FormerMember

VA must render a decision on a facts-found basis. However, in a case of combat, the Vet's testimony is unimpeachable. Genotype 1A is distinctly American in nature. Geno 1B is European -or was- almost exclusively until we began moving around via air transport. Geno 2A and 2B were unique to Japan, Korea and Okinawa before 2000. Geno 4 is almost all of Egypt. Older service members are more prone to have geographical genotypes indigenous to their area of service-hence my Geno 3A. As for having 1A, who's to say the blood he came in contact with was not from another serviceman infected here in America-perhaps by a jetgun in basic? If the Vet in question had a tattoo in country, that would be a risk easily proven by no tattoo noted on item 39 on the Entrance Physical(SF 88) and noted in the same block on separation. Even so much as a urinary tract infection (UTI) or non-gonococcal urethritis (NGU) cite in the service medical records is a risk for HCV. If you had intercourse with a prostitute and came down with an STD, that is a well-proven path to service connection. The key word here is 'blood-to-blood' contamination. There are myriad ways that can occur as I pointed out above. Any single one can be exploited by a competent gastrodoc and an IMO constructed that will hold water on appeal.

Credibility has to be demolished to ignore the Vet's testimony. We can testify to that which comes to us via our five senses ( Layno v. Brown). The acid test is the liver biopsy. No one can fake it. If you are stage 4 on the METAVIR scale, it happened 40 or more years ago. Period. I got hep from a GSW on Sept. 17, 70. I came down with hep 89 days later after the transfusion. They figured it was HBV. Turns out it was B and C together. I never had A. My METAVIR score in 2006 was Stage 4, 3/4 fibrosis. To add more, it was Genotype 3A-only found on the Indochinese peninsula back then(Thailand, Laos, Cambodia and Vietnam). Oh, and Australia. Seems we took it there on R&R and left it behind.

That is correct. In 2010, SMC S was $3,143.00 /month ( with spouse only). Deduct the amount you were paid per month in 2010 December from this and add the difference X 12 months to December 2011. And so on. $3,255 in 2011 December $3,309 in 2012 '' '' $3,3358.68 in 2013 '' '' $3,415.78 in 2014-2015 '' '' $3,425.99 in 2016 '' '' (current rate)

From: The examiner noted the abdominal symptoms were prior to Viet Nam and were unlikely the cause and also stated his wound could be the source of HCV but there are no records of unsanitary conditions. Am I the only one that sees this? I've been in a few dustups and one involved stuffing the guts back in while we awaited Evac. There was nothing sanitary about being wounded in Vietnam. That's hearsay. Conjecture. Conflicts with well-known battlefield medical conditions. Now, why would there be a nurseynurse standing there with a Patient folder noting unsanitary practices during treatment at 312th Air Evac at Chu Lai? Remember, this was before rubber gloves. They were still using glass syringes and you sharpened a dull needle on the matchpack flint You were going to be there 2 days at most until they found room for you at Da Nang or Cam Ranh. 3 days of triage and off to Zama or the 248th at Tachikawa. If it was a scratch? 3rd Army Hosp. in Saigon for a week. Things didn't begin to approach sanitary until Da Nang or Cam Ranh. Flies. Bugs. Other guy's blood in the dustoff. Any evidence of a wound in combat gets a Purple Heart. The law says you have to believe the Vet's testimony if it involves combat with the wagon burners (38 USC 1154(b). This is more a case of how can you lose? I've seen junkies win.

$25 K is the high limit. Over that, they have to get a concurrence from VBACO. That would be Tom Murphy.

<<< Would being Scheduler instead of IU prevented the 50 from 70? >>> Yes if it , or even the 70% was substantially protected by five or more years @ 100% schedular. I understand your question, sir. Let's take 1990. You were awarded X %. In a CUE claim, it has been decided legally that you are allowed to employ the Joe Fenderson staged ratings game. VA has to, by law, give you what your medical records would support from 1990 to 1998. They never do. If you go 5 years with no c&p exams then that/those rating(s) become "substantially" protected. You are substantially protected unless they do two exams within a 12-month period and find a doctor to say you're now expected to be better for the rest of your life. They cannot do this in a CUE. They are bound by the evidence of record. You can go to the VAMC ROI office and introduce all those medrecs as new and material evidence to use for a staged rating. It's pretty near impossible to go back and have a c&p now. Nowadays, if they do ask for a checky check a few years later, and you're still toast, then they leave you alone. Remember, at 19 years (1998-2017), you are a sitting duck for them to try to pick you off and prevent you from permanently protected 20-year P&T. I always get a doctor to write it up with a clear 'he ain't gonna get no better'. That works well. A CUE win is a rare opportunity to go back in time and argue every little item. The Presumption of Regularity that VA employees are knowledgeable in their jobs is rebutted in a CUE decision. Everything is now open for re-interpretation and benefit of the doubt. VA knows they'll lose-both on appeal and the Court of public opinion. Lose/lose. Make them see that. So, you get from 1990 to 1998 at somewhere between 10-60% for a malady(ies). It/they got worse and the VA agrees you were unemployable and eligible to extraschedular rating (TDIU). Either you put in for an increase to get one rating at 100% (which is what we call a total schedular rating, or you wait several years and then ask for P&T. In retro terms, I find that a RO grant is usually a low ball number requiring appeal. I like to barter for a higher one and offer that we won't appeal. They usually throw in a 20% jump from 30 to 50 or 20 to 40 just before you go to the BVA to see if you'll chicken out. If they do, that ought to tell you something. Either they're lowballing or stupid and don't know the law. But if they agree, that's breaking the law. Purposefully low balling when the record supports a higher rating is appealable but you want to get 'er done. Get a lawyer or agent and let them barter in VAspeak. Never ever write down anything about bartering. It occurs "off the record".

This is why I said to be careful about that 1990 P&T rating. VA often will attempt to lowball that 1990 date and not begin IU until a later date like 98. You end up with a subpar rating from 90 to 98. Depending on the date assigned for the P&T IU, add twenty years to it to get the protected date.I had one Vet who got to 19 years and 4 months. Bingo. New C&P downgraded him to 50 from 70 for PTSD and a small bump in DM2 from 20 to 40% kept him at IU but the protected 20 year rate flew out the window and a new clock began. We got it overturned at the BVA because they only gave him one c&p instead of two and no discussion on whether the "improvement" was expected to be sustainable.

<<<<<Bronco, the CUE is going back to 1990, and the Permanent IU is going back to the first time I filed for it, which was July, 1998>>>> No brainer. SMC S from 98. I got SMC S from 94 to 2015 retro. It was about $72 K. Hardly a Brinks truck. Watch out for a low ball rating from 90 to 98. Here's what you get from 98:

Dear Sir, It just so happens Hep C is our specialty. I've helped many get SC for it since I won in 2007. Go to http://asknod.org to view how or contact me at asknod@gmail.com and I'll lay it out for you. There's a way to do it and win. And thanks John for the heads up. Leave no one behind. a

Whatever you settle on, do not shoot 9mms indoors or any magnum pistol or rifle cartridge, for that matter, as they are supersonic rounds and will rupture your eardrums in a confined space. A .22 is especially effective with hollow points in these situations. Aim for center of mass 3+ times to incapacitate or kill. A .380 is merely an underpowered subsonic 9mm (called a 9mm kurz). It's a belly gun like a .25 auto or a 7.62mm. I discovered early on that 9mms, unless you hit bone, tend to transit through muscle rapidly and cause less muscle trauma than larger subsonic rounds like a .45. That's why most of us switched when we got in country to .45s even though they were horribly inaccurate. The AF had those ditzy .38 M&P revolvers which were underpowered. The red clay tended to gum up semis too. I had my sister send me a Mod 19 S&W .357 up in Laos via the Embassy in Vientiane. I used 158 gr. JHPs and no one ever got up after being shot-even in an extremity. The beauty of a .357 was that you could always find .38 ball ammo in a pinch to use in it. My first one over there was a Karl Gustav 5 9mm (see below) that shot from the bolt open position. The first three rds usually went into the dirt as it slammed closed and climbed up. #s 6,7, and 8 always went high unless you turned it sideways. I finally switched over to a M-79 when I flew and a 12 ga. cut down shorty Remington Mod. 12 on the ground. A 12 ga.is always the best to keep penetration down to a minimum indoors. Try #2s instead of double ought. More BBs and larger field. Most indoor encounters occur at less than 10 feet. Always plug up one ear if possible to keep it available for talking to the operator on the 911 call afterwards. Advice from my cop friends- make sure there is only one story as to what happened and never shoot them in the back unless you add a few to the front before everyone arrives to discuss it and take pictures.

Well, yes. Where else would we look? Used to be, I'd go down to Seattle and sit in the waiting room until I was permitted to view it. I take a liter or two of Pepsi and a huge bag of Cheetos. Chew with your mouth open and guzzle the Pepsi loudly. Burp a lot. Spill lots of Cheetos on the carpet and grind them in. After a while, they get the idea you're not leaving. Take it up a notch and eat a big can of pork and beans really late the night before. By law, I am allowed to view my own file. We all are. We are also entitled to copies of it periodically to aid in our defense. VSOs can view it 'in-house' at the RO as well. It's not a big mystery.

VACOLS tells where your claim is in it's development or appeals stage. It stands for Veterans Appeals Control and Locator System. CWINRS ( Corporate Waco, Indianapolis, Newark, Roanoke, and Seattle) is the VR&Es pet computer but will often contain a lot of useful info-especially about disability and work capability for TDIU based on national statistics. Information is where you find it. Lots of us are doing the extensive background check and signing up for remote VBMS access to Vets' c-files from home.

Actually, just viewing the c-file will have everything VACOLS and Cwinrs has in it. No need to chase around to all the computers looking for development. If they are as close as "preparation" for anything, it will be at the front of the .pdf. Always remember. VA likes to reduce before you get your five-year substantial coverage. It's harder to reduce you after you get five under your belt. VA likes to show up after 19 years and 5 months on TDIU folks and whack them with a reduction ( such as from 70 to 50% on bent brain syndrome). They'll then give you a raise on another injury/disease to keep you within the TDIU range(over 70% combined) but it restarts the 10 year DIC clock on your spouse.She finds out about this about four months after you die and they refuse to give her the DIC. Been there-done that one. One of my clients got whacked down from 100 to 70 like that in 89 at 4 yrs and ten months. He was getting seizures from eating 16 different brain meds so he quit eating them. VA said if he wasn't eating them then he must have gotten better. He had to fight all the way to the BVA to get it back in 91. They didn't give him two exams and couldn't show that it was going to be a permanent improvement. Some of us feel VA "cheats" at this reduction game. My suggestion is to get a law dog before you go to the BVA on appeal if you can't head it off. If you are using DAV or even have them listed as the POA, you must believe the earth is flat. No insult intended, but they(DAV) have the power to okay anything on your claim without even asking you if it's hunky dory. Could be you'll read about it on eBennies after it happens next month. I'd send in a rescission letter voiding the 21-22 post dated back to last month to be safe.

Something your "POA" (I assume it's a VSO) is overlooking. If VA fails to comply with the remand, you are always free to file that boatload of documents you describe with the BVA. I certainly would if the VA 8 has been issued and it's docketed. You can ask for a waiver of review (filed as a letter with the VLJ) in the first instance at the VARO and ask the Judge to decide it with what you have submitted yourself. The beauty of this is thus. The BVA is more backlogged than any can imagine. They have over 60,000 claims a year coming up for appeal. 79 VLJs can crank out 1.2 appeals a day if they are simple. They have 180 working days to do this each year Do the math 79 X 1.2 +180 = ?). The backlog is metastasizing like cancer there. If you allow the VLJ to remand it, it adds a year minimum to your appeal and usually nothing more than a lousy SSOC to show for it. If you allow BVA to decide it, you'll get a better decision much sooner. Nowadays, VLJs are actually better judges than those we had ten or twenty years ago. Approximately 30 or more read Hadit and asknod regularly and are stand up folks. Several are friends of mine and we talk regularly. They come to the NOVA conferences so we get to meet them and buy them a drink and pick their brains. If your claim holds water, they'll grant- if for no other reason than to "up" their production. Remands are time alligators for everyone concerned-both the BVA and the ROs. Never make this harder than it has to be.

Actually, just viewing the c-file will have everything VACOLS has in it. No need to chase around to all the computers looking for development. If they are as close as "preparation" for anything, it will be at the front of the .pdf.

Call up the VA director at the VARO. Tell me which RO and I'll give you the phone number. That presumes you do not have a VSO rep. If you do, call him/her and ask them to go onto the computer and look up the answer to your question in your c-file.

When I get to a DRO hearing, sometimes I spring a 526b on them to highlight an inferred claim. I can squeeze out an "informal" comment made at a C&P exam into a claim a lot of times. http://www.vba.va.gov/pubs/forms/VBA-21-526b-ARE.pdf There's a lot of tricks out there we can use. Never live in the same box. Think outside of it. If you are within suspense dates, it isn't a CUE though. It's a mistake. Remember, CUE is a motion to revise a final decision. If it isn't final, it's far easier to change.

Roger that, Buck. Anything you desire monetarily from VA, be it a dependency issue or a claim for increase currently requires a 526EZ to upload it into VBMS. I expect that will change just as it did when they came out with the 21-0958 for NODs. We already have the VA 9 for a substantive appeal but even that was optional up until the inauguration of the VBMS. That pretty much covers the three most important phases of a VA claim so it's a start. Eventually you'll be doing so on line like posting on Facebook.

Negatory, Loyal. Look at it like this. You have everything you need for SMC S but they fail to grant. In the new VBMS world, you have to go through a generated 526EZ claims portal (Janesville), to be read into the system. Face it. If you're going to Hell, you'll have to go through Janesville. You can thank Rep. Paul Ryan, the Speaker of the House for that. It's his home town. He made VA to put it there. After they discover you're right, they grant SMC but probably effective the day the claim was filed. We're talking a horribly poor computer program. You must then file the 0958 NOD (Janesville, of course) asking for the EED for the system to "see" the NOD. That generates an auto reply saying they got it (eBennies or by USPS). A year or two later, you get in the queue for the OK corral DRO hearing/ Review to sort it all out. This is what is called a "reconsideration" by the VA. But remember, even then it can never be CUE because the seminal test for CUE is always a decision that is final and the suspense date for a substantive appeal has expired. SMC is awarded "at such time as the preponderance of the medical evidence dispositively proves the entitlement". As such, a failure to award it is a brain fart, not a CUE. The failure to grant the proper EED is not a CUE but merely a failure to read the regulation in a liberal nonadversarial fashion and if the evidence is in equipoise, the higher of the two ratings will be awarded. CUE is a road less traveled for good reasons. Why go there when you can use the regs as written to accomplish the same thing using 2017 technology? Don't overthink it. VA law is horribly simpler now and does favor us if you learn how. I just saw a VSO using a 21-4138 form to file a new claim at the Vet Center last week. With a ball point pen. I went in with a client to get their files. The VBMS system cannot read a 4138 even if it's typed. It's not "VBMS-friendly" with little boxes for the letters. As of now, there is no specific form to file for anything- even CUE -without using a 526 EZ.

"2. If the decision was appealed, does it make any difference?" No, if the appeal was denied as well or actually even if it was awarded ,but it still appears to have a legal and detrimental error in it. Actually, if the CUE was appealed and denied, the proper venue is before the BVA if you wish to reopen the CUE on new grounds, Berta. You always present your motion to revise to the party who last adjudicated it. If it was never appealed, you do not file at the BVA but rather the AOJ.

SMC is awarded when proven it is due by the preponderance of the evidence of record. There is no filing date or suspense date. If you were due SMC HB (SMC S) any time after your medrecs prove you were 100% P&T and unable to work, that is the effective date. It can be filed as a CUE but not treated as a CUE, per se, because there can never be a claim for it nor a denial and a year to appeal it. Any time you want to file for SMC S based on HB, they must go back, examine the evidence and pay you from the date it can be determined you were unable to work. Period. Sadly, VA is expected to intuit your entitlement. Unfortunately, unless you're missing all the legs and arms etc. they do not perform this test. That's what your VSO is for. Somebody needs to teach them how to do SMC, Buck.

Tune in tomorrow afternoon for the how and why of DRO hearings. Tips and tricks. Where to find N&ME to present. What works and what doesn't. How come he won and I didn't ? and more https://asknod.org/2017/02/15/hadit-com-radio-show-dro-hearings/

Since every claim is unique- and thus every CUE by extension, will be unique, I have always tried to summarize what is NOT CUE first in order to filter out all the wheat from the chaff. It's far easier to understand what you cannot win nor ever will than to ask "Here's my situation. Do you see a CUE in it?" One of every 10 CUE claims wins. Many ongoing claims are claimed as CUE while the claim is still contested. Vets tend to call any error CUE even if it can be corrected in a NOD or on appeal. The standard rule is the older the CUE (and the higher the value of the error in retro payment), the less chance of a win unless you fight to the CAVC. Most Vet attorneys, for this reason, don't like to accept CUE claims unless they see a glimmer of success and a high-dollar return for the ensuing knife fight in a dark alley with VA over it. Raters and VLJs are not well-versed in CUE law and tend to give it a boilerplate denial. Here's a good primer on what is not CUE to save time asking the same questions over and over concerning this. https://asknod.org/2014/05/02/cue-the-quintessential-elements/

Berta, You will note that VLJ is still in the dark about "housebound" being defined as "substantially confined to the home". Howell v. Nicholson contradicts that and is the defining definition of what SMC S was invented to compensate.

Always remember Clemons v. Shinseki. We are not trained in the arts of psychiatry so we cannot self diagnose. We are not expected to be able to decypher the difference between depression and PTSD-or, for that matter, a schizoaffective disorder. Always best to claim MDD and let the brain boys figure it out. They're all rated under the same Diagnostic code anyway.