FormerMember

What the hey. Somebody always draws the low card and gets to be on Point. I did it for porphyria and ILP. You may draw blood. Nothing Ventured... a

R/T. I had to get mine updated w/ a 215 in 2013.

Your saving grace on appeal is simple. Line of Duty determinations may only be decided at the time of the accident. The VA is not permitted to reach back into the past and declare an accident willful misconduct due to "not in the line of duty" after the fact. This is called res judicata. Once that determination was made and entered into the service record, only the military branch you served in could make a revised determination. It also may not make the determination on its own nor can the VA inveigh and ask them to reconsider the decision. You, personally, would have to ask for a redetermination much like asking for an upgrade on your discharge (if you had a big chicken dinner). As the LOD determination favors you, you wouldn't disturb it. Since you already have the LOD determination in your favor, nothing VA can say or do will change it. Your cites to a minor infraction of driving on a suspended license alone do not rise to the level of willful misconduct. You must understand there are certain decisions that simply cannot be made at the RO. This is one of them. In VA's eyes, you are asking for a second helping of compensation after GM settled with you. VA cannot digest that. They feel you are not entitled. Hence they sent it up to the OGC for either a Precedent Opinion or simply an up or down. OGC is not going to throw in the towel because this is too controversial. I suspect you'll have a 50-50 chance of getting a bum reading on it from the BVA and have to go up to the CAVC. Once the Judge sees the LOD determination in your favor, s/he will reverse or vacate and remand it to grant your claim. LOD is a powerful tool just as the Presumption of Soundness is at entry to service. LOD, however, can never be rebutted, as the presumption of soundness can, by the VA because it was a military determination in the first instance and can never be subject to post hoc VA review. Winning a claim doesn't always follow a straight line. Every claim is unique as you are coming to find out. A word or sentence in the wrong place can cause a claim to sit gathering dust for 20 years like mine. A minor change in the SOC language would have made the claim moot and I would never have won. Fortunately, VA doesn't obey the rules of law. They make a decision and only then work backwards to attempt to find the law or regulation that will support their finding. This is why we have appeals-to correct the errors. Any unique case like yours was bound to be denied because that is what VA does. They don't want a stampede to the compensation window so they hand out bogus decisions. If you fail to appeal, then they were right all along. The only way to get justice is to pursue this to the end. According to the Supreme Court, Veterans are right 65% of the time. That clearly means VA is in error 65% of the time. The Office of General Counsel argued vehemently against my earlier effective date for six months at the CAVC in 2012. When we were several days away from oral arguments, they suddenly had a magnanimous change of heart. The reason was simple. They read the c-file and realized they were wrong. In this game of VA poker, VA denies with no good reason. Why? Because they can. When you finally get to a real legal venue where bullshit walks and evidence talks, they have to concede the obvious facts. Until you get in front of a BVA Veterans Law Judge who is unafraid to buck Dep. Sec. Laura Eskinazi and declare the LOD determination to be the legal finding that you did not engage in willful misconduct, you will continue to lose. The CAVC is not an arm of the VA and is thus immune to their influence. The power to persuade a CAVC Judge that the VA can overrule a LOD decision has yet to occur. Your claim is not unique. I'm not going into Westlaw this morning to find the cite to defend the LOD because it's $59 a minute to research it. Trust me and your lawyer that you are on firm legal ground. VA has tried numerous times to pull this stunt and loses. They pretend they didn't get the email and have to learn it again and again. Think of it like Groundhog Day. You just saw your shadow and there's six more years of appeals. The win is in the can. You just can't enjoy it until a Judge says you can. Relax. You're in the catbird seat but need a Higher Authority to declare that you won. I began in 1989 and I'm just now filing my last NOD for the correct effective date of one of my 100% ratings. It took them from March 1994 to September 2015 to grant it and the Seattle RO purposefully gave me a bogus effective date of August 14, 2012. That gives them a five year window to try to snatch it back based on 38 CFR 3.344. Relax and let justice take it's tortured course. Just smile and know you've already won. The money is accruing without interest at the VA bank but at least it's accruing.

Andyman, I mean you no disrespect. I merely recite other cases I've encountered. I have no reason to doubt your dad was in-country. The point I'm trying to get across is VA will never pay you for the SB via your father's presumptive because you served too. When you signed up, unless the Induction physical revealed the SB or you stated your were born with it, you got a Presumption of Soundness determination that will act as a barrier to any entitlement via that avenue. If you had never served, and later came down with some of the Level 2 or 3 criteria, you would be entitled-assuming you had an IMO that supported it. Filing for it is futile under your particular circumstances. That is not to say I"m calling you a chucklehead for doing it. VA personnel regularly like to let us chase down some Hoodoo lane looking for things we can never attain. They're so excited to see a real SB child of a Vietnam Vet that they wet their pants and start typing. It will all die a natural death. I don't fault you whatsoever. Our job here is to teach what we have learned-not to criticize others. Helping a fellow Vet should never include denigrating him in a public forum. I try to refrain from that and it is the one primary reason I do not visit or post on "Peggy's Pink Site". Well, that and they showed me the door about five years ago. Best of luck on the claims, sir.

You have no idea how much I've researched how we got there, Cowboy, How we got home. How we got to Clark or how we got to Sidney on R&R. Everyone has a story. I collect them. I have a few of my own. One of these days I'll buy some beer and we'll talk, Buck. I'm getting out more now. Going to Las Vegas for the NOVA convention in early March. Lots of knowledge there. And stories. When I came home it was June 17th, 1972- 0200 at SF airpatch . The only ones up were the Hari Krishnas. I was still wearing camo and my Model 19 under my shirt. My survival knife was still on my belt. Hemostats and a pair of surgical scissors in my top left pocket. I had a name tag and USAF but no insignia. That gave you away and they still had a bounty tied to rank in 72. We won, Buck. We're still alive. Most importantly, we're still not leaving anyone behind. Thank you for not being selfish about serving America-both then and now. It took me almost 40 years to come out of my mental cave. To you and a few others, I can say Welcome Home and mean it.

Buck asked what the youngest age a Vietnam Vet could be. Of the very last Marines guarding the US Embassy and a few AF guys down at the Tan Son Nhut Aerial Port Squadron in late April 75, taking the absolute youngest at 18-assuming their AIT consumed about six months or more, A child of a Vietnam Veteran could be as old as the 18 yr. old's deployment to RVN from CONUS plus 41 years. If he finished having kids by 35-ish (in 1992), the child could be as young as 24. Conversely, unless you had proof otherwise, the oldest would have to have come from a career Vet who served early on in the sixties. As such, one of those children could be as old as 53 or so. Vietnam was a young man's war for the most part. My wife added that a guy who "rewifed" at 50 for a young mail-order bride could warp the statistic and have a 12 year old kid, too. One thing of note. I have found many Vietnam Vets hit the wall when they get to the Nehmer test. Many were in and out on TDY or en route from Thai bases to Clark in the Philippines. The only departure base to Clark was Cam Ranh Bay via a C-130 if you were heading out on a local run to Australia, Okinawa or Japan. If it was DEROS time, you split from TSN on World Airways 707 Freedom Birds directly to Hawaii or Guam via Yakota (after they shut down Tachikawa's airpatch in 71.) Some, even though they were there, cannot confirm it with paperwork to this day. I'm lucky I kept some of mine. I was all over the place. I also have had Vets I help claim to have been there but can't prove it or the records reveal they served outside the theatre in Thailand, Okinawa or the Philippines. I understand. Everybody wants to be a Vetnam Veteran but to be truthful, there aren't very many of us left. A lot of the Navy guys who sailed around in circles on Yankee Station in the So. China Sea consider themselves dyed in the wool Vietnam Veterans but the VA doesn't consider them ones for AO purposes unless you can prove you got that magic red clay on your boots. If you want to play Nehmer Poker, you need good cards. VA is mighty picky who they let in the back room.

And I take it you have obtained an IMO from a doctor that "some of the cause of my low back pain" is more likely than less likely due to the Spina Bifida from birth? And he has reviewed your c-file and all records related to the hx of your SB and is convinced you have suffered this back pain continuously from birth (i.e. chronicity)? You see where I'm going with this. In order to even have a fighting chance, certain requirements must be met or you are just clogging the system with a useless claim. This, in turn, deprives another Veteran of a shot at his claims in a timely manner. In other words, if you file a claim that is frivolous just to see if it catches air you are technically violating the law. You claim must be well-grounded-i.e. have a chance of success from the outset and you must believe that yourself. I do not hear that note of confidence in your voice and from what I see, it appears your claim has absolutely no chance of success. I don't mean to piss on the parade route but this is dubious at best and frivolous at its worst. As I mentioned earlier, 38 CFR 3.814 is explicit on what and when. You are saying you entered service and were accepted as sound. Now you wish to contend you had a disability before induction and seek compensation for it. Let me put it this way. 3.814 (d) is pretty clear on the subject. If you could not even attain Level I requirements before induction, how do you hope to claim them after X number of years have passed-including a documented and self-admitted injury during your period of service? (d) Disability evaluations. (1) Except as otherwise specified in this paragraph, VA will determine the level of payment as follows: (i) Level I. The individual walks without braces or other external support as his or her primary means of mobility in the community, has no sensory or motor impairment of the upper extremities, has an IQ of 90 or higher, and is continent of urine and feces without the use of medication or other means to control incontinence. (ii) Level II. Provided that none of the disabilities is severe enough to warrant payment at Level III, and the individual: walks with braces or other external support as his or her primary means of mobility in the community; or, has sensory or motor impairment of the upper extremities, but is able to grasp pen, feed self, and perform self care; or, has an IQ of at least 70 but less than 90; or, requires medication or other means to control the effects of urinary bladder impairment and no more than two times per week is unable to remain dry for at least three hours at a time during waking hours; or, requires bowel management techniques or other treatment to control the effects of bowel impairment but does not have fecal leakage severe or frequent enough to require wearing of absorbent materials at least four days a week; or, has a colostomy that does not require wearing a bag. (iii) Level III. The individual uses a wheelchair as his or her primary means of mobility in the community; or, has sensory or motor impairment of the upper extremities severe enough to prevent grasping a pen, feeding self, and performing self care; or, has an IQ of 69 or less; or, despite the use of medication or other means to control the effects of urinary bladder impairment, at least three times per week is unable to remain dry for three hours at a time during waking hours; or, despite bowel management techniques or other treatment to control the effects of bowel impairment, has fecal leakage severe or frequent enough to require wearing of absorbent materials at least four days a week; or, regularly requires manual evacuation or digital stimulation to empty the bowel; or, has a colostomy that requires wearing a bag.

What level of disability are you claiming due to the Spina bifida? More precisely, what symptoms are you listing (i.e. IQ below 90, incontinence, etc.)? Seems they may take a dim view of granting anything compensable if you were able to serve in the military. Remember, the presumption of soundness attached to you unless it was annotated in the induction physical that you had spina bifida. From what I have gathered reading the SB ratings cases, the effects must be apparent and disabling at the Level one stage early on. If they resolve over time, the rating decreases.

A very small codicil is attached to SMC S. You have to have either a TDIU or a 100% schedular rating to qualify for SMC S. If TDIU is awarded based on a combined rating of several different diseases/injuries, it is not a singular disability and you could not use that as the baseline to develop a SMC S entitlement. . 38 CFR 3.350(i) specifically says it has to be a single disability-not a combination of several that provokes TDIU. Now, if you get another singular disability of 70%, and it constitutes disability such that, all by itself, it is totally disabling, then that disability can stand in for the singular one and the sum of the earlier ratings, if they equal or exceed an additional 60%, satisfy the criteria for SMC S. The only prerequisite is that any of the additional disabilities that make up the additional 60% must be separate and distinct from the singular 100%/TDIU disability. Example. You have DM2 and a bunch of diseases like retinopathy and peripheral neuropathy that combine to 90%. You get TDIU. Then you get PTSD for 70%. The PTSD, all by itself, can be the predicate for TDIU and thus it frees up the DM2 family of diseases to build the additional 60% needed to get to SMC S. Buie v. Shinseki is an example of how this works. http://asknod.org/2011/09/27/cavc-buie-5-v-shinseki-0-2011/ The order in which you receive your ratings has no bearing on whether you are entitled to SMC S. VA doesn't do a lot of research on this to ensure you get what you are entitled to- hence the ear pulling requirement.

File a request for SMC (of any level) on a standard 21-526EZ. If possible, have your doctor or the VA fill out a VA Form 21-2680 which will inventory the amount/degree of your deficits for compensation purposes. Chuck points out that the VA "should" be aware of your predicament via your ratings but they are not proactive nor self-starters. With the backlog and helter skelter activity currently afoot at most ROs, you sometimes have to grab them by the ears yourself. Being 100%, you are Priority One in VA medicaland. This should ensure getting an appt. in a reasonable time. Print up and take a 2680 with you to the exam. Fill in only what you can attest to personally that comes to you via your five senses. Leave the rest for the gomers to fill out. Here's the link to the form: 526ez http://www.vba.va.gov/pubs/forms/VBA-21-526EZ-ARE.pdf 2680 http://www.vba.va.gov/pubs/forms/VBA-21-2680-ARE.pdf Bon chance

Think about this. VA fought me for 21 years to keep me fenced out on Hep c and AO. After 13 years, I finally won in 2008. Then they kept me out of SMC S for another seven and are still fighting over the effective date of my last 100% rating. This is stupid. When you get to 100%, it is not over. The higher the aggregate values accrue, the higher your rating when you cross into the higher SMC awards. I eventually had two different paths to SMC S in the oven at the same time. The Extraordinary Writ forced their hand sooner was all. Then the next 130% hit. a month later. VA can always try to reduce you, too. If you have too much baggage, they don't mess with you.

N4Life-I understand the letter was for the FDC. It still doesn't pass muster on the records review. The CAVC has taken several different tacks on this. In Jandreau, the Fed. Cir. said it was not paramount that the doctor read the c-file or contemporaneous medrecs. Other CAVC panels have decided otherwise and affirmed BVA decisions that denied predicated on the lack of review. Why take a chance. Get your service medrecs, copy them and give the podiatrist a copy with the request for a tune up saying he/she reviewed them. It may mean the difference between an easy win or a long BVA/CAVC appeal . Do you feel lucky? Huh? Do you? Buck's nexus blank here is good ammo. To add to it, I'd suggest this: http://asknod.org/6051-2/ When doing Hep C claims, I always advocate for two letters. How you hornswoggled one out of a VA doctor is amazing. They were instructed to cease and desist in 2010 by the VBA and Shinseki because VA was paying doctors to defeat their denials. That was also when they shifted over to only allowing VA shrinks to do bent brain syndrome.

The document looks great but the doctor has not made the most important statement that s/he reviewed the contemporary records from the c-file pertinent to your time in service and it is his considered opinion that the injury is related to, or secondary to, the one in service. A nexus letter should state that the doctor/ARPN reviewed your service medical records and, based in part or in whole on them, that his opinion is thus and so. VA can beat this in a New York minute at the RO and the BVA with the simple rationale that because the VA examiner was privvy to the c-file, and indeed reviewed it, that his/her nexus opinion is far more probative with regards to a denial because they had that very access to the records. If you can, beat feet back to the VAMC and ask the doctor to take a gander at your contemporary military medical file and to state that he has done so in a new or revised nexus. If you cannot, hold off until you have it or you will be wrecking a perfectly good nexus letter or worse- giving them the ammo to do so. A nexus is a very valuable tool to a win but only if it is sharpened properly. Arriving with a defective one allows the VA examiner to simply build the denial around the failure to review the contemporary facts surrounding the original injury in service. It goes back to "history" you present to the doctor unsubstantiated by facts (the c-file). I think its in the FRE about 803 on probative evidence. I'd have to look it up and it's late. It'll give you something to do. Remember, this is DIY and I'm not a VA agent...yet.

Denials for claims are based on evidence of record (EOR)-i.e. the evidence against is more prolific than the evidence for. If some of the evidence was never made available to the original rater, it is imperative that you "re-present" it to the DRO. Think of it like baking cookies. You prepare the claim history in a nice, short summary and timeline. Make one for the DR Officer too. Make copies of the STRS from service documenting the injury. Show him what evidence supports your contentions. Tell him that it is apparent that the rater could not have considered the evidence in question and still come to that conclusion. Look over the denial in the EVIDENCE CONSIDERED section. Is that important document listed? If it is and it isn't a salient part of what they looked at, this may be the winner. Just like cookies, you need all the ingredients present. Do not make the mistake of thinking he won't notice if you substitute baking soda for baking powder. He will. Don't try to impress yourself with your own evidence. You have to convince him, not yourself. If the the nexus doctor said it "probably" was from falling out of a perfectly good airplane with a silk balloon to support you too many times, you'll lose. Probably also connotes probably not. It has to be unequivocal as in "more likely than less likely". I can't count the number of Vets who arrive for help and say "Don't worry. I have the nexus covered." If it says might, could have, possibly, or it's just like what happened to my Uncle Clyde, you are not going to win. Sadly, our new DBQs do not have a box for the nexus. Coincidence? Conversely, if Waco is dead set against granting it, you'll get the bum's rush regardless. We see that a lot in Hep C claims with a jetgun as the risk factor. Regional Offices simply are not allowed to adjudicate these. Every one goes up to the BVA. If you have a red hot nexus with proof your gastrodoc saw the c-files and the contemporary STRs, you win. It just won't happen at the local puzzle palace, unfortunately. This phenomenon is beginning to dissipate but the backlog forced VA into their new "develop to deny" game and the practice of shoveling the backlog up to the BVA to reach the magic 125-day/98% accuracy. They missed the deadline of Dec. 31,2015 with 80,000 still on the books and the same abysmal 45% accuracy they are renowned for.

Type up a request for a transcription of the hearing to be sent to you and take it in with you. You need an unbriefed VSO rep. there like you need a cancerous tumor. If you have any paralegal education you're already light years ahead of a service rep. To be truthful, the only thing a service rep. can do is suggest questions (ahead of time), or file things for you. They are generally unknowledgeable about your case in advance which makes them like a fifth wheel getting in the way. If the fellow has not had any prior involvement in developing the claim, he's going to impede your progress in trying to present the contentions. You sound like you have a modicum of intelligence. A DRO review is meant to be a hands-on, intensive study of all facets of the claim and any info you feel was ignored or overlooked. Bringing new and material evidence in or a new nexus /IMO are most often the reasons why you will prevail. Merely reiterating your old arguments will be a waste of time. Possession of your c-file ahead of time is paramount. You cannot fight them if you don't have the file. Read your denial and break it up into parts. Why did they deny? What were you lacking or what was it they failed to take into account? Was it merely a lack of the injury in your c-file? Was it the lack of an independent nexus by your own doctor(s) entirely? Did you rely on VA to provide you with a nexus and it turned out to be "not as least as likely as not"? If you do not rebut the denial facts with exculpatory evidence, this is going to be a milk run. Far too many go in and try to convince a DRO that their version is correct without any supporting facts using nothing more than lay testimony. Always remember, if you provide unsupported facts, it is called "history". That means it's your recollection of events-not necessarily what transpired. Don't waste your time trying to extricate yourself from the DAV gomer. Let it ride, They sure won't show up unannounced. If they do, tell them to sit in the back of the room and remain silent. Furthermore, I would request it to be on the record if you have any qualms about this ending up on appeal later. If it is not recorded, there is no evidence of it occurring in your c-file. This can be very damaging to the claim on appeal. You are not permitted to add any evidence to the file after a BVA decision. Your appeal to the CAVC, if necessary, will hinge entirely on the Record Before the Agency (RBA) established at the VARO or the BVA-period. One thing few realize is that if you go on the record with the DRO review, it will all be in there, including any errors by the DR Officer in the decision.That may be paramount to winning later- e.g. "forgetting" to extend you the combat presumption under 38 USC 1154(b). I see that quite frequently. VA raters , from DROs all the way down to FNG VSRs rely entirely on their M 21 bible. If They are using the wrong metric, the whole process is an exercise in futility. Considering they do this 65% of the time, it behooves you to get it all down in the record against any appeal you may have to pursue. A VA form 21-22 is used by VSOs. A VA form 21-22a is used by VA agents and attorneys. A 21-4138 is permissible to use as a vehicle for rescinding your POA with a representative or attorney. One must be mailed to both parties (VA and the rep.). I can't say it does any good though. I got the MOPH stuck to my shoe for 6 years. IRIS is all well and fine but the VA also requires a blue line paper recission for the c-file. Best of luck.

On the contrary, sir. You would want to get the lumbar spine service connected on the chance future radiculopathy into either leg caused loss of use of your lower extremities. Far too many of us are excluded from Aid and Attendance because our injuries that might qualify us for SMC L are not service connected. This is far more critical when you reach the higher grades of Special monthly compensation such as R1 or R2. You can never be too rich, too thin or have enough ratings in my book.

It's the Forest Gump award. Did you get shot or receive a SFW that traversed the gluteus maximus (maximae) and caused muscle loss to the buttocks? It frequently makes it difficult to impossible to rise to a standing position from a sitting one. If you are at SMC (s) and have no DM2, then the loss of use of a creative organ may be unattainable. You do not mention if you were boots on the ground in RVN or granted presumptives from AO. I'm shooting holes in the dark here. Unless you have a qualifier listed in 38 CFR §3.350 (a) , you're wasting your time. (a) Ratings under 38 U.S.C. 1114(k). Special monthly compensation under 38 U.S.C. 1114(k) is payable for each anatomical loss or loss of use of one hand, one foot, both buttocks, one or more creative organs, blindness of one eye having only light perception, deafness of both ears, having absence of air and bone conduction, complete organic aphonia with constant inability to communicate by speech or, in the case of a woman veteran, loss of 25% or more of tissue from a single breast or both breasts in combination (including loss by mastectomy or partial mastectomy), or following receipt of radiation treatment of breast tissue. This special compensation is payable in addition to the basic rate of compensation otherwise payable on the basis of degree of disability, provided that the combined rate of compensation does not exceed the monthly rate set forth in 38 U.S.C. 1114(l) when authorized in conjunction with any of the provisions of 38 U.S.C. 1114 (a) through (j) or (s). When there is entitlement under 38 U.S.C. 1114 (l) through (n) or an intermediate rate under (p) such additional allowance is payable for each such anatomical loss or loss of use existing in addition to the requirements for the basic rates, provided the total does not exceed the monthly rate set forth in 38 U.S.C. 1114(o). The limitations on the maximum compensation payable under this paragraph are independent of and do not preclude payment of additional compensation for dependents under 38 U.S.C. 1115, or the special allowance for aid and attendance provided by 38 U.S.C. 1114(r). That's all she wrote.

If there is evidence in your c-file of unemployment currently and for the last 12 months, and the reason for the unemployability is service connected, they have to consider it by law.

If you currently receive (with a spouse) $3,415 or so a month from VA (SMC (s)), there is no more available to you via that path until you experience loss of use of both lower extremities. This would give you Aid and Attendance at the SMC (l) rate. You could be entitled to other Special Monthly Compensation (k) at $103.25 each right now though. There are 8 SMC (k)s you can attain. Loss of or loss of use of a creative organ (both male and female [breast(s)+uterus]), loss of or loss of use of an extremity such as a deformed/amputated foot or hand at the first juncture (i.e. ankle/wrist) loss of or loss of use of both buttocks, loss of or loss of use of one eye, loss of use of one hand and one foot, totally deaf or totally dumb. You can have all of these- even gynocomastia (males) and conceivable get 7 Special (k)s. As long as the $ amount doesn't go over SMC (l)= $3,617. 05 / month, you're good to go. If you're only rated for 50%, you could get all the Special (k)s you were entitled to. If you're already on SMC (s) =$3,253.00/month, you can legally have the (s) at $3253.00 plus 3 (k)s= $309.75)= $3563.00 and still not exceed SMC(l). Spousal/dependent amounts are always in addition to the base rate and not used for ceilings on amounts when calculating SMC (l) or (o). After you attain SMC (l), you have have as many SMC (k)s as you want again unless or until you exceed what could be paid at SMC (o).

Not exactly. Here's an example. I'm rated 100% for Hepatitis C. I have additional (supposedly) secondary conditions of porphyria 100%, anemia 60%, cryoglobulinemia 40% and skin scarring 30%. Since the porphyria is not the same disease process as the hepatitis, it is considered dissimilar. Therefore I qualify for 100% plus an additional 60%. If you had a back injury at 60% rated as TDIU and secondaries of radiculopathy to the legs, and had a secondary rating for the radiculopathy at 60%, you would not qualify. You would if you had 40% for DM2 and 20% for hearing loss though. The baseline rating qualifier of 100% can be schedular or TDIU. The extra 60% must be made up of ratings with no relationship to the back injury- and, need I add-they must also be service connected.

Dropping VSO representation and hiring new legal assistance will never delay a claim. However, once a VSO or attorney takes your case to the BVA, they are required to see it to the end. You may opt out of it yourself while there but the atty./VSO cannot bail on you during the pendency of the appeal.

Not always. I hired Bob Walsh June 2012 for my CAVC appeal. I had "fired the MOPH losers who kept losing my filings (or forgetting to file them). Signed the 21-22a I did. I had rescinded MOPH long before in March 2008. MOPH was still getting cc:'d in April 2013 and Bob was getting zero transmissions. In fact, VA forgot to deduct the 20% but I'm honest. We finally got the 21-22a straightened out by the end of the January 2015 Extraordinary Writ in April. Sometimes this stuff sticks to your c-file like velcro. How about the one where the Am Leg rep calls up three years later after my friend won his Hep C appeal to the BVA. They were trolling for a photo op on their trophy picture wall. No kidding. "Heeeeey, Tombo. How about our big win, Huh? I told you we could do it. Could you drop by the HQ this morning? I've got a photographer standing by. We want to hang your picture on the winner's wall. How about I pencil you in for ten. Would that work?" MOPH called me once in 2010 after my SOC for Porphyria to say they couldn't find my file and wanted me to come in with any VA correspondence I had received. The blind leading the deaf.

An Extraordinary Writ of Mandamus must be filed with the CAVC. The best metric for filing it is if you have waited over two years for VA to accomplish something such as issuance of a SOC. The Writ usually provokes that to happen within 45 days. Of course, even if your claim has merit and should be granted, VA will issue a SOC just to get their bacon out of the fire with the CAVC. When they screw up for 21 years, a Writ is particularly effective as it was in my case.

http://asknod.org/2015/02/22/cavc-birth-of-a-writ-act-iii-scene-2-the-cp-call/

When you file a NOD, it is meant to entail a critical review of the claim up to that point by a higher review authority. If your claim was decided by a GS-10 VSR, a traditional review would normally be redone by a GS-11 or 12 RVSR, . You have two choices. The traditional route via a substantive appeal or the 38 CFR 3.2600 route asking for a DRO review. If eBenefits says your NOD is "ready to rate", there's something amiss. VA doesn't rate a NOD. A NOD is meant to be last-gasp reanalysis of the denial and a potential intervention to possibly grant it. A NOD was never meant to be a singular path to provoke the issuance of a SOC. I know it feels that way but that is incorrect. A NOD submitted with probative, exculpatory new and material evidence often is the fulcrum to a grant. Success hinges on its ability to convince the rater you're right. If the grant is less than a 100% rating (and most are initially), a SOC is also forthcoming as a matter of law. AB v. Brown in 94 held Vets always seek the "highest and best" rating s/he can attain. A claim (or appeal) thus remains in contention until it is mutually resolved or the Vet fails to file a VA 9 appealing it to the BVA. The filing of a NOD begins the two-part process of appellate review. The request for a DRO review at the filing of the NOD is superfluous at best. Any NOD is going to be critically reviewed for accuracy as well as error regardless of whether you ask for a regular path or a DRO. A DRO is the top dog in the review process but no more or less infallible than a RVSR. Since DROs are in short supply, it takes longer to get one. A traditional appeal path doesn't mean there will be no review of your claim whatsoever. Some think it means bundling up the c-file and sending it directly to the BVA with no interim reinspection. A DRO review is ostensibly a very "hands on" critical review as to why they denied. You are asking them to grant the DRO review based on some pretty strong evidence-or you should be. By rights, a DRO review should be won in every case due to the posture of the Vet and the evidence of record. VSOs and attorneys both prefer to keep a claim local to exhaust the judicial possibilities before a substantive appeal to the BVA. The problem is often one of ignorance. All the evidence in the world is not going to cause a VSR or RVSR (or DRO) to grant your claim if they do not believe you're entitled. This is caused most frequently by ignorance of regulations or relying entirely on what the M 21 regurgitates as law. A minuscule error as simple as forgetting to grant you a 38 USC 1154(b) combat presumption can make your lay testimony null and void. Here, the submission of new and material evidence as the new decision is being promulgated will cause the whole process to stop. A new review of the evidence submitted must begin anew. No SOC will be issued because a decision can't be made without a new review. A Supplemental Statement of the Case (SSOC) is what they issue if you submit new evidence after receipt of the SOC. I have filed as many as 4 rebuttals of an SOC and the ensuing 3 SSOCs afterwards. You must file the VA Form 9 within the first 60 days of the SOC issuance to keep the claim in appellate status and protect it. Filing the additional rebuttals to try to sway their thinking rewards you with the SSOCs. My Extraordinary Writ in January 2015 provoked a SSOC that granted virtually all I asked for. It is the first time VA felt "moved" to see it my way and avoid the appeals process by granting. Oddly, VA says they instituted the DRO process in 2004. I had my first one face to face in October 1991 with the GS-11 rater who denied me. It didn't move him to grant anything. Being young, stupid and underrepresented by the DAV, I foolishly believed they had associated all my military records along with my Air America stuff into my file. Not. I found that out when I finally got my c-file in 2009. My advice is to await a decision. If they deny, go to DC on appeal and submit any new nexus letters or evidence with a Waiver of review in the first instance at the RO with the BVA. This will protect you against Hamster wheel remands.