FormerMember

<<<<< I didn't hire any doctor to write letters and my VA doctor's have all my medical records, so they know my medical history.>>>>>> Are you saying you gave them all your service medical records or simply that they have all your VA VistA (CAPRI) records? There is a major difference. By operation of law, VA Hospitals are not allowed to store and view your military treatment records so I doubt they have your military service "medical history". If you tell a doctor what happened to you in the military, unsubstantiated by any service treatment records, that is simply your version of events attenuated through your perceptions of what you say happened. It isn't corroborated by anything on paper. In VAland, they call that "history" as in "the Veteran contends..., or Veteran avers... or Veteran claims..." I could claim I got Hepatitis C on my third alien abduction from the colonoscopy they gave me. I don't think they'd believe me unless I showed them the pictures or the records. Lay testimony, while useful, must still be supported by evidence. <<<I contacted my RA doctor and we talked with my representative on the phone as well. By the end of the call he was confident enough to link my PTSD/MST as aggravation to my Fibromyalgia.>>>> I apologize. From the way it was written, I inadvertently took it to mean that by the end of the call, your accredited representative was confident enough to link the Fibro to a MH or IBS problem. I only saw one nexus letter from a doctor and a DBQ. While I wish you the very best in your claims, I merely point out problem areas I have encountered in the past that you may want to have your representative address.

Redact your 2680 for us and let's see what you have. If a real MD did it, they may buy it. If Nurse Nancy signed it, maybe not. A rapid adjudication can only mean one of two things-either you won or you lost. Duh. Welcome to VAland. If you are severely disabled, they do them in a hurry but that's no guarantee of a win. You still have to meet the §3.352 requirements.

The answer, sadly, is no- the documents you attached to your post have little or no probative value in a court of law. The DBQ shows the medical specialist reviewed your claims file whereas the VA doctor did not. That, right off the bat, kills the nexus letter. Reonal v. Brown. In order to be probative, a nexus must say more that "it's SC". It must then give reasons and examples of peer-reviewed studies the doctor relied on to reach his conclusions so others may review it for its probity. The nexus letter states: " This condition is likely related to PTSD as several studies..." At least as likely as not is the minimum legal standard of review. Later the doctor does say it's at least as likely as not but gives no cites to peer-reviewed articles he referred to. You cannot have two different determinations of degree of belief that something is related to service. Either it's "likely" or else it's "at least as likely as not". As for your VA agent writing you a nexus letter, he would need to be a medical doctor or Registered Nurse with a two-year degree to write it. If he doesn't know this, you may want to shop around for new legal help. Remember, IMO doctors write their letters a lot differently than practicing physicians. They review any and all medical records, including your service and current ones. No serious doctor would write a nexus based on nothing more than what the patient recites to him. Fibromyalgia, secondary to PTSD (or any major mental disorder) is attainable but there's a recipe for a winning nexus. Get all you records and give them to the VA doctor who wrote the nexus. Let him/her review them and cite to the medical studies s/he mentioned showing the relationship between the PTSD and the fibromyalgia. Present it to the BVA Judge on appeal and you will win. Here's an attached example of how I file. I ask for benefit of the doubt but I have quite a bit of argument to back up the benefit of the doubt argument. As you can see, I always get more than one nexus too but the professional one is always the chicken dinner winner. Best of luck. Filed IMO to BVA 1-8-2018 redacted.pdf

I just did an A&A claim for a Vietnam Vet following a loss of use of lower extremities award on 9/28. It was final yesterday. I filed the original claim 5/15. It went to the BVA on 9/18. Depending on if you are seriously disabled, they will do them in a hurry. I do a lot of guys who are terminal and generally get top drawer service for them. I pray your VSO is as equally aggressive. Ask him to have the RO "flash it" in VBMS under your profile folder. If you have major medical issues that require AA, you deserve to get advanced on the docket. Best of luck, sir.

The highest schedular rating he lists is 70%. Perhaps 100% combined? If enough of the overage above the 100% is related to an independently rated disease or injury, he might qualify for SMC S. Looks like he's TDIU.

Chevron deference (in regulations) can only extend to what Congress has not explicitly addressed. Just because Congress did not specify that ILP is a one-shot deal, the Secretary is not free to refashion a new interpretation. Another aspect few recognize is that if VA has a documented history of deciding claims (or interpretation of 38 USC §3120), it counts heavily against them should they attempt to refashion a new interpretation. They have to justify why the newer "interpretation" is more applicable than the old one. I severely doubt they could do that if called out. I just refiled a NOD with the Director VRE on the denial of a larger greenhouse. In it, I also NOD'ed the missing 240VAC composting water closet and the two-year subscription to Lexis Nexis VBM they authorized.

You do yourself a great disservice if you do not read the regulation before querying Hadit readers. § 2.7 Delegation of authority to provide relief on account of administrative error. (a) Section 503(a) of title 38 U.S.C., provides that if the Secretary determines that benefits administered by the Department of Veterans Affairs have not been provided by reason of administrative error on the part of the Federal Government or any of its employees, the Secretary is authorized to provide such relief on account of such error as the Secretary determines equitable, including the payment of moneys to any person whom he determines equitably entitled thereto. (b) Section 503(b) of title 38 U.S.C., provides that if the Secretary determines that any veteran, surviving spouse, child of a veteran, or other person, has suffered loss, as a consequence of reliance upon a determination by the Department of Veterans Affairs of eligibility or entitlement to benefits, without knowledge that it was erroneously made, the Secretary is authorized to provide such relief as the Secretary determines equitable, including the payment of moneys to any person equitably entitled thereto. The Secretary is also required to submit an annual report to the Congress, containing a brief summary of each recommendation for relief and its disposition. Preparation of the report shall be the responsibility of the General Counsel. (c) The authority to grant the equitable relief, referred to in paragraphs (a) and (b) of this section, has not been delegated and is reserved to the Secretary. Recommendation for the correction of administrative error and for appropriate equitable relief therefrom will be submitted to the Secretary, through the General Counsel. Such recommendation may be initiated by the head of the administration having responsibility for the benefit, or of any concerned staff office, or by the Chairman, Board of Veterans Appeals. When a recommendation for relief under paragraph (a) or (b) of this section is initiated by the head of a staff office, or the Chairman, Board of Veterans Appeals, the views of the head of the administration having responsibility for the benefit will be obtained and transmitted with the recommendation of the initiating office. (Authority: 38 U.S.C. 503, 512) [ 37 FR 22864, Oct. 26, 1972, as amended at 49 FR 30693, Aug. 1, 1984; 54 FR 34981, Aug. 23, 1989; 68 FR 25504, May 13, 2003]

VR&E insists now (since 3/31/2014) after their revision (illegally) of the M 21, now the M 21-R, that you only get one shot at this in your lifetime. I've nailed two and have more in the chute as I write. If Congress didn't proscribe it, then it is not law.

Equitable relief can only be awarded by the VA Secretary. No one, I repeat, no one can act in his stead. Thus a petition for equitable relief may not be appealed. The statutory authority Congress invested in the Secretary is inviolate. You may not file a NOD for denial of Equitable Relief. You may not file a Writ at the Court alleging the VA is remiss in answering your prayer for relief. It's a one-shot deal that is not appealable. 38 CFR §2.7... (a) Section 503(a) of title 38 U.S.C., provides that if the Secretary determines that benefits administered by the Department of Veterans Affairs have not been provided by reason of administrative error on the part of the Federal Government or any of its employees, the Secretary is authorized to provide such relief on account of such error as the Secretary determines equitable, including the payment of moneys to any person whom he determines equitably entitled thereto.

More importantly, if the cause of the Veteran's being in a coma is service connected, he would be entitled to R1 or R2 (if at home) or SMC O if an inpatient in a nursing home (or hospital) at government expense. He does need a fiduciary established pronto with a new 21-22 showing the fiduciary as his (one time) representative as well. Even though you do not need to file a true 'claim' for SMC (Bradley v. Peake 2009), we all know how that works so send them a love letter. Go online and print a VAF 21-2680. Get your doctor(s) to fill out and sign it. Submit it with a 526EZ asking for A&A/Loss of use of the upper/lower extremities/blind etc. The kicker that always gets my clients over the line into SMC L (for A&A) is getting the doctor to write "But for his ___________ (spouse/daughter/son etc.), he'd have to be institutionalized in a nursing home as he is a danger to himself". Trust me. Just have the dr. jam that phrase in there in one of the answers and you have a chicken dinner winner. Remember, this is just like baking cookies. Follow the recipe and you get excellent results. Call up the VA at the 800 dial-a-prayer and tell them his medical state and zip code. If he's hospitalized over 21 days (and nights) for any SC injury, he's entitled to a 100% temp. rating for that entire month, too. There a lot of entitlements available when you become this disabled. Unfortunately, the VA isn't going to be forthcoming and "infer" your entitlement so you have to give them a nudge. Make sure the dr. who does the 2680 lists the actual date the Vet became comatose or bedridden in order to receive proper retroactive benefits. Otherwise they grant from the date of the 2680 timestamp.

A claim remains pending until there is sufficient evidence of record to show it was adjudicated in the first instance. But ... if you were homeless when they mailed out the denial or the SOC, and you never "came back" until 2010, the claim remains pending and equitable tolling applies. I'm running one of them on appeal out of San Diego. I coached him on here back in 2012-16 and he won back to 2004 for 70% at the BVA on this scenario. We got it to 100% P&T with one phone call. We're NODing now for SMC S back to 2004. VA refused to accept my NOD back in May because...wait for it..... my client didn't file that NOD within one year of the "now" retro decision back to 04. Absent a time travel machine, I'm not sure how to litigate this. These are the dipsticks you're dealing with. This is worse than trying to herd cats. Fortunately, I can just pick up the phone and fix it the moment I see it in VBMS. You guys can't. I wish for all the world you could. What Victor Ray is dealing with is virtually the same thing. Somebody at the Puzzle Palace entered something wrong and it got perpetuated. You have to start from the beginning and build to 2018 He needs someone to take this on who has VBMS access so the rep doesn't have to wait six months for the claims file. You open the doc and copy it. Done. Next. The down side is you have to guard your PIV card. No one else can use it under penalty of law. Thus, I have to do it myself. If you don't have VBMS, you're blind. The representative is going to have to be savvy in old school Vietnam knowledge and sort this Gordian Knot out-not fk it up more than it already is. I just did a "sort out" on a V Vet's c-file who was right near my LZ Cork Vet on 1/18/1969 when the first mortar hit them@1125 Hrs. I've been going on this off and on getting all the records since 2014. He's got Parkinsons bad and PTSD but never filed for them. He filed for a ton of retained mortar frags and other stuff but never got close to SMC S because... the VSO said there wasn't anything beyond 100%. All his buddies, and now my 1st LZ Cork client are 70% for PTSD. His VAMC CAPRI records show he's 30% for "Generalized Anxiety Disorder" or GAD. In 1970, GAD was PTSD or "nervous disorder". There was no PTSD. Nobody doing DSM-5 ratings nowadays even knows what GAD is. This is why you need to use professional IMOs. Unfortunately, we can't use the VA medical records "problems list" to prove he has GAD. It's an entry error. He has no dx for bent brain. No STRs. No evidence. So we build from scratch... with what we're dealt. And boy howdy do we build. Loss of use of lower extremities due to fall danger from Parkinson's is an "L". PTSD for 70% would bump him to L 1/2 under §3.350(f)(4). Ditto DM 2 @ 50% bumping him to N, ditto a few prostate cancer residuals for 40% + tinnitus for 10 bumps to N 1/2. Now, he also has a K so that's N 1/2 plus K. That's $5,190.00 or thereabouts. I pray someone comes along to help Victor Ray. I'm drowning in folks who are literally dying while I'm doing their claims. I've met most every guy I've repped because I do Travel Board Hearings. I like to help here because we need more folks to do this. I wish there were more like me who have that fire in the belly to litigate. It's a job just like anything else. I didn't go to college to learn this. The reward is seeing their faces when it's over and hugging them. The agony is going to their funerals. I try my damnest to leave no one behind. But.... If you do find an attorney, and you have your claims file from VA. I attach what we call a Chrono or a chronological "diary " that an attorney will need. If you do it for them ahead of time, I guarantee your chances of getting a good rep will increase dramatically. It's like a Rand McNally Road map for us. VA purposefully scrambles up a claims file . Why? Who knows. What they don't scramble up is your VBMS e-file. That's why I copy theirs. It's all sorted out for me. I don't need that chrono. chrono example for use with your c-file.docx

And now for something entirely different. I just filed my NOD for my greenhouse size today along with my VAF 21-22a from my VA representative (myself). I wonder how that will play out in VBMS.

<<<<<<<< A claims agent wouldn’t be able to handle this case. >>>>>>>>>>> Ah ha ha ha ha ha ha ha. You simply have no conception of the power of a claims agent. I filed a Vet for SMC 5/15. I filed the NOD 7/05 after the 6/26 denial. I filed the VA 9 8/10. I had the hearing 9/18. I won loss of use of lower extremities on 9/28. My attorney friends want to know how I did it. All agents are not created equal.

The answer is simple. The VA is not permitted to combine a grant in the same document with a SOC or SSOC. If they are still waiting on more than two signatures, you automatically know the check's over $25 K. The normal procedure is to send two separate envelopes the same day-one with the grant and another with the denial. The Central Mail Processing unit (VACMP) now prints and mails everything from Janesville WI. It's a "super" RO. #58. The AMO (formerly the AMC) is the 57th. Sometimes they slip up and send both in the same BBE and it's confusing. I hope you all realize if VA was efficient, they could do this with half the employees. It's much like 'how many VA employees does it take to screw in a light bulb' joke.

PM me your email. I can't keep up with a twitter , three FBs and 3 emails plus this.

I check the VBMS every day. I insert my PIV card into my reader and go on Citrix to sign in. About 25 questions and codes later, I'm in. If you are accredited, you can apply for VBMS access. You do some hokey online training for a week and then go in and get the PIV card and PIN. I can see every one of my clients' files and the latest action in real time- including all the notes. If I see something I don't like, I call up my Change Management Agent (CMA) and have her tell the rater to call me. If I'm pissed like I am right now (at a rater), I call the VARO director and ask him to return my call at his earliest. We'll be having a talk about the initials ICARE. There is nothing as rewarding as being an agent. It's easy to attain and gives you all the powers of an attorney to litigate...without the crushing law school debt. VACOLS is for appeals. For that I just use the BVA's 800 #.

Few Vets understand the flimsy nature of filing through eBenefits. You have no record other than something that says they got it. Filing a paper product to back up a FAX filing to the EIC is common sense. We call that "belts and suspenders". Back up your backup. If it can go wrong, it will. I file an electronic .pdf FAX first and follow up with a $6.70 Priority USPS mailing with everything on paper. VA might be able to lose the FAX but they cannot lose both. The VBMS now has color and your paper submission will be in color. The FAX will not be. After I've filed, I also check VBMS to confirm it's in the claims file several weeks later. Belts and suspenders, ladies and gentlemen. I don't know how many times we called in air strikes needing MK-82 500 pounders and the Sandy's showed up with CBU or nape. Always make sure and then confirm it. I do realize most of you will not have instant access to your e-file. You can have your VSO confirm a filing is in there though if s/he isn't inherently lazy. Geekysquid, if you live in the Gig Harbor area, I'll buy you a cup of coffee some time.

<<<not trying to be pushy but I still cannot understand the method of communicating with them you described as "Whazzup, homie?" type paper.>>> Okay, you want something. You send in a few letters saying "Excuse me but you forgot to do this". You send them to the Evidence intake center (EIC) in Janesville Wisc. You do this for a while during and after the two years has expired. I try to even go in and have a meeting with the Asst. RO director or someone higher up. I explain I'll be filing and they give me a gomer smile and nod their heads. Forewarned is forearmed. The Court will take notice of it .If you send in the correspondence, it is posted into the claims file. The CAVC cannot see claims files but you can send them copies as exhibits. Anything you want to enter as evidence has to be introduced. Granted, I have more access to the VAROs than most but everyone should try to make their presence known.

EW= EX Writ = Extraordinary Writ of Mandamus. Sorry I mistyped. There are still 6 TRAC factors (Martin v O'Rourke). Since you can never see a EW filing in the first instance on the ECF, I'll share one with you to give you a feel for how you start. See attached. Best of luck, sir. 2017 CAVC Greenhouse filing in pdf .pdf

Erspamer v Derwinski was the first Ex Writ filed at the new Court in 1989. VA fought it tooth and nail and said the Court had no authority to entertain one. That lasted five minutes (they do). The normal progression of a Writ from start to finish is 45 days from filing to completion unless there is some compelling reason to study it. If it is granted, you would know because the first thing the Court does is refer it for a panel or an en banc decision. To date, there has never been a single Judge decision on an EW. There have been 9 Ex Writs granted in 30 years. Erspamer was not one of them. A friend of mine nicked them on one back in 09 or 10 (Gene Groves). The Erspamer court settled on two years being the norm for "an arbitrary refusal to act" ---i.e. extensive delay. Remember, we attorneys and agents never get paid for a Writ if the VA merely fixes it. In that case, we have not "substantially prevailed". Just because we light a firecracker under their butts is not a win for us. Once VA caves in, they have resolved the dispute so there is no need to grant the Writ and it becomes moot. I have personally filed five Writs to date and a few for my clients. I got $70 K out of one and three denied on my greenhouse due to failure to exhaust all my appeals opportunities. Each one is a building block for when VA eventually denies me at the appellate level-presuming they do. As an accredited representative now, I carry more weight. Obviously, I'll take my next one to the Court on appeal- but not as a Writ. With the new decision on TRAC factors (5), Writs are becoming more in vogue. They are an excellent way to get VA's attention fast when all has come to naught and they won't call you back. I like to file my clients' Writs pro se and pretend to stay in the background. Self-represented Vets get more sympathy and consideration than represented Vets. As I saw above, always send them plenty of paper saying "Whazzup, homie?" if they don't call you. After two years of it, send them one that says "Boy howdy. I've tried to keep this out of the courts and be civil but you won't play ball. Enclosed see copy of Writ filed ---/---/2018. Case # 18-____". I just do that for dramatic effect. The RO director usually gets a scathing call from DC a day after the filing asking WTF is this all about? VA counsel is the 027 litigation group -Office of General Counsel or OGC. Your argument is not with the Seattle Regional Office's tardy responses. It is with the Secretary (Wilkie) and as such, you complain that the Secretary has not done this or that or the Secretary arbitrarily refuses to act on your claim. Never drag some poor rater or the DRO into it.

If the decision is less that 120 days old, you can take it to the CAVC but I would not. I think asking for a Motion For Reconsideration at the BVA would be a good alternative but it is a time alligator waiting for the Board President to make that call. But let us analyze. Entitlement to a benefit is due and payable at the earliest time it is ascertainable your entitlement arose. If the TDIU began the day after your physical last day on the job, then there is no CUE or error. You cannot collect TDIU and be working for the USPS at the same time. You might get away with it in a family-owned (read sheltered) employment scenario but never the USPS. However, if they used the date that the USPS OPM notified you and it was earlier than the last day of work, where, pray tell is the CUE? Again, you cannot collect TDIU if you are still working. I guess I do not understand why any employer would "announce" any day other than the physical day you retired for your official disability retirement date- especially after you've already retired. Conversely, if they (VA) began paying you before you retired, you are required to notify them of the error but not by using a MFR as the vehicle. You do that at the AOJ level. Keep in mind also that VA begins paying you for an entitlement in the month following the date entitlement arises. Thus, there is always one "death" check in the chute when you kick. The smartest thing is to just call up the BVA on the 800 923-8387 and ask them to issue an addendum decision correcting any date errors. This is the new VA. They are interested in husbanding scarce judicial resources and will usually accommodate you. It's a win-win for both of you and telling them you're headed to the CAVC would make them jump.

Well, Loyal, this was a Swift Boat twin-.50s tub gunner who carried a terminal diagnosis with a three year punchout date. His Montana State Veterans Affairs Officer had told him in 2000 he'd maxed out at 100% for PTSD so there was no reason to file for anything else. He had the extra 60 for his back since 1996 but nobody told him about SMC S. Fort Fumble must have "overlooked it" quite by accident as he was P&T. That was a big unpaid check unto itself nobody noticed for 18 years. Cupcake had his wife on her Real Estate website and they got to talking about Vets back in 2015. She had his wife tell him to call me. Three years later, when he did call me in May, he told me about the Prostate cancer that had metastasized into bone cancer in the pelvis & lower extremities. He got the 3-year briefing this March. I filed him for back SMC S first with a topper of SMC L for the LOU of the lower extremities. I also asked for, and the DRO blew off, SMC L for Aid and Attendance. The guy's knocking back oxycodone, MS and tramadol (plus Jack Daniels) for the pain. It makes him a bit fuzzy. He falls down a lot from no feeling in his legs. He has scars all over his arms from falling. His private doctors (he doesn't use VA), on September 7th, looked at his recent labs and said they were revising his three years down to six months. They did offer an additional 3 months if he wanted to go back on chemotherapy until he died. He politely declined and said he'd rather die with his hair intact and not puking during his last breath. He called me September 11th and gave me the new schedule. I called the DRO in Fort Harrison after I hung up with him and explained our problem. She cut a DEFCON 1 and faxed it to the BVA. I called them and got his AOD request faxed over. Next thing I know, my Travel Board gal here in Seattle called on September 13th at 1430 and said if I could get him here from Montana, they'd give me a 10 AM slot in front of VLJ Cherry Crawford five days hence on Sept. 18th. We put them up here at LZ Grambo for the night and did the hearing the next day. Their daughter ferried them up north for a week and took them home just in time to get the BBE out of the mailbox. I grant you I've heard of BVA rocket dockets, but this is my personal best. From the May 15th 21-526EZ to BVA grant was a meagre 136 days. I got the decision before I got the hearing transcript. I hope that's the normal for all of us by the time I punch out. Look up a--hole in the VA.gov dictionary. I'm pretty sure there's probably a picture of me by now. Remember those golden words. Leave no one behind...

This is why I always do a travel board hearing instead of a videoconference. First, the VLJ is sitting 4 feet away from my client. S/he sees every eye movement and his/her sincerity. Somebody promoted me to attorney but I'm not. I filed POA and request for SMC R1 on May 15th. Got the denial on 6/25 and filed the NOD a week later. VES came to his home for the c&p on 7/11. Ft. Harrison issued the SOC on 8/05 and I filed the VA 9 a week later. They certified it to the BVA on 8/11. I asked the BVA for an Advance on docket 8/28. I got it a week later on 9/09. They gave me the Board hearing on 9/18 but I had to bring the client here (Seattle) from Montana. Apparently, Montana doesn't do Travel Board hearings-just video. They issued the decision 10 days later on 9/28. This, ladies and gentlemen, is how VA justice should work. See? Being a pain in the a-- works. That's how I like to litigate. You are only limited by your mind when you set out to do something. Moser BVA grant 9-28-2018 redacted.pdf

I thank John, Jerrell but mostly Theresa for this wonderful soapbox to talk from, sir. It's an awesome responsibility to represent a Vet. You put everything on the line for them. Nothing gives me more pleasure than shoving the judicial knife in hard to these chuckleheads. I call it ponydogging us. It's a dog and pony show and that's what they do. I just cut through all that ponydogging to the win. No reason to prolong the process.

Good point, Buck. I had a secondary AFSC of 20350 for Interpreter (French) and it never showed up on my 214. Fortunately, my shot record had a stamp from the US Embassy in Vientiane Laos. That was my saving grace for proving where I was. 3 combat Vs sort of explain what I was doing, too. Looking forward to the show tonight. I'll try not to cough or open and close my cabinets. And, since I don't use the phrase "Ya know", we're safe on that one, too.