FormerMember

Maxson v. Gober (Maxson v West Fed. Cir) has had so many holes poked into it over the years I'm surprised VA still trots it out. We went through that one again and again on appeal for Hepatitis C claims. VA kept saying there was no evidence of HCV in 60s-80s service treatment records. Well, duuuuuuuuuuuuuuuuh. They didn't isolate it until 1989 and developed a commercial test for it by 1992. I would google Maxson in the BVA decisions and see how it is used. Likewise the CAVC search engine. It has narrow applications and can be easily overcome with a well-constructed nexus. We can blow bubbles about this one until the cows come home but anything short of a concise nexus with a gazzilion cites will be necessary. The reason I say that is there will be a rush to the claims trough for Vets with depression claiming the exact same thing. If you work in a law firm, you can use Westlaw at $59/minute to pull up the cites in a few seconds.

Forgot to add, you might consider using Wilson (Lawrence) v. Derwinski (1991) for the proposition that "The regulation requires continuity of symptomatology, not continuity of treatment.

Sorry , Charlie. You cannot use 3.303(b) for chronicity or continuity since the Walker v. Shinseki decision came out. You can use 3.303(a) which pretty much mimics 38 USC 1154(a). 3.303(b) is only for presumptive service connection for chronic, tropical or prisoner-of-war related disease, or disease associated with exposure to certain herbicide agents. If due to herbicides, use 3.309(e) and choose from the list. The only ones who could get a bye on this are combat Vets who can testify to whatever they want to and be believed. Walker poked a gigantic hole in 3.303(b) because no one noticed the reference to 3.307 all these years ( 26 FR 1581, Feb. 24, 1961, as amended at 35 FR 18281, Dec. 1, 1970).

<<<< Like I said earlier I am SC for hypertension but I don't actually have it any longer and I'm off the meds so not sure if that will fly, >>>>> I don't mean to be obnoxious, but you do realize it is your obligation to notify VA if you have any improvement in any disease/injury. If it appears it will be transient and recur, that might not be of concern, but VA does consider it fraud to fail to mention improvements. As for the OSA, be mindful that VA is cracking down on this. They have some new verbiage in the chute soon to publish in the Fed. Register on it. I doubt it will be beneficial to Vets. Absent any evidence of it documented in the service treatment records, VA will probably cite to obesity/morbid obesity as the primary cause post-service. Be prepared for a fight with their VA examiner over this one. I'll have to add the Ibuprofen/Motrin = obesity to my playbook. I had no idea the drug had that effect on the body. Thanks for the heads up. We learn something new every day.

File the Form 9 to protect the appeal. That is the most important. You can always submit the new evidence in anywhere along the line. Then begin a search for the IMO/IME. Call a Social Security Attorney and ask them who they would recommend to do a IMO for SA. File a Form 21-3288 and ask for the C&P exam results immediately. Make sure you send it in to the Wisconsin or Georgia Evidence intake center depending on your geographic locale. Do not send it to your local RO.

Try this: http://asknod.org/2012/02/16/everything-you-always-wanted-to-know-about-remands/

It appears you still do not comprehend how this works. If you file a NOA with the CAVC, the BVA is obligated to provide the RBA (which is simply your c-file) to your attorney. You do not need to request it. A RBA is a certified copy and the BVA swears it is complete and correct. At the conclusion of the BVA decision, it is referred to as the RBA or Record Before the Agency. At the conclusion of the CAVC decision (or a Federal Circuit decision) it is called the ROA or Record On Appeal. Six of one and half a dozen of another. <<< You or anyone will not talk to me all kind of way. I'm a MAN.>>> I think this is where you give the impression you're angry, sir. Perhaps I should have said cowpoke or cowman instead of cowboy. This is a forum for seeking knowledge-not a venue for macho word-slinging. You have the right to forego radio shows. You have the right to your own opinion. You ask for knowledge but put strictures on who you will accept that knowledge from and how/where. John and Jerrel's radio show is the perfect opportunity for a one-on-one discussion about your circumstances because, as you yourself pointed out, no two claims are alike. Your path to attain knowledge is yours alone. If you choose to limit your options, no one should judge you. I assure you, I certainly don't. Personally, I think everyone ought to take a deep breath and step back. Nothing so far has risen to the level of an insult. No one has had their feelings hurt (I hope). The gains in knowledge to be made here far exceed what can be gained by going away mad. Were I you , I would continue to post here and pretend we all mean well regardless of what you perceive. It's obvious some knowledge of how the VA system works doesn't always make it into every publication or article. That is a primary reason Theresa began this endeavor. And please, I beg of you. Do not group me with lawyers. I am not one. I am a disabled Veteran-just like you. I just happen to be a cowboy and was born on the first of April. My sense of humor sometimes gets in the way of helping. I think Theresa should go into the Hadit dictionary and remove 'cowboy' from the approved list as it appears it may inflame some. In that spirit, I will refrain from using it in the future. No harm. No foul. Problem solved.

I sure don't think anyone here who helps out has ever implied they know everything. I certainly have never implied such. Hell, I just found out last week a "through and through", be it a GSW or a SFW doesn't mean the missile entered and departed the body. It only means the missile traversed a muscle group or groups. What I had hoped to tell you about an RBA might be invaluable to someone else. Historically, we all used to get ours in some semblance of chronological order. About a decade or so ago, someone at BVA decided to do 52-card pickup to make a RBA almost impossible to rapidly reconstruct to aid in the CAVC appeal. Documents now from 1989 can be (and often are) interspersed in the middle of 2012 documents. You have sixty (60) days from receipt to examine the RBA and object to other Vets' files/documents mixed in with yours to ascertain the correctness/completeness of the file and to object. If you have a 3,500 page RBA, you may find it necessary to send it out to a reconstruction crew of paralegals who usually charge $1,500 for the project. That $1,500 is not included in the 20% settlement you broker with a VA Attorney. It is an extra the attorney bills you for unless you are using a pro se outfit like NVLSP or the Veterans Pro Bono Consortium. There is a lot more Vets need to know about an RBA but I don't need to go into it here. The object of this site is not only to help you but to teach others simultaneously. Your approach appears as a "I don't need that info" one. Perhaps you do not but you might consider how that impacts other Vets who are not as intelligent as you but nevertheless desire the knowledge. Or not. Remember the mission is to leave no one behind, sir. If you feel it is superfluous, I understand. I merely offered you (and others) an opportunity to learn of the historical perspective regarding the VA's propensity to be adversarial. The BVA's (mis)handling of a RBA is just one small facet of a CAVC claim. For the record, a remand from the CAVC can be either a vacate and remand based on defective case or controversy, a set aside and remand based on a procedural flaw in adjudication (such as a missing SOC) or a reverse and remand to comply with the Court's directive because VA screwed you and knew they were doing it all the while. Why you think a remand might be ominous or a denial of some sort illustrates why we all gain knowledge from one another's plight. A remand is simply another bite of the apple. Remember too that you get to introduce new and material evidence following a remand. It often is the life preserver that gives you the opportunity to submit that which you were lacking previously. How any remand can have negative implications escapes me. I wish you the best. If the 'cowboy' sobriquet offended you, I surely apologize for that too. I promise I will not attempt impose knowledge on you any more, sir and I wish you the best on a successful claim. For the record, I'm honored to be called a cowboy. I do not want to be remembered for how many of you I might have helped get service connected. I want to be remembered as one who chose to help Vets. clear prop.

Ask that on the radio show in about 26 minutes, cowboy and I'll tell you all about it. http://asknod.org/2016/02/18/friday-hadit-radio-show-at-1600-hrs-on-the-left-coast/ Cleared to active runway...

I see a problem on the nose. You claim it as SC but never filed for it until after surgery to fix it. What, exactly, is it you seek to obtain? A claim must be for a disease in service, the same disease now and a medical IMO linking the two. If you file a claim for a disability that is no longer a disability, they cannot rate it. Or, if they did, it would be for 0% which accomplishes nothing. It sounds like the advice you are getting isn't producing compensable results. I presume you have obtained IMOs for all the claims you have filed or are proposing to file?

Roger that but make sure you get it up to a high compensation instead of accepting the smallest amount. If there is pain on excursion, you can also rate that as well. A case for SMC K must pass the amputation/prosthesis test. I don't see it unless you use crutches. VA is mighty picky about $103.25.

A good story is in order here. I had a Vet with about 16 disabilities ranging from hammertoes to tinnitus to otitis media. He even had 10% for hemorrhoids. The largest were 20%. He had a combined rating of 86% which bumped to 90% but never got TDIU. The reason was simple. Besides not having any one rating over 40%, VA said no disability in and of itself or any combination precluded gainful employment. In simple terms, having crooked toes and a sore butt doesn't make you unemployable. Keep that in mind if any of you try to string together 22 10%ers for a 100% rating. TDIU stands for Total Disability due to Individual Unemployability.

The nexus will fail. The use of the words " probably, possibly, might have, rule out, could have or My Uncle Earl had the same thing due to... " will never pass muster. The Court of Veterans Appeals has repeatedly ruled that the use of these terms are what we call "equivocal" or equally weighted on both sides. It could just as easily be said Probably is as well as Probably isn't.VA requires an unequivocal verbal assessment of "at least as likely as not" all the way to "most likely" or "is due to". Tell your pixie dust distributor to read my Nexus Bible. I attached it as a Word Document so you can download and tune it up for your own claims. If he bothers to read it, he will find Uncle Earl's failed nexus in there too. Best of luck, sir.

VA forbid their own doctors to write them in 2010. If you submit a DBQ with no doctor's letter attached providing a nexus, VA will gin up their own and I guess I don't need to tell you what it will say most of the time. My suggestion is to research it here first and then ask questions. You may want to review this document on the subject I created and revised over the years that describes what you need and why. http://asknod.org/6051-2/

Wrong regulation. 4.14 only applies to Part 4 of VASRD. It refers only to applying two diagnostic codes that overlap and reimburse you for the same injury. For this, you'd have to journey down to 5USC.

Actually, you all would like this one better. It really shows where LOD is God's gift to Vets. This guy smoked them for a CUE all the way back to 1971. LOD is the same thing as saying-Service Connected. Gopan-3553.pdf

See if you can wrap your minds around LOD. There are two different concepts if you have read the law. This one delves into old VA and DoD law. But it gives you an idea of how the CAVC folks look at LOD AlleyRL_12-691.pdf

I guess I see it as two different concepts, Loyal. You have an accident and the military is free to characterize it how they will- LOD or not LOD. On the other hand, you bought an item with a recognized product liability issue and it hurt you. Let's pretend it was a razor and it disfigured you. You could get medical at the Base Dispensary but you could sue the manufacturer of the razor company for your scar. You should be able to as they have virtually nothing in common. The Army wasn't responsible anyway technically. Since he never got anything from GM of substance, he can go after the VA for a rating. With LOD, VA is obligated to accept it. LOD is a very powerful concept that the CAVC always grants. VA converting DoD's LOD finding is void ab initio. No can do. Never.

You cannot receive a medical settlement from the DoD and then collect VA comp. You have to pay the DoD back if you file and prevail at the VA. You may not file a SF 95 and a 1151 claim and collect on both. But you sure as hell can file a claim for service connection on the accident based on LOD because you were in the military when it happened- i.e. had you not been in the military, you would still be in one piece. That's why they call it SC. There is no conflict with the GM settlement. That is a separate remuneration for a defective ignition switch. It has nothing to do with the military. LOD has to do with behavior and willful misconduct. The car problem is a liability issue and has to do with a defective product. Two entirely different legal concepts and not a case of "double-dipping."

Make sure you are looking at a current M 21.

Actually, SMC K would be applicable. Chuck, even with a rating specifically for it. I have had several instances of it. Vet gets clobbered by through and through in ankle. Loss of use ensues. VA rates on the ankle using 4.71a (DCs 5270-5273) and then does a 21-2680 for SMC. The doctor cites effective loss of use of one (1) lower extremity and SMC K is awarded. If both ankles were damaged resulting in a wheelchair, SMC K would not be for application because it is for a single extremity-not two. SMC L would be awarded if both were afflicted and rated as loss of use of lower extremities (plural).

Gastone, that was my VL Judge this last April-Sept. 2015. He even granted me advancement on the docket because I'd been playing VA poker for the last 26 years. Vito Clemente. Great guy. Gave me 100% for Porphyria and the ILP greenhouse.

Well, here goes nothing. I apologize for not typing out Drillserg63 completely and causing all this confusion among the membership. Berta was correct. My abbreviation of DS63 stands for Drill Sergeant 63 which, I presume, indicates his being a drill sergeant in the Army. I say Army because that is listed in his bio under his name. The 63 would lead me to conjecture he may have either joined up in 1963 or became a drill sergeant that year. If so, that would be 53 years ago. Add eighteen more for enlistment age and that's 71 years old. If he enlisted before 1963- say 1959- he may be over 75. If so, he is entitled to the benefits of 38 CFR 20.900(c ) and an automatic advancement on the BVA docket. If granted the advancement, his adjudication time would shrink to about 5 months or less. If not, my original assessment based on no advancement would still be accurate.

When you appeal, you check off a box on the Form 9 for a BVA hearing (or not). DS63 indicated in his first post that he had a hearing and a docket number. One can only extrapolate that he had a BVA hearing rather than a DRO hearing. Getting a docket number is no big deal. They actually assign them when the Form 8 is signed off and the appeal is certified. <<<< I thought the vlg who conducted your hearing is the judge assigned to your appeal >>> DS63 further stated that he had a hearing (<<< yes i had my hearing on 01/11/2016 >>>) and a 2014 docket number assigned. These are all things you can find out by calling the BVA info line. I'm sorry you don't understand what DS63 is trying to say. I jumped in to help him understand because your line of questions didn't make any sense. Currently, an appeal to the BVA begins with a NOD. You elect at that point for a DRO review/hearing. Once you get a SOC (denial), you file the VA 9 and ask for a VLJ Board hearing. About a year to 16 months (maybe longer now) you get a hearing. About another 16 months later you get a decision from the same VLJ you held the hearing with. Hope that helps, sir.

I think RUready isn't familiar with the program, DS63. Rog on the Docket number and rog on the hearing. What we are seeing is if the appeal is of relative simplicity, they are handing these to Acting VL Judges. However, as you note, if you had a hearing with Judge "A", he is the VLJ and they cannot assign another. Try not to to put too much credence in eBennies. It's about a week out of sync with ROs but slightly better w/ BVA info. I'd be looking at a year unless you are over 75 or have severe medical/financial issues. If so, they usually advance your claim on the docket and fast track it to a 3 or 3 1/2 month decision. Good luck.