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Everything posted by asknod

  1. There's something we are not seeing here. If he was was 70% solely for TDIU, this would be a slam dunk. My suspicion is that Dawsonatl has a combined rating of 70% with no single rating over 40%. That would be the only rational explanation for the denial. No one in the Ratings/Appeals section could make that basic an error - even with the screwed up M 21 manual. Perhaps the poster would be so kind as to show us his confirmed ratings sheet so we can opine on this based on facts rather than suppositions. Hoo-doggies.That's a pretty big put down of someone who has agreed to help you, sir. Do you have any idea what it costs to even become an attorney? Try $40-$70 K in student debt- after 4 years getting a degree in Pre-law. To hire qualified paralegals to work for you with medical/dental? Try $60 K a year per person. To invest in $5,000 copy/scan machines and the paper? An office building with $4000/month in overhead to keep the lights and telephones on? To get accredited or maintain accreditation? Every NOVA conference I attend each year costs a minimum of $600 for the training and over $2000 in air fare and hotel rooms (before food). No, of course you don't. Frankly, I don't know why any self-respecting attorney would give up an opportunity to make some serious money by representing Veterans at @ 20% rather than 40% for ambulance chasing in the real world. I do this because I am a Vet and paying it forward. Others I cannot speak for, but if one of my clients had your attitude, I would drop him or her in a New York minute.I enjoy contributing to this forum but find it despicable that any client would speak ill of the one who is attempting to help him. P.S. If he drops you, please don't call me.
  2. Mr. Williams, From 1946 until 2001, the metric on VA claims was whether it was well-grounded or not. If your claim had no merit or was unsupported by your service medical records, you would not be allowed to file it. VSOs and VA used this as an excuse for decades to fence us out. With the passage of the VCAA in 2001, all claims were considered without having to pass a test like this. Now, unfortunately, we are entering the same area again with the passage of the new AMA. If you are denied, the only two options are to "prove" it's well-grounded by filing with new and relevant evidence to support your contentions or to ask for a higher level of review which is nothing more than the old informal DRO review with no new evidence added. Possibly the only positive thing to come of this is you can get to the BVA on appeal much faster. There, you will get closer to true justice because it isn't designed to be a denial factory. Veterans Law Judges (VLJs) and their staff attorneys (with real law degrees) look at your claim in a whole new legal light. This doesn't absolve you of having to provide probative evidence of why you claim has merit. It is just a lower legal standard of review than the cattle drive at your local VARO. I am hearing from my fellow NOVA attorneys and agents of DROs refusing to even look at legal briefs at these HLR actions calling them a back door attempt to insert "new and relevant evidence". By law, we are allowed to submit a new arguments to show VA's error. It's illogical to appeal to a higher level and basically arrive with what you had at the outset. How, pray tell, can you explain the error to them?
  3. BroncoVet's answer is spot on. I have one case I began helping on in 2013. I had to start by getting his Purple Heart and CIB. That took a year. We filed 3/30/15 and VA sent his c&p request to an address he'd lived at 35 years ago. We had to regroup and won IU in 12/2015 with congressional intervention over the address snafu. I filed the NOD after I was accredited about then and here it is 2019. I even got him advanced on the docket and it's with the VLJ now... I haven't seen a dime yet. It's a good thing I'm getting SMC S and made good financial investments or I might have a zip code under a bridge overpass. Most attys. can't carry the water for 5-8 years- especially for 20% times 200 Vets. You can go out and chase ambulances for 40% and drive a Porsche instead. To be honest, I wonder how many of you Hadit members would be interested in this as a part-time career. You cannot even imagine how rewarding it is to help a fellow Vet. In 2006, I could built a house blindfolded but didn't even know how to turn on a computer-let alone know what 38 CFR was. 8 years later, my attorney told me I knew as much as him and wondered why I had hired him. Theresa should be awarded Sainthood for starting this site... leave no Veteran behind. Ever. Pay it forward. What do you have to lose? Put down the X box controller and learn how to kick VA's derriere. It's like fishing with M 26s. I'd be happy to send you a copy of what's on the test.
  4. Well, sir. Imagine this scenario. I get to work at 0800. Sometimes I have to get up and call VA raters and DROs and ask them why they screwed my Vet(s). If they're in St. Pete's, I have to get up at 0500 to call them. I also get calls from them answering my emails. I have to write legal briefs for upcoming travel board hearings before VLJs. I don't have any office staff to do it. Even if I did, I'd still be researching a claim-sometimes on Westlaw which costs me $59 a minute to access. Many big outfits use paralegals (unaccredited) to do intake and communicate with the Vet. It's not that we don't want to talk but that it isn't always feasible. I keep my caseload down to about 100 and it still eats all my time. And yes. I talk to every one of my clients if they call unless I'm with another Vet -but I'm the rare exception. If your atty. is winning your claims and they are very difficult, then 33% is a bargain. I won a Vet $188 K a year or two ago. He was pissed I got $37 K. That was 20%. If I'd lost, I would have gotten 20% of zero dollars even if I had worked my butt off. He still got $151 K but feels like I screwed him. That's the down side to helping anyone. Murphy's first law is " No good deed goes unpunished." As most know, I generally take those funds to offset the cost of helping other Vets for free... There are good attys and bad ones. Too bad they don't have Win/ Loss records!
  5. The VA also deducts $100 from our settlement for "dealer prep and destination fees". If you sign for 33%, that's your responsibility to pay the atty. directly. If your appeal was won before you signed w/ atty., ask for you money back. With that said, if atty. did win it and you jump ship and try to get another atty. to take it, you won't find one. Attys. hate claim jumpers. Worse, the first atty. may have a large amount of time invested and s/he would never sign off on waiving the fees s/he feel they legitimately earned. Succeeding attys won't touch it if they think the fee will be contested by atty. #1. If it were me, I'd be ironing out what's up legally with the win rather than asking for advice from us. We cannot see your case file. Going back to 1978 for an EED implies a CUE or §3.156(c) law. Both require extensive legal knowledge of contemporary VA law at that time.
  6. I must politely dissent with my esteemed colleague's assessment above. §3.156(c)(1) is unequivocal in it's instructions: Notwithstanding any other section in this part, at any time after VA issues a decision on a claim, if VA receives or associates with the claims file relevant official service department records that existed and had not been associated with the claims file when VA first decided the claim, VA will reconsider the claim, My disagreement is elementary- a claim remains pending until there is some concrete evidence it has been addressed and decided. Here, the mere association of the STRs belatedly to a claims file automatically triggers §3.156(c) as a freestanding claim and it cannot be CUE because the reconsideration which shall be accorded under §3.156(c) hasn't occurred yet. One could characterize it as a chicken before the egg conundrum. Granted, I've been forced to refile these as CUE to get them changed and even had to go to the BVA to do it. I get that. No DRO wants a ginormous six-figure 156c retro payout on their resume. Better to kite it up to the BVA and let them suck on that egg. The M 21 is a good advisory on this. The say you can file it on SF 8.5 X 11 (white). SF 8.5x11 stands for standard form 8.5 inches by 11 inches white computer paper-typed or hand written. I got this from my VA Change Management Agent ( I call her Supergirl) this morning. I had a CUE kicked out of VBMS last week because I used a 526 instead of a 20-0995. Okay, how can you use the supplemental claim with CUE? By operation of law, you cannot add new evidence to a CUE. filing, so.... Here's her response. You do not need a form for a CUE. Are you wanting to file a Supplemental Claim? Then you would need new evidence, but not for a CUE. III.ii.2.B.1.c. Benefit Requests Not Requiring a Prescribed Form prescribed claim form is not required for requests for · review based on clear and unmistakable error (CUE) · substitution · a finding of incompetency received from a first or third party, and · removal of a dependent. Anyway. to me an EED due to a §3.156(C) error requires a decision in the first instance and for finality to attach with no appeal. CUE might ensue after an adjudication of the applicability of §3.156(c)(3),(4) but not until there is an actual, promulgated decision. I'm sure Berta can understand the legal nuance I'm implying here. Semantically, the legal standard of review of a Motion to Revise (CUE) requires a fait accompli. Absent a reconsideration first- up or down- there can't be a CUE yet. A reconsideration is a powerful tool. If you were granted claims recently that you filed for 40 years ago and VA grants, you get to carry that back 40 years- assuming, arguendo, you can show your degree of disability arose then. CUE requires you go down the harsher road. That's a much higher bar to clear. Quite frankly, you are precluded from arguing how the evidence was weighed or decided in a CUE. Certainly, the evidence in the old STRs should fall into the " the evidence, as it was known, wasn't before the adjudicator" clause of CUE, but again, a reconsideration is not required to pass the next qualifier of CUE- i.e. 'manifestly changed the outcome" codicil in §3.105. Thus, I disagree with the applicability of the CUE standard of review. I filed this argument in a 2015 brief and VLJ Vito Clementi agreed with my legal standard of review argument. I also would say it depends on which judge you get as to how they would legally characterize this point of law. There are definitely two schools of thought on the subject-maybe more...
  7. VA has rescinded the requirement for annual filing of unemployment to prove entitlement to TDIU. I have two clients who have received the letters saying it is no longer required as they can see the SSA records on line now.
  8. Well, unless I can read that VA narrative as to why a Vet got TDIU and what VA based it on, I assume nothing. As I like to point out, every Veteran's claim or appeal is exquisitely unique to his circumstances and his MOS. I have many who show me the eBennies printout of their disabilities but it doesn't do more than explain what you have-not how it is combined to reach the TDIU. I've had VA raters use every ailment down to missing a testes(it got shot off near Cu Chi in 67) for a Vet's SMC L under aid and attendance. I tried to get the half step "bump" under §3.350(f)(3)(4) IHD due to AO and they said no- it was not separate and distinct from PTSD!. We won on appeal. I know, it's only a difference of $2,400.00 a year (SMC L 1/2) but for some of us, that's still not chump change. P.S. to Berta's reply above. We were typing at the same time. Buie/Bradley law is on point but you cannot reach that argument until you appeal. VARO raters will not honor it nor will the SMC "calculator" permit it. Some enlightened VAROs will concede CUE, but only rarely. If you got your denial after 2/19/19, I'd avoid the HLR lane and file a VAF 10182 NOD to the BVA directly. Argue the SMC there to knowledgeable staff attorneys.
  9. In the brave new AMA world of appeals modernization, a 70% rating should engender a Rice v Shinseki inferred claim for TDIU. VA will always fight and say you didn't file the 8940 which would have alerted them to your desire. Some day, that will be revisited like Procopio. But, I'm hearing, VA is preparing to do away with the 8940 and making you file it on a 526 EZ now. No confirmations on that scenario yet but I can see it coming. We've come a long way from having a "well-grounded claim" (pre-2001 VCAA) and the present system. Look at inferred and implied claims law now. Cogburn set forth 4 tests for this which are still on point. https://www.courtlistener.com/opinion/817334/cogburn-v-shinseki/ https://www.leagle.com/decision/infco20160107129 VA went to great lengths to eradicate implied and informal claims such as you telling your VA doctor you wanted to file for bent brain during an office visit. VHA had a duty to report that to the VBA. They rarely did. VA just revamped §3.159 to ensure that hole got plugged. §3.155 similarly was revamped to insist we use standard forms. I once filed an appeal while I was in the hospital for a year on a paper towel (2010). They would never accept it now. The best general rule is if you build it, they will decide it. Absent a claim being filed, VA is not required to organize a safari to scour every square inch of your c-file to ascertain if you are entitled to something they forgot to infer. Chinese Dry Cleaners rules apply here-No tickee-No laundry. On the obverse, a claim remains pending-even for decades- until there is unequivocal proof of its having been adjudicated. (Adams v Shinseki). Know the law. Use it to your advantage. VA doesn't know the law and makes it up as they go. If you don't object, then they were right...
  10. In order to better understand TDIU, Veterans must read their narrative decision which explains why they are rated TDIU. That's the paper you get with the VA seal on it. Just because you have an extra 60% or more above and beyond TDIU is immaterial. I have numerous clients like that. VA tends to combine MDD with some other illness/injury and say the MDD, standing alone, doesn't support TDIU. But, with the addition of, say, the headaches at 30%, you do. This means you can't just call the 70% the controlling benchmark that provoked the TDIU. It is often, but not always, a combination of ratings-or at least VA likes to do that to avoid paying SMC S. That's an appeal process in its own right. Far too many of you labor under the misconception that just because you have a 40% rating and others that combine to reach 70%, that you automatically qualify for TDIU. Not so. Similarly, some think just because you have a 60% rating standing alone, you get TDIU. Again, not so. TDIU is an extraschedular rating based on whether or not VA believes you can work. If you had 40% for DM II and had about five 10% ratings for tinnitus, hemorrhoids, pes planus and others which are not "job-threatening", these would not automatically provoke TDIU. It simply doesn't work that way. Every Veteran's circumstances are unique to his/her TDIU decision. There is no "one-size-fits-all" formula. SMC S is available if you had several independent ratings unrelated to the MDD that combine using the §4.25 combined ratings table. You do not need a single rating at 60% or more. If it's 55% or higher, it rounds up to 60. Period. I don't need to address the SMC S Housebound option as it is self-explanatory. And for the record, there is no 60% rating for MDD. It pays in 10, 30, 50, 70 and 100% increments.
  11. Veterans Attorneys/agents generally have Level 5 or 6 access. I have a 6 because I represent myself which is rare in this business. I've never been fenced out of any of my clients' VBMS claims files. It's difficult to say what complicates this one. Earlier this year, I had one client in Arizona whose file I was 86'd from. It had something to do with a glitch in the Fiduciary section that precluded viewing. It took three weeks to fix it. VSOs are much more restricted in what they can view than we are. I believe they have a level 2 or 3 clearance. Knowing VA, your problem is simply a typo error in the "who can view it" box.
  12. By law ( §14.632)I can only offer general knowledge unless you are my client.
  13. Something few understand about CUE (and SMC) is its uniqueness. If the error occurred at the local RO, that's the correct venue to file your CUE claim. On the other hand, if the error occurred at the BVA, that is the correct place to file the CUE. You may learn that to your detriment when, a year later, the Regional Office (or the BVA) boots it back to you and says they cannot accept it. CUE is one of the hardest concepts to absorb. Here's the primer- https://asknod.org/2014/05/02/cue-the-quintessential-elements/ I see many jump in and give advice on all manner of subjects that is in error. It's like your good friend telling you the reason your car is backfiring is that it needs a new carburetor. You replace it and it still backfires. Many Vets do not have the time to experiment with solutions. As many articles as I have written over the years on my site about CUE, Veterans still seek and ask the same identical questions. It seems no one is motivated enough to investigate on their own and automatically want Veteran-specific answers to their particular circumstances. If I point to the area to study to find the answer, they become angry that I won't just give them the answer. If you do not have Google Search or are unsure on how to find an answer to your questions on this complicated subject, it helps to search first and ask questions-but only after you made a good-faith effort and cannot find your answer. VA law is complicated. We get that. That's why Theresa built this. Please use the utmost caution when you offer advice. The beauty of Hadit, and, by extension, all good Veterans claims-oriented websites, is the huge encyclopaedia of info they contain. If no one avails themselves of this cornucopia, it is a wasted effort. Theresa (and me, too) do an admirable job arranging the site by subject matter. I, myself, use the info to help write legal briefs if I cannot find it elsewhere. If, and only if, I'm stumped on a certain facet, I consult with my attorney mentor- and sometimes Berta. She has many irons in the fire and it seems unfair to ask her the same questions over and over. It's akin to someone calling you up every month to ask what month it is. CUE is ostensibly a rare error but unfortunately, VA no longer trains their employees and allows them to rely on what the M 21 computer spits out as holy writ. Remember, the M 21 has not been revised since 2006. Instead, VA continues to repair it piecemeal with band aids following new CAVC/Fed. Circuit precedence. These revisions can occur up to a year or more later as in the case of Bradley/Buie case law. How many CUEs did they commit in the interim? Who knows? Here's a site built by a RVSR that translates 38 CFR into M 21 (for what it's worth) and vice versa. It also will offer Google sites to investigate on the subject. It's like a Swiss Army Knife for claims >>>>>> https://asknod.org/fergoogle/ Once again, I beg all of you who offer advice to research your answers so as not to cause more harm. Think of a doctor's prime directive - First, do no harm. We have a wealth of knowledgeable people here who are eager to help all of you.
  14. Well, yes and no. If you get a low rating or something is just flat out wrong, I can look up the rater, call him or email him and ask him what he's been smoking. I can do this as an agent. Most attys. wouldn't but I never went to law school. Nobody told me I can't talk to the "VA Examiner". But when you make this a nationwide gig (including the San Juan, Puerto Rico office), I have to search through VBMS rater's notes to find out who and where they cut the rating. Then I have to call that RO's Change Management Agent (CMA) who takes care of attorneys and agents and ask her/him to have the rater call me. I like the local VA Gomers because you get to know them and how/why they'll react. I/We have a great CMA in Seattle (Tina). I call her Supergirl. You can get in touch with her on weekends and ask a favor or request an informal DRO chit chat (off the record). I always can get a "reconsideration" on a rating because I can see it in VBMS in real time. VSO's get notified and have a three-day bye to review it and call BS on the rater. Attys and agents don't. But, we can call BS if we see it within the 3-day window. There are only 3-6 big cheese DROs including the Veterans Service Center Manager and his assistant at any VARO. You have to get to know them in my business. Now we have to deal with 57 VAROs X 6-8 DROs X the 2 VSCMs each. I hate the NWQ. New claims going in right now are having to be uploaded at all the VAROs by their low GS employee staff because the EIC in Janesville WI is overwhelmed in paper and e-requests/claims. Any good plan has a weak spot. You usually find it after you deploy.
  15. Following a BVA grant, virtually all appeals are returned to the RO level (but not necessarily your own RO) to be rated. The BVA doesn't rate you unless it's for an increase. As of Feb. 14th, there is no more RAMP. It's all the AMA now. As for all claims, they are put into the National Work Queue (NWQ) and rated in the order received. It's like a big Bingo hopper with all the claims. They pull yours out and rate it. That might occur at any of the 57 regional offices across the land. It's then sent to the Consolidated Mail Processing (CMP) center in Janesville, Wisconsin for printing and mailing-again in the order received. I've noticed Janeville's running about 3 weeks behind right now. The ratings procedure is running 3-5 months from the BVA decision unless it was advanced on the docket.
  16. <<<<<< any one with TDIU generally cannot work.>>>>> Remember, there is always a work around. I just got one of my clients IU even though he has his own accounting business. It's classified as "sheltered employment". For every VA regulation, there is a repair order-well, almost. You will need a good legal representative to succeed, though. It's very important to realize each Veteran's circumstances are unique. There is almost never a "one size fits all" rule. Witness the extraschedular scheme of TDIU if nothing else.
  17. asknod


    Bluntly started off the question with: I am currently 80% IU Based on this, the PTSD is the TDIU at 70%. The 20% for left shoulder and the 10% for L ankle sprain are "leftovers" for use with a SMC S rating... but only if he wins 50% for the headaches. The 20 and 10% here are not so incredibly disabling as to be combined with the PTSD in order for the rater to be able to call it "extraschedular" to grant IU. A legitimate argument should be filed to pin the IU strictly on the bent brain using Buie if he needs the ratings to get SMC S. Edit #1. Buie v. Shinseki decision created a paradox. What if you had a tdiu and then got a lot of new ratings. §4.16 gives you the minimum requirements- 60% alone or a 40 or 50 plus whatever to get to 70 or more%. TDIU is then just apportioned to the greater of a 70 or a 60. VA will always try to combine them if possible to make a homogenized (combined) 100%. When you do that you burn up a lot of ratings just getting to the 100% combined and lack enough to attain SMC. Always remember our old friend in 3.103(a)---"(and) it is the obligation of VA to assist a claimant in developing the facts pertinent to the claim and to render a decision which grants every benefit that can be supported in law while protecting the interests of the Government." See also AB v Brown 94(?) (Vet seeks the highest and best award possible and the claim remains in contention until the Veteran is satisfied.) VA is notorious for inserting ''shrinkage" to how they go about this.
  18. asknod


    If you attain SC for your TBI, the headaches would most like be assigned for the TBI. As such, a 50 % rating for headaches added to the shoulder and ankle ratings would give you the extra 60% needed for SMC S. A 30% rating for headaches would not be enough ( 30+20+10= 50%).
  19. This is for Jerrell. I promised him I would draw him a map of what we talked about on the show-https://asknod.org/2019/04/12/the-new-appeals-modernization-act-and-more/
  20. Berta, you won't find the decision at the BVA yet. I'm still fighting at the AOJ level on several of these. The repair order seems to be going back to the dr. after a c&p denial (using echo) and obtaining a statement showing cardio cath proof. I'll keep you posted when I win them. One lost a leg to PAD and I used that. NOT. It has to be in the coronary arteries leading to the heart. Period.
  21. I keep hitting the wall on IHD. I have a doctor say he has CAD. I get denied. I have a dr say Arteriosclerosis throughout (including the coronary arteries and peripherals). I get denied. I say Atherosclerosis. Denied. So now, I just get the 12 ga. out and have the nexus dr. do the whole gig. I try to get my guys to go to a private doc on Medicare and get the magic IHD words. I'm finding using IHD is too nebulous for VA. I don't even ask or want the doctor to opine. It's presumptive. I just want them to say the secret word =IHD. The only VA type docs who will do an IMO/nexus is the VAMCs that share a nursing school with the VA med center -i.e. Duke/Salem/Seattle etc. Those docs do not "work " for VA. But, if you do not have them say the magic words ('I reviewed the claims file') it's dicey. To begin, a VA medical examination report is entitled to no weight if it contains only data and conclusions. Nieves-Rodriguez v. Peake, 22 Vet. App. 304 (2008) If the VA Doc just says "It's more likely than not it's AO. " that won't win. Granted, AO is a presumptive and they aren't supposed to get in the weeds, but I'm talking about nasal cancer cases when they say it isn't in the respiratory canal or the lungs. If it's small cell carcinoma, it's AO in my book. VA doesn't agree. That's when I'm forced to go get a good IMO.
  22. https://asknod.org/2019/04/10/hadit-com-radio-show-the-ama-a-mobius-loop/
  23. SMC is a quality of life issue. You assemble it like Legos. Okay. There is no requirement to get to SMC S prior to ascending to SMC L. LOU (loss of use) of lower extremities is one SMC L. If you had LOU above the knees, It would be M. If the catheter causes you to need Aid and Attendance, that is another SMC L. Two Ls advance you to SMC O. If one of the Ls is for A&A, then you get R1. You could have two entitlements to A&A and get R1. The c&p for SMC is basic. You have to prove by medical records you have been dx'd with LOU of two extremities. VA does use the VAF 21-2680 for determinations. I've never heard of a SMC L c&p taking four hours. Generally, you medical records reveal the determination you have been dx'd with the LOU or the need for A&A- but not always. The M 21 states only a VA examiner can make a LOU/ A&A determination. Thus, even if a QTC/VES/LHI doctor says yes, VA can still say no. I am currently in that situation with one of our Hadit members right now. He deserves A&A and they refuse to grant. The good news is the Mariano v Principi decision. If you have a dr. saying yes and VA says no, that's equipoise and by operation of law, they have to grant it. Sadly, I almost always have to go to the BVA to achieve them.
  24. As a veteran who fought for SC for almost 30 years, and now accredited, I would ask you to review any and all DBQs and show me where there is a box that says "Is the condition at least as likely as not SC?" This option is available on the ones used by VES/QTC/LHI occasionally. However, regardless of what the VBA says, the general rule is as it states in your attachment ( VHA Directive 1134) above: 1. Service connection and disability ratings for VA benefits are purely legal determinations belonging exclusively to the Veterans Benefits Administration (VBA). VHA providers often do not have access to military medical records, and may not be familiar with all the health issues specific to military service, such as environmental exposure. Additionally, the issues of service connection and disability ratings are governed by statutory and regulatory provisions beyond the scope of VHA examination and/or primary care. Consequently, they are often not well suited to assess causality of a current condition in a manner helpful to inform the VBA adjudication process. VHA providers who wish to provide medical opinions that state causality must include clear and specific rationale citing evidence to support the conclusion reached, and should employ standard language appropriate for medical opinions (such as “at least as likely as not”, etc.) As for the second document (VHA Directive 2000-029), it is obsolete. It was issued prior to 2010. I don't wish to argue with you. I'm sure you feel I'm wrong. I litigate each and every day for Vets. I live and breathe VA law and study new techniques. I pay $3,000 a year to maintain that accreditation by taking the required CLEs. If I don't know the answer, I use Westlaw to confirm it. Westlaw costs $59 a minute to access. If I thought using VA doctors was a viable option, you would have heard about it years ago, sir. The CAVC and the Fed. Circuit would have tons of cites saying a VA doctor's word is gold. Now, if you are familiar with VA case law and precedence, you will know that a medical opinion is based on knowledge (the claims file and private medical records-or VA medical records). VHA doctors can fill out generic DBQs listed at the link above. If they do opine, it rarely has any bearing on a win. If they have not researched your case via the claims file, it isn't a probative nexus, sir. Try talking your VA doctor into reading a 2,000-page c-file and providing a IMO with supportive, peer-reviewed studies. I see hundreds of "nexus letters" by doctors. VA ignores them if they do not specifically note they have reviewed the claims file. You are welcome to believe what you will but speaking from experience, depending entirely on a VA doctor for a nexus is not advised. Here's a few from my file I find very much on point taken from Fed. Circuit and CAVC decisions: >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). >However, Dr. Bash did not address contemporaneous evidence, including VA and private treatment records from throughout the period under consideration, that note the Veteran was, in fact, ambulatory, albeit at times with the assistance of a walker or cane. His opinions are conclusory, inconsistent with contemporaneous clinically recorded data (which he does not acknowledge), and cannot be afforded any substantial probative value. >See 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). To begin, a VA medical examination report is entitled to no weight if it contains only data and conclusions. Nieves-Rodriguez v. Peake, 22 Vet. App. 304 (2008) Remember, we are here to help Veterans win. Each must tailor his defense to win using proven techniques. As an example, if you try to submit a psychiatric evaluation from a private doctor at the beginning of your claim, it will be rejected even if it's probative. VA's shrink must always opine first. It's the law. VA c&p doctors/nurses offer their assessment of a disease or injury for the VBA adjudicators to study. It is not binding on VA. I've had hundreds who said "Yep. It's due to AO. A month later I get the denial saying it isn't. I take no pleasure in arguing with any of you here. My desire is to teach you what you need to succeed. As they say, you can lead a horse to water but you cannot make him drink. You are free to ignore my advice and it will not hurt my feelings. I've helped thousands over several decades attain SC-usually IU or 100% +. It's a recipe-just like baking cookies. If you choose to substitute baking soda instead of the baking powder called for, you don't get what you desire. Many tell me I'm wrong here at Hadit. Considering I have never lost a claim or appeal yet (knock on wood), I take it with a grain of salt. I wish the best for all of you. VA screwed me in '89 & '94. Every win is a b*tchslap for that treatment I received. They should never have said I was not in Vietnam.
  25. BroncoVet touches on an interesting precept with attys/agents. Most of us will never touch a new claim but will advise you to use a VSO to file it. The reason is simple. We are forbidden by law to charge you to file a claim. We only can enter in to the fray once a denial is issued. It also is a good experience to discover what "hands on" really means in claims development. I do not fault VSOs for their lack of ability. They are not trained to do this. They are glorified mailmen. They fill out your 526 and deliver it. I have learned to file an 8940 at the outset of a claim regardless of whether a client is working. I've won on a Vet being "marginally employed" in a sheltered work environment. He was a CPA working for himself and all but unemployed but for some of his oldest clients. The VR&E angle is good but time consuming if attempted after filing. With the new AMA, you want that in your file at the outset if possible. I advise you begin that asap and prepare it as a tool ahead of time. I never procure an IMO until I lose. Why waste the money? I'm an undying optimist that VA might be agreeable and give my client his due. Of course, I was convinced we were going to win in SEA in 70-72. As with all techniques, VA is learning to deny IMOs by sending out to get second opinions. This is called developing to deny and is forbidden by Mariano v Principi and §3.304. Thus, I always ask for a SOC asap and submit it to a VLJ. I just got back from a TB hearing in Oakland before VLJ Matt Blackwelder last Thursday. My client has Hep C and he admitted to snorting toot in 88. He has no medrecs. They burned up in 73 or so VA says. I had to explain to the judge that Stage 4 cirrhosis takes 50 years-not 30. 1988 doesn't fit the medical scenario. You could never accomplish a win like this without an extraordinary IMO presented in person to the judge. He read it while we sat there and nodded in agreement. I never forecast wins but I feel good on this one. Absent qualified counsel, he could never have won it on his own or with a VSO. A videoconference would never have conveyed my client's advanced debility from the cirrhosis. One thing I cannot impress on you folks here. There is no template for a claim. Each of you is unique as are your circumstances. There is some commonality in how it is done but each one must be produced based on the evidence you possess-and most especially- what you do not possess. I like to use this as the ultimate example of what you can create with absolutely nothing to work with but negative evidence-or worse- no evidence whatsoever. The gentleman was advised in 2015 by his VSO not to waste his time filing as he could never win it. We shall see.
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