FormerMember

Simply finding the word "reconsideration" in regulations doesn't create the obligation. Part 42 that BroncoVet alludes to above is excerpted from a regulation that involves fraud. As such, it is not on point. It does, however, illustrate the existing Motion For Reconsideration(MFR) at the BVA level. The humor in all this from my perspective is simple. Why would you want to wait around for up to a year in the hope that the VSR (not a DRO, mind you) will change his/her mind? If the error was blatant and glaringly obvious, a NOD will still provoke the same de novo review -and from a higher, more seasoned source such as an RVSR or DRO. A NOD will get you in line for a BVA appeal sooner than waiting for a reconsideration that might be denied. Reconsiderations should be used by homeless/financially challenged Vets who are ably represented by competent legal help. It is a quick pathway to resolving what should be a slam-dunk claim. It can only be advantageous to you if your housing situation/medical status is precarious. VA will always move these claims to the top for immediate action. Otherwise, Lotzaspotz is dead on. Why wait for a reconsideration (and its attendant de novo process) when you can file the NOD and accomplish it sooner if they deny? <<<<Once I file an NOD, the VA's obligation to assist is gone. From that point on, to the BVA, it is an adversarial situation. Recon before that leaves them obligated to assist, as the 1 year appeal time frame still is running, as well as, (if it applies) the initial submission of the intent to file, and the 1 year time frame that I have to submit new evidence, is still (also) running.>>>> Always remember, the duty to assist rests with the trier of fact (RO and BVA) in a claim. They cannot cease in this regard unless it is filed as a CUE. CUE has its own set of codicils. Basically, there is no duty to assist in a CUE claim because a clear and unmistakable error can only involve a closed set of facts that led to the denial. To simplify, calling CUE freezes the record as to what was contained in it when you utter the word "CUE". You cannot add new evidence to a CUE claim. I'm not sure where pwrsim unearthed the argument that VA suddenly is off the hook for the duty to assist once a NOD is filed. That is not the way the Statute and Regulation read. Vets enjoy a much higher level of justice and the duty to assist never ends. Nonadversarial, Veteran friendly law with a full duty to assist doesn't cease until you get to the CAVC and the Fed. Circuit. Additionally, VA is not obligated to consider the benefit of the doubt argument in CUE. In that regard only does the duty to assist cease. I beg each and every one of you to be very careful in dispensing advice here. Telling other Vets the duty to assist evaporates when the NOD is filed is incorrect and can harm a Veteran's claim. Likewise, always cite to the regulation or statute that your argument rests on so that others reading it can use the information. Shafrath v Derwinski 1 Vet app.589 (1991) is the go-to cite of the VA's duty to assist. It reinforced precedence re the duty to assist for VA claims in 1991 and has never been overthrown. If anything, newer precedence has built off of that and granted us even more and stronger protections relating to the duty to assist. A classic example of this is the most recent CAVC ruling in Gagne v. McDonald decided ten days ago. I attach it below to illustrate what the real duty to assist means in a claim. There is a place for reconsiderations in the legal amphitheater but it is narrow and involves extreme circumstances I discussed above. VA's new technique to reduce the backlog by "developing to deny" your claim to hurry it out the door and off the books is not going to aid you time-wise in a request. That advice may not apply to small ROs like Fort Harrison and Sioux Falls where the backlog is not so stupendous. For the rest of us, a reconsideration or a NOD is still an equally slow boat to China. Simply put, the difference between a NOD and a reconsideration will be one year or more less waiting for an appeal at the BVA if the reconsideration is denied. Each Veteran, based on the strength and unique facts of his/her claim, is the only one who can decide which path to choose. There is no blanket set rule or advice that covers all of us. Gagne_14-334.pdf

One box had two items in it-VR&E (right flap) and another of the ones in the picture. I may browse it but my days of filing are done.

VA graced me with my claims file today. I requested it back in the fall of 2014. Not bad for VA, huh?

That delay played a big part in my VLJ's decision to advance me. He reviewed all 13 files of the (still) paper c-file briefly the night before my hearing and was disgusted with the VARO's intransigence. Having the attorney at the BVA is the biggest asset in all this. The judge often feels you are far better represented than with a VSO and will allow the case to proceed more rapidly. Few know that a VSO team at the BVA can be the cause for a one-year (or more) delay if they grab your file and take it to their office for six months to "review" it. For stillhere, yes-the VLJ who chairs your hearing will always be the VLJ who decides your case. If he were to retire, you would be assigned a new judge and offered a new hearing. I've seen cases drag on so long, a Vet ended up with several judges hearing the case, When that happens you are given three judges instead of one to guarantee a majority decision in case the judges disagree. The reason Tex marine has a 2007 docket number is simple. It was appealed up to the CAVC and returned twice. You always retain the same docket number when you climb on the hamster wheel. If they didn't, why, shoot- they might run out of numbers.

My BVA hearing was April 2011. My decision was May 2012. The delay has only gotten worse since then. I had another one in April 2015 and it was advanced on the docket via 20.900(c ). That one was decided Sept. 4th. I'm guessing yours was not advanced on the docket. Expect a decision in August next year assuming you don't have a VSO who decides to glom onto it and play keep away from the VLJ.

I apologize. Apparently, I don't know what I'm talking about. Back to school for me. I'll report back when I locate the regulation/statute that permits and defines "reconsideration". Meanwhile, you fellers keep hanging those 4138 recons on eBennies and keep score. I'm all in with you. Just remember. The M21 is an "adjudicative tool" to aid in claims. As such, it is an advisory manual (and has no force of law) and is always subject to revision if found to be at odds with statutes/regulations governing the subject. Surely, somewhere here on Hadit or another Veterans help site, we can find successful claimants who employed this device to win. Anyone? Speak up.

VA is welcome to bandy about terms like "reconsideration" but they are bound by 38 USC and 38 CFR. Turning to Part 19, where these mechanisms are described and defined, take a look at §19.26: § 19.26 Action by agency of original jurisdiction on Notice of Disagreement. (a) Initial action. When a timely Notice of Disagreement (NOD) is filed, the agency of original jurisdiction (AOJ) must reexamine the claim and determine whether additional review or development is warranted.(b) Unclear communication or disagreement. If within one year after mailing an adverse decision (or 60 days for simultaneously contested claims), the AOJ receives a written communication expressing dissatisfaction or disagreement with the adverse decision, but the AOJ cannot clearly identify that communication as expressing an intent to appeal, or the AOJ cannot identify which denied claim(s) the claimant wants to appeal, then the AOJ will contact the claimant to request clarification of the claimant's intent. This contact may be either oral or written.(1) For oral contacts, VA will contact whoever filed the communication. VA will make a written record of any oral clarification request conveyed to the claimant including the date of the adverse decision involved and the response. In any request for clarification, the AOJ will explain that if a response to this request is not received within the time period described in paragraph (c) of this section, the earlier, unclear communication will not be considered an NOD as to any adverse decision for which clarification was requested.(2) For written contacts, VA will mail a letter requesting clarification to the claimant and send a copy to his or her representative and fiduciary, if any.(c) Response required from claimant—(1) Time to respond. The claimant must respond to the AOJ's request for clarification within the later of the following dates:(i) 60 days after the date of the AOJ's clarification request; or(ii) One year after the date of mailing of notice of the adverse decision being appealed (60 days for simultaneously contested claims).(2) Failure to respond. If the claimant fails to provide a timely response, the previous communication from the claimant will not be considered an NOD as to any claim for which clarification was requested. The AOJ will not consider the claimant to have appealed the decision(s) on any claim(s) as to which clarification was requested and not received.(d) Action following clarification. When clarification of the claimant's intent to file an NOD is obtained, the AOJ will reexamine the claim and determine whether additional review or development is warranted. If no further review or development is required, or after necessary review or development is completed, the AOJ will prepare a Statement of the Case pursuant to § 19.29 unless the disagreement is resolved by a grant of the benefit(s) sought on appeal or the NOD is withdrawn by the claimant.(e) Representatives and fiduciaries. For the purpose of the requirements in paragraphs (b) through (d) of this section, references to the “claimant” include reference to the claimant or his or her representative, if any, or to his or her fiduciary, if any, as appropriate.(Authority: 38 U.S.C. 501, 7105, 7105A)(The Office of Management and Budget has approved the information collection requirements in this section under control number 2900-0674) [71 FR 56871, Sept. 28, 2006] One thing in Part 19 you will not find is any reference to "reconsideration". § 19.27 discusses it somewhat further but again, never uses the term "reconsideration" § 19.27 Adequacy of Notice of Disagreement questioned within the agency of original jurisdiction.If, after following the procedures set forth in 38 CFR 19.26, there remains within the agency of original jurisdiction a conflict of opinion or a question pertaining to a claim regarding whether a written communication expresses an intent to appeal or as to which denied claims a claimant wants to appeal, the procedures for an administrative appeal, as set forth in 38 CFR 19.50-19.53, must be followed.§ 19.50 discusses Administrative appeals but again the elusive word reconsideration is not mentioned.§ 19.50 Nature and form of administrative appeal.(a) General. An administrative appeal from an agency of original jurisdiction determination is an appeal taken by an official of the Department of Veterans Affairs authorized to do so to resolve a conflict of opinion or a question pertaining to a claim involving benefits under laws administered by the Department of Veterans Affairs. Such appeals may be taken not only from determinations involving dissenting opinions, but also from unanimous determinations denying or allowing the benefit claimed in whole or in part.(b) Form of Appeal. An administrative appeal is entered by a memorandum entitled “Administrative Appeal” in which the issues and the basis for the appeal are set forth.(Authority: 38 U.S.C. 7106) The long and the short of it is simple. VAROs are under the gun to rid themselves of the backlog and have set the end of 2015 to reach it. If you file for a mythical reconsideration at the RO without filing a NOD, you are at risk of "timing out" on the one-year suspense date for your NOD as the above BVA decision I cited to shows. You are also at the mercy of brain dead raters who can't comprehend what it is you desire. In the new World of VA, certain documents are now "action documents". I refer to the 21-0958 NOD. Sending in a 4138 to protest on is not going to evoke much of a response. If the claim were still in its infancy and being developed-yes. It would be added to the "evidence for" pile hopefully. If you were going to employ this tactic, I would suggest you do so under the tutelege of an attorney who is in constant contact with your rater on a fairly regular basis. In the alternative, I would visit the RO and present the reconsideration request verbally, as well as in writing, to the rater personally. If the idea is to motivate VA to change the decision in your favor, you have to be hands on and proactive. Simply sending in a request for a recon is not going to elicit what you hope for. If that were the case, the myriad requests and endless reams of paperwork I sent them to reconsider my case would have been addressed somewhere between April 1994 and February 2015. I think reconsiderations could be a valuable tool but absent any legal mechanism to describe their existence and parameters, they appear to be somewhat nebulous. I work with laws and regulations. Merely stating that a reconsideration process exists at the AOJ level without a regulation to support its existence is disingenuous. I cannot argue the existence (or absence) if I cannot cite to it. In the context of sending in new and material evidence to provoke a reconsideration following a denial, the path is well known and used frequently by attorneys. However, they sit on it like a mother hen and push hard. Most are employed where financial/medical hardship exists and there is a concerted effort to resolve the claim promptly at the local level. VSOs do not do this as a rule. Again, with the backlog, the chances of it be reviewed de novo in that suspense window of one year following denial is a problem. What good is an adjudicative tool if it has a hand grenade attached to it? If I had a dollar for every erroneous piece of advice VA handed me, I'd be filthy rich. The best was when I won in 2008. The rater called me up to tell me I was now 100%. Since I was, why should I pursue any additional claims to get my rating higher? The 100% ceiling had been reached and there simply was no more money to be had, right? He never mentioned SMC S. VA law also says that if you depend on VA legal advice to your detriment and are substantially harmed, you have no recourse for remuneration. That's why we are allowed VSOs and attorneys to protect and advise us. So, in summary, if you file a request for reconsideration and VA fails to act on it within the year of the denial, your claim is final and closed for failure to file a NOD. Game, set and match. Looks pretty nonadversarial and Veteran-friendly to me.

38 CFR 3.350(i)(1)(2) or 38 USC 1114(s)(1)(2).

Just imagine arriving with a theory that VA owed you all the way back to your first filing... in 1994. And you want 100% plus SMC S back to then. You'll probably still fight for 8 years unless you get a VA attorney to walk it through in half the time. I began July 8th ,08 on appeal. I won last month. Three BVA decisions. Two trips to the CAVC. We can shave off some time for you by our errors.

Helm v. McDonald is not on point. Mr. Helm lost at the BVA in 2002. In 2013, eleven years later, he opted to file a Motion for Reconsideration (MFR) to the BVA to revise the 2002 decision. They declined to do so. He then filed a Notice of Appeal (NOA) to the CAVC within the 120-day window of said MFR refusal. The problem is glaringly obvious. The law says you have 120 days to file the NOA following a denial at the BVA. Assuming, arguendo, that Mr. Helm had filed his NOA following a refusal to grant a MFR in 2002, he would have preserved his right to an appeal at the Court. You cannot come back at some distant time in the future and expect equitable tolling for a Notice of Appeal you never filed in a timely matter-or at all- within that 120-day window in 2002. There simply is no case law on MFRs at the Agency of Jurisdiction. The path exists, but only at the BVA, Granted, you can come back anytime, much like a CUE filing, and ask for the MFR at the BVA. There is no statute of limitations on asking for a MFR. MFR grants are also about as rare as hen's teeth. The window of opportunity at the CAVC is carved in stone and absent a really good "the dog ate my homework" story, you still have to exercise the right within 120 days of the BVA declining to grant a MFR.

For your information: https://asknod.wordpress.com/2015/10/23/varo-requests-for-reconsideration/

Well, that ought to put the thumb on your side of the scale. I look forward to hearing of your win.

Mr. Jfrei wishes to know the approximate time from 1) DRO hearing until 2) Decision from Decision Review Officer So far he has received about everything but. For Philadelphia, I have no up-to-date knowledge. Poking holes in the dark, I'd have to say at least 12-16 months at the worst. If you had a medical or financial issue that qualified- perhaps 3 months or less. Philly is pretty constipated as they also handle all the VA's insurance stuff, too. Best of luck, sir.

You need to re read SMC S... (i) Total plus 60 percent, or housebound; 38 U.S.C. 1114(s). The special monthly compensation provided by 38 U.S.C. 1114(s) is payable where the veteran has a single service-connected disability rated as 100 percent and,(1) Has additional service-connected disability or disabilities independently ratable at 60 percent, separate and distinct from the 100 percent service-connected disability and involving different anatomical segments or bodily systems, or(2) Is permanently housebound by reason of service-connected disability or disabilities. This requirement is met when the veteran is substantially confined as a direct result of service-connected disabilities to his or her dwelling and the immediate premises or, if institutionalized, to the ward or clinical areas, and it is reasonably certain that the disability or disabilities and resultant confinement will continue throughout his or her lifetime.SMC S can be awarded absent the extra 60%. Howell v. Nicholson merely makes this regulation interpretation above all the more questionable. Always look for the conjunctives (and) or the disjunctives (or) in 38 CFR. You may be pleasantly surprised.

Or, look at it from the standpoint that the reason you are housebound is that being TDIU is the very cause of your being home. Read this very very carefully and I think you can make the case for SMC S. The VA is bound by 38 USC. They can regurgitate it any which way they want to into 38 CFR but the CAVC made a precedental decision eight years ago that contradicts what 38 CFR 3.350(i) purports to call the true definition of housebound. https://asknod.wordpress.com/2014/08/25/cavc-howell-v-nicholson-what-smc-s-really-says/

Loyal, I believe he looking for the time from NOD to DRO review and either a grant or SOC. Depending on the RO, its about 585 days for Oakland, about 6 months for Fort Harrison and around 600 days at Waco /Houston. Seattle was running about 480 last time I checked.

It would appear that Mr. Sox is asking to be educated in the operation and doings of the BVA, the Federal Circuit as well as the Supreme Court. That's a mighty tall order for any one of us to explain in a lifetime. I suggest perusing Part 19 and 20 of 38 CFR to get a brief education. 5 USC would help re due process. Law is a complex area. Suffice it to say in a nutshell that the BVA is the "trier of fact" and deals specifically with evidence and rule of law. The CAVC, Fed. Circuit and the Supreme Court deal only with the legality of the decision-not the facts- unless reasonable minds can agree an error has been committed (CUE). BVA judges are legally authorized to hear any appeals regarding VHA medical complaints, VR&E decisions and of course, VBA claims for compensation. They are not allowed to decide anything that has not been properly appealed from the Agency of Original Jurisdiction below.

VA rarely, if ever, discusses the actual ratings diagnostic code in the grant of a claim. Try this one on. I wrote it this morning just for you, Pwrslm. https://asknod.wordpress.com/2015/10/16/diagnostic-codes-in-ratings-grants/

We have yet to see a Regional Office issue a grant for a Hepatitis C infection via a jetgun at the Regional level. Every one goes to the BVA. It would seem they could just say as much and let it go up as a traditional appeal but the normal Dog and Pony show has prevailed for the last twenty years. Every win that relied on it occurred above -some even went to the CAVC. So Broncovet is essentially correct. There are some appeals that can never be granted. Leroy Macklem's was one of note-a CUE back to 1952. The RO accidentally granted it and then tried to moonwalk back out of it. Several others have been similar.

One thing I try to impress on you claimants is that the VARO is invariably wrong. They are always in a rush and top sheet everything. If they do not see it in the top three or four pages, for all intents and purposes, it's nonexistent. Case in point.I reported for my AO registry exam on Sept. 21, 1993. The first thing they said (at the VAMC) was that I had never been scheduled for one. No explanation on why I would be there. I showed them the notice. They immediately sent me to do all the labs and so forth but said they'd have to reschedule the doctor's exam. That never happened. I finally filed for Porphyria six months later in March 1994. The AO exam was constructively part of my archived records (before the advent of the present VISTA computer medrecs.) I finally got those records and sent them in to VA to include in my claim in 2010 on appeal to the BVA. By rights, VA should have collected them. Yeppers. Duplicate was stamped across it when I finally got my c-file. You are going to face this problem so be prepared. Cite to it and document it. The c-file cannot lie. It contains everything you send in and all the medrecs unless you are one unlucky fellow like Jerrel. Fortunately, he'll be able to reconstruct his c-file to the consternation of the VA soon and prove that the Presumption of Stupidity is alive and well. Just because VA says it doesn't make it so. If you know you're right, time and the appeal will bear you out. You may have to go to the CAVC as I did to prove what was right in front of them all along but you'll prevail. Eventually, we win so do not lose heart. The more complicated it is, the longer it takes. My claims can always be used as a worst case scenario but take heart. Most of you didn't have any classified stuff that was buried for 40 years in nondisclosure agreements. I could have won it in 1994 if my medals had been listed on my 214 showing combat. Live and learn. That's why Theresa built this. We all want you to get there with the least amount of effort. You earned it. You shouldn't have to fight for it inch by inch.

I have done this several times and always met with the individual. The first was in 1975 over a VA mortgage I was turned down for. The rater reversed his decision based on my imminent marriage.The second was in 1990. I was denied for a back injury incurred in an airplane crash while flying for Air America in 1971. We could not resolve that one because the records had not been declassified. It became a Mexican standoff with none of the parties willing to give. I lost at the BVA in 1992. I filed a CUE to reverse it in 2010 along with new 3.156( c) declassified evidence. I relented when the VA agreed in the Joint Motion for Partial Remand (JPMR) at the CAVC to grant my Hepatitis C at 100% back to 1994. The amount of money involved and the time to pursue it were nit noy and not worth the effort. It was a valuable bargaining lever to extract the 1994 P&T date and nothing more. We were arguing for 40% from 1989 to 1994. I also threw in 10% for tinnitus from 1993 to 94 as well. You should always have a few bargaining chips to give in return for the Big one you seek. As I mentioned in the post, I do not suggest just cold calling them. I prefer the 800 Dial a prayer method I mentioned of suddenly getting cut off just moments after you mention you'll be there Friday morning at 0900 to try to resolve your "differences". Remember always. No guns, knives or tactical nuclear devices with long fuses. Eat your prescribed Valium and/or Thorazine and be polite as honey. You want a smiley, nonconfrontational meeting if possible. At worst, perhaps a "polite" disagreement and a request for what you need to attain the service connection/increase. VA raters are not going to play keep away from you. They are obligated to tell you what you need to succeed. As for Mr. Rater being in East Bumfork Ohio that week, VA cannot lie to you. If he's there, he has to make himself available or send someone in his stead who can discuss it. My friend Kevin in the Philippines uses the Manila Office. Turns out the yokels there have only one DRO who is even remotely acquainted with the tenets of higher SMCs (O. P, R1 & R2). They denied R2 based on improper metrics. He was able to call up and meet personally with the Director of the Manila RO to resolve the issue. The director called in the rater and the three politely ironed it out. I think they agreed to send it up to VACO in DC for more intelligent folks to decide it. Nevertheless, it illustrates that the moat around the RO is far from impassible. The absolute worst that could occur is you arrive and get the cold shoulder from the jack-booted thugs in the Foyer. In that case, you can have a valuable partner in Channel 7 news when you tell them the story afterwards-right outside the building. VA., as we all know, is now in the news pretty much 24/7/365. They can't fart without the media methane detectors going off. Your personal story of VA's intransigence always makes the six o'clock news if it's provable. My last trick is the one I prefer. When I filed my Extraordinary Writ January 5th, all hell broke loose. The Seattle VA Director and the Veterans Service Center Manager (VSCM) both tripped over their neckties trying to "fix" 21 years of negligence and stupidity. I received my own personal VA employee to call any time I felt things were amiss. Tami S. and I developed a camaraderie that was like peas and carrots. She called me several times to arrange the best VLJ Board hearing in an extraordinary two weeks time ( April 29th). She personally met us (Bob Walsh) that morning and provided us with coffee and chit chat. I asked for my VR&E file that had been promised to me that morning. Tami dutifully went off in search of it and discovered it was "missing". This disturbed her far more than us. Seems a VR&E file may never be separated from the parent c-file. Tami was mortified that VA might "cheat". She personally tracked it down, sent it out to the vendor for copying and had it to me a week after the hearing. We still chat on occasion and discuss this and that. She is the RO's girl Friday and works the Congressional Interests (CI) section. That's the outfit who answers the Congressman/Senator's queries. You want that number on your autodial. In sum, never for a moment believe your only avenue to RO ingress is the 800 number or IRIS. Calling Allison or Big Mac are viable if the error is extremely ugly. I would save that lifeline until there are no others. Remember, You only can use it once. Notwithstanding those venues, "dropping in" on the VARO with suitable forewarning is a valuable technique. VA is now in what we call defense mode. They are required to be "veteran-centric" and actually smile. They have to try to find common ground with you rather than laugh in your face and tell you all about those cold days in Hell. The new VA is required to "work it out" and meet the Veteran halfway. Always remember that golden phrase: "News and film on this story at six tonight on Channel 7 Investigates."

<<<Retro for an extra year only applies to the first time claim.>>> Better brush up on the law regarding this. Prior to the FDC format, a first-time claimant's date of entitlement will always be the date of filing. A filing for an increase in ratings percentage can grant you entitlement up to a year earlier (but no more) if your evidence shows you were eligible for it. Example: 1) Johnny Vet "A" files his very first claim post-service on January 1, 2015 and wins . He gets a lowball rating that is less than what he expected. He has medical records supporting entitlement to a higher disability rate prior to the January 1, 2015 filing. Result? He gets the rating increase but the effective date is still January 1, 2015 and always will be. If you do not ask, you do not receive. 2) Johnbo Vet "B" files for an increase of his already-rated disease/injury on January 1, 2015. He wins but also has private medical records from his doctor showing he was "X" disabled over a year prior to the request for increase. VA awards the higher disability percentage but also awards the effective date of a year earlier (i.e. January 1, 2014). Here's the reason: 38 CFR 3.400(o)(2) (2) Disability compensation. Earliest date as of which it is factually ascertainable that an increase in disability had occurred if claim is received within 1 year from such date otherwise, date of receipt of claim. VA did offer the one year retro when they came out with the FDC format in 2013. For the most part, VA finds something that queers the FDC submittal and causes it to be relegated back into the normal claims path. Here, it appears BrianDalegm filed a FDC and prevailed. The one-year retro should be awarded if it is still a valid regulation on the books. I haven't heard of them rescinding the offer...yet. I suspect they'll "forget" that stipulation and make him file a NOD to correct it.

<<<to me thats a superimposed condition that they that when read togather with other evidence such as two reports of a chronic injury in service>>> You need to get a doctor to say it (superimposed condition) for you. Always remember the Caluza/Hickson/Shedden triangle. (1) Disease/injury in service; (2)current chronic disease/ injury; (3) doctor's nexus letter linking the two together. You cannot win with only 2 of 3. Unless you, yourself, are a medical doctor or have extensive training in your disease/injury etiology, you cannot opine or assume anything medical about yourself. At this stage, you can obtain that nexus and reopen your old claim to win. You cannot assail a denial in 1985 with a newer interpretation of what the medical evidence purports to show in 2015. See Russell v. Principi for the definitive example of CUE. Better yet, read this to grasp it in layman's terms: https://asknod.wordpress.com/2014/05/02/cue-the-quintessential-elements/ Many in the Veteran community don't fully understand the ramifications of CUE. Rearguing the old 1985 evidence in 2015 can never rise to the level of CUE. It has to be so glaring that even a chucklehead such as a rater can see it. Lastly, if you have any service medical records VA does not have (you mentioned 5 pages), you may be entitled to the 1985 date based on 38 CFR 3.156(c). That would be much easier pathway. Best of luck.

Jez. File a Waiver of review in the first instance so it doesn't boomerang back to the RO if you are truly worried. If you send it to the RO for a de novo review, why bother having an appeal? They'll promptly beg the BVA to remand it back to get another shot at denying you. Reason? Because by sending it in to the RO, you're begging them to do just that. The idea is to get a real attorney to view it, not a Legalzoomdotcom RVSR. Time for you and others to start reading what all these folks write who put good advice up here. I see the same questions posed every other week. The idea is to do your own research on what others have encountered already. If there is still something unclear, by all means ask a question. There's almost 19 years of accumulated knowledge in Theresa's library here and few will bother searching for it. Everybody just asks as if their dilemma has never been encountered before. I don't mean to sound rude but the idea of Hadit and my blog is a DIY approach- not a "What do I do now? I got denied." Considering it takes VA years to get anything done, you could have a juris doctorate while you're waiting. For one thing, I know you are very intelligent, Paul. Why would you consider going backwards as Stillhere pointed out? It's a non sequitur. Getting it to the BVA is a major feat-the major feat, I might add -in our quest for justice. Justice is far more likely in the Courts above in case you hadn't noticed. 85% lose at the RO. 23-30% prevail if they appeal. For the lucky 4,000 + who appeal to the CAVC, fully 67% get a positive outcome and live to fight another day and fix the VSOs' screwups. You want to walk away from all that and go make another bomb run on the VARO? Time for an Intervention.

I don't reckon you been playin' ball very long with these folks, huh?