FormerMember

Carlie- I got the same Dog and Pony show from my V-rep Ron Ampe, now one of the hierarchy of the DAV emeritus clan. He admonished me not to press for an increase for my newly minted 0% for tinnitus and never even mentioned the (relatively) new avenue of the COVA in 1992. He said (and I paraphrase) "Dude, let's not rock the boat. You got a win on hearing and tinnitus. We can come back later and scoop up the compensable rating in a few years. You sure don't want to appear greedy, do you? That will work against us." I have always pointed out to Vets I help that the VA has a very limited repertoire of ploys to spring on us. In conjunction with their lackeys, the VSOs, they exert a lot of pressure and false information to intimidate Vets. We are led to believe VA can, and will, come down on us like a cheap new suit if we step out of line. Having"hadit" myself after 20 years of this treatment and three VSO who echoed the same sentiments, I struck out on my own and hit back. I won it all and then began the task of dispelling all these old wive's tales Most have heard of the travails of Keith Roberts and his four-year imprisonment for doing something similar. http://asknod.wordpress.com/2012/01/18/roberts-v-shinseki-a-miscarriage-of-justice/ The difference is that I'm bulletproof. They can't hang me. They did deny for 6 years but that's what attorneys are for. VA would be in deep doo-doo if they tried a stunt such as Mooncookiez's VSO suggests in 2013. If you think they are having credibility problems now with Congress and Vets, venturing down this road would be foolhardy. This has already cost them their precious bonus awards for doing little or nothing. Until Congress and the mainstream media (and the backlog) subside Vets are going to enjoy a rare popularity they seldom do. Then, once again, we'll melt away into a prolonged peacetime army with wooden guns and say "bang" when we pull the virtual triggers.

Doesn't anyone see the timeworn VSO fingerprints on this? Don't go for the big rating or they'll cut you off. Lay low. Don't make waves-or else. We'll come back in a few years and get it right. Meanwhile shut up and go to the back of the bus. Let's hope they don't notice they made a mistake. Good Lord, this one is older than the hills. I didn't honestly think I'd see or hear that old wives tale dredged up again in a claim in this life. Mooncookiez, relax. Once the VA announces a finding or holding, they are required to move Heaven and Earth to prove a CUE-exactly as you are. Your VSO is doing the good cop/ bad cop routine and trying to get you to walk away prematurely. Get it all done at once. AB v. Derwinski 1990(?) assumes you are going for the highest rating possible if that is what you deserve. Leaving the money on the table and walking away would be good for VA and bad for you. Hold out for TDIU if that is what you feel you deserve. VA is not going to start a long, drawn out investigation into your claim and get down in the weeds. If you haven't noticed, there's something called a backlog right now. In addition A DRO made this decision. He/she is a GS 13/14 with many years of experience. They don't make gomer errors like that. You decision says: VA treatment records show you have a diagnosis of ptsd. You reported that you were raped while on active duty in the military. The evidence shows a definite decline in personality after the reported incident. Therefore, resolving reasonable doubt in your favor, service connection is established. " You have a PTSD rating. You have a GAF of 52. Done deal. In order to overturn that as CUE, VA would to need to prove that you don't. That's a mighty tall order in the middle of the worst claims backlog in history. Congress is breathing down their neck. These things tend to autopopulate after a while in the c-file. Your VSO is blowing smoke where it doesn't belong, scatologically speaking. Were I an Indian, I would say "VSO man speak with forked tongue". If I was Dorothy, I'd ask him "Are you a good witch or a bad witch?" Your DRO was no dummy. He could see where this was going and he didn't want to waste his or your time on a long dogfight. You are lucky this came about when it did. Go for the Gold.

See AB v. Derwinski back in 1991 or 92. Any claim is assumed to be for the maximum amount you can attain. By only asking for 60%, you have left something on the table in VA's eyes. Since Buie, TDIU is always for application at a minimum as well as for pain and other incidentals as Jonster has pointed out.

It's fairly obvious what has happened. VA is fond of telling you that it's at the BVA. Unless this was advanced on the docket a la 20.900 ©, it's stuck in limbo. I had the same thing happen. VA said Negatory. BVA has it. BVA said We haven't gotten it yet. VA then said Oops. It was farmed out to Atlanta RO for an AMC IMO/ redo. Next , it was No. It's still here in Seattle awaiting Form 8 and certification to the BVA. The backlog at 810 Vermin Ave. is out the door and all the way down to Constitution Ave. No way is that thing docketed in DC yet unless you are knocking on Heaven's door, OSC. Relax. Remodel the kitchen. Build the detached garage for the woodworking shop. You have plenty of time to prepare for the next big step after they get it and begin work. My guess is about a minimum of a year and a half from the date of filing the Form 9.

Jules has never used either of our sites for anything other than information in a passive mode. Ergo no alter ego. I have discovered many who prefer to remain anonymous. As for helping Vets, there are only just so many patterns you can run in this football game. VA isn't very versatile or innovative in case you folks haven't noticed. Their game plan is stale and has been published so extensively that everybody but dead Chicago voters are familiar with it. But unfortunately, it's still the only poker game in town...

Nothing in the world, not even Haagen Daz, can beat helping a Vet get there. I received this last night and want to share it with all of you at Hadit. You rock, people. This is better than getting your picture on the cover of the Rolling Stones. http://asknod.wordpress.com/2013/06/27/40-weighs-in/ Nod sends

Our good friend Law Bob Squarepants of SVR fame is my atty. on this. Who else? He's having Back to the Future problems with it too. He says press on in Wisconsin until VA figures out they have the same claim stream running on two different channels. I filed this on my own. I think he should grab the reins. I have thirty days to get it together and respond. I've been assembling all the usual suspects like 3.103(b)(2) and 3.105(d),(e). Bob is still running the EED for the 1994 show and awaiting its transmittal from the CAVC to the BVA and thence to the Seattle RO.I'm dabbling in this one pro se but I think he should hop in the driver's seat. We're talking 20% (HCV), 10% tinnitus, 40% PCT, and now 10% for scarring plus ?% for scarring of the head, ears and face and all of it back to 1994. Toss in my back % when I prevail on that to 1989 and it may be TDIU from 199something. Being self-employed, my income was rather spotty over the intervening years and well-documented by SSI. This is one of those rare cases where all the little %s may add up to something significant when buttressed by the 40% bulwark which permits IU. Something to consider- during an active rating period when a claim is still being "fleshed out" with a percentage, I have never read of a rating being reduced to 0% and another (different) DC substituted in its stead that was not in the same DC schedule (i.e 20% vs 40% for DM2). As I pointed out, hemic and skin are two dissimilar fields and do not pyramid one another. That is the crux of the contention. To increase (or decrease) the rating is all well and fine unless there is no basis in medical fact to do so. My scars never "resolved". They are still visible. VA also failed to consider the scars on my neck, face and ears. Ergo- I have hep C @ 20%(old DC 7345); I have scars @ 10%; I have phlebotomies @ 40%. In addition, have facial scars @ ?%. VA says claim is dead for failure to file my F-9 by 5/29/2010. Meanwhile the OGC are in DC fabricating a plan for EED of 4/01/1994 for the HCV and PCT and no doubt a long, drawn out battle for a lowball Fenderson. The 10% for scarring was granted 10/1/08 effective 3/01/2007. It was reduced to 0% on 3/29/10. VA then substituted 40% for phlebotomy on the same date (effective 3/01/2007). But 3/01/2007 has now metamorphosed into 4/01/1994 as the effective date due to CAVC JMR and OGC acknowledgement of 3.156(b) error. Meanwhile, the Seattle RO continues to hold that the very same PCT claim died on 5/29/2010. Confused yet? So, can you CUE a final claim that is busy being resurrected and readjudicated at another AOJ? And can VA reduce a rating to zero and then substitute another, completely different Diagnostic Code in its stead? All without notifying the claimant that they're getting ready to 86 it in violation of 3.105(e)? An important precept of VA law is that once a rating is issued, it is inviolate. It's called a finding. If VA wishes to rescind it, they have to prove they did it in error and you are not entitled to it. That's why they have a time out and get three signatures on these things before they push print. It's called quality control. The hook is that to overturn it, they have to jump through the same "manifestly different outcome" test we do in a CUE. My scars are still present and accounted for so the original rating was not in error. A manifestly different outcome would not have ensued. As for etiology of scarring, they are all documented (the major ones) by medrecs and thus "time dated". Most occurred between 1994 and the present. With the older 1994 effective date, VA is going to have a hard time arguing as to when they occurred. They're there-large as life and twice as natural. Being a credible witness, they occurred pretty much when I say they did. Based on the Layno v. Brown (1994) decision, I am capable of discussing when I dropped the beam on my foot and squished 3 toes or getting whacked on the back of the ear with a 2X4 in 1996 that required 39 stitches. Onward-Back to the Future. Ignorance is bliss.

Here's a CUE that may not be viable. Or is it? History is as follows. 9/2008 -- Porphyria Cutanea Tarda (PCT) secondary to HCV granted at 10% ( scarring -DC 7815) 3/2010-- On DRO Review, DRO reduces 10% scarring rating to 0%. No notification other than SOC (remember-an SOC may not be used to announce a decision) 3/2010-- same DRO decision grants 40% for phlebotomies. 6/2010-- failure to submit Form 9 within 60 days results in finality. Equitable tolling request for being inpatient at VAMC until late April 2010 is never addressed. 5/2012-- BVA decision denies earlier 1994 effective date for HCV. Does not mention PCT 6/2012-- File NOA of EED denial at CAVC 8/2012-- CUE claim filed over 3/2010 improper reduction of 10% to 0% with no notice and no C&P exam to determine validity of reduction 4/2013-- CAVC -- VA agrees to 1994 Effective date for HCV. JMR sends claim back to BVA for decision complying with terms of JMR. Claim will then have to go to VARO for staged Fenderson rating 6/2013-- VA status of 8/2012 CUE filing moves forward to Gathering of Evidence stage and farmed out to Wisconsin from Seattle. So, playing Devil's advocate, if VA fails to adjudicate the CUE before April 2nd, 2014 and my PCT rating secondary to HCV crosses over twenty years- is it a protected rating for scars at 10%? They awarded 40% under DC 7704 (DC7815-7704) for the phlebotomies when they reduced the scarring from 10% to 0%. The two ratings are not pyramiding as they involve two different bodily systems. PCT scarring is skin. Phlebotomies is Hemic (blood). The bingo date was April 1, 1994 for my filing EED. HCV will revert back to the older, more liberal DC 7345 code. Looking at the regulation for reducing a rating, it does not differentiate between a rating being reduced during an active ratings claim or one that has been in existence for some time. By granting the 10%, it becomes a finding. To overturn it as being unjustified, they must prove it was fraudulently obtained or they themselves made a mistake. Then the full weight of CUE descends and they have to overcome their own finding based on CUE regs in 20.1403. By failing to have a C&P and give me ample warning, they themselves already erred in the de novo DRO review.. But with a JMR, the claims is now magically alive again and it is now November of 1994. I have just submitted proof of AO exposure and Hep in service. Since VA has already granted my claims in 2008, this is merely a formality that rates me contemporaneously based on my medical records. Here's the problem. Technically you cannot CUE a claim that isn't final. So, is a claim declared dead and final in 2010 "CUEable" in 2012? And, if so, at what point does it have to meld with the contemporaneous, staged Fenderson reconstruction and be incorporated if the CUE claim is is being adjudicated far away in Wisconsin? This is worse than Back to the Future. I'm just dying to hear what some of you think. I have to call them on the 10%<0% reduction. They say(said) it's final. CUE is the only way to disturb it. If I drop it, VA will never incorporate it into the staged rating. Now, to add insult to injury. scars of the head and neck are rated under a different diagnostic code separate from the rest of the body. Yep. VA ignored that one. But now that it is November 1994 again, can I not add that contention in and have it considered in the proposed staged rating. I've been rated for scarring, just not all of it...and it was announced and removed in an SOC. Jez, where do you start on how many regulations were violated?

Dear Mr. R13. Read http://asknod.wordpress.com/2011/09/27/cavc-buie-5-v-shinseki-0-2011/ to understand Mr. Buie's predicament. It is similar to yours but varies in some respects. Consider this. Your initial rating lacked one 40% rating which is integral to getting IU. I see they took the totality of all your knee, ankle and hip maladies and used it to fashion the 40% as they are all interconnected as a single interrelated injury. Correct me if I am mistaken. Now you have received increases for items that were originally used in 1998 to grant that IU. In order to qualify for SMC S, you would have to be granted a new rating on another claim that did not involve any of the items that provided the basis for your TDIU. TDIU is a stand alone rating which, although rated at 100% for compensation purposes, is technically not a 100% schedular rating. It does, however represent one part of the criteria for an SMC S rating- to wit: the needed 100% rating. The second facet required is either being substantially housebound or having an additional rating(s) adding up to 60% or more above and beyond the TDIU. Increases in ratings that comprise the original TDIU simply improve the underlying reason for the TDIU. In order to "pull a Buie", you would have to rearrange your ratings such that one (say the 50% depression) was upped to 70% and rated as TDIU in its own right. VA is not going to do this no matter how nonadversarial you think they are. VA will view all your back injuries as one condition and thus dodge the bullet of them being separate issues with separate etiologies and different, unrelated diagnostic codes. Read SMC S carefully and you will see that the additional 60% in ratings (above the 100% rating) have to be different issues involving different anatomical parts and not a compendium of other related ones to things you are already rated for. VA historically will deny SMC S based on being "substantially housebound". They did it to me even though I just got out of the VAMC after a six month stay and had a shiny new colostomy bag and confined to a bed with 150%-10% shy of the extra 60% needed. They did it to another Vet I helped even though he is photosensitive and has thyroid cancer. Their rationale? "Well, bubba. You can attend doctor appointments and go shopping even if your sister drives you. That ain't housebound in our book." They denied me on similar logic as well. I don't drive and have the same photosensitive issues (AO PCT disease) as well as cryoglobulinemia which prevents me from going out in weather below 40 degrees. Of course, if you asked the VA to send your PCP over for a house call, you can figure that would go over like screen doors in submarines. You can win the SMC S "substantially housebound" argument if you are truly housebound- but not at the RO. They have a one-size-fits-all denial for this and you'll have to fight that one at the Complaint window at 810 Vermin Ave. NW Washington DC 20420. Best not to mention my name. Allison Hickey and I are not on good terms this year .

I apologize, Carlie and Broncovet. Of course you are right about alternate theories. However, I will reiterate again, with counsel representing you, that you still must be anally specific to a fault. Specious pleadings are unavailing. It appears as though Mr. Flatbroke used the 12 ga. approach on the CUE but accidentally included some of the contentions from 1992 and 1996 which is a Bozo no-no. CUE is amply explained in § 21.1403. If the claimant or counsel is unclear on it, there is always WestLaw for clarification and guidance. Under no circumstances can you supplement the record with CUE. For the life of me, I do not see where this could be resurrected via CUE with any alternate theory. If you do, please illuminate me. I examined it from about four perspectives and fail to find a place to pound in the piton to obtain a purchase. By the same token, § 3.156 (a), (b) or © doesn't seem to fit the bill this late in the game either. He won in 2001. He had one year to file a NOD with the effective date and submit evidence that supported a 1970 filing date. Simply put, he didn't. That effectively ended the claim stream in what should have been an open and shut case for an EED were he to employ it. Utilizing § 3.156© would not be availing after you win and your ability to appeal has been frittered away by failure to act. That chapter of your claim is done. Revisiting it via CUE under any theory is a tortured road. Look at what might have been CUE and pick the one that might have been successful. Failure to obtain evidence? Failure of duty to assist isn't CUE. Mr. Flatbroke falls on his sword because absolutely none of his theories constitutes CUE, or, if they do, they do not pass the manifestly change the outcome test. When I read the CAVC decision, it was replete with every possible theory why CUE might be for application. None of them held water. If he has still more CUE theories up his sleeve, you are absolutely correct that he may file and plead them. I merely say that it appears he has exhausted every theory I can conceive of-plausible or no- and none was availing. More appalling is that some of them were amateurish and did not begin to approach CUE. The last thing you want to do is show up with a lot of half-baked, poorly reasoned possibilities and plead them with a "They dissed me in 1970" bent. Fortunately for Mr FB, his counsel did this pro bono. It would have been a crime in its own right to charge for it.

Interesting case and equally interesting appeal to the Fed. Cir. I hate to say this but your attorneys are not very well acquainted with 38 CFR § 21.1403. The claim should never have gone forward in the state it was in. Now it is irretrievable. I'm afraid that it was a waste of funds to file it at the Fed. Cir. Read the rebutted contentions of the CAVC decision. You cannot present evidence in 1996 that was not before the adjudicator in 1970. If you honestly are going to use the contention that you never received a SSOC as a rationale to say a claim is still open, and the C-file you possess contains said document, then you have been put on notice that you have it merely by its presence in the file. By referring to it in a subsequent letter, you admitted you had received it. There went you credibility out the window. This is all established case law. As for a previously raised claim of CUE not being subsumed by a subsequent adjudication, that, too is a non-starter. You get one bite of the apple on a CUE claim. If you do it pro se, you get a pretty big bite. If represented, it is assumed your law dogs are bright and perceptive. Nevertheless, unless dismissed without prejudice, you get one and only one bite. Inasmuch as you were using ex-JAGs, they have no unique legal training in VA law. I 'm sorry you didn't prevail on this but any claim needs to be guided and supported all the way through with great care by an intelligent life form. The CAVC appeal looks like a half-hearted attempt to find something-anything- wrong upon which to hang your hat. CUE is the absolute worst venue in which to present it. I know because I speak from experience. Fortunately my attorney recognized this and pulled mine back from the brink in time. We will be filing a complex CUE/§ 3.156 © compendium and rely on both facets to win. Each facet of a CUE claim has to be examined like a diamond before it is cut-not after a preliminary loss at the RO or BVA. Readjudicating it again and again will produce exactly what you got- a decision subsumed by the one following it in 1996. It's sad that some of the legal help out there is not dialed in on this facet of VA law. As I say in my book, when you assay to file CUE, the rules are set aside. This is a knife fight in a dark alley and most of the protections afforded you in 38 CFR are no longer available. You are calling the VA a liar and a cheat. Those are fighting words. Everything you present as CUE has to point like a compass to North. There can be no other interpretation about "Gee. Was it Spina Bifida or spondolythesis? The record's unclear." That was decided in 1970. You are in 2013 and have to prove it was incorrect. You (and your legal counsel) didn't do this. Monday morning quarterbacking is not going to fix this one. If you had pursued the § 3.156© path, that was far more user friendly. However, it, too, has pitfalls. Any new official service department records associated with the file must be instrumental in the win or an EED of it. This is crucial. You have won so § 3.156© is basically moot for that facet. This actually is only useful while the claim is still in contention or if you reopen a previously denied one with § 3.156© -type records. VA is fond of denigrating the official records as not being probative or germane to the discussion or win. Here, pursuing the EED, §3.156© might have been useful but it was like a parachute that was never deployed. An EED cannot be pursued once the time limit to appeal it has run as in your case. That dog won't hunt. You had the opportunity to do so within one year of your win. Every CUE argument presented was flawed by existing law and precedent (Russell, Fugo, Damrel, Cook etc.). I fail to see where the attorneys came up with anything amiss. Specificity was AWOL in this claim. I don't mean this to be rude or accusatory. I merely view it in retrospect as to what can happen to a claim to provoke a loss. There are many errors and I'm very sorry you lost. All the advice offered by others here would have been useless this late in the game. You have to present your contentions in your appeal to the CAVC before you get there (when you file). They should, by rights, mirror your contentions on your Form 9. You are not permitted to make them up after you get there. Same for the Federal Circuit. Thus presenting § 3.156© defense at the eleventh hour would not have availed you in the least. Your attorneys knew this as well. What they could have possibly gotten excited about in April escapes me. I guess the good news is that you finally prevailed. Many do not. Welcome to the 15% club.

Think of it like putting asphalt down. You keep paving over it with each claim for increase or reopening. Each layer seals the one before it. In VA jurisprudence, we do have the right to correct an injustice that we fail to appeal for whatever reason (CUE). That does not hold true when you ask at a later date to increase a rating or reopen an old denial. If they deny and you never appeal it-yes- CUE is available.. If you come back ten years later and ask for an increase again or try to reopen a claim that was denied previously and they deny it yet again, it "paves over" the old request and denial. Generally, the most recent adjudication for an increase or reopening is the one susceptible to be overturned on CUE (if unappealed). If you do not appeal and fight, you are telling the VA you agree with their decision. You cannot in good conscience come back in 10 years and say "Ya know that time when you denied me in 94? Well, you denied in 96 ,too. Remember? And again in 99. I want a do over on the 94 one. I think you screwed me." VA is not amenable to doing it that way. Since they tend to screw us all the time, I generally appeal every facet of a denial from every angle and gradually relinquish the ones that will have no bearing later. Always remember the VA's motto. "You have the right to remain stupid. We hope you do. If you wish to speak to counsel, you may do so after you lose."

Okay. Vet goes to VAMC after suicide attempt. Stays for several months and files. Does he have a CIB, PH BS or CAR? Any combat documented? If yes, then he gets the 38 USC 1154(b) combat bye. Everything he says is automatically true. He has combat + mental problem = Service connection. Always remember "Symptoms, not treatment, are the hallmark of a chronic disability" Wilson v. Derwinski 1990. He did not have to have a diagnosis of Pretzel brain to make his case. He merely had to exhibit all the symptoms. The medical records will speak volumes on this claim. CUE can be found based on the correct facts not being before the adjudicator. The fulcrum will devolve to the "manifestly different outcome" and that is where most Vets bite the dust. His saving grace will be the 1154(b) Combat Enhancement. Fast forward to 1985. It may be that by not showing up for his C&P exam that he saved his bacon. By not reporting, VA automatically dropped the reopened claim. It's basically as if he had not even reopened it. If he had reported, been measured and poked, and a finding of PD rather than bugf**ky had been entered, it would have been a final adjudication reaffirming (and superseding) the original claim. Once that happens you cannot disturb it ( the original) with a CUE. Each new adjudication erases the one before it if unappealed. Okay --here's where it gets tricky. You say he won in 2011 and got the 30%. Now, did he appeal that and get to the 70% all on that original claim that he won in 2011? Very important. If it is still the same claim stream from 2011--- uninterrupted---, you can still legally appeal the effective date as part of a Fenderson ongoing staged rating. VA will undoubtedly deny the earlier effective date. Duhhh? The important thing is to get the foot in the door now while you are arguing the correct percentage and/or TDIU. You really should argue (or have argued) the effective date needed to be revised when the percentage was objected to within a year of the grant of SC in 2011. I can't help you on that one. I loaned out my DeLorean and besides, the flux capacitor is toasted. That's how I see it playing out. Best of luck to the friend in every respect and thank him for not being selfish or emigrating to Canada for the duration. As a humorous point, if everyone who said they were in Vietnam really was, the American population would have declined for lack of males to procreate.

PTSD, as a defined illness, was not recognized until 1981 by VA. As such, any MDD you suffered prior to that was most often diagnosed as a personality disorder. Given that he was hospitalized for several months, this bodes well for a contention that it was an implied or "informal claim" and VA should have recognized it for that. If you were stark raving bugf***ky when you came back or required some downtime at a VAMC, chances are it was more than obsessive compulsive disorder or antisocial personality with passive aggressive tendencies. VA will fight you tooth and nail on it. When (and if) you win on appeal they'll give you a retrospective staged rating (Fenderson) and 0% you out to the present. It's a long hard road and one that will entail an attorney down the road. Letting a VSO drive this claim is not advised. Be prepared for over a decade of litigation. The nice thing is there will only be fits and spurts of legal filing interspersed with years of inaction. Plenty of time to remodel the kitchen and build a life size replica of the Eiffel Tower with matchsticks in your spare time.

We do have the reports of crew chiefs on A/C carriers at Yankee station that many a jet flying in Ranchhand dispersal areas during spray operations resulted in A/C returning to ships at Yankee Station lightly coated with a petroleum distillate that had to be washed off. It was presumed to be AO (duhhhhhhhhhh?) AO was diluted 1:1 with whatever fusel oil or kerosene was handy at Bien Hoa AB. And Berta, We must be on the same mailing list!

Remember this always. VA rates low just like an insurance adjuster looking at your bumper and left rear quarter panel. His attitude is "She still drives okay, right?" If you foolishly nod your head yeah, you'll get the "l" part of the lollipop without the "0" flavored thingie attached. As long as you understand this facet of VA claims negotiations, you can argue successfully with them. I still remember in 1992 my DAV VSO who told me "Now, don't be greedy. We'll come back in a few years and tell them your tinnitus has gotten worse and they'll give you 10%. That's how we do these things. I've known your rater for 8 years." Get a lot of medical evidence. Deal from a position of strength. Never overlook statements from wife and kids attesting to your increasing debilitation. Best of Luck.

Last Call... BVA decision http://www.index.va.gov/search/va/view.jsp?FV=http://www.va.gov/vetapp13/Files1/1307577.txt A review of the Veteran's April 2011 Substantive Appeal, VA Form 9, reflects that he checked box 9A indicating he wanted to appeal all issues listed on the statement of the case, but also indicated that he "reluctantly withdrawn" the issues of sense of smell and yellow teeth. The June 2011 SSOC continued to list both issues. Given the ambiguity created by the Veteran's checking box 9A and the fact that the RO continued to consider the issues on appeal, the Board finds that the claims for sense of smell and yellow teeth have not been withdrawn and will be considered on appeal. See Evans v. Shinseki, 25 Vet. App. 7 (August 4, 2011) (noting that generally limiting testimony at a hearing does not, by itself, constitute a withdrawal of other issues and indicating that VA has a duty to clarify ambiguous statements which may limit the claim and provide notice to an appellant that he or she was abandoning the right to appeal certain issues); Percy v. Shinseki, 23 Vet. App. 37 (2009) (holding that VA waived any objections as to the content of the appeal by treating the issue as on appeal for five years). The blind leading the blind.

<<<<I happened to check Appeal Status and found a new appeal for a condition mentioned in the remand from my last appeal.>>>> Consider this for a moment. Do not get too caught up in the word "appeal". I mean no insult to any, but think how the BVA works. If you appeal 3 conditions on your form 9 and give the BVA a waiver to rule in the first instance, any appealed item would go to our friends at the 58th RO (AMC) and an SSOC would be eventually issued from there if "re-denied". If the BVA determined de novo that one of the three claims provoked another consideration (or implied claim), that would be the only way to start this but it still would not be a "substantive appeal". The BVA cannot "start" an appeal. It can only rule narrowly on the merits of the existing appealed items from the Form 8. If one of the three claims had not been decided at the RO in a prior remand, it would have to be remanded again in its own right to be adjudicated at the Agency of Original Jurisdiction (the RO) in the first instance. Simply put, the BVA cannot appeal things for you. Only you or your representative can. If the VLJ spots a prior, remanded claim has not been complied with properly, the only judicial cure for it is to remand for a new decision. Now, if justhisluk has withdrawn it, it will show up later on the BVA decision as "The claimant has withdrawn his appeal for GERD and it is no longer before the Board" In the alternative, some chucklehead DRO will get hold of it and accidentally approve it, thus confusing the bejesus out everyone. Of course, it will be a provisional one (older than two years) and thus be lowballed at 0%. When they do realize their mistake and spot the withdrawal paperwork, they'll ignore it. Unless, of course, Mr. Lucky files a NOD for a higher rating. Then, and only then will they CUE themselves. With the new VBMS crashing so frequently, it's hard to view the electronic files with multiple tabs open to different parts of the Efile. It's rumored that VA is going to buy more servers to cure this problem some time soon Calm down. It's just a rumor and we all know how that works.

Sometimes the VARO drags their feet on certifying form 9 for appeal. I just blew coffee through my nose and it hurts, John. I hold you and Hadit.com personally responsible.

Expect a C&P exam between now and then for their opportunity to bushwack you. Keep your medical hx/dr. visits up to snuff to prove your condition is chronic rather than acute. I see your posted SC @ 90%? Not TDIU? Danger, Danger Will Robinson.

Absent any substantial, marked improvement after five years, your 60% rating will become permanent ( but not protected). This means VA won't drag you in every two years for an ongoing dog and pony show to see if the asthma has resolved. VA regulations state this succinctly. After twenty years it is considered a protected rating and cannot be rescinded absent fraudulent actions to attain it. The five year rule has been known to be abused but is written to protect Vets. To do it, VA will have to come up with two (2) examinations that clearly show sustained improvement and not just a flash in the pan. I have read of Vets who got a C&P with less than 6 months to the 20 year mark who got reductions. These gentlemen admittedly no longer suffered as extensively from their maladies for which they were rated on a percentage basis, but it still seems like a cheap shot. VA is not your BFF. I don't care what your VSO tells you. If they can engineer a reduction legally, they will.

I knew it. They had to come out with a How to for DROs on 21-0958... http://asknod.wordpress.com/2013/05/22/va-form-21-0958-varo-instructions-for-dros/ 21-0958 instructions for DRO dummies. Gee, I don't know. Calling up a represented Vet? Isn't that back door tampering? Legally, seems you'd have to go through his rep.

I have a gal I'm mentoring who has been assiduously assembling her claim to the specifications of my book. She "pre-filed" to preserve her date and then assembled everything in the interim. With 9 days left to go, she submitted it all to the RO in person and the VA greeter assured her it was perfectly in order. John the Greeter also made the dry comment that the boys upstairs in ratings were going to be a little put out to see these three huge notebooks. He dutifully date stamped them and said she was good to go. Now she gets a new letter back saying "The form you used for your Fully Developed Claim is no longer valid. You must use the newer claim form. Please resubmit one." She did and the form letter she got back says her "new" claim date is May 13, 2013----not May 6, 2012. If this isn't classic bait and switch in the nonadversarial, Veteran-friendly Mr. Roger's neighborhood, what is? Another claim that will end up in DC on Appeal over a "misunderstanding". The BVA, of course, will overrule the RVSR's stupidity but that shouldn't have to happen. This gal has been pounding the keys for a year to get this just right and VA kicks her teeth in over a form. And the National media can't figure out why a) 22 Vets commit suicide each and every day b)53 Vets die waiting for their claims to be adjudicated every day. Helloooooooooooooooooooooooooooooo? Just as an aside, if VA employees had to wear uniforms like the USPS, there would be many a hate crime perpetrated on them.

Here's the buzz on the attorney wire. All contributors' names are redacted but are brand name VA law dogs. Should you desire their names, please private message me and I will divulge them. I normally do not share emails but this is an exception: Atty #1 If you haven't seen VA's newest form for a NOD, take a look at it (I'll send it to you if you want...). See page 2, where VA asks if they can call the veteran. I weighed in on it on VAWatchdog.org this morning too. VA's unannounced but revised policy to call represented veterans makes total sense now... I hope NOVA is doing something about this as well (since my petition challenging it got denied last month...). Atty #2 My two cents on this issue: in addition to the curious phone "contact" issue, the form far exceeds the regulatory requirements for a NOD and to the detriment of the claimant. Indeed, it contorts those requirements and creates a new burden on the claimant to identify every issue on appeal AND the rating for those issues. There is no ability to simply state "I disagree with all decisions in the rating decision" (even the VA Form 9 has this), so claimants will clearly be held to ONLY the issues/ratings identified in the NOD. It is also unclear to me where/how you can identify a disagreement with an effective date or anything other than a rating. Claimants need to be advised NOT TO USE THIS FORM -- the form itself states that it is NOT mandatory. In my view this is a substantive change to the NOD regulation and it should be subject to formal rulemaking. Atty #3 And a new low for VBA and the VSO’s. I agree, the NOD form should have been the subject of rule making. But a form that the computer can recognize is not a bad thing. Use the form, just type in “see attached” and use your normal pleadings. A form closer to the VA-9 with an “all issue” default would be more appropriate.

While I wish to thank you for posting that, sir, it doesn't offer the opportunity to make life miserable to the VA pukes we have to do battle with.