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Everything posted by asknod

  1. Independently rateable at 100% means schedular. VA will not permit a finding of TDIU to stand in place of 100% under §3.350(f)(4) or, in M-21 VAspeak, IV.ii.2.H.6.c. The regulation is poorly worded. If you received another single rating for a disability above 60%, or amassed several with one 40% or more that added up to 70% or more, when you were already at SMC L, it could never be considered as an extraschedular TDIU. By law, you would have to already be at 100% (or TDIU) to approach qualification for SMC L. I have appeals I'm building for the CAVC to fight the M 21 application of forbidding application of the (f)(3) and (f)(4) regulations (or both) more than once. The regulation doesn't state that. And... I can also do an aggregate filing (class action). Cool beans.
  2. DROs beg me to use a 526 EZ to accurately capture the Vet's name, rank, airspeed and tail number in all those squares they are putting on the forms now. You can also file it on anything that floats your boat by law. VA has told us in the last month they are coming out with a new form for that in the very near future. Define "near future". Until then, you can buy one of those metal cutting computer-driven doomoflotchies and file it on 1/64" steel plate. Just keep the sheets down to 8.5" X 11". My favorite is those endless paper towel roles in VAMC bathrooms. Just keep waving your hand in front of the IR sensor until it's long enough...
  3. Before KIA (Killed In Action) the abbreviation was Killed by Hostile Action (KHA). BNR is Body Never Recovered. We were not in Laos militarily during the war, hence we couldn't carry in our dogtags, Military ID/Geneva Conventions Card etc. We were sheep dipped at the American Embassy in Vientiane. We left all our ID there. We were issued US Agency for International Development (USAID) ID and a Laotian Driver's license. If you crashed and surrendered, they executed you on the spot. That's why I always quote Theresa's logo- Leave no one behind. I had to do it once. It sucks. You'll dream about it the rest of your life.
  4. Well, then it's time to call CCK and ask to get in on the class action suit if you're up at the CAVC after a BVA denial, sir. And congratulations on making it home alive. Here's my July 4th, 1970 picture. More than half of these folks were KHA/ BNR. Happy Independence Day to everyone at Hadit and Thank you for your service.
  5. You want a copy of the Purple Book, Berta? One of my BVA "contacts" caused one to pop up in my email box last night. I promised never to divulge the origin. I'm going to publish it on my website and sit back and wait for Judge Cheryl Mason's call. Get this, it's numbered like the M 21 for "convenience" and they don't even recognize the Manual! Check it out--https://asknod.org/2019/07/03/the-bvas-purplebook-the-last-word-on-stare-decisis/
  6. I see c&p DBQs pop up in VBMS about 10-14 days after completion. It takes a VA examiner another two weeks to get back to it and analyze it. It takes another month to get a decision from it usually unless you are hardship, terminally ill or have a PH. Sometimes this provokes secondary claims due to inferred issues.
  7. July 11th? Do you have a time machine?
  8. Berta- Read Appellant's Brief on 18-6798 re hypertension. I saw this AM they have pulled any decision on the new presumptive off the table for now.
  9. A VA examiner (rater) doesn't necessarily focus entirely on the diagnosis offered by a contracted c&p audiologist or even a doctor.. While your husband may well have hg. loss and tinnitus, the examiner may determine it was not incurred in service. We all know they 'top sheet' a claim and rarely delve deeply into the STRs. This is also a test to see if you want to fight. If you do, they'll relent on appeal or a HLR and grant.If not, go to the BVA with all the evidence. Welcome to the VA insurance company. VA is notorious for using the Maxson v Gober argument. If you file 10-15 yrs after separation, it opens the window to the hearing problems being post-service. It's up to you to rebut by showing his job(s) do not entail hearing loss risk.
  10. Dear Mr. RetiredAt44, A BVA Judge is hamstrung by law. S/he can be the most pro-Vet trier of fact at 810 Vermont Ave. but if you arrive with your POA and little more than a plea for §3.102 and the benefit of the doubt, they have no repair order for you. The whole idea of the face-to-face TB hearing is to provide the critical evidence you were lacking prior to arriving-i.e. one of the three Caluza/Shedden/Hickson elements. If you put up a good argument, a VLJ will send it out for a new IMO. Sadly, we all know what the VA calls an 'independent' IMO. It will be done by a VA doctor. Yes, you'll probably lose. This is exactly what you don't want. Imagine the Titanic after it went down. We litigators are the "lifeboats" plodding through the waters trying to save some of you before you die. There are about 600-700 lawyers and 350 agents to serve millions of Vets. Worse, not all of us have deep pockets. Add in we're lucky if we see any remuneration from VA for a long time. I have one I began helping in 2013. I began by getting him his medals so we could prove he was a combat Vet. I filed 3/30/2015. I filed the NOD 8/4/16. We got a TB hearing 9/20/2018 and we were advanced on the docket to boot. It's at the Board and due for a decision literally any day now. If he won today, it would still be a month before he gets any $. I'll be lucky if I see it by November. VSOs call us bloodsuckers for charging Vets to help. VSOs tout that they do it for free. I can't argue with that. They also have a rather abysmal success rate compared to us. Anyone who thinks this is a fair fight doesn't know government. They have X dollars and gazillions of Vets. Over the years I've noticed the number of 100% schedular P&Ts and TDIU folks have remained static but the number of Vets has skyrocketed as has the number of claims filed. See the problem? VA artificially controls the number of top payees. The only way to win, and win rapidly, is to present an IMO at the BVA. If you try this at the VARO level, they may deny a perfectly good IMO by going out and getting one of their "independent" doctors to rebut it. If you present it to the VLJ with a cogent argument, s/he will gladly grant. They won't waste your (and their) time going out to get a new "independent" IMO. All I can say is plan ahead. Do not wait until you're dying of something to begin your fight. If you don't have the funds to do this right, try a financial path like GoFundMe. Be creative.You were taught how to fight a war. Use that knowledge to fight VA. We have a lot of info on this site and mine. I've looked at tons of Vet help sites and none matches this or mine by a mile. You need knowledge-not someone to cry into your beer with. Sure there are some here who can help or offer good advice but you can't invite us all in to your hearing with a Judge. You need to learn why you lost and how to fix it. I depend on mechanics to fix my car. I do not depend on anyone to tell me how to drive the car. Some things we have to learn for ourselves. I notice far too many of my clients insist on giving me the "back story" on what has already happened to them. Did any of you ever notice the windshield of a car is larger than the rear view mirror? It's more important to see where you're going-not where you've been. I don't need to know how mean and insulting the DRO was to you. I need to know what you're lacking and supply it. In order to be prepared for things like mechanical breakdowns in the VA hearing process, I bring a concise legal brief that encompasses everything I present to the VLJ verbally. I give it to him for the record at the end along with any IMO I present. This is one more way to CYA your appeal. Even if they lose the transcript, they still have a record of what you wanted to get across. I read transcripts and my hair stands on end to see a VSO say "Your honor, what we're asking for here is the BOD" The judge says "Fine. Give me some ammo to rebut what the rater said." Benefit of the doubt is called "equipoise". Your argument has to be at least as equally compelling as VA's. Judges have a lot of leeway and can slant justice towards you but you have to have a hot dog to put the mustard on. In answer to BroncoVet, my initial response was in answer to his comment "The best time to get a lawyer is after a BVA denial." I guess I missed the "could" or "should" discussion. I stand by my advice-get an attorney or agent as soon as you get denied. Do not wait. Go to the NOVA site and begin at "A" and call every one of them until you get one to rep you. If you still come up with a dry hole, one of two things is amiss. Either your claim doesn't hold water legally or you're faking it. To me, going to the CAVC is a last gasp proposition. Excluding CUE, you cannot "win" there because you cannot submit any new evidence. The CAVC is not a Court of equity. They don't cut the check. All you can hope to do is to win a remand to fight another day. My philosophy is to win before you have to go there. Chances are if you do prevail at the CAVC, you will find yourself back at the BVA or the AOJ obtaining the very same IMO you needed to begin with in order to win right where you should have won three years earlier. Why squander three years on it only to start over? And that's all I'm going to say about that.
  11. Likewise, I am not an attorney or a VSO-just a lowly nonattorney practitioner. Alex
  12. Let me explain that I am not the normal VA advocate. I saved and invested before I became ill. My SMC S carries the mortgage. My wife still works. I have no student debt. I take a certain percentage of monies from wins and set it aside to buy IMOs for my most indigent clients if need be. I don't have a law office and a staff. I have an $8,000 Konica Minolta Bizhub 224e that can scan a page a second. I have Adobe 9.5 with OCR. I can find stuff on a c file in minutes. I don't mind taking a financially challenged Vietnam Vet from start to finish. I just wish I could do more claims but I have a life outside this arena. Here's an example. A Vet who served at Udorn RTAFB at the same time as I was in and out of there (1970-71) came to me and said he doubted he'd ever win SC for Hep C. They'd lost his STRs or they "burned up" in the '73 NPRC barbecue. He'd admitted he snorted coke in the late 80s and was told by the VFW that filing was a dead end. He got a VA pension instead. I took him on and filed it for free back in '17. Of course he lost. I filed the NOD and he lost again. I planned it that way. I filed the VA 9 and we went to the BVA. I flew down on my nickel to Oakland on March 27 and put us all up at the Sheraton right around the corner from the Oakland RO. I bought dinner and breakfast. We marched over to the VARO at 0630 and were first in line. We did a Travel Board hearing live in front of VLJ Blackwelder at 0830. I presented the new IMO personally and explained why sharing a dollar bill snorting coke didn't give my Vet Hep C in 1988. His liver is shot. It takes fifty years to medically go from zero to full-blown cirrhosis even if you were chugging a fifth of Jack Daniels a day. 1970 to 2019 = 49 years. He wouldn't have cirrhosis until 2035 at the earliest if this began in 1988. He had a case of the clap while at Udorn. So what if the records burnt up? The antigen showing gonorrhea stays in your blood forever. I offered to go get a blood test and submit it into evidence within 90 days to prove my point. The Judge looked at me and said " Never mind the blood test. I believe you. This is extremely informative. I learned something today." I believe I made my case. We shall see. This is what Theresa means when she says "Leave no one behind." We will find out if we won in about three-five months. Most all of the folks I represent are advanced on the Docket for health or hardship. I will never do Videoconferences again-ever. I did one for my Vet in Puerto Rico with the VLJ in DC and myself and my interpreter sitting in Seattle in July 2018. We lost the connection twice in an hour. The San Juan camera was 10 feet away from my clients. At a TB hearing, you and your client are 3 feet away from the Judge. They say a picture is worth a thousand words. A TB hearing is one thousand times better. Personally presenting the IMO is the icing on the cake. They can't help but look it over right there while you're giving your brief. Believe me when I say they remember you at the next TB hearing. Gaining the trust of the Judge is very hard. A lot of VSOs come in and say all manner of crap- with none of it helpful. They beg for benefit of the doubt when they have no evidence. I've seen one use the f word right to the Judge's face in a transcript. Bad idea. A real attorney has the luxury of time. He keeps a constant supply of claims in the pipeline so he gets payouts at a measured pace. It pays to dawdle or take it to the CAVC for retro purposes. My game plan is simple-gitterdone. The sooner the better. I'm 68 and my heart is not a happy camper. I'm on a mission to do as many as I can before I crap out. If I can call up a DRO and say "Hey, I'll throw in withdrawal of these six claims for tinnitus, hemorrhoids, pes planus and the ingrown toenails if you'll agree to give my client TDIU P&T right now. " Sometimes they see the light. If not, we litigate. I simply threatened to get an IMO for one Vet in Waco last month while on remand back from the BVA and the DRO caved in and gave him the whole shooting match without a whimper. Win...or die trying. What do you have to lose? A DAV VSO called me a VA ambulance chaser at an event last year. I wear that moniker proudly. In some circles 20% is cheap. SSA claims and appeals lawyers demand 40% for doing exactly the same thing. Try this on for size: https://asknod.org/2019/05/25/memorial-day-2019-dirty-deeds-done-dirt-cheap/
  13. I respectfully disagree with BroncoVet on this one. I prefer to attack the VA the moment my client gets a denial at the local VARO level. It's far cheaper for the Vet and far less work for me to win at the BVA rather than increase the eventual 20% we charge our clients by litigating it all the way to the CAVC (and an additional year of retro). I am sometimes embarrassed to have a client arrive 90 days before the cutoff date for submission of new evidence prior to a decision at the BVA. I file an IMO and win (or sometimes just threaten to file one) and win a claim that has been continuously prosecuted for 5 years. My client has to pay me a huge sum (think $35 K) for 90 days of work to win his claim. I'm a fan of winning the claim, not litigating it to death. VA attorneys think the opposite because they get paid more by prolonging it.
  14. STRs are any treatment records generated while on active duty regardless of who authored them. If they relate to an event in active military service, they are considered STRs. Example: While in Thailand after I arrived in 5/70, the AF invited me to a briefing where I was asked to volunteer for a job with Air America in Laos. I remained in the service but was "seconded to AirAm or USAID as a French teacher. I got a GSW and had records from a "civilian" hospital and civilian doctor in my records with Sgt. Alex Graham in English at the top. As they occurred on active duty, they are, by definition, STRs. VA called mine PMRs (personal medical records) instead of SMRs for 12 years. One day in 2008, all my records were declassified and they became SMRs (STRs after 2010).
  15. Geekysquid You present a chronological exhibit with a tool we call a Chrono. See attached. It's tied to a specific claims file VA sends you. Each document is assigned a place on the chrono by date- i.e. 1/30/1968 --- hit by mortar blast in Hue. Purple Heart Awarded (RBA [Record Before the Agency] @ pg 2345. VA likes to salt in 1969 STRs right next to your request for GI benefits in 80 which are then followed by your 11/2018 NOD etc. I submit these to the VLJ to support my timeline of events. Once records- any records-have been associated with the claims file, they are constructively in the VA's possession. Bell v. Derwinski 1992-even if VA doesn't realize they have them. Bell is on point in CUE if the decision postdates the Bell 10/31/1992 decision date. I had a Marine LRRP with a 3800 + claims file with nothing in order. I'm presenting it to the Judge to help him follow the remand trail from the BVA back to the Seattle Puzzle Palace where they ( the Seattle DRO in 1992) demanded a new VA 9. Turns out the BVA Judge screwed up and wrote it as 'referred' even though he had accepted testimony on it at a Travel Board Hearing. Once that was permitted, the judge owned it and the VARO had to "fix it" so the Judge could re-decide. This one''s for SMC S from 1989 to 2012 when he finally prevailed. We contend it isn't CUE but just a pending appeal awaiting a SOC or SSOC since 7/1992. Everyone loves a road map in VA adjudication. When you do this, it makes it far easier on the Judge's staff attorneys to follow. If they are happy campers, it helps up your win probability. chrono example.pdf
  16. Well, this isn't quite true, sir. It would be considered CUE not to reconsider the claim under the auspices of §3.156(c). While VA litigators like me consider it a pending claim once the service department records are introduced (regardless if you just now found it in your claims file), the best way to file for it is a 526EZ to make it happen sooner. VA will try to consider it a forbidden freestanding claim for an earlier effective date. They will be the ones to recharacterize it as a CUE. Read Blubaugh v. McDonald here to get a really nuanced grip on §3.156(c) https://www.leagle.com/decision/infco20141209128 In addition, you could go to the CAVC in 2017 and read Kisor v. Shulkin to get the drift of where the VA would like to take this. But---- Kisor got cert at the SCOTUS and we're all waiting eagerly for them to spill the beans this month. Relevant has always been the reopening metric in §3.156(c)(1). The only thing that makes this unique is that they have to be service department records which no litigator from VA has ever set eyes on. Here, in the instant case we are discussing, it depends if the military ever put a copy in the claims file. If VA rated on the military's record without a c&P- all well and fine. But if they never went to St. Louis and the NPRC to get a copy of the STRs, then anything Kanewnut sends in are, ipso facto, §3.156(c) records. Since the M 21 has no provision for filing a freestanding claim for earlier effective date, they will automatically reinterpret any §3.156(c) filing as a CUE. I try to squeeze them into an appeal I'm working or scoot them in as inextricably intertwined at the DRO hearing. VA generally ignores them.Here's an example: Chris NOD.pdf extra NOD pages.docx
  17. Well, this isn't quite true, sir. It might be considered CUE not to reconsider the claim under the auspices of §3.156(c). Nevertheless, VA litigators like me consider it a pending claim once the service department records are introduced (regardless if you just now found some today that were introduced in 2015 in your claims file), the best way to file for it (CUE) is a 526EZ to make it happen sooner. Why fight CUE when you can use the less onerous §3.156(c)? Technically, you can file a CUE claim on toilet paper. There is no "proper form"controlled by §3.155 (2015 and later). Remember, you're asking for a Motion to Revise- not filing a claim for an entitlement. Before the §3.155 rule change in March 24, 2015, I used to put Tickle Me, Elmo stickers on all my 526s and 4138s. Most folks stub their toes on CUE and lose. It's a unique legal maneuver with a long list of explicit requirements. The biggest one is if you do not file for it, you can't claim CUE on its not being awarded . VA is not expected to go on a safari through your medical records in search of every little ingrown toenail. If it is on a list of injuries at your PEB/MEB, it's fair game for a CUE. If you're expecting them to dig it out and consider it an implied claim now, you'll never get out of the gate. You have to prove it would have manifestly changed the outcome. That, folks, you can never go back in time and fix. It's actually a piece of cake to file for it, win it and then file a NOD and ask for the earlier effective date. As we all know, you have one year to accomplish that. If you do not appeal by then, the ship sails without you. It sounds like Richard1954 had many opportunities to claim §3.156(c) as he won his claims. I routinely use this technique. Get your foot in the appeals door after your initial win and all viable arguments are on the table. Remember, if you don't appeal, it is a tacit admission you agreed with their decision. Ergo, it's right. The Fugo court characterized CUE as a "rare error". Yes and no. It's rare if you can prove it was outcome-based. It's rare for most Vets to even find one because they assumed VA is above moral reproach. CUEs are not rare. I can almost always find one in any efolder. It requires a keen eye and a lot of knowledge to spot VA's errors. Most antiques like this 1985 one above always go to appeal. Nobody wants their signature on a CUE for $950 K. It screws up your resume if you are asked to seek employment elsewhere. However, Shea v Wilkie was just decided two days ago at the Fed. Circus and they say if the condition is mentioned in the MEB STRs being used to rate something else, then the VA should have enough common sense to spot the inferred claim(s). Another big step for Vetkind. You can't use it for a 1985 CUE but it is great precedence going forward.
  18. 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
  19. 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/
  20. 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
  21. 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.
  22. 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.
  23. 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.
  24. 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.
  25. 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
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