Jump to content


HadIt.com Elder
  • Content Count

  • Donations

  • Joined

  • Days Won


Everything posted by asknod

  1. https://www.index.va.gov/search/va/bva_search.jsp?QT=Loss+of+use+of+lower+extremities&EW=Crawford+&AT=&ET=&RPP=50&DB=2018 Erase Loss of use and Crawford and insert what you are looking for then hit search. Choose the years you want to search to refine the decision for checking CUE.
  2. Try Fergoogle developed by a RVSR/DRO. Type in an identifier like 3.156(c) in the search bar and hit the magnifying glass. Then chose the Manual choice under it to get a good M 21 cite. It's what the raters use. Fergoogle.
  3. There's the problem. I doubt it would have been uploaded to VBMS before the 6/28 rating decision. Call 800 827-1000 and explain what happened. You may not even have to file a CUE for it. The 800 folks just got VBMS in it's most primitive form but they may be able to see it. Use the M 21 cite above. M21-1, pt. III, subpt. iv, ch. 7, sec. B(3)(a),(b). VA pukes don't speak 38 CFR. The LHI/QTC/VES run about 30 days out on most of the subcontractor submittals on the c&ps unless it's flashed RFN. If June 28th is the day they confirmed it, I'd guess they "promulgated" it about three to five days before that. Welcome to the new VA National Work Queue (NWQ), Sgt. Evidence? We don't need no stinkin' evidence.
  4. Unless you received your claims file after September 2018 when you received the denial, then the VA's IMO reasoning is what you posted in #4 when you copied and pasted the info after being asked by my fellow moderator. You pasted: 1)Service connection for left ankle condition is denied since this condition neither occurred in norwas caused by service. We did not find a link between your medical condition and militaryservice. 2) Service connection for left knee condition is denied since this condition neither occurred in norwas caused by service. 3) Service connection for right knee condition is denied since this condition neither occurred in norwas caused by service. That decision, or VA nexus if you will, with the VA seal on the first pages is called the "narrative". It may or may not have come with what we call a confirmed rating decision listing all your SC and NSC conditions. If you received your claims file before they issued the narrative, then it would not be in the claims file you now have. As I tried to explain to any who will listen, VA has their own in-house VA examiner. S/he is a medical doctor or ARPN/PA-C etc. S/he is the one who made the nexus (IMO) finding of fact that denied you. I cannot seem to impress on folks that a LHI nexus isn't worth the paper it is printed on. You can fight it with a CUE. You might win it saying it's CUE but you are in for a NOD and appeal. File a NOD and allege CUE. Cite to M21-1, pt. III, subpt. iv, ch. 7, sec. B(3)(a); see also sec. B(3)(b) (requiring correction of errors on the rating codesheet, including disability evaluations, effective dates, and diagnostic codes); 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). Hell, claim §4.6 was ignored. In sixteen months, VA will probably send you a SOC. At that time you can opt in to the BVA with VA form 10182. Shoot. I don't have any more advice to offer without stepping on someone else's toes around here.
  5. Allow me to address these one by one. Ms. Berta said in post #16 <<<This was a contracted C & P exam, this was not a DBQ. >>> Six hours ago...<<<This veteran has a valid DBQ written from a contractor that complies with what VA wants.>>> In law, we call this post hoc rationalization. Either it's a DBQ or it isn't. If folks here continue to insist it's a "medical opinion", my advice would be to tune it up dramatically. LHI works for VA so they are not going to be your huckleberry on any tune up. #18 Wednesday 1655Hrs <<<So you guys are saying that any veteran who gets a favorable C & P exam and also establishes their nexus , HAS to Get an IMO? ????????>>>> Please never put words in my mouth. Please review my posts and tell me where I declared you cannot win without an IMO. At best, I might have implied you cannot LOSE with an independent IMO-well, unless it involves alien abduction. My second post in this thread did say you need a good IMO to win. zzzin my opinion, SgtE5 doesn't have one. I suspect this can be won via CUE but I can see it going to appeal and VA ordering up yet another IMO from somewhere. The denial stated the old saw 'acute and resolved'. You now have to overcome that. Are you going to cling to the LHI "IMO" as your proof? That isn't CUE. A difference of opinion on how the evidence was evaluated can never rise to the level of CUE. I deal in law-not emotions and violins. Russell v. Derwinski was fairly explicit---"The claimant, in short, must assert more than a disagreement as to how the facts were weighed or evaluated." #22 <<<There is NO negative medical opinion. This situation is beyond equipoise. Look up :"equipoise". There is only a favorable medical opinion. A VA- requested favorable opinion. There is no negative opinion.>>> I respectfully disagree with my colleague. The VA denied the claim. In order to do that they had to have an "opinion" contrary to the LHI doctor's positive opinion. In law, we call that "reasons and bases". For the enumerated reasons Sgt.E5 already shared with us in an earlier post (which I did read), VA denied him.That is called a negative opinion- i.e. "less likely rather than more likely". SgtE5's denial did not say "We denied because we didn't like the LHI opinion". <<<The DBQ for service connection for PTSD is not available to the public, but you can view the Review PTSD DBQ here in order to get a general idea of what a DBQ entails).">>> Please see the attached "super-duper secret PTSD DBQ" that no one will ever see below. There is no mystery here. The PTSD DBQ is not "secret". If Hill and Ponton can't find one, it indicates to me that H&P a) didn't try very hard to find one or: b) they do not have anyone at H&P with VBMS access. I am no genie and have no secret powers. Wait! I have the Power of Attorney! Why is it I can see this mythical DBQ? Folks, this is not rocket science. I don't even have a college degree- or a Juris Doctorate for that matter. <<<you are saying the law firm of Hill and Ponton, and other vet lawyers are wrong.>>> Berta, what I am saying is there are two different metrics at play here. If you choose to ignore the thrust of what I have been saying in this thread, I can't help you understand it. My law practice is aimed at getting claims/appeals done in the shortest amount of time and keeping my Vet's money in his own pocket. H&P's law practice employs many, many attys. Their job is to produce money for-guess who- Hill and Ponton. They have no incentive or the time to raise a ruckus and get things done any faster than VA's pedantic pace. I know Matt Hill quite well. I met him in San Antonio in 2017. I'll probably see him next week in Nashville. The point is I have no interest in making money. What I do have is an abiding interest in getting a win as soon as possible for my clients. I do not fault H&P, CCK or any of the other big outfits for their legal strategy but it sure isn't founded on a "gitterdone now" mentality. I offer advice here based on what I encounter. Since I am rather abrasive, I call up DROs wherever they work and confront them when they screw up as they did in Sgt.E5's case. Sometimes I succeed in changing their minds, sometimes I don't. However, I never have to shuck and jive to try to change anyone's mind when I present one of my IMOs. Knock on wood but I have yet to lose a claim or appeal. It sure is not because I'm stupid or refuse to subscribe to the way H&P thinks or operates. It is not because I am doing something no one else knows how to do. Call Matt Hill up and ask him how many claims he's lost or how many his firm lost last year. Never mind. I'll ask him next week myself. VA invented DBQs. The early ones didn't even have a box to opine on etiology. USB Hickey told Congress in 2014 that oversight would be corrected "just as soon as we use up all the old forms and came out with new ones". Hello? The forms are electronic... DBQs were created (by VA) to speed up FDCs. Did more Vets begin winning after the introduction of DBQs? Did it revolutionize the ratings procedure? Did accuracy go up? Hadit and asknod would be out of business if the VA suddenly started doing this correctly. In fact, there would be no backlog if this worked as advertised. I do this 12 hrs a day. Other law dogs send me tips and/or ask for them. I give advice here even though I have no time to do so. I subscribe to the "leave no Vet behind" theorem. I would pray it never happened to any of you that you ever had to leave your fellow airmen behind and watch them shot through the head- executed- then perhaps you will understand why Theresa's tag line is so poignant to me. My devotion to helping you-all of you- is called paying it forward. I would never offer advice I would not follow myself. If Matt Hill and company, or Chris Attig, or any other outfit offers advice or a one-size-fits-all, I suggest you review it carefully. VA law is not difficult to interpret. Getting VA to interpret it correctly is the problem. Everyone has their pet solutions on how to do it-including VA attorneys. Perhaps it's time to take a vacation from this lunacy to avoid even more controversy. I certainly take no joy in arguing. Something a lot of contributors forget when they write here- this isn't about us- it's about you-the Vets we hope to help. If no one reads the proffered info, then nothing offered will be helpful. I did read and download all the info SgtE5 presented. I have offered my two cents on how I would go about winning it. I would be interested if SgtE5 returns and tells us how his claim/appeal turned out if for no other reason than to learn from it. Nevertheless, I stand by my advice. Redacted Super-Secret PTSD DBQ.pdf
  6. Boy howdy. I sure don't want to upset the apple cart. Please, all of you, read the LHI "Medical Opinions" SgtE5 has attached. This is incredibly important before everyone discusses this any further. I did read the opinions written by the Dr/ ARNP or whoever authored it. My comment is right below it (#10). One of each of the opinion .pdfs Berta noted were my downloads. Nowhere did I say anyone should run out and buy an IMO. I tried to give an example of how a good IMO should read and one that VA can never rebut- ever. That is equipoise and the secret to a quicker win. But it is not always needed as everyone has noted. At the top right of the LHI correspondence I would ask everyone to look at what is written on the form. I see "Medical Opinion-Disability Benefits Questionnaire." Some here insist this is an IMO. I'd say it's a nexus written on a DBQ form- and a poor one at that. As for independent, that is arguable. Right under where you enter your name rank and SSN is a disclaimer. When I read a document, I read every inch of it because every phrase is operable or they would not put it on there. Please note VA is informing the examiner subcontracted by VA (i.e. not a VA employee which is very important) that "VA will consider the information you provide as part of their evaluation". Let's be clear ladies and gentleman Vets. Nowhere in that sentence did they say "VA will concur with the nexus you provide as part of their evaluation." My colleague Berta has read far more legal decisions that even I and knows a competent IMO/IME/Nexus must have certain ingredients. There are hundreds of precedental cases regarding what an IMO must have. Reonal v. Brown was one of the earliest but here is a newer batch... The credibility and weight to be attached to medical opinions is within the providence of the Board as adjudicators. Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993). Greater weight may be placed on one physician's opinion over another depending on factors such as reasoning employed by the physicians and the extent to which they reviewed prior clinical records and other evidence. Gabrielson v. Brown, 7 Vet. App. 36, 40 (1994). But compare Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301 (2008) (stating that a medical examination report must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two); see also Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) (stating that a medical opinion must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions). I have fought Sgt.E5's type of denial before. Yes. Some idiot may have failed to read all the records. Or, they just deny a few times to see if you'll go away. VA denies 85% of the time as it is. 'Acute' versus 'chronic' is an antique denial ploy usually followed by 'resolved before discharge'. Since we've learned how to get an IMO, VA has been taking a lot of losses on this. They are evolving and devising new ways to deny, too. Let me offer this cut and paste from a RVSR who reads asknod.org. regarding my recent post on IMOs on my own blog. He's totally anonymous and worried VA will discover our relationship. I didn't even know you could get a throwaway email address until last winter. Re: Your IMO system Lastly, your IMO system makes complete sense. As an agent, I would definitely need to find practitioners that do IMOs. Making sure the doctors get the correct wording in there is SO important, because raters look for very specific things. The doctor's relationship with the Veteran, the doctor's credentials/expertise, their rationale, and one of the most important, what records the doctor reviewed... you nailed it on the head. Multiple times this last month, I've been forced to side with the VA doctors because the private doctor didn't explicitly state that they considered certain evidence... like the separation exam or continuous medical evidence showing chronicity or whatever. So yeah, killer synopsis on that. I do everything I can to offer advice based on techniques I've tried. Not all turn out well so I practiced on myself to learn most of them. VA constantly keeps changing the requirements too, the regulations and even the evidence we can use to sustain a claim/appeal. If I use a certain technique and I win sooner, I adopt it. My mission is to do as many of these as fast as I can and move on to the next win for another Vet. It's not like I'm a regular attorney who wants to camp out on Joe Vet's appeal for three + years for a big 20%. Ask Broncovet. I don't "need the money". If I could depend on a LHI/QTC/VES "medical opinion" to win with, I would. It would save me spending $1,500 of the Vet's money to get one (a quality IMO) I know I could win with. Speed and accuracy with a quick win is my game plan. Attorneys often litigate forever. What I hear in this thread is "Go with the VA's subcontractor's nexus and it will qualify...eventually." But it didn't- or hasn't yet. So now SgtE5 is going to spend more time in an appeals posture trying to convince VA they should honor their own medical opinion. But there you go. It isn't VA's opinion. It's the subcontractor's opinion which VA is free to pick apart, accept or discard. VA set up QTC/VES/LHI to be the straw man in this IMO gig. Remember-----VA did not say SgtE5's IMO was probative LHI did. VA ignored it as they may. Eventually, they will sort it out. I will be happy to show you folks an identical IMO for cancer of the sinus due to AO written by a VES ARNP with a pseudo-supportive cite to accepted research on a virtually identical form with the same phrase I quoted above ("VA will consider the information you provide as part of their evaluation".) . VA denied him six days later with no mention of the VES gal's probative "IMO". The discussion was fixated on the fact that the sinus cavities are not part of the "respiratory system" and thus not presumptive. I have a few more DBQ "opinions" just like it, too. One of my VA agent friends I respect very much, Myra, insists this is CUE. She disagrees with my take on how to do it. She is right- it is CUE but it is a long, tortuous road that many Vets don't relish taking-a protracted battle with the VA. I help Vets. Far more than I can ever help ask me to take their claims. I try to accomplish them as quickly and accurately as possible so I can move on to the next Vet and help them. Time is my enemy. Can you hold VA's feet to the fire on a LHI "nexus"? Perhaps. Perhaps not. I've known VLJs at the BVA to send out yet again and seek one last opinion. Few of us ever win that way. The operable word here is always "independent". I cut to the chase on a claim. My Vets are so ill, I get them a high rating-usually up in the SMCs. They make the cost of the IMO back in one check. I get 20% of one or two checks at most which is the way it really should be anyway. When your appeal gets to the BVA and you are arguing about how the LHI opinion should be controlling, the judge is eventually going to roll out Nieves-Rodriguez and ask you where your probative nexus is complete with rationale and peer-reviewed cites that rebuts the VA examiner's probative nexus. Seasons change and so is VA. Please do not condemn me if my advice seems unorthodox. I agree that some seems off the wall. Everyone is different and no two VA claims will ever be a carbon copy. Any advice I give here is usually based on one tenth of what I would want to have before I ever signed a 22a with you. I don't trust the VA to do what they say they are supposed to do. Considering we teach you to have three prime ingredients here (Caluza), somehow SgtE5 got to the VA claims window without one of the ingredients. VA provided him one and then ignored it. Now what? Should every Vet go out and get a $1,500 IMO? Certainly not. I never said that in my first post (#10) nor in my second (#15) . I merely pointed to the reason why he lost and how I would have avoided that problem. I also pointed out LHI and their ilk are not employees and purposefully gave you a flawed IMO. There are not many litigators like me who do crazy things like running out at the drop of a hat and getting an IMO. I'm flying back to DC to do a Travel Board hearing with a client from Texas to speed things up. The client doesn't want to wait for a TB date in Waco. I complain that others do not read a complete thread and enter in on page 6. By the same token, I would expect others to read what I write and not excerpt talking points. When all is said and done, I profusely hope SgtE5 gets this turned around without a costly IMO. It would seem the evidence is there but with the 'new and relevant' stricture in the Supplemental Claim Lane open to him, he cannot cite back to existing STR evidence as 'new' or relevant. This would be a HLR. It would have to be CUE'd promptly. I do not see it mentioned that this occurred after the AMA kicked in. If it's a Legacy appeal, he's in for a really long wait after his CUE NOD. SgtE5, I wish you the best on this. You should listen to everyone's advice but ultimately make your own decision. I personally would CUE it if it were my claim to save money. Some folks don't have money to throw at this. Much like a doctor, my first job is to do no harm. I do not see where I have done that. I'm sorry that other moderators here have a decidedly different opinion and I respect their advice. For everything else, there's MasterCard...
  7. I don't understand why I was denied if the c&p doctor opined claimed conditions was related to service and I have met all 3 elements. Even though her opinion is in the record, can I add a statment arguing the c&p doctor provided nexus? Or just wait for the SOC as I know it will be denied again and argure to the BVA Roger, sir. Your c&p was not an IMO ... or an IME... and certainly not a nexus letter. It was an exam (C&P) to see what's wrong with you. Just because the doctor/NP/RN/ ARNP/ PA/PA-C says it's service connected doesn't make it so. I showed you what you need-a real IMO from a doctor- not the opinion of a bedpan changer. VA says you need three things to win. They supplied #3- your IMO-because you did not. Unfortunately, they are all usually a dry hole. In order to win your claim, you must get a truly independent IMO-not one from a subcontracted outfit like VES or QTC. They work for VA and will say whatever VA tells them to. Remember Judas and the thirty pieces of silver. Best of luck, sir.
  8. Your problem here is that the c&p examiner is not the VA claims examiner. Please note in 3a on both exams that the examiner said yes it more likely than less likely. With that said, a c&p examiner is not the last word. The rater has an in-house doctor/ARNP/ RN at the RO who reviews everything and makes that decision. They do not rely on what your c&p examiner says as to etiology. Many Vets think a DBQ is the gold standard of a claim. In fact, I'm getting VA letters for some of my clients listing a download for the proper DBQ for the condition and a suggestion to take it to the Vet's private doctor, if any, to be filled out. A DBQ essentially lists where you are right now like a snapshot (photo). The c&p examiner is just a medical employee who records what you say and what s/he sees or discovers. In that sense, a DBQ is useless as an IMO. When I obtain an IMO for my clients, it has far more info and discusses history as well as peer-reviewed articles about the problems my clients suffer. A DBQ is like an office visit. It doesn't go into history and the examiner is not allowed to diagnose service connection in spite of what you see in Box 3a. I refuse to use or depend on DBQs. Attached below is what I use. Dr. Rivero's Curriculum Vitae (CV) is four or five pages long, too and discusses her qualifications for opining on the client's condition. She views the exact same set of records (VBMS, STRs, current med recs and the c-file. This is where 99% of you lose. If your IMO doctor doesn't specifically state they reviewed those records I mention, you're going to lose. Remember, VA invented DBQs. They could just as easily be called CYA forms. And that's all I'm going to say about that. Humphrey IMO redacted.pdf
  9. Always remember. To maximize your SMC, you need to show that you need help. Or... that you have loss of use of your extremities. VA will not remunerate you twice (pyramid) for you ratings. Which brings an interesting fact to the discussion. Did you know you can get A&A awarded for two separate conditions? If you had PTSD so intense you needed the A&A of another, that would be one SMC (L). However, you could also have an A&A awarded on top of it for needing A&A for Ischemic Heart disease or DM II in the advanced stages. Getting R-1 is contingent on having two SMC ratings between L and N. Let's say you have loss of lower extremities due to Parkinson's (very common). You cannot apply for A&A based on Parkinson's. The admonition is contained in §3.350(e)(ii)-i.e. "No condition being considered twice." Conditions are defined in the Breniser decision which is a very good read. https://www.courtlistener.com/opinion/817365/breniser-v-shinseki/ Best of luck to all of you on your claims journey.
  10. Here's a shot of my VBMS e-folder. You can bring up 10, 25, 50 or 100 documents at a time but this pig only loads just so fast. By contrast, if you obtain your c-file from the Records Management Center, it looks like 52 card pickup. This began in about 2006. One day VA went from being nice with the file to just heaving it into the copy machine. Obviously two versions exist- the orderly VBMS scanned version and the old copied paper file now in .pdf. and with no rhyme or reason as to filing order.
  11. Loyal, If you could see how VBMS is arranged, you would know a nexus /IMO sticks up like a red flag. It's right near the VA exam notes after a 526EZ is filed. If it's a private one rather than a VES/QTC IMO type, it is labeled "Medical Opinion-non govt. facility." It's not like you have to search for it. A c-file is a fustercluck of documents in whatever order they were inserted. A VBMS e-file is chronologically arranged very carefully.
  12. I just got this in the mail from one of my friends-a former Veterans Law Judge. He's worried so I guess I am, too. https://asknod.org/2019/03/05/bva-more-decisions-and-be-quick-about-it-mind-you/
  13. Try this on for size if you are new to this. https://asknod.org/2019/03/03/independent-medical-opinions-who-what-where-why-and-when/
  14. You stay in legacy if you did not opt in prior to February 14th. You get another opportunity to opt in when you are issued a SOC or SSOC on your NOD.
  15. No punishment for not opting into RAMP, sir. VA is just getting horribly bogged down with new claims. Seems everyone wants to get in on the action. It's now taking me 2-3 weeks from electronic filing in Janesville to see it in VBMS. That used to be three days. DRO reviews are a minimum of 16-18 months. I started filing my NODs I know are going up to appeal as traditional instead of wasting time on a DRO review. VA will never grant a Hep C jetgun claim at the AOJ level. Same pretty much for SMC L for LOU of the lower extremities ( for Parkinson's) if you haven't had your legs cut off physically.
  16. If you desire information on where your appeal is at the BVA, call 800-923-8387. they will be happy to tell you where/what stage it's in. On the same note, if you've been in the claims/appeals system for 10 years on the same subject, they usually advance you on the docket. Never ever file an appeal without nailing it down at the BVA with a Waiver of Review in the First Instance. This prevents endless remands back to your local RO for stupid mistakes on the RO's part. It usually takes six months for the Hearing Transcript. If it wasn't advanced on the docket, expect another 16 months minimum assuming it isn't a new AMA (RAMP) appeal.
  17. Dear Wanderer, If you have full confidence in your claim, I would take that new evidence and file at the BVA with the new VAF 10182. Regional offices are doing high-speed denials of claims under both the supplemental and HLR paths-especially the latter. If you opted in earlier, then you are eligible for the BVA NOD path. Best of luck.
  18. After a careful review of the new, improved VA Appeals Modernization Act by our good buddies in DC, I report back. All the forms and all the info. https://asknod.org/2019/02/24/ramp-screw-me-twice-shame-on-me/
  19. Negatory, File a VAF 10182. Here's the link to download the document: https://www.va.gov/vaforms/va/pdf/VA10182.pdf The new regs say you can jump in after you get a SOC or SSOC. Read up on the instructions carefully.
  20. Found this on VBMS this morning. "Decisions appealed to the Board for direct review are accomplished in an average of 365 daysThis is a vast improvement to the average 3-7 years Veterans waited in the Legacy process." As for the denial, Loyal, look to the Howell decision and what you underlined. In spite of a 2680 declaring you housebound, that is the doctor's assessment. Remember that a VA "examiner" (i.e. a rater) made the final decision. He probably based it on an incomplete understanding of the M 21. I rarely see SMC S granted based solely on a 100% rating rather than the standard 100 + 60 metric. If you would, copy and paste the actual denial language. Often, it is couched in VA legalese and difficult to unravel. You've dealt with VA long enough to realize they are devious and vague. r a
  21. In order to offer advice, I depend on the individual seeking it to provide the situation, the narrative(s)and the Confirmed rating decision. If a Vet gives me or any of us less than enough intel to figure it out, then we are forced to theorize. Actually, I misunderstood the initial Caregiver's Stipend through the VHA program. After going back and rereading my initial post to you, sir. I apologize. You are not getting SMC T but were actually getting SMC S with a K. I'm pleased to hear you advanced to L 1/2 as you will need that income if you need the Aid and Assistance of another. You will not lose the funding for the A&A-ever. If you were to lose the use of either the upper or lower extremities, you would be additionally entitled to R1. The point I did try to stress before, and which is still valid, is that your rating would drop back down to SMC O if you were ever institutionalized as an inpatient. The VA will not pay you for a higher level of A&A and the hospital bills for being institutionalized. I pray you never are. SMC T is reserved for those who suffered extreme TBI-after 9/11/2001. By rights, those folks are dang near vegetables and require a far higher level of A&A at the R2/T rate. It is reserved for the absolutely most disabled. It's rarely awarded. I've only done one R2 since I began. The VHA Caregiver program is a three-step rate with the highest tier about $2000-2100. Unlike SMC T or R2, This program pays the caregiver the stipend directly. I wish you had mentioned that at the beginning so as to give us more information. While I'm apologetic about my advice, I'm certainly glad my misinformation did not harm you. You seem to be extremely well-informed or have studied this a bit.
  22. To autumn: Remember, there is a difference between a claim denied and an appeal. A claim denied remains viable for appeal for a year. An appeal is anything you file a NOD on. Once you file the NOD, you have completed the first step of what we call the "substantive appeal" to the BVA. After issuance of a SOC, you have 60 days to take the second step by completing the substantive appeal by the filing of the VA 9. Yes, a rebuttal filing to the SOC will delay the suspense date of 60 days by giving you 30 days from the receipt of a SSOC in which to file the VA 9. The important thing for all to remember is that you can have a claim denied this morning and then put it into the rocket docket to the BVA after the 19th. If it's a CUE, you would gain nothing by having a Supplemental review as you are prohibited from introducing new evidence. Likewise, a HLR, which is no more than a DRO review camouflaged in a new dress, is a dead end as well. I've won two DRO reviews- the Phoenix folks caved in and CUE'd themselves 9 times on a Vietnam Parkinson's disease denial and the second was the CAVC ordering the VA to pay me SMC back to 1994 in 2016. That's mighty slim pickings. I hear from all my fellow VA litigators that the RAMP at the local level is a chimera. Approximately one in five is getting a favorable outcome. CUE claims are excellent candidates for this process. First, you cannot add any new evidence. Second, VA invariably denies all CUEs anyway. Lastly, who wants to take a CUE through the 6-year system to the BVA? When you file a CUE, you are calling VA idiots out for screwing it up. You cannot add evidence so it's a brilliant way to unclog the system. VARO raters use the M 21 and it will almost always yield a denial. The BVA, on the other hand, is a Veterans Law Judge (VLJ) with real legal training. They can ascertain the truth in an unbiased decision. It used to be that VLJs pretty much toed the line and acquiesced to the VASEC and the OGC precedents. This is no longer true. With new precedence coming down from the CAVC or the CAFC almost daily, our legal chances of success in a true courtroom before a real law judge have increased 100-fold since the era of the 60s when the BVA came into existence. In my 30 years doing this, I have found one truth. Many of us look at our claims from our own point of view. This tainted view prevents us from considering whether it's actionable. I always take the devil's advocate stance and try to defeat my client's claim with logic and reasoned argument. If I can, then I won't take it. If it's plausible, I will always be tempted to fight it. Unlike some VA litigators, I keep my caseload down to a dull roar. I will never become a VSO with 250 Vets. 60-80 is more my idea of a manageable number. Besides, I like talking to my clients and sharing their highs and lows. With that number, when a real CUE barnburner shows up, I usually take it. RAMPing up to the BVA is the cat's pajamas in this situation. Why wait in VARO purgatory for years?
  23. On February 19th, the pathway to the BVA RAMP opens. I have 6 clients I'm putting into the process. Many are CUE claims. Obviously, if you claim a CUE in 1970 or 1993 as I am for my clients, they cannot artificially give a haircut to the CUE and arrive at an effective date of 2018. That's a mighty tall violation of due process. Not sure who is spreading the rumor about earlier effective dates. I did see some discussion to that effect in the SCR and HLR lanes but nothing in the Fed. Register or the published PL 115-15. I remain confident the time involved in litigating in the Legacy system of appeals will gradually diminish. After all, isn't that the point of RAMP-to reduce the backlog and clear out the "docket closet"?
  24. In order to qualify for SMC at the (o) rate, which is the gateway to R1, you need, at a minimum, two conditions between SMC (l)and (n), no condition being counted twice. This might consist of loss of use of the lower extremities and SMC (l) for A&A. To qualify for R1, you need to qualify for SMC (o) via §3.350(e)(1)(ii) and be in receipt of SMC at the (l) rate for A&A. The key word is two conditions and no condition counted twice. Thus you cannot claim need for a higher level of A&A (r1)due to loss of use of your lower extremities if the loss is not service connected. Lots of Vets need a higher level of A&A but do not qualify as they do not have two entitlements. You will never qualify for SMC R1 if you do not have entitlement to two (or more) conditions described in SMC(l) through SMC (n). Here's what you need for SMC at the (o) rate. (e)Ratings under 38 U.S.C. 1114 (o). (1) The special monthly compensation provided by 38 U.S.C. 1114(o) is payable for any of the following conditions: (i) Anatomical loss of both arms so near the shoulder as to prevent use of a prosthetic appliance; (ii) Conditions entitling to two or more of the rates (no condition being considered twice) provided in 38 U.S.C. 1114(l) through (n); (iii) Bilateral deafness rated at 60 percent or more disabling (and the hearing impairment in either one or both ears is service connected) in combination with service-connected blindness with bilateral visual acuity 20/200 or less. (iv)Service-connected total deafness in one ear or bilateral deafness rated at 40 percent or more disabling (and the hearing impairment in either one of both ears is service-connected) in combination with service-connected blindness of both eyes having only light perception or less. (2)Paraplegia. Paralysis of both lower extremities together with loss of anal and bladder sphincter control will entitle to the maximum rate under 38 U.S.C. 1114(o), through the combination of loss of use of both legs and helplessness. The requirement of loss of anal and bladder sphincter control is met even though incontinence has been overcome under a strict regimen of rehabilitation of bowel and bladder training and other auxiliary measures. (3)Combinations. Determinations must be based upon separate and distinct disabilities. This requires, for example, that where a veteran who had suffered the loss or loss of use of two extremities is being considered for the maximum rate on account of helplessness requiring regular aid and attendance, the latter must be based on need resulting from pathology other than that of the extremities. If the loss or loss of use of two extremities or being permanently bedridden leaves the person helpless, increase is not in order on account of this helplessness. Under no circumstances will the combination of “being permanently bedridden” and “being so helpless as to require regular aid and attendance” without separate and distinct anatomical loss, or loss of use, of two extremities, or blindness, be taken as entitling to the maximum benefit. The fact, however, that two separate and distinct entitling disabilities, such as anatomical loss, or loss of use of both hands and both feet, result from a common etiological agent, for example, one injury or rheumatoid arthritis, will not preclude maximum entitlement. (4)Helplessness. The maximum rate, as a result of including helplessness as one of the entitling multiple disabilities, is intended to cover, in addition to obvious losses and blindness, conditions such as the loss of use of two extremities with absolute deafness and nearly total blindness or with severe multiple injuries producing total disability outside the useless extremities, these conditions being construed as loss of use of two extremities and helplessness.
  • Create New...

Important Information

{terms] and Guidelines