FormerMember

The AMC has been nicknamed the 58th VARO as well as the Black Hole. If you allow them to, it will reside there for aeons as you well know. Hey, PR. Bite the bullet and just get a good law dog. Not one of the NVLSP/NOVA Doogie Houser newbies in training but a good one like Virginia Girard-Brady or Ken Carpenter. Or Bob Walsh. Don't just shop for one close to you geographically either. It's like Starbucks- you get what you pay for. Buy the name brand. Don't cut corners on a generic one. Sure, you lose some change but you can put paid to it and get rid of the stress once and for all. I did it and Bingo. No more idiot's delight remands to go find something you should have had incorporated into your evidence years ago. Also, waiting for VA to obtain evidence is a lose-lose proposition. I had to go get my records in Thailand from an Air America-contracted Hospital because VA adamantly refused to. It's why I won. By the time VA got around to getting them in 2007, they'd been destroyed. They finally accepted my copy as genuine-after 14 years of hassle. It just isn't worth it. I come up on a 20 yr. protected rating in April 2014 and they are just now giving me my EED of 94. No amount of money is that important. I did it because I resented being called a liar. That's why I don't mind giving old Bob about $30K for six months of argument with the SOBs. Best of luck. Git 'er done. A Clear prop.

Just so Hadit members are not confused, Vets only have one "claim" with the VA. That is the date you filled out the Form 21-526. That is called your original claim. Anything, be it spongebob squarepants syndrome or hemorrhoids, is merely a continuation of this original claim. And PR is correct. If there is any method to the madness under which VA works, it remains an enduring mystery to us all.

Anytime you submit new and material evidence after a denial, VA must make a new decision (assuming the evidence you submit is both new and pertinent). Once they do, that technically restarts the equitable tolling clock at one year. Be careful. You'll end up fighting them over it though. If you file your NOD and then add new evidence, they again must make a de novo decision and either grant or issue a SOC. Following that SOC issuance, if you submit N&M E again, they must again make a de novo decision and respond with a SSOC. View the VAOGC PREC 9-97 I attached above. This was the Catch 22 I won with. I filed my NOD in 94. They issued a SOC saying they had my N&ME in 1/95 but they never granted or denied or sent me a SSOC. Thus the claim went into hibernation rather than death. You can play this out to your heart's content but at some point you'll end up with a win or a substantive appeal when you run out of ammo (N&ME). One thing you can bet on. Regardless of how the regulation is written, you will always end up outside the corral at the RO. It usually takes the BVA at a bare minimum or the Court to sort it out.

The Jews learned, to their ultimate dismay, the futility of appeasing Hitler. VSOs continue in the same vein thinking somehow if they don't make waves, that VA will be munificent. I was told in 1992 not to worry about my shiny new 0% tinnitus rating. My very learned DAV NSO said we'd just come back later in 1995 or so and get that 10% I was really due. He said he didn't want VA to get the impression "we" were greedy. That is the mindset you are working with.

In retrospect, TC, file a NOD on the last day feasible (prior to 12/27/13) just to protect yourself. Make sure you carefully document it via a Certified mailing. Voice your disagreement with the decision(s)broadly and say that more evidence may be forthcoming. Insert language that says you are still awaiting reconsideration of your claims based on ______________. This will simply cement the foundation in the event of a substantial appeal. If you resolve it at the RO level and do not need to proceed further, you have at least protected yourself against endless litigation and a freestanding claim to retrieve your old effective date. If you haven't already, file something that qualifies as new and material evidence in order to make it truly legal and stand up on appeal. Asking for a reconsideration based on a factual argument absent any new and material evidence will not stand up in Court and you'll lose your effective date you seek to preserve. More Vets (and their representatives) step on their neckties over filing a disagreement within a year than you can count. VA doesn't make it easy and often tries to confuse you. Having a meek, recalcitrant VSO is not a recipe for success either. Best of Luck.

When you have a claim in and it is denied, you may submit new and material evidence and ask for reconsideration. 38 CFR 3.156(b) states: (b) Pending claim. New and material evidence received prior to the expiration of the appeal period, or prior to the appellate decision if a timely appeal has been filed (including evidence received prior to an appellate decision and referred to the agency of original jurisdiction by the Board of Veterans Appeals without consideration in that decision in accordance with the provisions of § 20.1304(b)(1) of this chapter ), will be considered as having been filed in connection with the claim which was pending at the beginning of the appeal period. In layman's terms, what this means is VA is required to make a new decision on your claim based on the new evidence submitted. Will they? Shoot, bubba. Those fellows are so backed up, a truckload of Exlax won't help them. What the VA bozos would prefer is that you file that NOD so they can put you on the group W bench to wait a year or so. As for your VSO saying they don't want to be "adversarial", I have a newsflash for you. That is boilerplate fear. VSOs get their funding from VA so they don't want to piss off the Pope. This translates into a meek idiot telling you to be careful or they'll retaliate. I'm living proof of the Win or Die theory. I attack at every opportunity as would any attorney when they see the delaying tactics. If you file a NOD, you begin the arduous path to DC-either by a DRO review or a traditional appeal. Either one is anathema and to be avoided if possible. I tell my guys to keep it local if it is a matter of an increased rating or the like. If they have exhibited that they are not going to approve a new claim, that is reason to move on to DC. I see a proclivity to wait until your claim is 5 minutes away from being certified to go to DC and they will cave in and move you up one rating (say from 20 to 40) hoping you'll be happy. They keep doing this unless or until you go in with medical proof that can not be disputed. That is the VSO technique. Win or Die says go for the 100 if you are entitled to it. Attack from several fronts. Congressional inquiries on top of scathing letters stating the Diagnostic Codes are in order. Has anyone ever wondered when they look at their award/denial letter from VA explaining the results of their claim that there is never a DC code to refer to? They amply explain what the percentage is versus the symptoms and discuss what a higher ratings % would be IF you qualified for it but there is no mention of the actual code number. It's no accident. They don't want you looking at it and figuring out what you need to get from 40 to 60%. Take a moment and go back and look at your ratings you've been given. Rarely will you see a DC code mentioned. Getting your c-file is treated as a claim only insofar as it applies to doing it timely. Thus, if you don't hear back from the good people at your RO in twenty working days, you can assume it is somewhat of a deemed denial. That's when you up the ante by taking it to DC and threatening to "appeal". The head office will simply make the RO put down what they're doing and comply with your request-sooner rather than later. Until I began utilizing the legal language that forces VA to provide me (or others I help) with the file, they would pretend to be deaf. Once you insert the FOIA and the 5 USC language in, it cannot be ignored. They then realize you are not a turnip farmer doing this in your spare time. As for any VSO or service representative telling you that you do not want to create an "adversarial environment", please inform them immediately that this is impossible. The VA ex parte system of justice is nonadversarial and a Veteran friendly environment in which to adjudicate our claims. Congress ensconced that in the VJRA purposefully to show America's appreciation for our sacrifices. VA is required to bend over backwards to accommodate you. Period. You are considered to be judicially incompetent to do this on your own. A VSO is not considered "legal help" but more of a "minder" who guides you (imperfectly) along the path to success. When that fails, you lawyer up and begin in earnest. VSOs are generally appalled when you have the audacity to question their judgement. Considering they have no legal training, you are foolish to depend on anything they suggest. Be careful. A NOD moves you out of the bargaining arena and into the appellate review colosseum. They are two totally different venues as some Vets unfortunately learn about too late. Another valuable read is VA OGC Precedent 9-1997. It explains the conundrum of filing new and material evidence AFTER a NOD but before the completion of your substantive appeal (Form 9). See attached. Clear Prop Prc09-97 (2).doc

Your case will hinge on one facet alone. His 6/24/96 x ray was the last thing medically recorded assuming you've never obtained his separation physical. <<<A chest x-ray done on 6/24/96 was read as unremarkable.>>> Since you have no medical training (I assume you don't), your lay testimony will be given less weight than written records. I refer to your statement mentioning fatigue at discharge. While it falls in the Layno ruling of being able to observe via the five senses, it still is a stretch. I'm not trying to throw cold water on this but please realize who you are dealing with. Your only saving grace would be to come up with medical records within a year of discharge clearly showing a finding of lung cancer. Then get a doctor to opine that it is related to service (IMO). Best of luck. clear prop

<<<<If they can just change the name of the diagnoses and deny for that, I don't know how anyone could ever get benefits. Just change the name of the issue.>>>>> Welcome to ex parte justice, Bevo. A priceless observation. You have the 38 USC 1154b combat enhancement in your favor. Anything that falls from your lips is the truth unless incredible (like alien abduction). One decision from the dawn of time that many fail to cite when they lose at the RO is even more important now in light of the recent Walker decision striking down the essence of 38 CFR 3.303(b)http://asknod.wordpress.com/2013/02/25/fed-cir-walker-v-shinseki-%C2%A73-303b-says-what/. Wilson v. Derwinski (1991) [see attached] is just the panacea for your circumstances. If the BVA denies, you'll need it when you go to the big house up on Indiana Ave. NW. Remember, the law is explicit in 3.303(a) and (d). The regulation requires continuity of symptomatology, not continuity of treatment. This is where many Vets and their chucklehead VSO reps step on their neckties. ​It is SOP for VA raters to use the boilerplate language of " symptoms were acute and resolved prior to discharge" regardless of whether they wheeled you out the front gate on a gurney. Often, your records consisted of a partial dx with a "rule out" clause. Many are discharged for medical reasons with no definitive diagnosis. This is where the Wilson case is instrumental in winning. While the Fed. Cir. Walker Court struck down the underpinnings of 3.303(b) in Wilson, it did not disturb (a) and (d). If you have the STRs from service clearly delineating a recorded injury, a continuing history of chronicity and continuity, and you have proof of combat (1154(b), you are golden. Having a good nexus letter(IMO ) is also imperative, but you can win it on the simple proof of it occurring in service with an unbroken record of continuity after service. Your lay testimony is unimpeachable unless you have a history of drug abuse and bank robbery. Remember one thing when you file. VA raters start from the presumption of guilty (didn't occur in service) and work toward a theory of it being service connected. Once you've proven beyond the shadow of a doubt that it did, indeed, occur in service and it is the same injury now, you will finally be accorded the good old benefit of the doubt. Perseverance is also the winning ticket. Nobody likes a squeaky, annoying wheel. Wilson_90-673.pdf

There is no mystery to a pending claim. Either it was applied for and was still in the process of being adjudicated at the time of passing... or it wasn't. Oddly, I see a lot of widows who have a marriage license issue-especially in older women. Common law marriage is decided on a state by state law unlike a set determination via a CFR. While you may not run afoul of that codicil, VA will make every effort to to create other pitfalls in your path. Armor up with a good IMO for death or an ironclad death certificate that is seamless before you begin. Do not do so in midstream when you suddenly perceive the need.

Yes, it is an "honor thing". When I applied in 1989, I was merely cashing in my chit for the promised care I knew was related to my service. Never in my wildest dreams would I have thought my honesty and character (credibility) would be questioned. We Vets had no access to the internet and many of my records were still classified until 1992-96. I had no idea VA would characterize my claims as "contentions" or "allegations'. Those are fighting words to me. I did sign non-disclosure agreements with several agencies but nowhere did I sign off on the rights promised me when I signed up. While I may sound petty and immature, when promises are made and gifts are exchanged, it is expected that the government will not engage in bait and switch tactics. Using artful semantics and legal punji pits is no way to conduct business. Nevertheless, as Veterans, that is what we face daily. In order to make my point that an honest accounting of all monies due and owing is in order, I will not retreat one month- let alone four. If I give it all to my attorney in the process, so be it. The scales of justice will be balanced- hopefully before I reach room temperature. When you are in the military, it makes no difference if you are "loaned out" to alphabet agencies. Your paycheck is the ultimate determiner of who pays later. I intend to make them keep their bargain-every last dime. Win or Die, ladies and Gentlemen. As someone once said " Leave no one behind...Not on a paper trail. "And my heartfelt congratulations to Carlie on a job well done. Great teaching moment, young lady.

Once again classic proof surfaces showing VA cannot locate their own ass with a methane detector set on high. The tragedy of this is that about five hundred of you will sit up and say "Hmmm. I better look back in my records and see if they did it to me". I'll be going down the same road soon after I win my CUE back claim from 1989 and I anticipate the same shoddy compensation accounting. Unlike Carlie, I am not one to let bygones be bygones and cut them any slack over four months. They're just now correcting my effective date to April 1, 1994 so I anticipate much the same on percentages/dependency from then to now. I find it almost inconceivable that any agency could fight so hard to deny us and then finally acknowledge error after a protracted fight. But then, look who we are dealing with. Since VA is so shoddy in their accounting, I wonder if they will be stand up types and send my 37 year-old daughter to college now that I will have DEA benefits retroactive to when she was 19.

I sympathize with the embarrassment. When I was dx'd w/ HCV in 94, the doctor looked at me as being unclean. His lead-off discussion after the test came back was about parenteral drug abuse and IVDU. I'd never stuck anything in me ever in my life. He just rolled his eyes. The subject of a transfusion never came up. Henceforth, he wore gloves as if I was Typhoid Mary. This carried over to fear of cuts and so forth with my wife and children and rightfully so. As for the ED, there are other recipes for success in that area. One is the application of transdermal testosterone which greatly diminishes as we grow older. I started going to a Naturopath after escaping from a year in the clutches of the VAMC in 2010. I disliked eating a pill to perform. She gave me a nutritional tune up and discovered my testosterone was almost nonexistent. HCV, much like DM and any chronic mental issues (especially BBS) is a dealbreaker for testosterone. It dries up and disappears. Don't give up hope. I doubt VA will ever give you more than the blue Mycoxafloppin pills. Hopefully you have moved on to real medicine (medicare) and real doctors. The cure is out there. Don't just assume that intimacy is off the table and a thing of the past. We almost did but my wife wouldn't accept traditional medicine as being the last word. I did two tours back to back and came home an absolute mental wreck in 72. It gets better but it takes forever ( and yes, probably a few marriages) before you reach a modus vivendi with PTSD. I was never treated for it because it was unmanly to be mentally aberrant. I soldiered on, lost friends, wives etc. I have my family as friends and few others. As with most of you, I am uncomfortable when there are more people around me than trees. My prescription is to live rurally and be glad you came home alive. There is no guilt in being a survivor-no matter how many friends you lost. And one last thing. I'm rather computer naive. Does DH stand for Designated Husband? P.S. A dx of ED from the urologist, absent any correlation to service or PTSD/drug interactions is a nonstarter. The VA examiner will eat you for breakfast. Get him to write a clear, concise rationale for why he believes it and treatise/dissertations to buttress his argument. A Clear prop

There's an idea. If You're Vietnam Vet, eat until you reach 350 and get DM2. Then you can apply for it. Huh? I much prefer to have Winky working than the $95 dollars. No thank you.

Special monthly compensation is awarded based on VA's interpretation of the claims file. It is not a claim per se so much as an entitlement based on medical factors. SMC-K instructs very clearly on the criteria needed. SMC-S does too but again is predicated this time on number and combined percentages rather than missing pieces. Fortunately, the Courts have interpreted it such that being physically unable to ambulate and depart your premises constitutes the "in fact" codicil absent the requisite percentages. I applied in 2009 when I crawled out of the hospital but was denied because my daughter could take me to the hospital in a wheelchair. Didn't sound very housebound to them if I was making all my VA appointments and they denied-a year later.

You do have a diagnosis of ED from a urologist linking the aforementioned drugs to the ED, right? Without it, this will be a short trip to the circular file. I can almost read the denial. "While the claimant states he has ED, there is no evidence of it in the record provided and the VA examiner states it is not at least as likely as not that it is related to the listed drugs. The Veteran has no medical knowledge or training to support his allegations. A mere subjective statement unsupported by medical rational is speculative and worthless for ratings purposes." As for SMC-S, you need a rating giving you 100% TDIU for the 70% BB rating alone. Then the combination of 10% ratings you mention (you'll need eight) will have to add up to 60% in their own right. Just FYI. Of course, if your disabilities are less than 160% but keep you substantially housebound in fact, you'll have to prove that facet as well, medically. cp

When you file your NOD, the road diverges into two paths. You have a choice at that point to go the DRO path or the familiar standard substantive appeal to D.C. Absent any new evidence that is earth-shattering and rebuts their denial/ definitively proves your contentions, a DRO review is pointless. If they have not looked at all the evidence, that might be one reason to keep it local. A reconsideration with a local hearing in front of your rater is a third choice. I did this in 1989 and lo and behold- there were my medical records in my c-file. I was given little or no time to view them and I lost again. Had I had a copy of the c-file, I think a different outcome would have ensued. Asking for a sit down is anathema for VA. They want to deal with you at a distance in an ex parte manner. They dislike frontal confrontations and I guess if my track record was that spotty, I'd be nervous too. It's not unheard of to have a Veteran come unglued at one of these meet and greet hearings. Since it's a bear to get anyone to communicate with you in a VARO, you can resort to IRIS. Vocalize a desire for a sit down with your hearing officer and explain you wish to refine your argument, teach your blind rater Braille- whatever. Going the DRO route will mean a two year delay and then a possibility of a denial yet again. At that point you'll be getting in line behind all the others who smartly pressed on to D.C. when you turned left at the DRO milepost. Since a substantive appeal also entails about two years, you don't need to be Euclid to figure out the sum of the delay. The math is definitive. 15% win at the RO. Another 22% of the 50,000 who appeal to the BVA succeed (about 10 K). But see the CAVC data. Fully 60% of the 5,000 who go the extra mile get a JMR, a remand, a vacate with a de novo review or an outright reversal (win). Be sure to put it into perspective, too. 15% of Vets win their requests for DIC, DEA, accrued benefits, added dependents on claims. burial requests and any number of other non-claim requests. When you filter out the inconsequential requests from the heavy duty claims data, this sinks to a 12% claims win rate. That includes DRO reviews. While it may sound rather disheartening, the statistics have remained static for over one hundred years. At one time I advocated for going to DC as fast as dem feet could get you there. My attorney has always held the reverse-keep it local. I see no point in dealing with uneducated riff-raff who are forced to use a Manual to figure out what day it is, let alone decide your claims with it. If the odds of winning at Poker were better in Las Vegas than the Indian casino up the road from you, and you seriously enjoyed gambling, where would you choose to gamble? Best of luck on this. cp

Mark your calendar. According to VA, we have a problem with suspense dates. We always seem to be just on the wrong side of them. Be especially careful on multiple claims. One devious trick is to deny one claim and fail to mention the others or to vaguely say they are still methodically plodding their way through them (deferred is a term often used). If a year goes by from the claim denied with no appeal of all three, VA will say they were "deemed denied" or you should have "inferred" they were denied because they were never mentioned again. Repeat after me "It's nonadversarial. It's nonadversarial. It's a mistake and I'll wake up from this." This is called divide and conquer.

I was referring to post #1 by SueEdal. But VA is often guilty of what you describe. After the denial when you file a NOD, many of you submit N&ME with it. You can ask for a reconsideration but a large majority go straight to NODland. VA sends you back a SOC continuing the denial but it's illegal to announce a decision in the SOC. By law, there has to be a de novo decision but there's also supposed to be a tooth faery and an Easter Bunny in this story somewhere. I've never seen them yet. This usually indicates the N&ME was not perused. I've submitted new stuff after the SOC and gotten a SSOC and at that point filed my Form 9. VA would prefer to get their hands on the F9 early on as they can then imply you are finished fiddling with the RO and are prepared to head to DC. Ever seen a three card Monte game? cp

The doctor recited your history, noted that he had review your STRs and made a nexus statement. He neglected the cogent thinking and supportive research to butress his contentions. Try this one: http://asknod.wordpress.com/6051-2/ It's in Micro Word so you can make a copy for your doctor to get a feel on how to do it. Just like cookies. It's a recipe. No substitutions.

A nexus letter is a compendium of three things. The doctor or specialist opining must, at a minimum, have reviewed your service medical records. Secondly, when making a determination that it is related to an event or disease/injury in service, s/he must be able to point to a documented , seminal event. Lastly, s/he must present cogent, rational thinking and current medical theory that supports the hypothesis. A simple statement that has no corroboration or support is pure conjecture and, as such, speculative in nature. Since 2010, VA has forbidden its doctors to opine on nexus letters saying that is the province of the VBA rather than the VHA. Some still do and get gigged for it. A nexus letter needs to be nuanced and constructed such that there can be no holes in it. The codicil about having reviewed the contemporary records from service is not ironclad but if the VA examiner mentions s/he has done so, the Courts tend to consider that more probative than one where they were not perused. Sorry. P.S. I just absorbed this. Give me slack. I'm stage 4/62 yrs old. My brain is differentially disabled. The lay evidence was found not to be competent and sufficient in this case to establish a link of nexus between your medical condition and military service or to establish that such a link has been found by a medical professional." A credible lay statement may establish what was seen, heard and directly experienced. Layno v. Brown 1994. Lay testimony is limited to the five senses(hearing, sight, touch, smell and taste.) The language clearly discusses "lay testimony" and "lay evidence". Therein lies the denial, not the doctors' nexi. If you give information (VA calls it "history" if not supported by the record) to a doctor and he simply records it by writing it down, it is merely what you remember it to be. It does not become proof or evidence it happened in VA's eyes. Look there for your problem. Lay testimony is limited to the five senses medically. You cannot say "I was diagnosed with X by a doctor in 1988" at a doctor's appointment in 1994, then come back in 2013 and say "See. Right here in 1994 the doctor says I have X." Usually it says "Patient reports a recurrent history of X". This is just an example. It may be another facet you haven't mentioned. This is just the most common one I've seen.

Okay, here's the drill. Alphabets4Vets have no lawyers on staff. Period. Zip. Zero. Nada. They have a handshake agreement with the NOVA and NVLSP. When the a4v finishes hamburgering your claims and you have to appeal to the CAVC in desperation, these two outfits step into the breech. Their services are pro bono. You get about the same either way. A large consortium of the really big gun law offices "donate" law dogs to this project for a year. The purpose is twofold. Their greenhorns get a smattering of VA knowledge and some face time in an Article III Court and the Vet gets a life preserver if the atty. can find a hole in the VA necktie party. It's a lose-lose for Vets. Again, you're getting third rate, desperation representation. Their mission (if they decide to accept it, mind you) is to buy you another day at the BVA and a do over and that is where their involvement ends. When you get back to the BVA, you're either on your own or back in the saddle again with the boys who lost your claim to begin with. You want an independent one who was raised by a Tiger mom. Remember, they are altruistic at 20%. Most could make a good living doing tort law and chasing ambulances for 40%. Many are former Vets like mine. Besides, it takes guts to go toe to toe with a corrupt agency that cheats, lies and purposefully loses your paperwork. Our jurisprudence since the VJRA in 89 is like the old Virginia Slims commercials. "You've come a long way, baby!" But Boy howdy do we still have a ways to go to get anywhere close to being on a par with the truly independent SSI Administrative Law Judge (ALJ) model. Our VLJs are bought and paid for by the VASEC. No independence breeds a narrow interpretation of the law that strangely mirrors whatever the VASEC's feelings are on any given subject. a cp

Yeppers. Alphabets4Vets (VSOs) are useless as far as lawdogs. And one minor note. Each VLJ generally has 10-12 staff attorneys working for him on decisions. Divide 67 VLJs by 50,000 incoming claims/year to get a grip on why it takes so long. Each VLJ is expected to complete one claim a day bare minimum. Up to 60 or more senior staff attorneys are granted 90 day tickets to be "Acting Veterans Law Judges" once a year. They are given little supervision unless they grant too many claims. That can be a death sentence for future employment there as the VASEC writes their paycheck. clear prop

Vern 2-- here's the link to the post on c-files.http://asknod.wordpress.com/2013/09/30/getting-your-c-file/ Best of luck on KATN. Clear Prop

Defense attorneys in criminal cases call it "discovery". The police and the prosecutors don't like it any more than VA does.

It's "Presumption of regularity" and you are completely right, sir. They ignore it in their decisions until they can no longer at the CAVC. About that time, the Judge(s) point to the VASEC's proclivity to use "post hoc rationalizations" for what happened. These rationalizations are predicated entirely on what happens in a world of unicorns and rainbows. It has nothing to do with the knife fight you have been engaged in for 10 years in a dark alley with a mentally challenged RVSR and his DRO sidekick. Fortunately for us, VA only rarely engages in destruction of records or loses them outright. More often, if you parse your records very carefully as I did, you find the dangling thread that, when tugged, unravels their cheap sweater (argument). They rarely go quietly into the night. Like an ADD kid, they will kick and scream until ordered to behave. That we have to wait for a decade sometimes is the crime. So many Vets lose because they don't proceed past Go! to the CAVC. And I guess I don't have to point out why that is.