a-dope with you. CUE is almost as incomprehensible as SMC but then, I reckon VA made it that way on purpose. I'm hoping the SCOTUS tosses Chevron/Auer Deference in Kisor v Wilkie and reads a regulation as it is written. If the Secretary continues to write ambiguous regulations, we're doomed to an eternity of Auer. It's ever so difficult to determine CUE given one decision to look at. Bronco is spot on that you need the entire file to sort it out. Fly out here and visit me, Berta. I'll let you look at VBMS and really get a feel for VA shenanigans-in real time. We have plenty of room. Ask Loyal. For some silly reason, Cupcake insisted we build something that looks like a Best Western that you can see from outer space.
  20. Whoa there. Back the boat back up to the dock, Gilligan. RAMP is optional. RAMP in no way supplants the legacy appeals system. Here was the text of the bill. You can always file your appeal as a VA 9, be certified into the legacy system and obtain a hearing and submit a new IMO if you decline to use the RAMP system. Where did you get the idea "we all go into RAMP" next month? The bill permits a veteran to appeal within one year by: (1) requesting a review of the agency of original jurisdiction's (AOJ) decision by a higher-level adjudicator within AOJ using the same evidentiary record [basically a DRO review]; (2) filing a supplemental claim with a regional office that includes the opportunity to submit additional evidence and have a hearing [ a DRO Hearing with N&M E submitted]; or (3) appealing directly to the Board of Veterans Appeals with the opportunity to select an expedited review to submit new evidence but without a hearing, or to select a review with the option to submit new evidence and request a hearing. A veteran may: (1) maintain the original effective date of a claim if he or she submits new and relevant evidence within one year of the most recent decision, and (2) retain the services of attorneys and accredited agents who charge a fee when the AOJ provides notice of the original decision. The VA's statutory duty to assist a veteran terminates after the original decision. The bill: (1) requires the VA to issue decision notification letters, (2) permits certain veterans who initiated an appeal prior to the bill's effective date to opt-in to the modernized appeals system, (3) authorizes the VA to conduct a pilot program to test such system, and (4) requires the VA, prior to full implementation, to certify to Congress that it has sufficient resources and personnel to carry out the legacy and modernized appealssystems. RAMP really operates more at the local level than the BVA. If you choose the HLR lane, no new evidence may be submitted and you in essence just get a DRO review. At that point, if you lose, they issue the SOC and you automatically proceed to the BVA RAMP decision. No new evidence or a hearing may be requested and you will get a swift decision. You may not like it but that's RAMP. Once you opt in, that's all she wrote. If you choose the supplemental claims lane, you can submit new evidence and ask for a DRO review as you could before. If you are denied, you go up to the BVA and again, get a decision with no hearing or submittal of new evidence. Either way, you get the Shanghai Express. The problem I illustrate is that once you are denied, you cannot win without submitting N&M Evidence-usually an IMO. A denial means you forgot one of the three Caluza elements. You rarely win by rehashing the old evidence and trying to convince the DRO to grant. Remember. They use the M 21. Absent any new metrics to input, the M 21 computer will merely regurgitate a brand new SOC explaining to you what part of "No" you might not have understood in the prior original denial. With RAMP, the exact same process happens at the BVA. I've heard of insanity being explained as doing the same thing over and over expecting a different result. RAMP is no different. Attorneys tell me they are experiencing a 90% denial rate and we haven't even opened shop up at the BVA yet. Each path chosen leads to a specific end. Once you opt in, you have to continue. Imagine what would happen if a new CAVC or Fed. Circus decision came out in the interim and the BVA didn't consider it? You need flexibility in you legal posture. I've inserted IMOs with less than 90 days to be considered at the BVA-and won. If I'd RAMPed, I would have lost. Haste makes waste.
  21. Unfortunately, if you file a CUE on the decision in 2004, if the DM II evidence was not of record at the time, you will lose. It would probably be to your advantage to post this in the CUE area to get more exposure. Also read up on CUE to help you better understand it. https://asknod.org/?s=+quintessential+elements
  22. And, depending on which RAMP path you chose, you are not allowed to submit any new evidence to the BVA that might mitigate in your favor once you start down that road. The problem with RAMP is simple. You trade in due process rights-in this case, the duty to assist you in developing your claim(s)- for a speedier decision and an expedited decision at the BVA. Since the new system BVA RAMP part doesn't kick in until February 2019 (we hope), you could never get it expedited in the truest sense. If you are not permitted to submit a new nexus/IMO at the BVA, what, pray tell, would be the purpose of appealing? The sole purpose of the BVA is to give you another bite of the claims apple. This is the stage where more claims denials are overturned-many due to introduction of new evidence. RAMP is a feel good panacea to give Vets the illusion of a faster decision. Unfortunately, it strips you of protections accorded you under the old legacy situation. All this will end up doing is overburdening the CAVC with a huge backlog. USB Allison Hickey promised us a streamlined system in 2013 with the advent of VBMS and electronic claims processing. That led to Fully Developed Claims (FDC) where you do all the work in collecting the evidence. With RAMP, in essence they effectively forbid your doing even that. So... FDC gets you a 125-day decision with a 75% error rate. Add in RAMP and you get a denied appeal with no added evidence permitted within a month after you get the appeal(s) certified. If it were just a pure law argument like CUE where you are not permitted to supplement the record with anything new, it (RAMP) would be advantageous. This poker game is already stacked against us. RAMP is just one more tool to be used against us. One thing I see in VA law is when I get in front of a VLJ literally face-to- face rather than video conferencing, I win. Granted, I submit a new IMO, too. You want that interpersonal relationship. You need to get the Judge to view you as a Veteran and not a number. It's one thing to see an ASPCA commercial showing a shivering dog. It's another thing entirely (and far more poignant) when you come across a shivering dog in the flesh. A VLJ's compassion level goes up immensely face-to-face and even more so if your appeal is justified.
  23. The two major reasons a CUE claim will fail are 1) Re-interpreting the facts in the earlier (1973) decision is not a basis for CUE. It doesn't pass the "manifestly change the outcome" test. Two disparate, permissible views on how the evidence was weighed (assuming, arguendo that both were legitimate) can never rise to the level of CUE. In other words, you cannot come back and argue that the evidence showed you had bent brain syndrome. 2) Absent a diagnosis of a compensable psychosis in service or in the c&p examination post-service by the VA, your personality disorder (NOS) stands. You would have had to obtain a private dx of MMD and submitted it for there to be CUE. Remember, CUE is a violation of case or controversy. Either VA broke the law by misreading the regulation/statute or the evidence was not before the adjudicator. Either one is sufficient to open a CUE claim. Reasonable minds have to "see" the violation(s) and concur-unequivocally- that a different outcome would have ensued.
  24. C&P docs are not allowed to make decisions. They measure and write it down. A VA examiner uses any dirt he can find to deny and sometimes just makes it up. I have a Vet who was, is, and always will be, right handed. He enlisted and signed with his right hand. The entrance Physical said Right handed. In 93, they said because of a medical "misadventure" in the Army (surgery) that he had lost the use of his right hand. They gave him a MEB. Then they gave him 60 % instead of 70% for it being the dominant right hand. The rater said (I'm not kidding) that since he now has to use his left hand, he's technically left-handed and not right handed. So he's fortunate not to have lost his "dominant hand". This is who you are dealing with, folks.
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