FormerMember

Rating decisions are a function of the AOJ. As a matter of course, legally speaking, the Court doesn't make rating decisions nor do they award $. They are not a court of equity. They have no authority to do so. They judge the case, up or down, purely based on the evidence of record. Once you file your NOA at the Court, the record is closed. The Court has the power to reverse, set aside or vacate due to error. All my claims/appeals for the highest ratings (SMC (o), R1 & R2) have always been won at the BVA. VA rarely, if ever, grants these locally. No DRO wants it on their resume. I've had only one R1 win at the regional level (Little Rock) and the matter was unarguable. All the rest were granted by a VLJ and, by operation of law, remanded back to the AOJ for implementation of the Board grant. A VLJ can only grant a higher rating based on a disagreement (read appeal) with an initial rating or request for increase. Even with a grant, it still has to be returned to the VARO and physically accomplished (rated) at the AOJ. Unfortunately, you cut off your CAVC decision quote above such that I cannot see the actual reason for the remand. As CAVC decisions are not private, feel free to send me the case number privately to protect your identity if you wish. Attempting to look back at the 2009 BVA decision is fruitless. Subsequent adjudications have rectified the problem of entitlement to TDIU so that point is mute. Once the BVA CUE finding granted you the EED of 1993, it subsumed any earlier VA or BVA conclusions of law-but only on the subject of the effective date of TDIU. You focus your entire discussion on entitlement to SMC (s) prior to 2018 which postdates the 2009 decision. Based on all I read that you have provided, absent a doctor or higher-level clinician contemporaneously stating your need for A&A or conditions supporting a determination of being "housebound" earlier than June 2018, you cannot establish an earlier entitlement to SMC (s). Testimony from a significant other, even predicated on a 13-year relationship with firsthand observation, is insufficient to sustain entitlement. Unless your girlfriend was a psychologist (PsyD) or had acceptable medical credentials (ARNP, MD, RN) demonstrating her bona fides to opine, her probative testimony can only be relegated to what comes to her via her five senses (Layno v. Brown/ Jandreau v Nicholson). Ditto your lay testimony. Again. I point to the unguided safari analogy. Unless I misunderstand this, you are asking (or contemplating asking) the VA now, in 2021, to look at the evidence of record from 1993 to the 2018 award (ostensibly lacking any legal pronouncement of an inquiry as to the applicability of SMC) and ask them to retroactively survey it for either CUE or failure to perform a retro- Akles process of reviewing the case for an inferred ancillary entitlement to SMC. The VA benefits from the Presumption of regularity. It is presumed they reviewed the 2018 (and 2020-21)decision for this inferred SMC entitlement test. A decision is not required to explain every nut and bolt looked at. Cogburn v Shinseki (2010) discussed implied/inferred denial by its absence in a decision. Cogburn protects VA's failure to adjudicate entitlement to SMC-at least until 2010- from then on VA has to obey the four Cogburn factors. If the 2018 BVA decision above failed to infer (or discuss) retro entitlement to SMC at any rate, the time to disagree was in 2018. Your only venue under a Legacy claim in 2018 meant you had to take it to the CAVC. Perhaps that's what you did but I can't "see" that. Again, absent a discussion in the BVA decision, you cannot raise it sua sponte above. When you file a NOD, you "vest" the Board with the authority to decide (de novo) your contentions. If you fail to raise certain contentions, the Board often feels the matter is not before it. Where SMC is concerned, it always should be but the Board may, and often does, miss it. SMC is horribly complicated and most ROs, let alone staff attys at the BVA, can't figure it out. That's what the 1989 VJRA was for. It's why I spend so much time on claims and appeals for higher SMCs for my clients. Getting to the higher rates of SMC are well-discussed in Breniser v. Shinseki. See also §3.350(e)(1)(ii). There are only 4 conditions which lead there and you need two between SMC L and N. The VLJ held you were not entitled to SMC (m) because you do not suffer LOU or blindness. In addition to a&a, you would need a separate, distinct disability independently ratable at 100% schedular to advance from SMC (l) to (m) under §3.350(f)(4) or to SMC (o) under §3.350(e)(1)(ii). Likewise, in addition to SMC (l) for a&a, you would need the LOU of two extremities or blindness to get to SMC (o) with one of them being a&a, and thence upwards automatically to R1. (Breniser/§3.350(h)) If the 2018 claim is moot, I don't see how you can revisit SMC (s) without a prior diagnosis of housebound earlier than the June 2018 c&p. But then, I could be missing information here. Best of luck.

Your decision is the "instant appeal" you show above. Always remember the VA is not required to conduct an unguided safari through your claims file in search of any and all entitlements. While SMC must be awarded the moment it can be ascertained it is due, in order to crack this nut open you sometimes have to file a claim to remind VA they forgot. VA is not much of a self-starter and will pretend not to "see" an inferred ancillary benefit like SMC S-most especially under §3.350(i)(2). Far too many Vets think that just because you have a 100% schedular or TDIU, you automatically qualify for SMC S under Howell v Nicholson. Not so. You actually need to have a doctor's nexus or equivalent IMO stating you are (were) medically unable to leave your home. Medically unable can encompass agoraphobia due to MDD. It's not a strictly physical thing. You cannot say just because you don't have a wheelchair-type ramp to walk out of the house that it substantially confines you to your domicile. Legally speaking, failure to award SMC is not CUE. It's just a "mistake" that can be corrected at any time. Akles v. Derwinski says the VA is supposed to make that determination at such time as when you qualify. SMC has been described as a "quality of life" issue after you attain the requisite precursors to entitlement. SMC doesn't fall into the narrow confines of a claim as such. The paramount phrase in §3.350(i)(2) is: " Is permanently housebound by reason of service-connected disability or disabilities. This requirement is met when the veteran is substantially confined as a direct result of service-connected disabilities to his or her dwelling and the immediate premises..." To be declared "permanently housebound" or "substantially confined", you usually need a VA Form 21-2680 filled out by a doctor stating as much. The form is used not only for housebound determinations but also for SMC (l) Aid and Attendance determinations. Generally speaking, no 2680 w/o housebound or a&a determination = no dice. VA likes to reserve the right to determine entitlement to SMC to themselves. I have found the absence of the 2680 at any time prior to the BVA decision granting SMC (l) or (s) which would provide the needed evidence to show an earlier entitlement is the problem. I've won SMC (l) claims without a 2680 but I had doctors who had written in the Vet's records that the Vet couldn't hold a spoon to eat oatmeal or get dressed without help... or couldn't be trusted to take his meds... or any of the myriad reasons listed under §3.352. The important thing in winning a&a (or housebound w/o the extra 60%) is to show in your contemporary medical records where a doctor specifically pointed out you were substantially confined or listed activities of daily living your were incapable of (that are on the list in §3.352)-not a legal determination that you needed a&a in haec verba. Remember, a doctor cannot make legal determinations. By the same token, BVA judges can't make medical determinations-Colvin v. Derwinski (1991). As I mentioned above, you could claim a violation of §3.103(a) (a decision which grants every benefit that can be supported in law) on the failure to award SMC (s) prior to 2018 but again, you would have to have the medical evidence to win it. I rarely attack failure to award SMC using CUE. Why make it difficult? The legal standard of review is that SMC requires no claim. It's an ancillary benefit arrived at by the determination of the evidence of record. Akles v Dewinski (1991) demands VA perform an analysis as to whether you are entitled to it (SMC) at any SMC rate the moment you qualify. You're free to file a 995 and ask VA to determine if you were entitled to SMC (s) at any time between the 12/93 award of IU and the eventual award of SMC (l) in 2018. I'd provide them the evidence, whatever it was or is, that sustains your contention. It must have been in your VAMC VistA records or claims file in order to be considered -Bell v. Derwinski (1992). Bell was decided October 31, 1992 so your TDIU determination falls within it's precedence if you feel you want to use CUE. As for Buie "rearranging" precedence, you got a good VLJ who awarded it. From what the VLJ wrote, you did not have the requisite disabilities to qualify for SMC at any rate prior to 2018 determination. Best of luck sir.

I like to lay punji pits for VA raters. Here's a classic. I knew my Blue Water Vet had filed for MDD 2ndy to IHD back in 2002 when he filed his original claims (and lost). He wasn't boots on the ground so they hosed him with the Haas v. Peake decision. When I reopened in 3/2020 after the new Procopio Nehmer rules, I left out the MDD claim because, by rights, the rater would be obligated to rate it under §3.310 with the effective date of 2002. There was big money on this-like $250K. These weasels carefully rated him such that he was below 50% after 2006 thus depriving him of his CRDP. CRDP= concurrent receipt of both retired and VA compensation pay. If you are rated below 50%, you do not get VA comp. I knew they'd screw him on the 50% or greater so I purposely left out the reopening of the MDD. Sure enough, I was right. His combined was 44%. Kind of like the old Get Smart TV show. Missed it by thaaaaaat much, 99. So I filed the Motion to Revise (CUE) and demanded the MDD back to 2002. Yep. As predicted (and expected), I got the "Sorry Alex, we're only going back to your 12/02/2020 CUE filing which we'll presume you meant as a claim for MDD and not a CUE. I sent it up to the BVA immediately. My Vet is on his last legs and over 75 with an IHD ejection fraction below 20%. With the BVA grant of the MDD- even at 10%- which I figure they'll try to lowball him with, he'll still get to 50% back to 2002. If they give him the 30 or 50% he deserves, he'll get a check for 70% rating from 9/2002 to 12/2014-maybe TDIU from 2006. He deserves it. He did two tours on the USS Preston DD 795 inside the 12-mile limit and often within sight of land doing fire missions. All gave some. Some of my closest friends gave all. This is my way of paying it forward-one Veteran at a time... It's sad VA will fight me to a draw every time trying to fence my Vets out of these old, big-dollar reopenings. It's so predictable you get used to it. They think they're as slippery as a banana peel. When I was incountry, I always carried two hand grenades in my cargo pocket of my pants-even to the loo. Fortunately, we had the Swedish ones upcountry in Laos which weighed a 1/3 less than a M 26. It made you feel like a NFL quarterback when you hucked one of them. You could get about 50 more feet out of it and it always caught the gooks off guard. Let this be a lesson. Always have a spare grenade when you deal with these pukes. Check it out. How to play poker with VA the way they like to play poker- but in spades. VA created an enemy for life when they told me in 1994 that I'd never served in Vietnam. Redacted CUE filed 12-2-2020.pdf redact CUE RD 2-25-2021 MDD.pdf redact filed 10182 EED MDD 3.4.2021.pdf redact 3.29.2021 BVA grant MDD 2002.pdf Redact Code rating sheet before 3.29.21 BVA EED.pdf

Lotsa talk but no real answer to the member's original question. If you have a VSO or VA attorney/agent representing you, they, and only they, can view your efile online in VBMS. There is no such thing as a paper claims file anymore. At the VARMC in St. Louis are all the remaining, inactive ones. If the Veteran reopens an old claim, they scan it and convert it to an electronic record. If you work for VA and have a claim in, you must have your file maintained in St. Paul (VBA 335). St. Paul is a RACC office. RACC stands for restricted access claims center. That is what VA calls a "restricted" file. I filed a VAF 21-22a on myself and can see my own efile in VBMS but my VA contacts insist it's against the law for me to do so. I'm considered a VA employee by law because I have access to VBMS. Now, with that said, if one of my clients is getting shafted, I can call my VA Change Management Agent CMA) and ask her to look in the client's efolder and see if a mistake was made. Not a rating decision but a mistake such as another Vet's documents inadvertently put in his/her file or incorrect info relating to a claim. Sickels v Shinseki grants the presumption of regularity to all VA personnel-including subcontractors like LHI/QTC or VES. If I don't represent you, I cannot see your file online. Anyone on a team doing your claim can view it. Once a decision is promulgated, the file is closed for viewing unless an ancillary decision will be adjudicated from the decision. Once all that is complete, the file is not accessible unless you have the need to know-such at your representative. VA personnel are far too busy to go off the reservation and start looking at files they aren't working on. VBMS also leaves a trail showing who's been in your file to ensure privacy. There is a lot of data in there that could be used against a person-including HIPPA data. The M 21 computer is the one who automatically "remembers" you are almost at the 5-year mark (or 20) and decides to reschedule you out of the blue for a c&p to confirm your "disability" has not improved. Right now, VAROs and DROCs have the capability to do 8,000 claims per day per USB Tom Murphy. Currently, the OAR/NWQ is dispatching 6,000 +/day as that is all they have ready for a decision to be made. VA is getting caught up by just churning out decisions en masse without proper development. This process began in earnest in March last year with the advent of teleworking from home. Yesterday morning, I see in CASEFLOW I won a Blue Water Squid's MDD due to CUE at the BVA (VLJ J. Parker) all the way back to 9/17/2002. I tried very hard ahead of time to convince them they were wrong but they refused to listen. They even refused to CEST the CUE for me until I blew an ass gasket re due process. Boom. 6 days later they granted-but with an effective date of 12/05/2020-the day I filed it. Last year, the VA did away with our being able to review a rating decision for up to 48 hours to correct it or point out an error. Yesterday, they announced they are bringing this process back. What does that tell you? VA justice is getting worse every day. And that's all I'm going to say about that...

A long time ago, a good fried (Gene Groves) who has filed more CAVC appeals than any of us collectively ever will, argued there was a back door on VACOLS. He had sent in 8 requests to stop further adjudication on an appeal temporarily.(Hamilton v Brown (1994)). Only five were visible. VA ignored him until it got dicey at the Court. He pointed out that some correspondence that should be in VACOLS went missing. Then they magically reappeared. Turns out VA had been lying for years on this. McDonald had to admit they "found" a backdoor nobody seemed to know about. They plugged it-or said they did. VACOLS is no longer used except for the remaining Legacy Appeals. When they are gone, so too will VACOLS be shut down. With that said, let's look at CAPRI. CAPRI is not VistA. VistA is a compendium of all your VAMC medrecs. CAPRI docs are records copied from VistA and inserted into VBMS for adjudication purposes. Technically, neither can be altered. Don't confuse it with MyhealthyVet. MyhealthyVet is built for distribution to Vets but is not sacrosanct. I had a Vet who used Trulicity for DM II. VA refused to buy it for him. He raised a stink (before he died 7/1/2018). It was in his MHVet records they had refused him and tried to sub another drug... and then one day it (the refusal) wasn't there. When he died, his wife and I no longer had no access to it because of HIPPA. With access to VBMS, I see a lot of shenanigans like this. VBMS is not immutable. I've had ratings decisions appear which I objected to for error. I call or email some poohbah and complain. Poof. Bye bye rating and a new one pops up in its place. I had one in Little Rock that changed four times from 3/26/20 (denial); 4/1/20 (lowball 0% grant); 4/03/20 (redo w/ 30%) and one last one two days before he died on 4/10 that upped him to 50%. Each earlier RD evaporated. I no longer trust them to be honest (if I ever did). I've had docketed appeals in AMA evaporate into thin air. When called out, they just recreate them and issue a RD as if nothing happened. Sadly, Vets have no access to VBMS or they'd be able to see this in real time. I have a dying Vet in Puerto Rico who asked 5 times over 50 yrs for his c file. Each time he got something new that wasn't in the file before. Finally, in 2014, all his STRs which burned up at the NPRC on 7/13/1973 surfaced and they granted SC. I confronted them on one x ray from 1971 that was "absent" and they just stuck it in and argued it was a duplicate. When I see something important in VBMS, I screen grab it for later use. If I have to go to the Court, I will pitch a bitch about how a VA-authored document in their control can be magically ''disappeared''. So far, I've shamed them into submission or CUE'd them each time. All of you should be aware that VA seems to have changed over the years and become more adversarial instead of less. I'm not a conspiracy freak. I feel it's individuals doing this- not the whole system. When you screw up, you tend to try to cover your tracks at any job... unless you're honest. Trust... but verify (or document it). And that's all I'm going to say about that.

Let's be honest here. Aphonia is listed in §3.350(a)(6): (6) Aphonia. Complete organic aphonia will be held to exist where there is a disability of the organs of speech which constantly precludes communication by speech. This only happens when your vocal chords are enucleated (think throat cancer) such that you can only move your lips to communicate. Loss of, or loss of use of the lungs sort of means you die... I have succeeded in getting several folks rated for this (DC 6517) but only at 0%. There's a logical reason for it. It's secondary to Parkinson's (Paralysis Agitans under DC 8004). The disease weakens your diaphragm muscles which control the amount of oxygen that passes through your vocal chords. Thus your speech is impaired and reduced-but it does not preclude communication by speech at, say a whisper or louder. A Vet can certainly prove, by a doctor's diagnosis, s/he is constantly precluded (forever) from speech and this will get you two things- a 100% rating under DC 6519 and SMC at the "K" rate-and no more for that particular scenario. Of course there are myriad ways you might get secondaries rated with IMOs. If you can only whisper, then you get 60%-but only if your disability is permanent. Expect VA to reexamine you a lot on this one unless you are maxed at 100% on COPD. Since speech is technically a different category from the lungs, it might be a neat trick to get the 60% to get to SMC S and avoid pyramiding. Now that would be an avenue to pursue. The problem and the reason none of us will ever get SMC L (loss of use) for aphonia alone is simple. It's not listed in the 4 conditions in §3.350(b). It's listed in §3.350(a). Quite simply, that means you will get a SMC "K" rating for it. I think the path would be to go after SMC L for A&A based on a 100% COPD and the inability to accomplish the ordinary activities of daily living under §3.352. I've gotten one Vet L for that combination and now we're working on getting BVA to give him the full and half-step bumps for all the other non-related SC conditions under §3.350(f)(3)(4). Houston refuses to. P.S. I should add this. As an accredited representative, I am forbidden to file "frivolous claims". I could never file a claim demanding SMC L for loss of lungs wiithout censure by the OGC. However, an unrepresented (pro se) Vet can. Since you cannot win it with this logic, I'd defer to my discussion above. No insults intended to anyone on the site. Just pure reasoned, logical thinking. I'm sure someone else may have a better way to skin a cat.

38 CFR §4.124a DC 8512 = LOU of one hand (70% dominant; 60% nondominant) and §3.350(a)(2)(i) (SMC K) §4.71a Diagnostic Code 5109= Loss of use of both hands and §3.350(c)(SMC M)

SMC L, which is described in §3.350(b), lists four "conditions" which merit an award at that SMC level. You need only qualify with one condition. Loss of use of the upper or lower (bilateral) extremities or one upper and one lower extremity. Total blindness @ 5/200 or less Permanently bedridden Need for the Aid and Attendance of another Once you qualify for SMC L, you have reached the "entry level" for additional higher-level SMCs above those in SMC K,Q or S. The SMC L conditions are often called the Breniser conditions after a famous case. You must have independently ratable SMC Ls to advance to the highest SMCs like R1 or R2. That means you cannot claim A&A on top of your loss of use of the feet because it's hard to reach the top shelf of the cabinet. Interestingly, you can get two ratings for A&A as long as they are for different needs. You may have disabilities rated as SMC Ks which you can add to SMC L. This begins the SMC "P" series of combinations in §3.350(f). SMC Law is like the Mississippi River. I like to point out that SMC law permits pyramiding. With all that said, I've seen Vets who were not at 100% get A&A by virtue of a BVA Judge granting them the benefit based entirely on the list in §3.352. At that point it becomes a de facto 100% rating due to the inability of the Vet to exist without the help of another. Most were TDIU or eligible via §4.16(a) or (b)but had not yet been granted it. Lastly remember that VSOs are not taught SMC law. They think the ratings table ends at 100%. That clearly explains why so few Vets get SMC at the higher levels.

The HLR reviewer is mistaken. The only showing of a need for a 100% rating used to be SMC S... §3.350(i). (i) Total plus 60 percent, or housebound; 38 U.S.C. 1114(s). The special monthly compensation provided by 38 U.S.C. 1114(s) is payable where the veteran has a single service-connected disability rated as 100 percent and, (1) Has additional service-connected disability or disabilities independently ratable at 60 percent, separate and distinct from the 100 percent service-connected disability and involving different anatomical segments or bodily systems, That requirement is also evoked in §3.350(f)(4) when discussing a bump up from SMC L to M using the "independently ratable" language and the requirement of a single 100% disability versus combining several ratings to arrive at 100%. VA raters are starting to come up with all manner of new interpretations of how this works. Bradley v. Peake overruled the 100% language in 2008-thus a "total rating" can legally be TDIU at 70% because it is being paid as a "total" schedular rating. Never believe what the VA tells you unless you believe in the Tooth Faery and Santa. A&A is contingent on §3.350(b). Nowhere in there does it say 100% in §3.352(a).

I'm seeing or hearing this almost every week. With the corona virus in full swing, it was virtually impossible to meet with a VSO service rep to file a claim. Numerous VA telecommuting raters with nothing better to do at home, have been ordered to access the VBMS and began looking for claims for increase to CUE on old, out-of-date criteria. They are flooding the Vetsphere with these reductions. Everyone, even VA personnel in VBA, want to appear productive. Bingo. What's left to do? SOCs, SSOCs, dependency claims and reduction proposals. Now, the regulations concerning this are critical as several others mentioned above. Much like a hand grenade, you have a 30 day grace period to contact VA- even if it's only the 800-827-1000 Dial-A-Prayer line. Your call to complain stops the whole procedure and turns it into an investigation with a hearing rather than an automatic reduction proposal. You are entitled to a hearing to dispute it. VA raters prefer an informal telephone call with no recording of the event during the current crisis. Be polite and say you'll be scheduling when you can show up in person. Most folks looking for reduction guidance stop at §3.105(e) and see that 60-day hand grenade. Scroll down further to §3.105(i): (i) Predetermination hearings. (1) In the advance written notice concerning proposed actions under paragraphs (d) through (h) of this section, the beneficiary will be informed that he or she will have an opportunity for a predetermination hearing, provided that a request for such a hearing is received by VA within 30 days from the date of the notice. If a timely request is received, VA will notify the beneficiary in writing of the time and place of the hearing at least 10 days in advance of the scheduled hearing date. The 10 day advance notice may be waived by agreement between VA and the beneficiary or representative. The hearing will be conducted by VA personnel who did not participate in the proposed adverse action and who will bear the decision-making responsibility. If a predetermination hearing is timely requested, benefit payments shall be continued at the previously established level pending a final determination concerning the proposed action. In any event, the reduction letter will vaguely refer to 30 days about page 3. If you blow past the 30-day date, you can still get the hearing but they can reduce your entitlement in the meantime. The standard practice is to whack you with an effective date 6 months into the future from the date of proposal to reduce. They will make the rating decision almost immediately after the 30-day limit expires. If you file the protest of the reduction and the request for a hearing within the 60 days, they will eventually schedule it. But all is not lost. My Win or Die technique is to never let a reduction stand. If you give up and get whacked once, they'll almost always come back again later. I'm proactive on this. Even if my client is poor, I'll front the cost of a good IMO for them and file it as a 995 supplemental for an increased rating while I'm waiting for the hearing. Since VA can't find their own derrieres with a methane detector, I doubt these chuckleheads will catch on to my back door attack. By the time a hearing request call arrives, I can say "Thanks but we decline." You cannot legally reduce a Vet when he has a shiny new rating. That would require yet another c&p to blow a hole in the new IMO. Since I have no formal legal training, nobody has ever told me I can or cannot do something legal. My attitude is to try it and see how VA reacts. Most times, it slides right by them until it's too late. Stay safe!

I always trust the Veteran to tell the truth. Conversely, I always expect the VA to hamburger the discussion. TDIU is what we call an extraschedular rating and essentially equal to a 100% schedular rating. You can loose TDIU if you a) get better and they reduce your rating; b) start working again while on TDIU; or c) obtained the benefit fraudulently. Permanent and total (P&T) is an acknowledgement that you are just that. You're toast and your condition is never going to improve. Thus TDIU with P&T awarded is a dynamic condition at best versus a 100% schedular rating with P&T. If any of the above conditions I talked about arise, TDIU, with or without P&T, can be rescinded as you can see in the instant case. What has happened to Kevin is simple. The VA reviewed his claim, decided to reduce him on one facet which dropped him out of TDIU and P&T because he no longer qualified via his percentage. They then awarded an increase for something else. Logically, you would think they would do this in such a way that it made no changes in his eligibility date but that would be your mistake. VA re-awarded TDIU and then issued a new P&T date ( May 7, 2020). It's becoming more common each day. His wife will be the DIC loser if he should pass away in less than 10 years unless the cause is service connected. In PTSD cases, as a general rule, you usually don't die from it. Trust me when I say I would not lie to you or any Veteran. As an officer of the Court, I am not permitted to lie, misrepresent the truth or mislead a client in spite of what many seem to think around here. I take this responsibility very, very seriously. If you came to me and asked me to file a claim I knew was unsupported by the evidence, I would refuse to. A VSO can, and will, file you for anything you ask for, including disease due to alien abduction or tinnitus in each ear for 20%. S/he can get away with it and never lose their accreditation. I can't. I always caution folks on Hadit to be very careful about what kind of advice they offer others here because the wrong advice can wreck a Veteran's claim(s). I filed my first claim in 1975 w/AmLeg. I lost. I filed again in 1989 w/ DAV. I lost. I filed again in 1994 with AmVets. I lost. I filed in 2007 w/ MOPH and it looked like I was headed down the previous paths. I began to try to figure out why I lost in the past. None of the Vet help sites discussed the Caluza/Shedden/Hickson requirements. My own VSO had never heard of Caluza until I mentioned it. Then it was "Of course you have to have a nexus!" It took a year of intense study but I figured it out and won. I finally wrote my book on the nexus subject and have helped thousands since. Now I do it legally. This is not my first rodeo. I have Vets send me their decisions and ask why they lost. VA will always tell you why in VAspeak. It's up to you to learn how to decypher VAspeak or hire someone to do it for you who can. I consider myself lucky that I did the VBMS schooling to have access to the system. Now I can call up the idiot who screwed you and get him/her to fix it in days-not years. In spite of this new tool, many attorneys and agents are too lazy to take the time to gain access. Maybe they do it for the $ so it takes longer. Who knows? I speak only for myself. I'm 69 and have a bad liver, bad kidneys and a bad heart. I want to help as many as I can before I punch out. So, if I seem a little cranky, it's because I hate to see Vets make mistakes or worse-"help" others and destroy their claims. And that's all I'm going to say about that.

Reading comprehension is often the key to understanding. Sometimes it's right in front of your face. What I did was read the whole thread, sir. Mr. Kevin4993's original beginning post dated May 13, 2020 stated: <<<<<So I had a review for my mental issues this past week. I was rated at 70% prior to this past week, and with other combined service-connected issues I was rated 90% with TDIU too 100% This morning I logged onto e-bennefits to see if any changes was made. I looked at the disabilities listed and sure enough they have dropped my mental down to 50%, was dreading this and expecting that... after all they cut and cut benefits don't they. I was worried about loosing my TDIU so I pulled up my benefits letter with the details to see what if I could see my TDIU go "poof".. sure enough no TDIU... BUT, wtf is this?! Damn! (sorry) Copied and pasted straight from the letter: "The effective date of when you became totally and permanently disabled due to your service-connected disabilities: May 07, 2020" >>>>> I deduced this to mean Mr. Kevin4993 was saying his prior "existing" effective date for his TDIU had changed and was now May 7, 2020. Others here on the site may disagree with me. It's just my personal interpretation of what I thought he was trying to convey and I freely admit I could be wrong. If so, I apologize for my ignorance.

Kevin4993's post w/ his RD is confusing. If he had TDIU before he got that decision dated 5/08/202, then look at the finding of fact. It says TDIU is established as of 5/08/2020/ This is the "reset" I've seen a lot of. They up one rating, drop another and call it good. If they drop it once, they'll be back. I see a lot of VA combining TBI w/ PTSD ratings-again just a simple readjustment but I had a guy with 70% PTSD and 70% TBI lose the TBI and VA say "Well, the symptoms overlap and we can't figure which is which so poof! Bye bye TBI @ 70% but not to worry. It won't change your paycheck." Ah... excuse me but what about the SMC S that just evaporated with it? Turns out SMC isn't a rating like a disease. It's a quality of life "entitlement".

During this Corona madness, we are seeing a lot of reductions in ratings. Here's the gig. If they send you a reduction notice, you have 30 days to stop the action and request a hearing. If you do, they cannot adjudicate the reduction without doing a hearing. If you fail to respond within the 30 days, they will effect the reduction within six months. However, if you fight the reduction after the 30 day point, you get a total of 60 days to request the hearing. If you do not, the reduction stands and you have to file anew to get an increase back to where you were. I have a combat medic with a 50% for PTSD he just got in 2016. They whacked him back to 10% on one exam by a quickie VES exam last month. Sadly, he didn't get in touch with me quickly enough. Worse, it took 20 days to get my POA accepted. §3.344 forbids this. The reduction has to be based on a lot of factors they ignored but I'll end up fighting this up to the BVA. I'll be forced to go buy a good IMO and it (the reduction) will end up being thrown out. But... just to be an butthead, I'm striking back and filing a 995 and using the new IMO to get an increase to 70%. This way I let them know we're on the warpath and their actions have only stirred the hornet's nest. The eventual BVA decision throwing out the reduction will be anticlimatic but necessary to stop this foolishness. Another ploy I see in rater's notes in VBMS is scheming to reduce the rating on one injury/disease and increasing it on another. Thus they don't even have to go the regular §3.344 route for reductions. What you don't see is the fact that you didn't get TDIU. Example: Vet has 80% for 6 ratings. He files for new claims or increases. They grant the new stuff but subtly reduce some the Vet has had for almost 18 years. The end result was no change but not quite. The new or increased ratings would have logically put him into TDIU but VA avoids §3.105(e) with the reductions. I see they are whacking Vets at TDIU/P&T w/ 19 years and approaching 20 year protection of their ratings. The reduction can restart the effective date of the TDIU clock. If you die tomorrow, your spouse's DIC flies out the window because you haven't had it for 10 years. VA will act magnanimous and say even though they reduced your _______, at least you are still TDIU or P&T. Unfortunately, your new effective date is May 1, 2020-not April 1, 2002. P&T generally protects you and pulls the plug on these shenanigans but not always. I have had VA come back and try to screw with my clients using CUE and saying they just discovered that ___________ was illegally awarded in 1993 and must be revoked/reduced. I spend a year or two showing the VA has to abide by the same rules we do on CUE and it falls flat on appeal based on how the evidence was reviewed. But... that sometimes takes 3 years to fix. You would think at some point they'd pull a rater's authority to revoke arbitrarily. I think most is generated by computer automatically but not always. Jackson MI, Little Rock and Houston are famous for this crap. The problem is the NWQ. Now, a rater in Manila can pull the plug and you cannot just call up your Portland RO and say hold the phone Ramone. They'll tell you to take it up with Manila. The new AMA is starting to show its true colors.

Mitchell v. McDonald, 27 Vet App. 431,440 (2015) (Cases “must be decided on the law as we find it, not on the law as we would devise it”) And no, Loyal. The OGC Precedent is not on point. <<<ADDRESS A SPECIFIC ALLEGATION>>> refers to belatedly raising CUE in an adjudication already underway where CUE was never alleged below. Here's a piece of judicial wisdom given to me by one of the acknowledged masters of VA litigation: A Motion to Revise will always entail CUE Conversely, a CUE will not always entail the filing of a Motion to Revise. I guess I can't explain it any better than that. Example: Johnny Veteran was just denied an increase for PTSD last week. The decision contained errors of law. Should he: a) file a new claim for a Motion to Revise his recent decision based on CUE?; or... b) file a 21-995 with supplemental evidence? or... c) file a 21-0996 HLR claiming CUE?; or... d) File a NOD 10182 to the BVA? or e) c or d only That is what this is about. As for the applicability of §14.632(c((d), you lost me. Could you be more specific as to which subsection below I'm violating? By operation of law, I need to self-report my violation anyway. We can kill two birds with one stone. (c) An individual providing representation on a particular claim under § 14.630, representative, agent, or attorney shall not: (1) Violate the standards of conduct as described in this section; (2) Circumvent a rule of conduct through the actions of another; (3) Engage in conduct involving fraud, deceit, misrepresentation, or dishonesty; (4) Violate any of the provisions of title 38, United States Code, or title 38, Code of Federal Regulations; (5) Enter into an agreement for, charge, solicit, or receive a fee that is clearly unreasonable or otherwise prohibited by law or regulation; (6) Solicit, receive, or enter into agreements for gifts related to services for which a fee could not lawfully be charged; (7) Delay, without good cause, the processing of a claim at any stage of the administrative process; (8) Mislead, threaten, coerce, or deceive a claimant regarding benefits or other rights under programs administered by VA; (9) Engage in, or counsel or advise a claimant to engage in acts or behavior prejudicial to the fair and orderly conduct of administrative proceedings before VA; (10) Disclose, without the claimant's authorization, any information provided by VA for purposes of representation; or (11) Engage in any other unlawful or unethical conduct. (d) In addition to complying with standards of conduct for practice before VA in paragraphs (a) through (c) of this section, an attorney shall not, in providing representation to a claimant before VA, engage in behavior or activities prohibited by the rules of professional conduct of any jurisdiction in which the attorney is licensed to practice law. TIA a P.S. I agree with you that Kanewnut should become a lawyer. Personally, I'd suggest agent as it's far less arduous than 7 years of college.

I rest my case.

An open letter to the readership of Hadit.com: I always prefer to respectfully disagree rather than attack. Semantics are ambiguous at best. I find it odd that BroncoVet has searched "ratings error correction" and cannot find it. Perhaps VA raters think they are above error. I included the exact quote from the Rosinski v. Shulkin decision in the post I put up to dispel any ambiguity on the term. You can read that decision here: http://www.uscourts.cavc.gov/documents/RosinskiDJ_17-1117.pdf Sadly, some of us disagree purely for the reason that they consider themselves correct and all others less schooled in VA law. I perform VA law. I do not "practice" it. I do it successfully. I have never lost a claim yet. I guess I'm lucky. I have one that might be characterized as denied but I have appealed it to the CAVC. You can see that case simply by going to the Docket Search section of the CAVC and entering 19-7301 in the search bar. I have helped Mr. Long for seven long years-including getting him his long-deserved Purple Heart and CIB. I even won him a CUE back to 1970 for a muscle group rating mistake during the pendency of his appeal. I continue to fight for him just as I have for quite a few of you members. I have fought and won more CUEs than Ms. Simmons will ever attempt in her lifetime just in the last 4 years alone. I hope to continue to do that until I punch out. All legal precedence I read about CUE describes it as a "finally decided claim"-i.e. unappealable. The key words here are "finally decided claim" as in expired, dead or otherwise unable to resuscitate. A recent, incorrectly decided claim is still viable and capable of being fixed. Is it a CUE? Yes. Do you have to file a new claim to fix it? No. A Motion to Revise (MTR) is the only can opener available to most of us for a final claim. I don't write statute or regulation. I work within that corral. I interpret VA law using many tools-including the VBM authored by NVLSP and published by LexisNexis. I buy a new manual every year. I go to every NOVA conference to obtain the most up to date legal interpretations of all VA subjects. In point of fact, I lose my accreditation if I don't obtain a certain number of continuing legal education hours (CLEs). To my knowledge, I have never met or been introduced to Ms. Simmons at one of these conferences. I have never perused the OGC list of accredited representatives to ascertain if Ms. Simmons is accredited. She very well may be. I spend, conservatively, over $10,000 per year staying abreast of how to do this. I think the idea of attacking me about my legal qualifications is hilarious. Here is my data free to all who ask. It is on the OGC accreditation site and at NOVA. I don't hide behind a nickname or a pseudonym. Gordon A. Graham VA nonattorney practitioner #39029 POA Code E1P Accredited to practice Veterans Benefits Law Admitted to the CAVC Bar (2018) Member National Organization of Veterans Advocates (NOVA) (2015) Office: 14910 125th St. NW Gig Harbor, WA 98329 (253) 313-5377 But remember, in order to attack my qualifications or irresponsible representation of you as a Veteran before the VA, you must have something called " legal standing". Standing means I represent you or have in the past. Ergo, if I have not represented you, you cannot complain and say I caused you (or another Veteran) to lose a claim. Nor can you allege that my advice is flawed. Fortunately we live in America and we enjoy the fruits of free speech. It seems my esteemed fellow Hadit elder is deficient in her comprehension of the First Amendment. Just as Ms. Simmons is free to discourse on what she defines or perceives as CUE, so too am I permitted to do so. As I have never represented Ms. Simmons, I fail to understand why she would choose to attack me or my professional qualifications. I have never had a Veteran client complain about my representation to the OGC. She is free to do so, but sadly it will fall on deaf ears. The VA Office of General Counsel's Accreditation section (014D), polices us and makes us adhere to the controlling regulations upon threat of expulsion. These can be found at §§14.628-14.636. Nowhere in the regulations does it discuss the offering of advice to a non-client as being prohibited by law. Ms. Simmons reads that which is quite simply not there into the Secretary's regulations. Chevron Deference grants the Secretary legal rights to interpret his own regulations absent any legal artifices not promulgated by Congress. Ms. Simmons is not entitled to Chevron deference anymore than I am. Like BroncoVet, I believe we can all live under one roof here and get along. Whether a Hadit member has a finally decided claim or a live one, the avenue for correcting it is there regardless of what you call it. I use the most expedient method to cure the fault that will result in the most money in my client's pocket-not mine. BroncoVet has sat at my table and dined with me. He, of all among you reading this, knows I do not need to prolong any Veteran's claims in hopes of reaping more money. Seriously, I know it sounds insane but I do not need the money. I do this solely for justice for all of you who lack a voice. Ego does not enter in-nor should it ever. I offer my clients a product-good legal representation. If Ms. Simmons continues to attack me or damage my professional reputation, she, of all people, should know I am free to seek legal redress for defamation of character. Recently, I was informed by her on this board that she was in contact with her attorney to prosecute me for some alleged infraction. To date, I have not heard from her counsel. I have abstained from reciprocating. We both have one job-you, the Veteran. This venue to help Veterans is an extremely valuable asset. Everyone has an opinion and should respect the opinions of others. Sometimes we disagree. I stand on my unblemished record. No two practitioners can ever agree on anything. Here, it is not two practitioners but only one. I have no desire to attack Ms. Simmons-either metaphorically, verbally or legally. The OGC declines to prohibit VetComp&Pen and similar VA help sites who charge 40% of the winnings for an IMO. Let that sink in. VA won't even defend us accredited litigators from pseudo wannabe VA help sites who illegally represent you for money. I beg Ms. Simmons to cease and desist from this tempest in a teapot and politely agree to disagree on the definition of a legal term. You members deserve better. Very Respectfully, Alex sends.

You answer your own contention at the beginning of your thread with the M 21 cite: <<< M21-1, Part III, Subpart iv, Chapter 2, Section B - Revision of Decisions 1. Finality of Decisions - this discusses binding and finally adjudicated claims A finally decided claim is one that has been final for over a year-i.e. you have one year from a decision to appeal it by filing the proper form depending on it being in Legacy or the new AMA. Once a year has passed, it is unappealable and can only be attacked via the presentation of new service department records never before associated with the claims file §3.156(c)(1)(3)(4) or.... (Big Or) by the filing of a Motion to revise (MTR) the prior decision based on clear and unmistakable error (CUE). I suppose you can also say it's a pending or unadjudicated one too based on Richardson jurisprudence but that gets into a grey area as to whether it's still viable or truly a CUE. Akles v. Derwinski was the first to bring up CUE in a finally decided claim. Russell/Simpson expanded upon it. I use the M 21 to overturn an error in a viable claim when dealing with VA. You seem to look at CUE as one thing only. In reality, it could be 1)a true finally decided claim error or; 2) an error in an ongoing decision that you contest. From Rosinski v Wilkie correction of error According to the Secretary, a lack of access to draft rating decisions does not prevent the petitioner from representing his clients because he still has recourse to an M21-1 provision that provides for correction of rating decision narratives or code sheets even after promulgation of draft rating decisions. OA at 42:20-43:12; see also M21-1 ADJUDICATION PROCEDURES MANUAL, pt. III, subpt. iv, ch. 7, sect. B Snyder v. Nicholson, 489 F.3d 1213, 1216 (Fed. Cir. 2007). It does not, however, address what those agents and attorneys can or cannot access, or what actions they can or cannot take. Thus, the majority's attempt to apply this broad statute to the specific circumstances of Mr. Rosinski's petition is tenuous at best. Further, the "benefit" that the majority finds VA to have denied Mr. Rosinski is too nebulous to find that its denial constitutes a concrete injury. See ante at 5. Although the majority theorizes that time and effort might be saved by review of draft decisions, it offers no direct support for this proposition, which is especially problematic given that VA's M21-1 provides other avenues for quick correction of rating decision errors. See Jan. 26, 2018, Order at 7 (citing M21-1, pt. III, subpt. iv, ch. 7, sec. B(3)(a) (the RO "must . . . correct the Narrative section of a rating decision if after the claimant has been notified of the decision it is discovered that inaccurate information was provided such as service dates or entitlements)); id., sec. B(3)(b) (requiring correction of errors on the rating codesheet); id., sec. B(3)(c) (requiring referral of an erroneous decision "to a decision maker to issue a new decision" once an error has been identified). Fixing it III.iv. 7 B.3.c Rosinski v Wilkie 2018 -0678 According to the Secretary, a lack of access to draft rating decisions does not prevent the petitioner from representing his clients because he still has recourse to an M21-1 provision that provides for correction of rating decision narratives or code sheets even after promulgation of draft rating decisions. OA at 42:20-43:12; see also M21-1 ADJUDICATION PROCEDURES MANUAL, pt. III, subpt. iv, ch. 7, sect. B. Please note that the VA Secretary declines to call a current live controversy error a CUE and prefers to describe it as a ratings "error" correction. Thus I stand by my characterization of a CUE being a "finally adjudicated" error versus a live controversy. Shoot. I find "CUE" in a lot of my new AMA decisions. However, I do not rush to file a Motion to revise. I just call up or email the rater and tell them to fix it. VA is free to refer to it as a CUE but the CAVC doesn't recognize it semantically until the appeals period expires and you file the MTR. Since I fight CUE at the Board or the CAVC, I do not rely on M 21. You'd get laughed out of a BVA videoconference if you started quoting M 21 as law to a VLJ.

A brain is a terrible thing to waste...

The only time the disease or injury being service connected that provokes or contributes to death is beneficial is when you have been P&T less than 10 years. After ten years, you can die of anything-SC or NSC- and the wife and kids will still get DIC.

Yep. That wasn't a CUE. I try to teach that important fact. A CUE can only exist on a prior final claim.

Is this your very first claim for these service connected disease/injuries of the foot or a reopening of an older one? I just want to make sure before I offer advice.

<<<<<I filed for an increase for my husband’s knees and back due to things not getting better. In Jan 2018 they provided an increase for those items but lowered the % for migraines to 0% without a warning or exam. I immediately fled a NOD. They had continued to deny his increase even with his headache log, statement, medicine history and doctor and neurology notes in the system submitted by me. Sep 2019 we received another no answer and I filed a supplemental claim for headaches among other issues. It was filed 1/2/20. He had his C&P exam 2/20. Doctor wrote DBQ to get him increase.>>>>>>>> This is standard fare for VA. I've seen this trick a thousand times. You had a claim going. You're entirely correct. You did not file out of time. What you did was pseudo-abandon a live claim and file a supplemental claim during the pendency of the old legacy claim. In essence, to VA, you abandon a perfectly good substantively appealed (NOD) claim and, while awaiting some kind of adjudication on this illegal reduction, you simultaneously filed a parallel AMA claim for increase thinking you could ride two horses in this race. By filing the supplemental, you "short-circuited " your old claim which was awaiting your grant or denial w/ SOC under the legacy process. Essentially, you agreed with the prior reduction to 0%. You then entered the AMA with the VAF 20-0995 supplemental (abandoning the old legacy claim/appeal of the reduction) and began a new one on 1/02/2020. Your DBQ from your doctor was dated 2/20/2020 which now becomes the "first time" VA ever heard about it that he had presented new and relevant medical evidence qualifying him for 50%. In my opinion, the repair order is to file a VAF 10182 (VA calls it a 10-182) NOD with the BVA asking for direct review and explain that you never meant to short circuit your original claim for headaches. You always are presumed to be seeking the highest and best rating (AB v. Brown 1994). If you were pro se, a VLJ would grant this in a heartbeat. Comer v. Peake says it best in a brief to them: The Court has made clear that the VA adjudication process "'is not meant to be a trap for the unwary . . . a stratagem to deny compensation [nor] a minefield" for claimants. See Percy v. Shinseki, 23 Vet. App. 37, 47 (2009) (quoting Comer v. Peake, 552 F.3d 1362, 1369 (Fed. Cir. 2009). See also Gallegos v. Gober, 283 F.3d 1309 (Fed. Cir. 2002) (assuming that the Veteran desired appellate review, meeting the requirement of section 38 C.F.R. § 20.201 was not an onerous task). See, too, Acosta v. Principi, 18 Vet. App. 53, 60 (2004); Beyrle v. Brown, 9 Vet. App. 24, 27 (1996); Hamilton v. Brown, 4 Vet. App. 528, 531 (1993) (en banc), aff'd, 39 F.3d 1574, 1584-85 (Fed. Cir. 1994). The VA nowadays uses the NWQ to ship your claims all over hell's half acre. When things go haywire, the finger pointing begins. You will never get it straightened out via an HLR or, for that matter, anywhere in the regional NWQ system. They're paralyzed from the neck up since February 19th, 2019. VA just bounced me last month (February) for forgetting to check the opt-in box (in box 13A) causing my 995 to be "construed" as a VA 9 substantive appeal in Legacy. I got it changed within the 60 days but I had to fight to overturn it 4 times. Here. someone has purposefully ignored your viable substantive legacy appeal and misinterpreted your intentions in order to deprive you of the lawful EED. This was no accident. Please notice your effective date is the same as the DBQ date (in blue) officially announcing your evidence now proves entitlement to that effective date but no earlier. I hope that helps.

Back to the renaming bulletin board. Correction: 18 CUES in fifteen days as of this morning. This is out of control. https://asknod.org/2020/04/10/fort-fumble-arkansas-drivin-that-train-high-on-no-brains/

Gotta rename this one. 12 CUEs in 13 days or three decisions total now in 13 days. They still have the effective date wrong. See attached. It gives new meaning to the idea of reconsideration. But remember folks, CUE is a rare occurrence (Fugo v. Brown 1995). redact 4-8-2020 Narrative.pdf