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FormerMember

Former Member
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Everything posted by FormerMember

  1. I called up and was scheduled for mine on Sept. 23, 1993 since I had PCT. When I arrived, I got the deer in the headlights look from the nurse in charge. They swore up and down that there was no way I had an appt. that day. They did the labs and promised me a sit down face to face with a real MD "soon". Still waiting lo these 20 years for the callback. In the meantime I filed and got my 40%.
  2. A new diagnosis is not CUE. However, a Vet is not a doctor and cannot make decisions medical in nature (Espiritu)
  3. Long overdue. Regardless of whether the man deserves it, the VA has spent thrice the amount defending their stupidity.He was awaiting a ruling from the 3rd Circus on whether they would give him a Texas necktie party and tie the noose correctly given the opportunity again back at the RO. http://asknod.wordpress.com/2012/01/11/fed-cir-shinseki-v-macklem-part-2/ This is the audio and it's priceless. Leroy's mouthpiece is saying "you honor, if he goes back to VAROLAND, it's just another opportunity to fix their error. Justice will never be served if they're allowed to form another firing squad with Leroy as the guest of honor". A a matter of law, I expect he might have lost. That VA caved means some arm-twisting behind the scenes was afoot. VA's Counsel is saying "Shocked. I am shocked. Is counsel for the appellant implying the VA would be anything less than impartial in a de novo adjudication of Mr. Macklem's CUE allegations? .VA is a nonadversarial forum in which the Veteran is accorded every accommodation under the sun. We are hurt by this accusation and deeply troubled that counsel would even imply such misfeasance. Hollis-- I advocate that you should file for the IHD now rather than wait. By the time they finally get around to adjudicating your claim, they invariably will look at the records to see if there is evidence that would sup[port a rating for IHD anyway. Absent a request for SC on it, I suspect they won't worry their pretty little heads over saying you qualify. If you do not, then your claim will be paid to the day you do file. This is not a filing for an Earlier effective date (EED) but rather a filing to preserve your place in line now so that if you win, you will be paid to this current date and not some date three years in the future when you file following resolution of claims pending today. You are currently at 50% it won't take much to reach 60 or 70% which is the magic plateau for a TDIU but you won't get there if you don't start now. Small 10 and 20% ratings for tinnitus and hammertoe are not the building blocks of TDIU. IHD is. Good Luck and Happy Groundhog Day.
  4. Hell, they're supposed to automatically start developing that contingency (IHD) if you have even so much as a wrinkle in the EEG and have AO exposure. Does anyone think they will, short of you using a taser? File it or lose more effective date. At this stage of the game it won't hold it up any other stuff. They're buried at this point. They can rate the earlier stuff now without the IHD filing grinding the gears. 125 days soon, Remember, 98% right, too. And yes Berta. Another one is brewing in my mind. I'm especially fond of either wending one's way through the CAVC and/or the Independent Living Program. I just heard back from them on my NOD for the Greenhouse. They're (Seattle RO's VR&E krewe) grasping at straws for a well-reasoned denial, but can come up with nothing in the cupboard. I went after them as not being medical doctors (Colvin v. Derwinski) and also on Part 4 on the first 20 sections of it. You know-rude ratings officials and viewing the disability from the perspective of the Vet. M21 1R was much quoted too. I think it took the wind out of any SOC they can produce. They say they sent it back to DC and the VR&E Bosses.. Isn't that like the EAP that Leroy Macklem got a haircut on? We shall see.
  5. Feel like a mushroom in the basement, did you? We all lived down there at one time of another, sir. That's why God invented Hadit.
  6. One last observation. The CAVC has admonished the BVA repeatedly in recent years to consider a TDIU automatically in cases like these if it can be granted. If he had simply filed for 100% Schedular and they denied it, VA would still be obligated to consider the IU as a lesser rating but still one for application Just because he asks for or it to be considered does not make him an instant doctor or lawyer for that matter. If he is pro se, great latitude is granted for the "right to remain stupid" as they view it. Since this non adversarial process which is Veteran friendly cannot convict him of something he requests openly, there is no subterfuge or fraudulent intent unless or until he fabricates evidence to obtain a higher rating. As a matter of law, VA now considers any request for increase a request for the "highest and best" rating automatically (see AB v. Brown 1995). TDIU is for consideration automatically. If it cannot be supported, the Veteran will not prevail. No harm, no foul. Vet goes home empty handed- but- Veteran goes home-not to jail.
  7. Well, gee. Therein lies the problem. Vet arrives with IMO. Vet wins. Vet arrives without and expects VA to be a stand-up outfit. Vet loses. Hmmm. What's wrong with this picture? VA's job is to hold the line like the NFL offense. Protect the RVSRback. Their ratings are wrong 60% of the time. We know this. The repair order is staring us in the face. John illustrates it perfectly. Somebody ought to write a book about this phenomenon. They could make millions.
  8. Here's a can opener for all the states and outside Vietnam. Not sure if you've posted this one on site. My lawyer sent it to me. I just did a post on it today. It will help a lot of you who may have been hosed at Ft. Drum and down at Eglin. http://asknod.wordpress.com/2013/01/28/ao-information-on-stateside-storage-locations/ All of you are right about AO. of 2.3 million that are documented to have touched red clay, there are now 867,000 of us left. I'd love to see the statistics of all Vets in SEA including Thailand, Philippines, Guam etc of presumptives. I'm guessing their numbers are equally appalling. When will all the autoimmune disorders be accorded any traction? They're becoming more prevalent with age than some of the basics like DM2 or "sub-acute" peripheral neuropathy and chloracne..
  9. There are multiple ways you can get SC for HCV these days. I should include HBV as well since there is a nasty version that is chronic. VA isn't paying out on Autoimmune Hepatitis (AIH) yet which I suspect is due to AO. In a nutshell, if you can show via SF88 entry physical that you had no tattoos and another at separation indicating one on item #39, you can win. The same is true with a documented STD in the medrecs. Even a NGU (non-gonnococcal urethritis) will work. The trick is to get the nexus as well as good medical treatise articles that document the DoD took them out of use in 98 because of their unsanitariness. Type in WGM on the site search bar (http://asknod.wordpress.com/ )down on the right side. There are several articles on how this gentleman won. He had his jetgun evidence and 4 nexus letters. VA chose to accuse him of willful misconduct for multiple STD infections (5). The dye was cast. They couldn't retract their finding. When apprised that it was CUE to call getting the drip willful misconduct, they relented and gave him 100 P&T. VA does not want to get in a shooting match over the jetguns. They know the things are horribly unsanitary. They try to use the "it's plausible but not proven". defense. All you need to defeat it is a well-reasoned nexus letter and a relatively clean bill of health as to intercurrent (post-service) risks. Obviously, if you admit you tried to inhale Peru's entire annual cocaine production in 1982 after you got out, you'll lose. On the other hand, dirty toilet seats do not transmit hepatitis C. Whatever you do, get tested for this bug. I discovered it in 1994 by accident. I'd had hep. in service in 1970 and my body started falling apart. You may not pick up on it until it's really kicking your ass. It feels like old age and you don't get yellow eyeballs that alert you to it. Everyone suffered this indignity. Evidence is starting to point to the draftee population as the cause. Many were inducted who had drug habits and this introduced a lot of diseases into the shot line when a "bleeder" happened. HCV can exist for quite some time outside the body in a warm environment. It has been proven to survive in dried form for up to three months on a dry, temperate surface. The test is simple and can be done any time you are getting blood work. VA will do it if you ask them to. If you served during the Vietnam era and up to the early 90s, your chances are 67% greater than your civilian next-door neighbor. Good Luck and thank you Broncovet for mentioning this. Vets need to know these things because VA is not in the habit of mailing you a letter and asking you to go down and get tested.
  10. Judging from the large numbers of ANG pilots who inherited the old Ranch Hand C-123s in the late 70s and early 80s that are now coming down with the same diseases, I think we can safely say they bubble wrapped them and sealed any AO inside before shipping. We had to clean out the gas tanks on our O-1s and U-17s frequently. That fine particulate of red clay silica that the choppers stirred up went everywhere. It eventually clogged the carburetors and contaminated the engine. To think they cleaned it all out of the fuselage is ludicrous. Re the AO interactive maps, do they show the spraying down in the Laotian Panhandle east of Pakse and Attapeu? How about along the trail near the Parrot's beak? AO was dumped a) wherever it was needed; b) in a lot of places it wasn't and c) wherever was handy when it was overcast and the target was obscured. I doubt anyone has a clue (or a map) where all of it ended up. ROEs were not very particular or stringent about AO- just napalm. As for Cambodia, there were no ROEs. AO and some of the others (Pink and Green) were used heavily in the beginning on the trail according to some of the old timers from AirAm. Remember they had PC-6 Porters equipped with tanks and were doing it too. The AF didn't have a monopoly on this stuff contrary to popular belief.
  11. There's another, bigger problem. Your son is no longer a dependent at 32 years old. Unless you could connect the dots before he reached the age of majority as to some medical linkage, it's dead in the water. I see nothing in the CFRs (3.814 or 3.815) on that re birth defects and SC. Mr. John999's medical suggestion is good advice but no doctor is ever going out on that limb. SSDI may be an option because VA is not even going to entertain this. The denial will read "IHD does not cause depression in dependents 32 years after birth and it's not on the list of 3.309(e) presumptives or birth defects.
  12. Always remember VA will never "volunteer" a rating for more or higher percentage without prodding. Look at the TDIUs for examples. Porphyria Cutanea Tarda is another classic. DC 7815 is for application yet most PCT rated Vets get phlebotomies. VA is in the habit of giving you 10% based on the phlebotomies or for skin damage/scars/ or active pustules called bullous pemphigoids. What they will not tell you is that DC 7704 (Polycythemia Vera) is for application as it is the only one that offers a rating for phlebotomies. Result? 40% but you will never get this unless you ask for it. Parkinson's will go the same route as will TBIs. They'll start low and wait until you appeal to toss in the next higher rating. If you continue your appeal, they'll wait until five minutes before departure to the BVA after certification before reluctantly upping it again. They're an insurance company and have the same mindset. Geico doesn't get rich and pay its shareholders if they are profligate and grant every claim for a fender bender that comes through the front door. They lowball. VA just took a page from their game plan and incorporated it into their modus operandi. Obvious claims get paid. Complicated ones with "iffy" evidence don't on the first trip around the block. Parkinsons is rare with respect to AO. They're out there but comprise less than 1% of AO claims currently. All that will change if we live long enough to come down with it. That's the trick, huh? 867,000 of us left and we're falling like flies.When there are only a thousand V Vets left, they'll recognize the plethora of autoimmune disorders such as Crohn's, UC, Rheumatoid Arthritis, and Cryogloblulinemia. Same thing for all the Radioactive 50's Vets who glow in the dark. One day they'll say non-ionizing radiation is suspect which everyone knows already. Best of luck and give the DCs a good going over. Justice is ever-evolving proposition rather than a static model. New interpretations of old jurisprudence are constantly being uncovered. If this were not the case, we'd only have single judge decisions at the CAVC. Since we still see 30 or more panel opinions and the occasional en banc emerge from 625 Wagonburner Lane NW, we can only assume there's more where Buie came from. Buckwheat sends
  13. Arlington, Wa? Shoot, we are almost cousins. I live in Gig Harbor. I'm 32-2 getting Vets SC for Hep. Most are now P&T ot TDIU. No affiliations with VSOs. Strictly a DIY guy. You can get a nexus free from Dr. Ben Cecil for the hep. Shoot. I used to deer hunt down in Verlot in the 70's-80s. Email me at asknod@gmail.com. I'll set you up with Dr.'s email and any other assets if you need them. HCV is a bitch to win short of documented transfusion/STDs/tattoos. I've had one Vet in Houston who sandbagged them with 76 pages of jetgun literature and three nexus letters supporting it. He had 2B and was in Korea 70-71. They ignored the jetgun stuff and denied by saying 6 cases of clap was willful misconduct. He CUE'd them in the NOD and they were stuck with the finding. He just got P&T in August. Winning a hep claim is getting easier but few occur at the VARO. I did but mine was via txfusion and I had a nice thru and thru in the leg to rebut them. That and 3a genotype which is indigenous to the Indochinese peninsula almost exclusively. Technique Tugger. You can find the assets. The HCV will be easier to win unless you can prove you arrived by World Airways at TSN in country and thence to the boat. There are a lot of ways to skin a cat. R&R meant going ashore to catch a flight to Vung Tau or Sydney. You sure didn't take the SS Minnow.
  14. Carlie, I agree on paper that 3.102 is a Godsend but I find in reality that even a totally bulletproof claim can go up on the rocks due to the most minor glitch. I've had Vets lose due to lack of continuity and many on credibility when all the evidence said otherwise. BOTD (or BOD) is often quoted as a reason when everything literally points like a compass to the north. The fact of the matter is that no claim is in the bag until it is. I cannot begin to count the heartbreak so many have suffered when insulted by these bozos (and denied.) For 13 years they denied I was in Vietnam and suddenly one day I was there. The evidence had been there all along but no one looked any further than my 214 which was devoid of any information on the subject. Never depend on 3.102 as an underpinning to your claim. Never assume that will be the factor that tilts the scale in your favor. This is why I strongly advocate that Vets build a seamless claim with one eventuality-success. Always assume your 16 will jam, the M-26 will be a dud, and the PRC-25 will die. Always have a backup and redundancy. I have never had anyone lose who had two well-reasoned nexus letters. VA usually doesn't even mount a defense in these circumstances yet they are renowned for stating that "giving the benefit of the doubt to the Veteran, we find it is at least as likely as not...". Breaching the walls of the Haas decision will require a doctor to go way past speculation and state that there is simply no other way that Tugger50 could have come by this. That's a tall order and one that will entail some excellent cites (plural). VA's propensity to denigrate internet articles is legend. He will need good, supportive medical treatises that eliminate any supposition or rank speculation. It has been done by a few and the wall is crumbling. Witness the fellow who won his Chloracne claim who never left the States. Evidence is king; lay testimony is marginally influential. If he had buddy letters from fellow shipmates with similar diseases from 3.309(e), he may hit a home run. Nevertheless, I 'd bet even money his win would say BOD!
  15. Roger on the DM2. I missed that party but got the Porphyria Cutanea Tarda. You are right on the etiology of death for most of us. Of 2.3 million who kissed the red clay, there are only 867,000 left. Think of the untold numbers from Thailand, Clark AFB, Naha and Kadena, Anderson in Guam, etc. There weren't many of us over the fence in Laos but they dumped more AO and AB up there than anywhere in RVN. Of course the VA accepted your evidence. They would be remiss if they didn't acknowledge you sent it in. I'm sure you green-carded it and left a paper trail. Having them accept the evidence is half the battle. Do you have a doctor to write the magic paper? Remember, just having a presumptive does not a claim make. Here, you don't even have that. I fought VA on PCT for 18 years and they ended up giving me 40% based on it being a secondary to HCV. A win is a win, but I had a nexus that covered both eventualities (direct for HCV like Combee v. Brown and presumptive a la Nehmer). VA ignored Nehmer and went for the Hep. One thing I have learned in this business is that VA's default setting is deny. I don't want to piss on the fire but without a nexus you are barking in the dark. Even with one, VA may try to trump you with their own IMO from their "VHA independent medical expert". I've seen them use a podiatrist to say less likely as not for a back injury. The Vet's law dog wisely called them on it and asked for his bona fides and specialty. Busted! They finally got a real ortho guy and he won. BVA used a infectious disease specialist to opine about a Vet's hep last year and said his positive on a Western Blot test was evidence of HCV after service. One problem. Western Blot only determines HIV, not HCV. A Northern Blot is used for HCV. Just because he's a VA doctor means nothing. In fact, by being employed by VA, one can hardly say he's independent or unbiased. If they come out with an expert opinion, don't buy it. You have a short time to contest it at the BVA and have to be on it like white on rice. You'd be lucky if you got 60 days to contest it-if you catch them doing it. Remember, you cannot fight that at the Court. The RBA is sealed and no new evidence will be admitted in most cases once the BVA has spoken. If you can get your contemporary SMRs from service and let your doctor peruse them prior to writing the magic paper (and state he did), you stand a lot better chance of putting your claim in equipoise for a BOTD decision. The Haas decision means you are starting out like the race between the tortoise and the hare. Every ploy you can use will be needed to get over this.That's how they got the first win on DM2 in Thailand- a really well-reasoned nexus letter that eliminated all other theories. Shape your claim to look like a cattle chute with "granted" at the end. When you fight this type of claim, you have to have one opinion, one conclusion and only one logically designed argument that pokes holes in anything VA may try to use to defeat it. The claim has to be as slick as a pig at the county fair. Entertain all manner of offense. Search for more info on dioxins. Don't stop and rest on your laurels. I got 40% for PCT (DC 7704 Polycythemia Vera) because VA only has one rating that mentions phlebotomies. They rate by analogy only when forced to. They tried to sub DC 7815 and say here's 10% for scarring but we really mean it to be for the phlebotomies. I NOD'd and submitted 7704. 17 months later they finally agreed. I'm sure they spent many long hours trying to find a way around that conundrum. This is an example of what they are going to try to do to your claim. Best of luck, sir and thank you for caring enough to go play in the Tonkin Gulf. Most of America didn't share your enthusiasm. Check out the picture below. All that bare ground around our runway was red clay. It was hosed with AO poured out undiluted with no diesel by 8-10 year old Hmong kids. They used bleach bottle scoops. I saw pictures of it from 1998 and it all grew back. The runway is closed and few live there now due to the pollution. I'm sure those kids have way more problems than any of us if they're even still alive.
  16. Forgive me if I say using Keith Roberts as a metaphor for VA's jackbooted ratings thugs to enter in and start decimating Meloal's ratings is a little overblown. I have jerked their chain in a similar fashion continuously for coming on six years. I'm now at the Court getting ready for the sit down meet and greet with Will Gunn and friends. What I have not done is start making slanderous accusations to the VAOIG accusing the Detroit VARO of misfeasance and malfeasance. This was the predicate for the OIG's fishing expedition into Keith's claim. It was grossly unfair, he was denied due process and the adjudication occurred in a kangaroo court of the US District Court system. Keith was in jail before he knew what hit him. He also is on the hook for all the benefits paid. I feel great compassion for him. PTSD can make you do strange things. Had he had a good VSO during all this, perhaps it would not have transpired. Not all of us have minders to watch over us. VA insists Keith can just resubmit his claim for PTSD based on this new stressor but even I can see it would entail a long journey with many appeals. VA has made their minds up on this one and I doubt he'd prevail. In sum, Meloal is simply exploring the possibility of brand new jurisprudence that may set precedence. He is in no way concealing his employment. He may well be denied but not for subterfuge. A false claim entails a conspiracy to defraud the other party. If you enter into the claim without deceit, no one can claim the request is based on fraudulence. The difference between the two sets of circumstances are like night and day. VA is many things. They have ploys to entice the ignorant into damning themselves through their own statements. That is legend. If you disarm the situation and offer all evidence honestly, you may create new TDIU law as Mr. Buie did. http://asknod.wordpress.com/2011/09/27/cavc-buie-5-v-shinseki-0-2011/ Just because it isn't written doesn't mean you can't get there from here. I intend to get the VA to accept my Air America records as part of my "official service department records"- something that has never been done before. By the same token, I am attempting to get the CAVC to see my medical records from a private (civilian) hospital during service in a remote/ isolated operating location in NW Thailand as being part and parcel of my "service medical records". The government paid for the doctors and it occurred during the war. Just because it hasn't been done yet doesn't mean it can't be. To me, VA law is the art of the possible. It's also almost always done successfully at a very, very high level - accompanied by a lot of bellowing and screaming and takes 21 months to reach fruition-much like mating elephants.
  17. <<<<<<<<<<<<<<<the claim has no chance. in my opinion>>>>>>>>>>>>>>> Au contraire, ma cher. VA jurisprudence only dictates he will lose at the Puzzle Palace. The outcome of Steve Hamer's appeal to the Fed, Circus may reverse what the CAVC has decided on the subject. Always remember, It must be meaningful employment in order to be denied. Employment to while away the hours with no meaningful wage or consistency (read as working only when actually, physically possible) is not considered employment in the context of TDIU. See the following: http://www.uscourts.cavc.gov/documents/Hamer_07-3181_published_opinion_July_27.pdf Mr. Hamer subsequently appealed to the Fed. Circus on November 9th, 2011: http://asknod.wordpress.com/2011/11/08/fed-cir-hamer-v-shinseki-hes-baaack/ I believe this will be the last word on what constitutes "meaningful employment" vis-a-vis TDIU, Whether being employed when in extensive pain is considered "viable employment" and mostly whether someone who is at the end of any meaningful employment can raise the issue in preparation or anticipation of incipient unemployment is the question. Why does one have to face financial ruin for a set period (one year) in order to prove he is unemployable or "underemployable" due to rated disabilities? An interesting concept and one that bears Meloal keeping the iron in the fire while awaiting the outcome of Mr. Hamer's case. As for VA's potential retribution, a letter timely submitted by Mr. Meoal explaining this enigma to them would go a long way towards justifying the filing and avoiding the jackbooted OIG thugs. 71M10 raises a point but Mr. Roberts, by all outward appearances, portrayed his circumstances differently when confronted. Had he stayed with his original story rather than claiming an alternate PTSD stressor as justification for keeping his rating, we might not be so familiar with his name or his plight. In any event, his incarceration and subsequent divestment of his ratings was patently designed as a warning shot across the bow of would-be fraudulent filers. Surely no one can argue that.
  18. Ah, Veterans Law. I love it. I live it. I don it daily. The law is immutable. You have one (1) year within which to object to a decision. Ignore semantics for a moment and listen. Objecting can take several paths. Once you are denied, you get to see their cards. If you realize they have ignored some important evidence, you may ask for reconsideration and bring that to their attention along with submittal of new and material evidence. Absent anything new to submit, you may file a NOD. This usually provokes a new (de novo) decision. The reason for that is laid out in the M 21. The VARO is required to have a rated senior rater review the denial for accuracy and a proper outcome once a NOD is filed. The quality control was supposed to have occurred in the initial decision but we know how that can go awry. Now, once you have submitted truly new and material evidence that passes their definition, 3.156(b) dictates that it is part and parcel of the “current” claim. The VA is obligated by LAW to issue a new decision granting or denying based on that newly submitted (and materially pertinent) information. To ignore it is to break the law. That decision also resets the one year clock to appeal by filing a NOD. Once you have filed a NOD, you are requested (but not obligated) to defend your disagreement with their findings. If VA feels they are right, they send out the SOC. You have sixty (60) days or the balance of that initial year to complete the substantive appeal by filing the Form 9. I have had Vets push that out by continuing to submit new and material evidence beyond the original one year of the initial denial but it must be understood that the one year period is tolled from the most recent denial- not the original one. This where VA often screws up. If you submit new and material evidence with a NOD, they are required to re-adjudicate it resulting in a fresh denial-not a SOC. A SOC cannot be used to announce a denial. It is a legal document to help you understand why you were denied and nothing more. A SSOC is similar. If VA sends you a SOC after a NOD that included new and material evidence, they have erred and the SOC will be declared void ab initio on appeal. VA will rarely admit this error at the RO level. As for anyone’s career being damaged by a high error denial rate, it simply isn’t going to happen at the VA. Were that true, the newspapers would be filled with help wanted ads for VA raters. VA law on 3.156(b) continues to be a work in progress. As many times as we have gone to the mat with VA on this, they refuse to accept defeat. Bond v. Shinseki (Fed. Cir. 3d 2011) is just the latest iteration of a long line of precedence. As to SPCDearman’s remark about the decision I emailed him, it is a new one by our newest CAVC judge of recent NVLSP fame (Meg Bartley). http://search.uscourts.cavc.gov/ then type 11-3022 in the search bar. Click on the blue download in the upper left for better viewing. It’s Bowers v. Shinseki and illustrates what has happened to Mr. Spearman. This is why I advocate that you learn VA’s techniques. Ms. Bartley is well aware of their proclivity to stretch the law and demonstrates it here. Apparently Berta is as well. Lastly, do not semantically confuse an EED (earlier effective date) with an ED or effective date. The date of a claim is always considered the earliest date it can be ascertained that you applied or evinced a desire to file by your actions and words at the VAMC. This desire must be present and recorded in the STRs. Just going to the VAMC for an ingrown toenail does not create an informal presumption of a desire to file. You have to employ your vocal chords to get there. EEDs are an attempt to reach back to the past for the very earliest date you filed for an illness/injury. If you failed to file a NOD or failed to respond with a F-9 within the prescribed 60 days following a SOC, the claim is DOA. An “effective date”(ED) at the filing of a reopened claim will be the day of refilling. I won’t discuss §3.156© or CUE here to avoid confusion. Most arguments about effective dates arise during the Fenderson (or staged ratings) process after you win. The Rating document you receive is usually the first indication that there is a material disagreement with the correct date. On the subject of semantics, were all of you aware that your very first claim is the "initial claim"? That would be the first time you filled out a Form 21-526. VA considers any claim afterwards to be a "reopening" of the initial claim. If you filed for lower back pain and then filed 5 years later for DM2, the DM2 is considered a "reopening", not a brand new claim. There is only one initial claim at the VA.
  19. Carlie, you nailed it. Very good description. The CAVC often refers to a claim as living thing. It has a logical birth date, and if properly and timely appealed, it continues in what is described as a "claim stream". If uninterrupted it proceeds to a logical conclusion. Each appeal, remand and adjudication occurs in a successive order. If a NOD is ignored or nothing happens after N&M evidence is submitted, the precepts of § 3.156 (b) and §19.31 ensue. Unless it is subsumed by a later BVA or CAVC adjudication, it (the claim) is still viable. This isn't CUE. It isn't magic either. If you fail to appeal your denial within a year of issuance, that part of your claim stream dies. Any future reopening of the same claim simply is a continuation of the original claim stream but with an effective date that reflects the latest reopening. It is not permitted to have a claim in appellate status unless and until it is adjudicated by a lower Agency Of Jurisdiction. Since there is no decision to appeal with, whether it be a grant for increase or initial claim, the claim cannot exist in two places at the same time. This is why, if you choose to ask the Board to reconsider a claim within the magic 120 days of the denial, you cannot simultaneously file a Notice of Appeal with the CAVC to hold your place in line. It's either one or the other but not both.You may file the MFR, and and thence denied, proceed to flle the NOA within the statutory 120 days with the Court. It would appear SPCDearman has now discovered how good the VA's record keeping is and how they do occasionally read the STRs. As usual, they have taken the facts and artfully misconstrued them in such a way as to ensure the claim is denied based on the record and what he said. Everything you say (or don't) will be used against you. Notice the use of no evidence is negative evidence?(Despite this he didnt mention shoulder pain as a symptom until 2011 despite multiple clinical visits) Any job you had that you failed to mention is a blow to your credibility here. Any history you fail to reveal is ammunition used against you and proves you cannot be trusted to tell the truth. This is why I advocate mastering these tactics and preparing a good offense that keeps it in context before you get there. Simply sitting in a trench in a defensive posture is not advisable. You, sir, have your work cut out for you. Email me at asknod@gmail.com and I'll gladly send you a free copy of my book. It may not guarantee a win, but it will darn sure show you how not to lose. Thirty two other Vets think it works like a charm and most are now at IU or P&T. We all want you to win.
  20. Whether the VA considers NODs to be adversarial is immaterial. Anything that collides with a smooth denial process will always be adversarial to them. The important thing is to assemble the components needed to win. Parsing the individual aspects of their judicial processes is a non starter. Any County prosecutor is probably less than enchanted to find out someone is appealing their murder conviction. Beating the VA is done by emulating their tactics. http://www.barnesandnoble.com/s/asknod?dref=1
  21. Am I misreading this? Asking the VARO for a copy of your SMRs( now STRs) may take forever. There is no law that prevents you from obtaining them far faster at the NPRC in St. Louis. No FOIA and no special handling. Currently, they are running about 3 months on requests. If it is something that has been excavated more recently by the VA, it will be even easier to unearth. When filing a NOD (and be specific about wanting appellate review), you can expect a 3 month delay before there is even any acknowledgement of receipt. The average right now for issuance of a SOC would be about 14 months. Certifying an appeal can entail yet another year before the claim's departure to the BVA. By the same token, a request for a DRO hearing will delay progress for at least 8 months. All these scenarios offer ample time to obtain the SMRs from the NPRC. Expecting the VARO to drop what they are doing on your claim to make copies of the SMRs and mail them to you is a fool's errand. Always remember that the introduction of any new and material evidence during this golden one year period following a denial resets the clock. While it's unfortunate that this individual has nothing in his ammo can to submit as new and material, simply obtaining his SMRs will not, in and of itself, provide something useful. If the VA has actually ignored some important medical fact contained therein, it can be cited on appeal as being material even though it is not "new". That much is established law. Similarly, it is not cast in stone anymore that a nexus letter from a doctor is not probative because he/she did not review the contemporary SMRs. The problem usually arises when the VA insists its VA examiner's nexus is more probative because it included a perusal of the SMRs. However, if the rationale is not supported by a reasoned discussion of why the examiner came to the decision, it will fail. I always advocate that you eliminate that loophole and get the SMRs to the appropriate doctor(s) for a well-written nexus. Attempting to get the SMRs in mid-stream is always a bad idea but better than making a half-hearted attempt at a JMR at the CAVC after the decision is cast in stone. 38 CFR 3.156(b) is the salient regulation here. It in no uncertain terms lays out the pertinent law to follow. If, after receipt of a SOC, you submit new and material evidence, you in effect reset the clock yet again and a new decision must be formulated. It cannot be announced in a SSOC but must be in the form of a new denial. The current sixty day rule for answering the SOC is waived and is tolled from the mailing of a SSOC. Look at VAOPGCREC 9-97 for a more nuanced description of what ensues under these unusual circumstances. Basically, as long as you continue to throw new and material "logs" on the fire, you can hold the one year statute of limitations on your appeal in abeyance indefinitely. When you finally run out of these logs, you can ask for a RO hearing or a DRO hearing to plead your case. After exhausting that venue, you can always ask for a Travel Board hearing before the VLJ who will hear your case. This request, if submitted asking for a face-to-face with your VLJ in your Form 9, will require up to a year to arrange unless you are fast-tracked on a 38CFR 20.900 © advancement on the docket. This will again delay exponentially your inevitable BVA adjudication. With all these delaying ploys, the opportunities to build up new evidence are myriad. Look no further than me. I filed in 3/94. Denial was 11/94. N&M evidence submitted with NOD 12/94. VA dropped the ball. I refiled the old claim in 2/07 and won in 6/08 with the old evidence. It's now at the CAVC. GCPREC 9-97 was written about a Vet who was three months behind me with almost identical circumstances (38 CFR 19.31). VA is not well-versed on 3.156(b) and neither is the CAVC. judging by Bond v. Shinseki --http://asknod.wordpress.com/2011/10/08/fed-cir-bond-v-shinseki-2011/ . VA needs to learn how to become more interactive with Vets. This would eliminate some of the uncertainty we encounter. Often, we only know VA actually received something if two things occur: we get our "green card" back from the USPS or we get a SOC fifteen months later. I suppose we can access the IRIS system and ask for confirmation. If we are represented by a VSO, we can also pester them to go find out but that can take as long as the SOC sometimes. A timely filed NOD is all well and fine but in and of itself, it will not induce VA to change its mind. New and material evidence will be the panacea in all likelihood and sometimes not until arrival at the BVA will it be recognized for what it is. Richard Bond's decision illuminates the proclivity on the CAVC's part to continue its hindbound, myopic judicial path and not raise any new precedental interpretations. This should have ended there but it took an additional trip up to the Federal Circus to get it "just right". By the way, VA attempted to change the CFRs to 30 days from the date of issuance of a SOC or SSOC but the howls of anger from VSOs made them retract their proposed changes. It's still 60 days from day of issuance of the document(s) currently.
  22. Which disease is it? There aren't many that can rack up a 100%er. IHD? Parkinsons?
  23. Cabela's at Ft. Lewis/McChord (JBLM) offers 5% discount on everything. That may be nationwide. I only know of their store policy.
  24. Still alive and still waiting. After twenty three years, my 1989 claim is finally at the CAVC. My 1994 claims are as well. Docket date pending. VA threw down the gauntlet at the Rule 33 Hearing so it's off to Court--until they see the writing on the wall and opt for the JMR. Onward through the fog. Pray you get Meg Bartley if you go up there.
  25. Much has been said about AO use outside of RVN. We have finally seen the recognition of its use and storage on Okinawa, Korea, Guam and finally Thailand. I suppose there will be some realization eventually that it was used at Clark Air base in the PI. Allow me to introduce the subject of Laos. More AO, A blue and A white was dumped over the fence and particularly in eastern Laos along the Ho Chi Minh trail. That might not seem too obnoxious to US troops as we weren't in the habit of playing on the ground in that area. An exception would be the LRRF folks and Marine long range sniper insertions out of Da Nang. Of more import, and the reason I write today, is the vast quantities I witnessed stored and used at LS (Lima Site) 98, also known as LS20A or 20 Alternate . Air America employed two PC-6C Porters full time that were outfitted with tanks. I personally watched them spray it at several other Lima Sites or on Route 7 several times. They were stationed at L-08 (Wattey Airport-Vientiane) but refilled their tanks at Long Tieng (LS 98). Many of the personnel over the fence in Laos were either there as "civilians" like me but were in the Army or AF. We worked for USAID or USIA. I worked for them as well as Air America. More herbicides of all flavors were dumped up there than almost anywhere else in Indochina and VA (read the military) has never even so much as blinked about it. I'm rated 40% for PCT probably from two years worth of exposure to it. I was coughing up blood when I came home in 1972. The doctor said it was the Marlboros so I switched to Lights. The blood ceased but the skin went south. With my hepatitis , its pretty obnoxious now. At some point there will be a reckoning on AO in some of these outlying areas.. Probably when there are few to none of us left alive to be of any consequence. If you served up north, there are witnesses left who remember. Keep in mind that of the 2.3 million of us who set foot in red clay, only 867,000 remain. The attrition rate due to disease and AO is horrific but not very well publicized. If you served in Palace Dog, Operation White Star, Project 404 ( The Steve Canyon program), Detachment 1, 56th Special Operations Wing, or similar operations run out of Udorn RTAFB and Nakom Phanom RTAFB, you were undoubtedly exposed far more than you know. Personnel at 20 Alternate and L-54 Luang Prabang are probably the most affected. I have a list of all the Lima Sites on my website http://asknod.wordpress.com/2012/05/18/lima-sites-from-the-footlocker/ if you think you were exposed or were near LS-08 Khang Khay during the summer of 1970, you probably got hosed. Personnel associated with Operation Leapfrog even more so. One thing's for sure. They weren't using Roundup. The 55 gal. barrels at Long Tieng near the AOC all had orange or blue stripes in them.
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