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asknod

HadIt.com Elder
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Everything posted by asknod

  1. Some people are adverse to relinquishing all their information so it is not odd that Ms. Bracey might have neglected to supply a link to a BVA decision. It's entirely possible she is unaware of the BVA decisions site and thus would be oblivious its presence on the internet. Not all of us have the same computer skills. It strikes me as equally odd that Ms. Bracey divulged her location (North Carolina) and some opined by pulling up up BVA decisions from St. Pete and Houston with dates which do not comport with her adjudication date or the requested EED of 2010. I sometimes read where some contributors are incensed that no one reads through a complete thread before commenting (inappropriately) about a possible legal strategy. I understand their angst. The AMA is rather murky about what happens after the BVA and rightfully so. Many of us accredited litigators (and I know that grates on a certain contributor's ears here) fears were put to rest at the Portland, Oregon NOVA conferences last week. Although the CAVC is an Article I Federal Court outside the purview of the DVA, the path to a supplemental claim now exists rather than the former (and only) appeals avenue to the CAFC. In essence, if you comply with the suspense date of one year following a BVA or CAVC denial, you can keep your EED claims alive. I'm convinced you can pursue both paths simultaneously but I haven't yet tried the technique-e.g. file a Notice of Appeal at the CAVC while simultaneously filing a VAF 20-0995 with N&RE. Nowhere on any VA website will you find CAVC information because it has nothing to do with VA. I did see a link to the AMA possibilities mentioned but some folks are loathe to do their own research. I will refrain from any more diatribes about being very careful when you offer advice because that merely irritates certain contributors here. Additionally, I won't comment on the futility of dragging up extraneous BVA decisions that are irrelevant or have no bearing on the question. Offering advice is often a crap shoot as most of you should know. Ms. Bracey contacted me via email as any of you can. I called her back the next day and listened for 5 minutes to her plight. It wasn't complicated or hard to comprehend. She was the victim of well-meaning Veterans Service Organization folks who have no legal training-and worse-have no desire to learn. They refused to file it for her! Attorneys who graduate from law school actually have to park their learning at the door and begin over when they enter the VA litigation arena. This is why we see novitiates fresh out of prestigious law schools who are hired by big gun outfits like H&P, Attig Steele and CCK arrive every spring and fall on their company's dime for a nouveau education on VA law at the NOVA conferences. VA law is to law as Military music is to music. Unlike most of you who use a moniker, I have a name and am easily found in the VA's Accreditation search. My email is listed on my person data here. I get over one hundred queries a month. I answer every one as soon as possible. Some here have implied I use Hadit as a resource to find clients. The very last thing I need is more clients. I refer almost all who contact me to other attorneys I trust. But, like most of you, I am a Veteran first and foremost. I adhere to Theresa's Prime directive- Leave No One Behind. A bit of advice to those of you thinking of calling up attorneys and asking for advice. Many outfits (big ones especially) insist their attorneys and agents actually work on claims. They do not have the luxury, as I do, to discuss these issues with a potential client seeking advice. They have intake personnel who screen you to determine if your claim is even remotely viable before they refer it upward. They do not offer advice, however. Hence, it would be impractical, not to mention impossible, to call Chris Attig up and discuss it with him. I talked to him last week at the conferences and he stated his practice now is almost exclusively devoted to the CAVC. In addition, his practice now spans multiple offices in different states. I admit it's different for NOVA folks. We have the ability to call up our opposites at other outfits like CCK and talk directly to attorneys we know. I occasionally seek advice there (CCK) from my friends I know. Some of you here feel I come across as condescending or officious. I learned this all the hard way over 30 years of doing my own claims. I know what works and what doesn't. Reading unwise advice grates on my sensibilities and I tend to respond with sarcasm. There is no such thing as a "template" for any VA claim other than a VA form. I try to impress on all that each of your claims is horribly unique to you only. No two Veterans have the same exact history. How else could I take a Vet who admitted snorting cocaine post-service to the BVA and win his claim for HCV? Everyone at NOVA told me it was a fool's errand. I consider myself fortunate that I did not attend law school. I have no preconceived ideas on how to present a claim. In fact, I have an attorney for a client who chose me for that selfsame reason. Her plaint about attorneys was the analogy to the drug commercial of the 90's- i.e. "This is your brain" (an egg). This your brain on a Juris Doctorate" (egg frying in a pan). With all due respect to my many friends who have JDs, I find the analogy apt. For the record, I think the most cogent remark made in this thread was the very first reply by GBArmy. It induced Ms. Bracey to reach out to me. Bingo. Problem solved in a 10-minute telephone call without 14 pages of conjecture. Perhaps some of the big Poohbah commentators who opine here regularly (no names necessary) would be more helpful if they chose to provide their contact information to better help their fellow Veterans less knowledgeable in the art of VA law. I'll leave you all with that thought to ponder...and that thought alone.
  2. I don't think the BVA decision cited is the right one.( https://www.va.gov/vetapp18/files4/1820956.txt ), Ann informed me all the adjudications occurred at VBA 318 (W-S) not St. Pete's( 317). The decision cited says: In January 2010, the RO received a request from the appellant to reopen the issue of entitlement to DIC based on service connection for death of the Veteran. The RO reopened the DIC claim in an October 2010 decision and granted the appellant DIC based on service connection for death of the Veteran with an effective date of January 27, 2010. The appellant filed timely notice of disagreement and Form VA-9 to appeal that determination. Ann told me BVA, not the RO, granted DIC in 4/2018 back to the date of reopening of the most recent DIC filing which was in 2012.The bone of contention is the proper EED which Ann feels should be 2010-not 2012. The above decision deals with an EED of 2000. Further, the disease he died from was not in §3.309(e). However, the BVA judge, based on an IMO from his doctor and the autopsy results, chose to imply that it (the disease) fit roughly into the §4.124 DC 8004 Paralysis Agitans category. The rest of the evidence shows he was working on the perimeter of Korat RTAFB constantly which established his legal presumption of exposure. I sure don't see any need to take this up to the CAVC. But, for argument's sake, let's say she lost at the Court. Her legal option then is to return to the RO and file a new 20-0995 within one year to protect her entitlement to 2010. Or... she could skip all that CAVC malarky at the outset and just return to the Winston Salem RO now-today- and refile the 995. Same legal difference except she'd lose a year at the CAVC waiting for a denial. With the exodus of Schoelen and Davis, we do not know what we'll be getting for replacements. Falvey, Toth and Meredith are all proven to be virulently anti-Vet. As it stands now, you have a 36% chance of drawing Allen, Pietsch, Bartley or Greenberg. With the new AMA, why bother? If you can still create new and relevant evidence, you can keep your claim/appeal stream open forever without losing the EED. That's about the only plus in the new system.
  3. Ann tells me her most recent denial is August ?, 2019 for a Motion for Reconsideration. I'm not sure if that is from the BVA or the Regional Office. Based on the new AMA, she has one year to file a) VAF 10082 or b)VAF 20-0995 to preserve her claimed EED of 2010 (or possibly 2000 if I misunderstood the date of death of 2010) for SC for the Parkinson's -like disease and her entitlement to DIC. As of 2/19/2019, unless one foolishly opts to stay in Legacy, there is no VA9-only the 20-0995 as a possible panacea. She did not discuss any NSSC cancer of the lung so I cannot comment on that. By operation of law, the earliest effective date for a herbicide-related disease is the date of filing-regardless of whether the NIH recognized the disease later in 2010. In Ann's husband's case, his filing prior to the VA recognizing Parkinson's as a presumptive guarantees his earliest date of entitlement as his 2010 filing. The 2018 BVA decision only granted 2012 as the effective date of accrued benefits and DIC-ergo it is in error due to the earlier filing in 2010. For the record, DIC for two years would equal about $36,000. Were it me, I would file for it. For the record, Ann tells me her husband was a Thailand Vet stationed at Korat RTAFB and had no service in Vietnam so I do not see where that is germane to the discussion here.
  4. I think the answer is simple on this one. Mr. James G was just awarded 100% SC for his heart (The award letter (received Sept. 5th 2019) say's they will schedule says they will re-exam me between April & October 2020 !!!) 100% is an extreme rating for a heart. The note under §4.104 DC 7000-7011 says: Note: A rating of 100 percent shall be assigned from the date of hospital admission for initial evaluation and medical therapy for a sustained ventricular arrhythmia or for ventricular aneurysmectomy. Six months following discharge, the appropriate disability rating shall be determined by mandatory VA examination. Any change in evaluation based upon that or any subsequent examination shall be subject to the provisions of § 3.105(e) of this chapter. The Examiner discusses April to October-well within an acceptable re-examination period for a final rating after the temporary 100% rating is over. September 5th plus six months is... March 5th.
  5. The answer is no. Your SA is secondary to your PTSD so VA will not count it as separate and distinct. 20+20+10= 42% which rounds down to 40%. Which is not to say they won't make an error and give you SMC s. It will create an overpayment and VA can recoup it at any time. P.S. As others have commented about the possibility of a grant of SMC at the (s) rate predicated on §3.350(i)(2), I will address it now as well. I presumed Ray AO would have discussed he had agoraphobia of other psychiatric disabilities (or potential risk of harm to himself or others due to insomnia or hypersomnia) had he wanted information on that potential entitlement facet (substantially housebound). As he specifically asked if he was entitled under §3.350(i)(1), I addressed that question as to whether the sleep apnea would qualify, not if he was substantially housebound. It would appear very clear that Ray AO is more than acquainted with 38 CFR than others give him credit for. He knows the potential disqualification of secondary conditions such as sleep apnea if they are not separate and independent. Ray AO would need to submit a VAF 21-2680 Housebound form signed by a doctor stating he is substantially housebound in order to be granted entitlement to SMC (s). I chose to read the complete post from start to finish. Ray AO clearly and unmistakably cited to that which he was inquiring about - entitlement to §3.350(i)(1). Nowhere in the four corners of his post could I ascertain anything else. "I’m going directly to the point after this. Do I actually qualify for SMC’s1??"
  6. I'd like to thank Theresa for letting me help other Veterans on this site. Some eventually come over and ask for representation if they keep losing. My Vet Ed here was not one of them but he regularly read the site posts The other three last week all began here. Hadit.com is an excellent resource for those novices who know very little and are eager to win their claims. For those who cannot fathom the ins and outs, there are always folks who will carry the water. I'm honored to be one. https://asknod.org/2019/09/05/vba-portland-ed-the-lrrp/
  7. Based on that information, I'd say you have a claim for an earlier effective date. SMC is always due and owing the moment the medical records support it. Bradley v Peake 2008 was the first prec. holding that equated TDIU as being the equal to 100% schedular. However, without the claims file in front of me for verification of all the criteria, I couldn't legally file it. You, being pro se, are free to do whatever you feel like. The only hole in this donut is whether you met the qualifications medically for A&A based on the symptomatology of the 70% rating for PTSD alone. Remember, the requirements for 100% PTSD are much higher and tend to be more likely to support a finding of the need for A&A. You have a rating decision narrative. Read it. It would be clear why A&A was due and owing from the reasons and bases statements. As you come to study SMC, you will find it to be the most difficult to navigate, the most confusing, with endless combinations not covered in SMC P and lastly, the fact that it allows pyramiding. Very few master all the nuances of it. I know about 15-18 VA attorneys who are good at it. Maybe 8 who are Jedi Knights.
  8. For SMC purposes, TDIU and a 100% schedular rating are interchangeable (See Buie v. Shinseki ( 2010)). I presume the L 1/2 was effective on 6/12/12 judging by the way you wrote the post. If they awarded it later then it would hinge on when you were awarded the additional 50% or more that qualified you for the §3.350(f)(3) "bump". SMC is due and owing the moment you qualify based on medical evidence of record-even if it was 1968. Getting VA to pay it may require some prodding.
  9. The SMC rating is correct. SMC L is awarded for the A&A. L 1/2 is awarded under §3.350(f)(3) as a 1/2 step increase to the intermediate rate between L and M due to additional independent ratings at 50% or higher. The migraines must not be related to the PTSD rating in order to get this as the GERD and tinnitus would not combine to reach 50% or more. VA expresses this as SMC at the P rate and parenthesizes it as SMC P (L 1/2+ K).
  10. Buck, he no longer has HCV but all the horrific secondary side effects from it- i.e. fatigue, malaise, cognitive dysfunction, cirrhosis, ascites, esophageal varices/bleeding and a host of other deficits. VA was hoping to deny based on the cocaine but they didn't plan on a agent stepping in. Secondaries are what we now use to win with-not the actual disease being present. I do see a lot of the Vets who did the old Interferon beginning to relapse so no one can say it's gone forever. The next shoe to drop for most of us is Liver cancer. There's no repair order for that one. My Vet will get a new c&p where they will dx all the present symptoms and issue a rating. He's pretty much comatoast for work options. We'll get 100% or continue to appeal. I don't say this to brag but there's a reason I have three Vs in less than two years over there- I don't give up. I'll be doing this until I seize up and kiss the keyboard. Theresa says it best... Leave no one behind-ever.
  11. Here’s a nightmare of a claim. The Vet had no STRs in his NPRS file except for his eye records. He admitted snorting the white lady in the late 1980s to a VA nurse in 2015. She immediately wrote down “HCV due to bloody shared dollar bill(s).” That pretty much put a fork in any potential claim. He approached the VFW about filing his jetgun claim in 2016. They laughed him right out the door. No attorney or agent would even talk to him the moment he mentioned the toot. And then he called me. Regardless of what you’ve heard about me, I refuse to arbitrarily deny representation to a fellow Vietnam or Thailand Vet when it comes to Hep C. I was there. I contracted it, too. It almost killed me by 2006. I told him to go ahead and file knowing full well he’d get denied. We obtained an IMO from one of my doctors for free due to his being indigent. It sank like a rock. We filed the NOD and got another "No". After filing the VA 9, we obtained an IMO from a good hepatologist but that was not going to be the winning ticket. I asked for a Travel Board hearing in Oakland so I could present my Vet and his lay testimony in person. We had the hearing March 28th, 2019 at the Oakland Puzzle Palace. The Judge, Matthew Blackwelder, wasn’t very receptive to a grant until he read the IMO while we were sitting there in front of him. He mused and said it was indeed an interesting case. The funny thing about jetgun cases is you could never win them at the local Fort Fumble under the old Legacy system. They’d refuse to grant even if you had a buddy letter from Jesus Christ himself. This one was really no different. We had nothing but lay testimony and some eyeglass prescription records that didn’t say much which was really nothing useful. Worse, he’d had an STD which wasn’t in the STRs because they were AWOL. When all you have is lemons, make lemonade. But...an STD like Gonorrhea leaves antibodies forever. I suggested we hold the record open for 90 days to obtain a blood test showing the presence of same. The Judge said “No need to. I have enough here to make a decision.” I was worried. I took that to mean we had a better chance of winning the Powerball Lotto. I was positive I was going to be arguing this one at the CAVC. We won Wednesday. Of all my wins, this is by far the best. It’s the only one I’ve ever won solely on the strength of the Veteran’s lay testimony . Don’t get me wrong. The IMO was very instrumental in the win but I doubt we would have prevailed without a face-to-face hearing. A picture may be worth a thousand words but a Travel Board hearing is worth a thousand pictures. Steve BVA Win redacted.pdf
  12. Here's the latest way VA approaches TDIU. This was a one-year battle to get them to look at both PTSD and IHD together rather than trying to deny based on only one of them. A NOVA attorney told me he recently did 4 HLRs and all were turned down. Each informal DRO phone call lasted exactly 7 minutes plus or minus 20 seconds. The VA examiner sent the VES doctor three requests in an effort to get him to say the Vet could work. The dr. refused. The grant decision came out three days after I submitted proof of two Purple Hearts. They weren't in the records or the 214. Here's an almost identical one from last week. VA made this Vet wait 20 months (Ed). TDIU redacted..pdf ed-redacted-100.pdf
  13. 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".
  14. 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.
  15. 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
  16. 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
  17. 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.
  18. 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.
  19. 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.
  20. 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.
  21. 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.
  22. 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.
  23. 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!
  24. 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.
  25. 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...
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