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Everything posted by asknod

  1. Here's another approach to SMC errors (attached). I just filed it yesterday. I don't consider failure to award SMC a CUE. It's a pending claim awarded when the evidence supports it. As the CAVC said in Bradley and Buie both, you do not have to file for it as you would a claim. 10182 extra pgs PRELIM.pdf
  2. Read down this article to the bottom. There are three links to course material I got at the 2016 Las Vegas NOVA conference. Actually, the guy teaching the course (Alan Gumpenberger) didn't have an answer key. I had to look up every single question in 38 CFRs §§3, 4, 19 and 20. Every one of these questions were or are on any given test. VA is too cheap to make up new tests every year. Besides, remember they have to make it easy enough for VSO National Service Officers to pass. There were 28 questions and you had to get a score of 75% or better (in 2016). They gave me 90 minutes. It took 23. Join NOVA after you are accredited and your fellow attorneys will help you at no charge and offer killer advice. https://asknod.org/2019/05/25/memorial-day-2019-dirty-deeds-done-dirt-cheap/
  3. This is an amazing story. I got a Vietnam Swift Boater (Dan) R1 last year. Sadly, he passed in early January. They got almost a year of R1- $93,600 -before he passed.. This Vet's wife (Dan's daughter) came to me in early December and asked me to help her. Seems the VFW in Arkansas doesn't understand SMC very well. They said her husband was maxed out at SMC M. But of course, they said that before he finally got SMC L. I was honored to represent this 11 Bravo 20 w/ CIB. Two R1s and two Vietnam Vets in the same family. That will probably stand as my personal best. Hoooooo, doggies I do love to litigate. Leave no one behind fellow members. Never. This is precisely why I chose to become a VA agent. I wanted to make a difference in a few Vet's lives before I punch out. Some of you will ask how much money I made. $36.75 for USPS Priority mail postage. The Arkansas Puzzle Palace didn't fight my Vet on it nor did I expect them to. Cool beans, huh? redact R 1.pdf
  4. Why not skip the HLR and go straight to the NOD at the BVA? It's just as fast as the HLR and you get real lawyers looking at it-not illiterate GS=10 VSRs. Without new and material evidence to submit to change the decision (assuming no CUE) in a HLR, you might as well go straight to DC. If you lose, the Judge will tell you why and you can turn around and go back to the supplemental lane and submit more evidence to win with. You still keep your effective filing date too.
  5. If you want VA (or Seattle RO) to take you seriously, hire an attorney/agent. We just call up the CMA (in this case, Tina in Seattle) and explain this type of insanity to her. Remember, with the new NWQ, it isn't necessarily Seattle doing you claim now. It may be Waco, St. Paul or another RO. Read Moody and then read any cites in Moody to other CAVC/CAFC cases. Moody stands for a sympathetic reading of the claim if you are pro se. Being repped by a VSO is still the same as pro se. I took over a remand back from the BVA. I politely asked the DRO to cut me a SOC and return it to the BVA so I could submit a professional IMO to win it. The DRO in Waco called me up several days later and said they'd taken a second gander at it and were granting the Agent Orange exposure based on the same evidence. I think the mere threat of the new IMO and the new representation by a real advocate ( instead of the Texas Vet Commission) was enough to convince them we were not going to go away. Sometimes just having real legal beagles working for you convinces them to grant.
  6. AMA is a work in progress. Most raters are not well-versed in this yet and may never figure it out. As for the VA sending out a 4192 and a 8940, they generally travel in pairs. If you file an 8940 for IU, you will automatically get a 4192 to give to your prior employer to ascertain why you are no longer employed there (in their opinion). As for 100% P&T, let me illuminate you. A lot of you think an IU rating is 100%. Some insist it's P&T forever. A rating is not substantially protected until you've had it for 5 years. It is not permanently protected until 20 years and even then subject to revocation if it was obtained fraudulently. I had clients at 19 yrs and 4 months get the revocation notice. They reduced one rating and upped another. The net effect, in their eyes, reset the 20-year clock as well as entitlement to DIC (the ten-year clock). I fought it and won but that isn't the point. IU is technically never truly protected. If you began delivering newspapers 20 yrs after you got IU w/ P&T and any income showed up on SSA records, your P&T would be gone with the wind. IU is not 100% except for pay purposes. VA is fond of slamming you with a reduction and knocking you below 40%+ others to get to 70% or reducing a 60% downwards resulting in revocation of IU. Always remember who you're dealing with. In VA's eyes, we all get better someday and are targets for reduction. If you do not appeal a unlawful denial, it becomes part of the 98% of claims they did correctly. When you take into account all legal decisions done on appeal, the error rate mushrooms to 75%. So much for VA's statistics. As I mentioned last Thursday in the Radio show, in January VA 86'd a 20% rating on one of my clients that was 26-year protected. They dropped it to 0% but simultaneously gave him another 30% for some other nitnoy crap. Net result? He was still at 80% and no IU. VA's logic was it wasn't a "reduction" but rather a "rearrangement with no net loss to incur a §3.344 reduction proposal". If they had done it correctly, he would have been 100% combined or at the very least IU. Half my work is running around fixing the VA's errors with NODs. With the AMA permitting us to skate to the BVA with our NODs now, it will be far better. Shoot, if you lose there, there's no need to go up to the CAVC. You just run back to the RO and file your 20-0995 within 120 days and start over.You keep your filing date. In this reduction case, I even called up the DRO in Houston and informed her it was illegal to reduce the protected rating. She gasped and agreed it would be very illegal. I can see her note in the VBMS from that conversation. Three days later one of her gomers punched print and made it official. The only fixer is filing the NOD and claiming CUE on that in addition to all the other errors. And VA wonders why 20 or more of you folks commit suicide every day? Helloooooooooooo? This isn't a conspiracy. It's ignorance. If you had a computer hooked up to your car and it told you the fuel injection was toast, would you question it? Hell, no. You'd throw a new injection pump on there and presume that was the repair order. Could be it was nothing more than a vacuum leak. The same applies to the M 21 computer. If it tells a rater to do it, he does it without question. He doesn't even need a second signature! The last time the M 21 was officially revised was 2006. Ever since then they've just been racing around behind CAVC precedence to input that and little else. The fact is, the M 21 is so wrong in so many respects on 38 CFR and the raters swear by it's dictum like it was the Oracle at Delphi. Boy howdy, try quoting M 21 to a Veterans Law Judge. You'll get the legal smackdown of your life. Judge Cherry Crawford did it to me last year and I will never pull that stunt again. You can refer to it but do not quote it as stare decisis. Any time a c&p reveals additional "contentions", VA will investigate them to see if they should be SC. You do not even need to file for them. This is the implied or inferred claim. See Moody v Principi to grasp the concept.
  7. I'm coming to find that new Veterans to this site often do not understand the verbal nomenclature we often use in these conversations. I think T-bird might consider putting in a dictionary of terminology to help the newbies. I have one labeled Vet's Dictionary on my site but it focuses on a lot of Vietnam War terms more so than VA terms. One thing I find confuses my Vets is medical evidence. When you file, VA wants to see what your medical records say from service (STRs -or SMRs pre-2008). Far too many think medical records post-service will help them attain Service connection (SC). It may show chronicity or degree of debility to satisfy that prong but it is not helpful in proving it occurred in service. If I tell my client to send me any STRs they have, I often get post-service stuff. Many confuse any medical (or military personnel) records you obtain at the National Personnel Records Center (NPRC) with their claims file maintained by VA. Some have sent me their VAMC records thinking these are c-file records. Not so in most cases. Even worse, if you filed a VA claim back in the 70s-80s, the NPRC often sent the original STRs to the VA and did not keep the original copies. When you ask for them via the SF 180, they'll write back and claim them have none. They also neglect to tell you VA has the only copies. Military records and inpatient hospital records are not stored with the STRs. They are in three different buildings. In a lot of cases, the inpatient stuff is still at the hospital in microfiche and was never sent to the NPRC. Even stranger, VA will often tell you they cannot find or obtain your records. I filed in 2015 for one of my Vets and found all his stuff still sitting in St. Louis untouched for almost 50 years. VA said they tried to get them in 1970 but couldn't find any. Of course, this created the largest §3.156(c) claim I've ever done. VA is lazy, I'm sad to say. They tell you things that are patently untrue. I had a Vet who filed five times between 1971-2015. He finally won 100% in '15 and asked me to do the appeal. You guessed it. They finally went back and got the NPRC records in 2014 and spotted their error. Bingo-100% but no earlier effective date back to 1971. That one's in on appeal as well for a 1971 date. In this Vet's case, they "lost" his VAMC records- the one showing a chronically infected (Hep. C) liver. They accidentally sent it to him in 2001 when he filed a FOIA claim. It still was not part of the record when I filed the appeal. I submitted it again and VA promptly labeled it a "duplicate filing". In law, we call this spoliation of the claims file-a recipe for an instant win. Having a claims file isn't as good as actually having access to the VA's computer, There, you can actually see in chronological order what they did from beginning to end. They cannot erase, cut and paste or shred in 2019. What they did in 1980 is poured in concrete. This is why it's so easy to go after them for antique CUEs now. Unfortunately, Vets do not have access to this valuable tool yet. I do hope it eventually is granted to them. You can ask your VSO to come in and privately review the claims file in person. VA rarely does this anymore but that would get you into the VBMS computer where you could ask them to print up copies of certain documents or you can take your camera phone in and screen shoot their entry into the VBMS for proof they failed to go get your STRs until 2016. VA law is now getting down to a Sherlock Holmes exercise of "what did they know and when did they know it" game. If you want to have a successful CUE, 99% of your evidence you'll need is right there in their files. You will never win without it. They are not going to volunteer their guilt. The name of the game in VA law is Evidence is King. Lay testimony is often useless without supportive records. I am now doing six (6) claims where VA introduced the STRs many, many years after the original filing and then granted entitlement...but without granting an earlier effective date. Each one is an ungodly amount of back retro $. The cheapest is $80 K. The largest is over $1 million. That's not chump change. CUE is the hardest legal path to win but often the most financially rewarding if you succeed. Of course, if you're like Berta and me, winning CUE isn't about the $. It's the vindication that you are, and were, right and VA screwed up royally and then continued to lie about it to CYA. Onward through the fog.
  8. An attorney's (or Agent's) job is to get you the highest and best rating attainable under §3.103. We get the VA " to render a decision which grants every benefit that can be supported in law while protecting the interests of the Government." If we are remiss in any way in that matter, we can lose our accreditation. A VSO can give away the farm one thousand times and never be prosecuted for it. There are about 750 attorneys who do this all the time. There are 350-375 agents who are accredited. That's about 1000+ advocates serving 3 million pissed off disabled Vets who are getting screwed. Do the math, sir. No offense and I apologize. Just remember, your attorney is your very best friend and he is required by law to ask you personally each time he opts to appeal or file a claim to protect your interests. A VSO can refuse to let you file. They even forget about automatic claims you can file legally for AO. Having an attorney, in most cases is extremely beneficial financially compared to a VSO. Actually, coming here to ask for advice when you are represented by an astute attorney makes no sense. It's almost like seeking another opinion on legal advice from your local bartender in some respects... Trust the attorney-most especially if he's a NOVA attorney
  9. There's something we are not seeing here. If he was was 70% solely for TDIU, this would be a slam dunk. My suspicion is that Dawsonatl has a combined rating of 70% with no single rating over 40%. That would be the only rational explanation for the denial. No one in the Ratings/Appeals section could make that basic an error - even with the screwed up M 21 manual. Perhaps the poster would be so kind as to show us his confirmed ratings sheet so we can opine on this based on facts rather than suppositions. Hoo-doggies.That's a pretty big put down of someone who has agreed to help you, sir. Do you have any idea what it costs to even become an attorney? Try $40-$70 K in student debt- after 4 years getting a degree in Pre-law. To hire qualified paralegals to work for you with medical/dental? Try $60 K a year per person. To invest in $5,000 copy/scan machines and the paper? An office building with $4000/month in overhead to keep the lights and telephones on? To get accredited or maintain accreditation? Every NOVA conference I attend each year costs a minimum of $600 for the training and over $2000 in air fare and hotel rooms (before food). No, of course you don't. Frankly, I don't know why any self-respecting attorney would give up an opportunity to make some serious money by representing Veterans at @ 20% rather than 40% for ambulance chasing in the real world. I do this because I am a Vet and paying it forward. Others I cannot speak for, but if one of my clients had your attitude, I would drop him or her in a New York minute.I enjoy contributing to this forum but find it despicable that any client would speak ill of the one who is attempting to help him. P.S. If he drops you, please don't call me.
  10. Mr. Williams, From 1946 until 2001, the metric on VA claims was whether it was well-grounded or not. If your claim had no merit or was unsupported by your service medical records, you would not be allowed to file it. VSOs and VA used this as an excuse for decades to fence us out. With the passage of the VCAA in 2001, all claims were considered without having to pass a test like this. Now, unfortunately, we are entering the same area again with the passage of the new AMA. If you are denied, the only two options are to "prove" it's well-grounded by filing with new and relevant evidence to support your contentions or to ask for a higher level of review which is nothing more than the old informal DRO review with no new evidence added. Possibly the only positive thing to come of this is you can get to the BVA on appeal much faster. There, you will get closer to true justice because it isn't designed to be a denial factory. Veterans Law Judges (VLJs) and their staff attorneys (with real law degrees) look at your claim in a whole new legal light. This doesn't absolve you of having to provide probative evidence of why you claim has merit. It is just a lower legal standard of review than the cattle drive at your local VARO. I am hearing from my fellow NOVA attorneys and agents of DROs refusing to even look at legal briefs at these HLR actions calling them a back door attempt to insert "new and relevant evidence". By law, we are allowed to submit a new arguments to show VA's error. It's illogical to appeal to a higher level and basically arrive with what you had at the outset. How, pray tell, can you explain the error to them?
  11. BroncoVet's answer is spot on. I have one case I began helping on in 2013. I had to start by getting his Purple Heart and CIB. That took a year. We filed 3/30/15 and VA sent his c&p request to an address he'd lived at 35 years ago. We had to regroup and won IU in 12/2015 with congressional intervention over the address snafu. I filed the NOD after I was accredited about then and here it is 2019. I even got him advanced on the docket and it's with the VLJ now... I haven't seen a dime yet. It's a good thing I'm getting SMC S and made good financial investments or I might have a zip code under a bridge overpass. Most attys. can't carry the water for 5-8 years- especially for 20% times 200 Vets. You can go out and chase ambulances for 40% and drive a Porsche instead. To be honest, I wonder how many of you Hadit members would be interested in this as a part-time career. You cannot even imagine how rewarding it is to help a fellow Vet. In 2006, I could built a house blindfolded but didn't even know how to turn on a computer-let alone know what 38 CFR was. 8 years later, my attorney told me I knew as much as him and wondered why I had hired him. Theresa should be awarded Sainthood for starting this site... leave no Veteran behind. Ever. Pay it forward. What do you have to lose? Put down the X box controller and learn how to kick VA's derriere. It's like fishing with M 26s. I'd be happy to send you a copy of what's on the test.
  12. Well, sir. Imagine this scenario. I get to work at 0800. Sometimes I have to get up and call VA raters and DROs and ask them why they screwed my Vet(s). If they're in St. Pete's, I have to get up at 0500 to call them. I also get calls from them answering my emails. I have to write legal briefs for upcoming travel board hearings before VLJs. I don't have any office staff to do it. Even if I did, I'd still be researching a claim-sometimes on Westlaw which costs me $59 a minute to access. Many big outfits use paralegals (unaccredited) to do intake and communicate with the Vet. It's not that we don't want to talk but that it isn't always feasible. I keep my caseload down to about 100 and it still eats all my time. And yes. I talk to every one of my clients if they call unless I'm with another Vet -but I'm the rare exception. If your atty. is winning your claims and they are very difficult, then 33% is a bargain. I won a Vet $188 K a year or two ago. He was pissed I got $37 K. That was 20%. If I'd lost, I would have gotten 20% of zero dollars even if I had worked my butt off. He still got $151 K but feels like I screwed him. That's the down side to helping anyone. Murphy's first law is " No good deed goes unpunished." As most know, I generally take those funds to offset the cost of helping other Vets for free... There are good attys and bad ones. Too bad they don't have Win/ Loss records!
  13. The VA also deducts $100 from our settlement for "dealer prep and destination fees". If you sign for 33%, that's your responsibility to pay the atty. directly. If your appeal was won before you signed w/ atty., ask for you money back. With that said, if atty. did win it and you jump ship and try to get another atty. to take it, you won't find one. Attys. hate claim jumpers. Worse, the first atty. may have a large amount of time invested and s/he would never sign off on waiving the fees s/he feel they legitimately earned. Succeeding attys won't touch it if they think the fee will be contested by atty. #1. If it were me, I'd be ironing out what's up legally with the win rather than asking for advice from us. We cannot see your case file. Going back to 1978 for an EED implies a CUE or §3.156(c) law. Both require extensive legal knowledge of contemporary VA law at that time.
  14. I must politely dissent with my esteemed colleague's assessment above. §3.156(c)(1) is unequivocal in it's instructions: Notwithstanding any other section in this part, at any time after VA issues a decision on a claim, if VA receives or associates with the claims file relevant official service department records that existed and had not been associated with the claims file when VA first decided the claim, VA will reconsider the claim, My disagreement is elementary- a claim remains pending until there is some concrete evidence it has been addressed and decided. Here, the mere association of the STRs belatedly to a claims file automatically triggers §3.156(c) as a freestanding claim and it cannot be CUE because the reconsideration which shall be accorded under §3.156(c) hasn't occurred yet. One could characterize it as a chicken before the egg conundrum. Granted, I've been forced to refile these as CUE to get them changed and even had to go to the BVA to do it. I get that. No DRO wants a ginormous six-figure 156c retro payout on their resume. Better to kite it up to the BVA and let them suck on that egg. The M 21 is a good advisory on this. The say you can file it on SF 8.5 X 11 (white). SF 8.5x11 stands for standard form 8.5 inches by 11 inches white computer paper-typed or hand written. I got this from my VA Change Management Agent ( I call her Supergirl) this morning. I had a CUE kicked out of VBMS last week because I used a 526 instead of a 20-0995. Okay, how can you use the supplemental claim with CUE? By operation of law, you cannot add new evidence to a CUE. filing, so.... Here's her response. You do not need a form for a CUE. Are you wanting to file a Supplemental Claim? Then you would need new evidence, but not for a CUE. III.ii.2.B.1.c. Benefit Requests Not Requiring a Prescribed Form prescribed claim form is not required for requests for · review based on clear and unmistakable error (CUE) · substitution · a finding of incompetency received from a first or third party, and · removal of a dependent. Anyway. to me an EED due to a §3.156(C) error requires a decision in the first instance and for finality to attach with no appeal. CUE might ensue after an adjudication of the applicability of §3.156(c)(3),(4) but not until there is an actual, promulgated decision. I'm sure Berta can understand the legal nuance I'm implying here. Semantically, the legal standard of review of a Motion to Revise (CUE) requires a fait accompli. Absent a reconsideration first- up or down- there can't be a CUE yet. A reconsideration is a powerful tool. If you were granted claims recently that you filed for 40 years ago and VA grants, you get to carry that back 40 years- assuming, arguendo, you can show your degree of disability arose then. CUE requires you go down the harsher road. That's a much higher bar to clear. Quite frankly, you are precluded from arguing how the evidence was weighed or decided in a CUE. Certainly, the evidence in the old STRs should fall into the " the evidence, as it was known, wasn't before the adjudicator" clause of CUE, but again, a reconsideration is not required to pass the next qualifier of CUE- i.e. 'manifestly changed the outcome" codicil in §3.105. Thus, I disagree with the applicability of the CUE standard of review. I filed this argument in a 2015 brief and VLJ Vito Clementi agreed with my legal standard of review argument. I also would say it depends on which judge you get as to how they would legally characterize this point of law. There are definitely two schools of thought on the subject-maybe more...
  15. VA has rescinded the requirement for annual filing of unemployment to prove entitlement to TDIU. I have two clients who have received the letters saying it is no longer required as they can see the SSA records on line now.
  16. Well, unless I can read that VA narrative as to why a Vet got TDIU and what VA based it on, I assume nothing. As I like to point out, every Veteran's claim or appeal is exquisitely unique to his circumstances and his MOS. I have many who show me the eBennies printout of their disabilities but it doesn't do more than explain what you have-not how it is combined to reach the TDIU. I've had VA raters use every ailment down to missing a testes(it got shot off near Cu Chi in 67) for a Vet's SMC L under aid and attendance. I tried to get the half step "bump" under §3.350(f)(3)(4) IHD due to AO and they said no- it was not separate and distinct from PTSD!. We won on appeal. I know, it's only a difference of $2,400.00 a year (SMC L 1/2) but for some of us, that's still not chump change. P.S. to Berta's reply above. We were typing at the same time. Buie/Bradley law is on point but you cannot reach that argument until you appeal. VARO raters will not honor it nor will the SMC "calculator" permit it. Some enlightened VAROs will concede CUE, but only rarely. If you got your denial after 2/19/19, I'd avoid the HLR lane and file a VAF 10182 NOD to the BVA directly. Argue the SMC there to knowledgeable staff attorneys.
  17. In the brave new AMA world of appeals modernization, a 70% rating should engender a Rice v Shinseki inferred claim for TDIU. VA will always fight and say you didn't file the 8940 which would have alerted them to your desire. Some day, that will be revisited like Procopio. But, I'm hearing, VA is preparing to do away with the 8940 and making you file it on a 526 EZ now. No confirmations on that scenario yet but I can see it coming. We've come a long way from having a "well-grounded claim" (pre-2001 VCAA) and the present system. Look at inferred and implied claims law now. Cogburn set forth 4 tests for this which are still on point. https://www.courtlistener.com/opinion/817334/cogburn-v-shinseki/ https://www.leagle.com/decision/infco20160107129 VA went to great lengths to eradicate implied and informal claims such as you telling your VA doctor you wanted to file for bent brain during an office visit. VHA had a duty to report that to the VBA. They rarely did. VA just revamped §3.159 to ensure that hole got plugged. §3.155 similarly was revamped to insist we use standard forms. I once filed an appeal while I was in the hospital for a year on a paper towel (2010). They would never accept it now. The best general rule is if you build it, they will decide it. Absent a claim being filed, VA is not required to organize a safari to scour every square inch of your c-file to ascertain if you are entitled to something they forgot to infer. Chinese Dry Cleaners rules apply here-No tickee-No laundry. On the obverse, a claim remains pending-even for decades- until there is unequivocal proof of its having been adjudicated. (Adams v Shinseki). Know the law. Use it to your advantage. VA doesn't know the law and makes it up as they go. If you don't object, then they were right...
  18. In order to better understand TDIU, Veterans must read their narrative decision which explains why they are rated TDIU. That's the paper you get with the VA seal on it. Just because you have an extra 60% or more above and beyond TDIU is immaterial. I have numerous clients like that. VA tends to combine MDD with some other illness/injury and say the MDD, standing alone, doesn't support TDIU. But, with the addition of, say, the headaches at 30%, you do. This means you can't just call the 70% the controlling benchmark that provoked the TDIU. It is often, but not always, a combination of ratings-or at least VA likes to do that to avoid paying SMC S. That's an appeal process in its own right. Far too many of you labor under the misconception that just because you have a 40% rating and others that combine to reach 70%, that you automatically qualify for TDIU. Not so. Similarly, some think just because you have a 60% rating standing alone, you get TDIU. Again, not so. TDIU is an extraschedular rating based on whether or not VA believes you can work. If you had 40% for DM II and had about five 10% ratings for tinnitus, hemorrhoids, pes planus and others which are not "job-threatening", these would not automatically provoke TDIU. It simply doesn't work that way. Every Veteran's circumstances are unique to his/her TDIU decision. There is no "one-size-fits-all" formula. SMC S is available if you had several independent ratings unrelated to the MDD that combine using the §4.25 combined ratings table. You do not need a single rating at 60% or more. If it's 55% or higher, it rounds up to 60. Period. I don't need to address the SMC S Housebound option as it is self-explanatory. And for the record, there is no 60% rating for MDD. It pays in 10, 30, 50, 70 and 100% increments.
  19. Veterans Attorneys/agents generally have Level 5 or 6 access. I have a 6 because I represent myself which is rare in this business. I've never been fenced out of any of my clients' VBMS claims files. It's difficult to say what complicates this one. Earlier this year, I had one client in Arizona whose file I was 86'd from. It had something to do with a glitch in the Fiduciary section that precluded viewing. It took three weeks to fix it. VSOs are much more restricted in what they can view than we are. I believe they have a level 2 or 3 clearance. Knowing VA, your problem is simply a typo error in the "who can view it" box.
  20. By law ( §14.632)I can only offer general knowledge unless you are my client.
  21. Something few understand about CUE (and SMC) is its uniqueness. If the error occurred at the local RO, that's the correct venue to file your CUE claim. On the other hand, if the error occurred at the BVA, that is the correct place to file the CUE. You may learn that to your detriment when, a year later, the Regional Office (or the BVA) boots it back to you and says they cannot accept it. CUE is one of the hardest concepts to absorb. Here's the primer- https://asknod.org/2014/05/02/cue-the-quintessential-elements/ I see many jump in and give advice on all manner of subjects that is in error. It's like your good friend telling you the reason your car is backfiring is that it needs a new carburetor. You replace it and it still backfires. Many Vets do not have the time to experiment with solutions. As many articles as I have written over the years on my site about CUE, Veterans still seek and ask the same identical questions. It seems no one is motivated enough to investigate on their own and automatically want Veteran-specific answers to their particular circumstances. If I point to the area to study to find the answer, they become angry that I won't just give them the answer. If you do not have Google Search or are unsure on how to find an answer to your questions on this complicated subject, it helps to search first and ask questions-but only after you made a good-faith effort and cannot find your answer. VA law is complicated. We get that. That's why Theresa built this. Please use the utmost caution when you offer advice. The beauty of Hadit, and, by extension, all good Veterans claims-oriented websites, is the huge encyclopaedia of info they contain. If no one avails themselves of this cornucopia, it is a wasted effort. Theresa (and me, too) do an admirable job arranging the site by subject matter. I, myself, use the info to help write legal briefs if I cannot find it elsewhere. If, and only if, I'm stumped on a certain facet, I consult with my attorney mentor- and sometimes Berta. She has many irons in the fire and it seems unfair to ask her the same questions over and over. It's akin to someone calling you up every month to ask what month it is. CUE is ostensibly a rare error but unfortunately, VA no longer trains their employees and allows them to rely on what the M 21 computer spits out as holy writ. Remember, the M 21 has not been revised since 2006. Instead, VA continues to repair it piecemeal with band aids following new CAVC/Fed. Circuit precedence. These revisions can occur up to a year or more later as in the case of Bradley/Buie case law. How many CUEs did they commit in the interim? Who knows? Here's a site built by a RVSR that translates 38 CFR into M 21 (for what it's worth) and vice versa. It also will offer Google sites to investigate on the subject. It's like a Swiss Army Knife for claims >>>>>> https://asknod.org/fergoogle/ Once again, I beg all of you who offer advice to research your answers so as not to cause more harm. Think of a doctor's prime directive - First, do no harm. We have a wealth of knowledgeable people here who are eager to help all of you.
  22. 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.
  23. 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.
  24. <<<<<< 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.
  25. 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.
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