FormerMember

Mr. Carpenter's devotion to Veterans is overwhelming. He was absent in Las Vegas Thursday for the opening ceremonies. The reason? He was doing oral arguments on Andrews versus McDonald before the Federal Circuit in Washington DC. He then jumped on the red eye American Airlines flight that evening and was at the podium for the Friday morning opening remarks. He admitted to feeling a little punch drunk from the five-hour flight plus a three hour difference in time. I attach the oral pleadings here so you can get an idea of why other Veterans lawyers like to use him for their cases. He has one of the most mellifluous voices ever heard and a wonderful brand of humor that sets judges at ease. Here, you will hear the Federal Circuit cut and ream the VA counsel a brand new a$$. One thing I've learned arguing some of my own cases above is to never interrupt or try to talk over a judge-especially a woman. Baaaaaaaaaaaaaaaaaaaaaaad idea. As to telling the Federal Circuit what they can and cannot address in a case is asking for a sharp legal b*tchslap. You will hear a shrill-voiced VA OGC lawyer gal attempt this legal technique and try to instruct the Court on how to interpret Clear and Unmistakable Error. Whoooo doggies. Make plenty of popcorn and put on your mental seatbelt. This gives a whole new meaning to being a fly on the wall. http://www.veteranslawlibrary.com/files/Fed_Cir_Audio/2016/Andrews_2015-7035.mp3

I've tried it all. Blogs, claims appeals etc. I finally hit on going and meeting them face to face. I had the pleasure of meeting Judge "Saint" Mary Schoelen last spring in San Francisco. This year it was Judge Alan Lance. This cuts closer and dodges the 2 year FNGs in Congress. CAVC Judges are around for 20 years. Same for VLJs. I even had a good one-on-one with Ken Carpenter about my panel for EAJA fees. This is where Justice for Vets was born. http://asknod.org/2016/03/15/bva-phil-cushman-never-heard-of-him/ Clear to active runway

The reason Vets don't know about the AO ship's list is that VSOs haven't been briefed in on it. Hell, a gal came to my site today and she tells me when they asked about the Vet's c-file, the VSO rep said he'd never heard of one. http://asknod.org/2016/03/08/veterans-service-officer-c-file-never-heard-of-that-one/

It's simple with the new system. You input everything as data. Yes/No. When? Where? Cause? LOD? y/n . Everyone enters something along the production line. VHA supplies records. NPRC docs, At the end, a VA examiner looks at the oldest C&P first because that is the first one that pops up on the .pdf when it opens. They rate from that. The military presumption that you are guilty until proven innocent is for application. If even one date doesn't agree with any lay testimony, you are deemed an unreliable witness and they get to 86 all your lay testimony. Since it's a production line of 20 raters contributing, no one sees the finale but the SVR or RVSR. They have to sign the ratings form. That is your nemisis. They, too, are trained to come at it as a denial looking for a win to happen. In the old days, it was one rater who assembled the whole enchilada and you could go down there and talk to him about it. They didn't hide behind a mail drop in Wisconsin. It took me literally 22 years and counting to win. They still have a effective date of rating of 2012 wrong which allows it to be "reviewed" again before five years is up. It should be 1994 and 20 year protected. That is the VA you are dealing with. So I filed a NOD and beat them to the inevitable punch in 2017. Statistically, if represented by a VSO, your best odds of winning are 15% unless you got blown up by an IED and have a Purple Heart to prove it. 22% win at the BVA. 65% win at the CAVC

I did not research it. I merely suggested a line of attack. If it (dumping syndrome) is indeed in the medical lexicon and absent from your medical records defined as such, it will be a hurtle to overcome. In any case, a good nexus with supportive cites to peer-reviewed articles on the subject will carry the day. Best of luck to you in the fight.

Keep in mind that semantic terms evolve over time. You will never find a reference to PTSD before 1981 when it was first proposed to Congress. You will not find a reference to Hepatitis C until 1989 and so on. I suspect you will also not find much on the actual term "dumping syndrome" in the 70s medical literature. VA has a propensity to use words in such a way as to lead you away from the denial argument and shunt you down another path. They often use the word "history" disingenuously to mean that which you reported or something in the STRs that is not born out by evidence-i.e. it is history inasmuch as you reported it rather than it being evidence of record. A famous one I had to fight was a "non-diagnosis" of skin cancer where the doctor simply wrote "rule out eczema". Lacking a true diagnosis, the Vet lost until a Doctor could opine and say the undiagnosed cancer in 1986 was indeed cancer and not eczema. One very useful tool I employ is the combat presumption in 38 USC 1154(b) where anything you say is the truth unless VA can rebut it as untruthful. VA absolutely chokes when you pull out that hole card. Rarely do they even look at your records to determine if you qualify for the presumption.

Loyal, one thing I have spotted is your use of: As in Hep C tests, there was no one testing for sleep apnea in thee 1970's yet. So its real suprising there was no in service diagnosis, that "absence of evidence", is not the same thing as "evidence of absence". I believe the cite you are looking for is "Absence of evidence is not negative evidence". Here are a few decisions to support that philosophy: In general, the Board may not rely on the absence of evidence as substantive negative evidence, the exception being when there is an evidentiary basis establishing that a fact in question would ordinarily have been recorded in the document or documents in question. See Horn, 25 Vet.App. at 239 (citingBuczynski v. Shinseki, 24Vet.App. 221, 224 (2011), and Kahana v. Shinseki, 24 Vet.App. 428, 438 (2011)

I'm guessing Mr. Sailorman hadn't filed for it when he went to appeal, Berta. If he doesn't vocalize it in the original claim, he cannot ask the BVA VLJ to adjudicate it in the first instance without AOJ review in order to maintain the "one decision on appeal" codicil. By law, you cannot ask for a waiver of review if you've never even had an original VARO adjudication of the claim. Just because a VLJ shines a light on what appears to be an informal claim, they are somewhat powerless to do more than remand it back to the RO for a more detailed examination and possible grant (which VA promptly ignores). Always remember, if it's new, BVA can't touch it. If it's a request for an increase they can address it. VA jurisprudence has a cadence like Haiku and cannot be accelerated or skip steps. A classic example is that you can never raise a new allegation or theory as to why VA hosed you at the CAVC. You have to arrive with one theory or one story. It cannot metamorphose from the BVA version. I'm beginning to think someday VA will blow an ass gasket and come down on Theresa and all of us like a cheap new polyester suit. We'll be hounded into ceasing teaching the path to success. The new Fully Developed Appeal bill in the House is approaching with an eye towards giving our BVA appeals the same Bum's Rush through a kangaroo court.

The program has limited objectives. It is a transitional one and not for the long term like R1 or R2. The idea is to slowly ease the Vet back into society in gradual phases. At some time in the future, if the Vet finds himself able to partake in an occupation or volunteer for work in the community, the VA will promptly cease the caregiver stipend. The rationale being that if you can work or function among others again, there is no need for your spouse to stay home and babysit you or protect you from yourself. Sadly, too many Vets become dependent on this new financial windfall and encounter grief when it is terminated-which it will be someday. No, I do not have a caregiver,sir. I fought in the Vietnam Boundary dispute in 70-72. SMC T is only available to those who served after 9/11/2001 which is a dichotomy. VA feels some Veterans who served more recently are "more equal" than other Vets from prior skirmishes. Congress wrote the law at the urging of the Wounded Warriors Project in 2010. When VA agrees to investigate you for an entitlement, they do so carefully and meticulously. They do not listen and promptly push print. They hesitate to grant because once they do, it becomes a legal "finding" and cannot easily be undone. VA will check out your earnings (if any) via a Social Security query. If they find none and the spouse passes the rest of the metrics, you'll be approved for a minimum of 18-24 months before a new assessment is scheduled. The reason I'm familiar with this is that I took a class on it last year as part of my CLE (Continuing Legal Education) requirements. Cupcake says the only thing I need a caregiver for is someone to mind my mouth. It gets me in trouble when talking about large Veterans charities. Best of luck to you on receipt of the T.

I can say with some certainty that the inclusion of any BVA decision from any VARO of any vintage will be discarded as not probative as it is a non-precedential case involving a different Veteran. VA gets these frequently Use the search bars on the BVA site to elicit the proper search. You'll find numerous cases where they refuse to allow a BVA decision other than your own previous one(s). http://www.va.gov/vetapp15/Files3/1527349.txt

Buck, I know what you are seeking. It is available as Aid and Attendance for your spouse. It doesn't hinge on any income requirements or SSD. I did one for a Vet in Colorado several years back. She fell and broke her hip and was permanently laid up in a wheel chair. We applied for A&A for her and it was granted as my guy was 100% toast and on A&A as well. I'll have to look up the regulation but it is not a pension-specific benefit. Your wife will have to pass the Form 21-2680 test for the Aid and Attendance so you can review it ahead of time and see if she can qualify.

Not quite on target. En banc decisions are the Court of Vet Appeals sitting as a whole of 9. Panel decisions are what the gentleman is looking for. They consist of three Judges and constitute a precedential decision. Single Judge memorandums (only published electronically) are decided with a single judge because they do not cut any new legal ground. As such, the Court can decide far more appeals that have no matters that have not been adjudicated in the first instance already. En banc decisions are for earth-shattering appeals with far-reaching consequences for us Vets. BVA decisions will only cite to en banc or panel decisions. On occasion, Vets filing pro se have cited single-judge decisions that mirror their own. They have had spotty success doing it. Here's an interesting article about it attached below. We may live to see the day when we are given precedential single- judge decisions if this VBMS disaster at the BVA creates an interminable backlog that spills over into the CAVC. Discussion about single judge rulings vs panel.pdf

A big factor in whether she gets SMC T is whether you can hold down even temporary work. If you can, there will be no SMC T. VA has rationalized this such that if you are capable of going out and dealing with society- even if it's volunteering for 3 hours a day as a library assistant- then you are not in need of this SMC. What few understand is that there is another component of this (SMC t) that is manifested as Kumbaya meetings with other Vets to "deal with this". VA calls it the "Group Hugs" program.

It's a brevet title you earn until you prove you are not entitled by your actions. What the hey? You might have been awarded the CMOH and earned the sobriquet. I'd look pretty stupid if I didn't call you sir. I'd call my father sir if he were still alive. He is what inspires me to do this. 28 Air Medals, 16.5 air-to-air kills in 7 months (Nov. 1944-May 1945). 250 straight in Skeet (1957). I never saw him miss a dove or a grouse.

To prevail on a true CUE (one in which the claim was not appealed), the requirements are very stiff. Here, declaring CUE while the claim is still viable merely asks the VA to correct an incorrect decision. If the claim is still viable and appealable, the tenets of Russell/Collins (1992) are not for application and you have a much lower threshold to meet to prove error. Do not confuse a claim that is final and reopened for CUE with one that is currently on appeal. While you may semantically choose to address the error as a clear and unmistakable error, it is not cast in stone until the Fat lady sings at the Federal Circuit if you go that high.

MCCFR97 My mistake. I didn't actually address the post. It does appear that retired at44's original post was almost two years ago. The advice will never be stale, however. I hope it helps you as well but it appears you've received the "IMO" briefing that the VSOs never remember to give. Best of luck on your claim(s).

MCCFR97, My comment was directed to the originator of this thread-i.e. Retiredat44. As such, the comments have no bearing on your situation. I'm sorry if you got the impression the comment was directed towards your circumstances. As there is ample room on the website here to begin a new thread and avoid "hijacking" it as you say, it might facilitate helping others to do it that way. Retiredat44 deserves to be given advice just as much as you do but it confuses the readership when you take comments meant for your fellow Veterans and answer them yourself. I say this as a way of helping rather than criticism. Allow us to help all equally without muddying up the waters. Beginning your own thread to address your unique situation allows you the undivided attention that retiredat44 sought here. Thank you for your service.

Am I missing something here? If you do not have a nexus letter (read IMO), you are not going to win. Three things we try to impress upon you. A disease or risk (chemicals) in service, a disease now that is recognized as a cancer or skin disease associated with exposure to JP 4, benzene, Try Eth etc. and last but not least--a doctor to say it FOR you because VA will not believe it if you say it. I've had Vets who got internet articles on all kinds of stuff that generally describe certain things like this but VA and BVA judges will say it is not about you personally-it is an internet article that discusses people in general. Without your IMO, unless you have extensive service medical records showing your visits to sick call, hospitalizations, and a chronic condition continuously since service to now documented in post-service records, you will lose. It sounds like you have all the ingredients. You just need to hand them to an oncologist or endocrinologist and ask them to write a letter tying the condition to service in unequivocal language. It has to be a disease or cancer to file. You can't simply file because you were exposed. I believe I read you had a DRO review and hearing. If you went "on the record", the hearing will be transcribed into the c-file records. This will be valuable when you get up to appeal or ask for a Travel Board Hearing. If you went "off the record", all that testimony is lost and gone. It cannot now be introduced into the record because it was not recorded. It exists in the DRO's mind for the most part. A Travel Board Hearing can get that evidence and testimony back in if necessary. Go get an IMO pronto and fix this thing.

Whooo, dogies. Here we go. If I get the Five Day/ Panel plus a brand new redenial, it's off to the Federal Circus. EAJA Panel.pdf

No offense intended, Gastone. My comment is to be taken as a teaching moment- not a personal insult. Teaching VA law or offering advice is a double-edged sword. If it's correct, it can be constructive for the Veteran concerned. If the advice is incorrect, it can be harmful. The last thing we want to do is to make another Veteran wait an additional 60 days before a Post-Decisional Review Process begins. Learning VA law is time-consuming and tedious. Before I ever push [Submit Reply] here, I check back on the relevant regulation(s) that control it. I haven't stepped on my necktie yet and certainly hope I never do. It's a sacred trust to help another here as you know. I think the very least we can do is to insure our information is correct and up to date. It seems to me "you're in error" is every bit as in-your-face as 'Not true' is. I guess there is no polite way to say it.

The OGC wrote up the body of the JMPR. We all signed it and it went back to the BVA. The VLJ granted but pointedly avoided the Porphyria argument. The AMC handed me 100% back to 94 and then I began the wait. Recalling mandate on these things is time-consuming and often a waste of time. An Extraordinary Writ accomplishes it in a short period. Getting the CAVC Judge to recognize the metrics seems to be the problem. All he sees is a Writ-ergo no EAJA. Getting VA to fix something promptly solves the argument that they are dogging it. That is the catalyst theory. You file for the Writ and it prods VA into fixing it. But the accepted knowledge is that it never would happen unless you file. VA's attitude is "Hey. You got what you wanted. We're not going to pay your attorney for attacking us-even if we were wrong."

Shoot. I look forward to this. It's pretty cheap entertainment. I consider it a success for one reason. It's winnable and creates that precedence so essential to all our claims. If VA was able to throttle all EAJA fees for Ex Writs, we'd be in a world of hurts. This is just one of those appeals that deserves to be addressed. Otherwise, I'd just say screw it and walk. Every case is unique. This is a classic example. Win or Die, ladies and gentlemen.

The VA didn't have to put up much of an argument. Davis is on their BFF list from what I can see. The legal argument everyone is using is Buckhannon. Clearly, the Court’s denial of his petition did not award a benefit to Petitioner because it did not provide relief that created a "material alteration of the legal relationship of the parties." See Buckhannon Bd. & Care Home, Inc. v. W. Va. Dep't. of Health & Human Res., 532 U.S. 598, 601, 121 S. Ct. 1835, 149 L. Ed. 2d 855 (2001) (for prevailing-party status based on receipt of benefit sought, party must be awarded relief by court that creates a "material alteration of the legal relationship of the parties"). On April 3, 2013 by virtue of the Joint Motion for Partial Remand (JPMR) the court ordered VA to give me my earlier effective date for all claims filed March 31, 1994. That is what the legal folks call the smoking gun. If the VA didn't award me everything in 2013, it was a purposeful oversight. I do not need another 19 years to fight it. Granted, a Ex Writ is probably not the perfect tool to do this with but there really is no way for a Vet to go back and ask the CAVC to make VA comply with an earlier decision.

Few of you might agree that a loss at the CAVC is beneficial. However, I just got the shaft yesterday for my EAJA funds. Judge Davis dawdled for 6 months after the VA gave me everything on my Extraordinary Writ (filed in January 2015) to deny us a piddling $3,907.63. This is due to the EAJA requirement that the Court issue an order to VA to "fix" something. We presented the Ex Writ to the Judge and he, in turn, asked the VA whazzzup? Faster than you can skin a cat, I had SMC all the way back to 1994, an increase in my porphyria, my ratings for cryoglobulinemia and fibromyalgiia. Done. Just like that -in 45 days. What the Judge never did was "order" the VA to do it. Thus he denied our EAJA fees. The crux of the argument is the original filing for this in 2012. We won it all then but VA "disremembered" to give it all to me. Thus, the original CAVC decision to remand it in 2013 was the "order" needed to justify it. Based on that, Judge Davis screwed up. http://asknod.org/2016/02/26/cavc-graham-v-mcdonald-the-buckhannon-catalyst-theory/ VA has chosen to die on this hill. Since I want each and every one of you to have the same benefit if you find yourself in this predicament, I'm filing first for a panel decision and, in the event of a refusal, I will go to the Federal Circuit to get it done. Hooo, doggies. I've never been to the Fed Circus before. This will be fun and a learning experience for us all.

Not true. You are free to file a VCAA notice that you have nothing further to submit (at the hearing) and ask the DRO to proceed to a decision.