FormerMember

VA is constrained to look at 38 CFR 3.303(c): (c) Preservice disabilities noted in service. There are medical principles so universally recognized as to constitute fact (clear and unmistakable proof), and when in accordance with these principles existence of a disability prior to service is established, no additional or confirmatory evidence is necessary. Consequently with notation or discovery during service of such residual conditions (scars; fibrosis of the lungs; atrophies following disease of the central or peripheral nervous system; healed fractures; absent, displaced or resected parts of organs; supernumerary parts; congenital malformations or hemorrhoidal tags or tabs, etc.) with no evidence of the pertinent antecedent active disease or injury during service the conclusion must be that they preexisted service. Similarly, manifestation of lesions or symptoms of chronic disease from date of enlistment, or so close thereto that the disease could not have originated in so short a period will establish preservice existence thereof. Conditions of an infectious nature are to be considered with regard to the circumstances of the infection and if manifested in less than the respective incubation periods after reporting for duty, they will be held to have preexisted service. In the field of mental disorders, personality disorders which are characterized by developmental defects or pathological trends in the personality structure manifested by a lifelong pattern of action or behavior, chronic psychoneurosis of long duration or other psychiatric symptomatology shown to have existed prior to service with the same manifestations during service, which were the basis of the service diagnosis, will be accepted as showing preservice origin. Congenital or developmental defects, refractive error of the eye, personality disorders and mental deficiency as such are not diseases or injuries within the meaning of applicable legislation. Keeping that in mind, the mere use of the word "congenital" dooms the claim absent proven further aggravation in service. The CAVC recently ruled on this and uses the philosophy of dividing it into two camps. Either it's a disease or it's a defect/malady that runs in the family. If you're born with spina bifida, it's a congenital abnormality, not a disease. I share your angst on this one but wishing six was nine in 1985 (VAOPGCPREC 82-90) is a moot argument. As for CUE, read the following: § 20.1403 Rule 1403. What constitutes clear and unmistakable error; what does not. (a) General. Clear and unmistakable error is a very specific and rare kind of error. It is the kind of error, of fact or of law, that when called to the attention of later reviewers compels the conclusion, to which reasonable minds could not differ, that the result would have been manifestly different but for the error. Generally, either the correct facts, as they were known at the time, were not before the Board, or the statutory and regulatory provisions extant at the time were incorrectly applied.(b) Record to be reviewed—(1) General. Review for clear and unmistakable error in a prior Board decision must be based on the record and the law that existed when that decision was made.(2) Special rule for Board decisions issued on or after July 21, 1992. For a Board decision issued on or after July 21, 1992, the record that existed when that decision was made includes relevant documents possessed by the Department of Veterans Affairs not later than 90 days before such record was transferred to the Board for review in reaching that decision, provided that the documents could reasonably be expected to be part of the record. (This accounts for the holding in Bell v. Derwinski 1991 re "constructive possession" of pertinent, probative evidence.)(c) Errors that constitute clear and unmistakable error. To warrant revision of a Board decision on the grounds of clear and unmistakable error, there must have been an error in the Board's adjudication of the appeal which, had it not been made, would have manifestly changed the outcome when it was made. If it is not absolutely clear that a different result would have ensued, the error complained of cannot be clear and unmistakable.(d) Examples of situations that are not clear and unmistakable error—(1) Changed diagnosis. A new medical diagnosis that “corrects” an earlier diagnosis considered in a Board decision.(2) Duty to assist. The Secretary's failure to fulfill the duty to assist.(3) Evaluation of evidence. A disagreement as to how the facts were weighed or evaluated.(e) Change in interpretation. Clear and unmistakable error does not include the otherwise correct application of a statute or regulation where, subsequent to the Board decision challenged, there has been a change in the interpretation of the statute or regulation.(Authority: 38 U.S.C. 501(a), 7111)That is the mountain you have to climb to prevail. I fervently hope you can but trying to wish GC 82-90 was written in 1985, even if it essentially encompasses the same tenets, still falls into the primary CUE requirement that the regulation or statute be in existence prior to the advent of your claim. I wished I'd filed for Hepatitis when I got out in 72---but I didn't.

If you reopen it with an accusation of CUE , VA will eat you for breakfast before you're awake. CUE would have to ignore that " congenital" word. A changed diagnosis in 2014 is not CUE either. Most radiologists are MDs who read the x-rays. They don't allow the technician to prognosticate. You can always find the gottcha in a VA decision. Congenital was the word that punched the hole in your claim boat. See Rizzo and Sickels for the presumption of regularity re VA C&P doctors.

Roger that. They suddenly become far more interested in you. Check out Keith Roberts' saga at the CAVC and the Fed. Circus since 2004. He did a few years at the Graybar Hotel and then they suddenly found him innocent. An amazing tale that still hasn't been resolved.

MRSA is not a disease per se and thus is acute and resolves. A disability has to be ongoing and chronic for remuneration.Take hepatitis A. You cannot receive compensation for it even if you had it in service. You heal and it becomes resolved. No more Hepatitis A. End of disability. By law and DC 7345, you cannot be rated for it at a compensable rate because there are no more symptoms. If you got smallpox while in service the same thing would apply. As for the DAV, the VA and your attorney all in the same room together yukking it up at your expense, how, pray tell, can you be simultaneously represented by both a VSO and a private attorney? Only one guy gets to hold the POA at the same time. If they're all close friends and play golf together, you might want to look for new legal help that represents you and not VA. I cannot imagine an attorney cancelling a hearing without your input pro or con. As for a VSO, they do it all the time without so much as a by your leave.

TDIU requirements are cast in stone. A VR&E assessment that "work is infeasable" is a subjective assessment of a VR&E counselor and not a finding of fact. It has no material, binding effect on a rater's decision. § 4.16 Total disability ratings for compensation based on unemployability of the individual. (a) Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities: Provided That, if there is only one such disability, this disability shall be ratable at 60 percent or more, and that, if there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. For the above purpose of one 60 percent disability, or one 40 percent disability in combination, the following will be considered as one disability: (1) Disabilities of one or both upper extremities, or of one or both lower extremities, including the bilateral factor, if applicable, (2) disabilities resulting from common etiology or a single accident, (3) disabilities affecting a single body system, e.g. orthopedic, digestive, respiratory, cardiovascular-renal, neuropsychiatric, (4) multiple injuries incurred in action, or (5) multiple disabilities incurred as a prisoner of war. It is provided further that the existence or degree of nonservice-connected disabilities or previous unemployability status will be disregarded where the percentages referred to in this paragraph for the service-connected disability or disabilities are met and in the judgment of the rating agency such service-connected disabilities render the veteran unemployable. Marginal employment shall not be considered substantially gainful employment. For purposes of this section, marginal employment generally shall be deemed to exist when a veteran's earned annual income does not exceed the amount established by the U.S. Department of Commerce, Bureau of the Census, as the poverty threshold for one person. Marginal employment may also be held to exist, on a facts found basis (includes but is not limited to employment in a protected environment such as a family business or sheltered workshop), when earned annual income exceeds the poverty threshold. Consideration shall be given in all claims to the nature of the employment and the reason for termination.(Authority: 38 U.S.C. 501)(b) It is the established policy of the Department of Veterans Affairs that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. Therefore, rating boards should submit to the Director, Compensation and Pension Service, for extra-schedular consideration all cases of veterans who are unemployable by reason of service-connected disabilities, but who fail to meet the percentage standards set forth in paragraph (a) of this section. The rating board will include a full statement as to the veteran's service-connected disabilities, employment history, educational and vocational attainment and all other factors having a bearing on the issue.[40 FR 42535, Sept. 15, 1975, as amended at 54 FR 4281, Jan. 30, 1989; 55 FR 31580, Aug. 3, 1990; 58 FR 39664, July 26, 1993; 61 FR 52700, Oct. 8, 1996]The requirements are simple. You have to have a 40% rating and others that combine to make 70%-----or----- you have to have a single disability that is 60% or more disabling. The 40% or 60% disability will be the focal point of the ratings decision. No other disability, in and of itself, will be included in this assessment. Absent that minimum 40% rating with the combined total at 70%, all the VR&E assessments are not going to carry the day. I had a Vet with one 30%, three 20% and two 10% disabilities who could not prevail in spite of the VR&E paper. He genuinely could not work. We had to focus on a disease/injury and move that forward to a 40% rating to win. I do not mean to throw water on the fire. A VR&E assessment with the 40+X%=70>% or the 60>% is certainly good evidence of unemployability but it can never become the sole basis for the decision. VA often speaks of "a finding of fact" which is a legal standard based on 38 USC and mostly on 38 CFR. You cannot get past that wall to a TDIU without meeting the legal requirements. A VR&E "finding" of unemployability is not a VBA "finding" of unemployability. The chasm between can only be bridged with a 21-8940 and actual, documented proof that convinces your rater. Of, course, considering how brain dead most VA raters are, it's entirely possible you could smoke them with this evidence! VR&E is an educational arm of the VA. It falls in a grey area between VBA and VHA and is a tool to enhance your work potential. For those who will never work again due to their disabilities, its main thrust is the Independent Living Program or ILP. That has become a joke over the last two decades and now has more requirements than SMC ever will. Best of luck.

If you believe anything eBennies says, I'm gonna go out on the skinny branches and say you belong to the Flat Earth Society. Say you're funning me. I'm the poster child for expeditious. Twenty one years, six months and four days. I actually believed three VSOs.

I mean no arrogance. I know waiting. I know going so far into debt that the twelve years of retro can't even fix it. Lost vacations. Lost college opportunities. I could go on. You are are getting creamed. You've won so that's half the battle. Getting inside the wire is 80 % of the war. Mopping up VA resistance is the rest of it. If you are experiencing extreme financial issues or risk foreclosure, you can get VA to do it in 90 days. Likewise, any medical issues of offspring or if you are over 30% rated provokes the same codicil of 20.900(c). Mitigating circumstances that merit advancement to get the benefit funded are most easily addressed by visiting the RO in person. Be prepared to wait. Bring some good pink bubble gum. We find this far more rewarding. Never bring the VSO unless you want to muddy up the water. I just had a Vet friend do this at an RO yesterday. He ended up meeting with the VA Service Center manager. He was able to talk directly to the rater afterwards who screwed up. He was able to tell the rater the correct SMC interpretation. The rater has agreed to contact the C&P physician and ask him if being paralyzed from the waist down with no bowel control is the same as having anatomical amputations such that it would be infeasible for any protheses to attach to the trunk of the torso for either leg. I don't make this stuff up. Best of luck. I'm glad you are beginning early. We leave none behind... everyone gets a shot. I just found it an amusing anecdote about expecting VA to do anything "expeditiously". I certainly mean you no disrespect. You are a Veteran with a capital V. You volunteered when few others would. America owes you one. Or Two. Or however many it requires to get it right. The good Lord forbid it takes as long as mine did. I'm done litigating.

<<<<<<<My SC on two conditions was granted Aug 14, 2015 by BVA,>>>>>. This is priceless. I got a JMPR back from the CAVC to the BVA on 4/13. It took six months to go 6 blocks from Indiana down to Vermont Ave NW (11/13). It took another three months to be rated and funded at the RO in Seattle (2/14). And it was handled "expeditiously". And they only gave me 3/4 of it. I had to file all over again to get the rest. Sometimes you guys are pretty funny about expecting the VA to "gitterdone" in a timely manner. As for advancement on the docket, once it commences, it's just over four months to a decision currently.

Sunrise July 28th 1989. Sunset Sept. 4th 2015. 100 +100+40+30+10+0%. And that little 24 X 48 greenhouse with all the bells and whistles. I believed my DAV rep. I believed my Amvets rep. I believed my MOPH rep right up until my wife said WTFOver. I went out and won it six months later pro se. All three of them never told me about a nexus letter. The DAV puke in 1992 never told me I could go to the CAVC. He also said to let the 0% for tinnitus "ferment" for 10 years and he could then get me 10%. He said he didn't want us to look 'greedy'. That's what VSOs do. A hearing that corrects a mistake is a worthwhile one. If it entails N&M E, even more so. But mostly, they are useful when a rater just bolloxes up the claim so badly you need to have a sit down and do the Powerpoint presentation. Having an attorney - a real dyed in the wool one with a JD, lets the VA know you're not a flash in the pan that is going away with his tail between his legs. Always remember what the VSO charters say. "We promise to help the VA adjudicate a Veterans claims." An attorney's credo is "I promise to do everything legal to get you SC". No mention of helping VA. Big difference, sir.

You may request a hearing at any time during a claim-before decision or after and still have a DRO hearing which you request with the filing of your NOD. I had one in 1990 right after my initial denial. It didn't help a whit but what the hey, I got to meet the idiot who was denying me. He later became the head of the Seattle RO. Too bad he retired before he got to see all his hard work overturned by the CAVC.

For any of you living in the greater San Diego area, I will be giving a speech to the Vietnam Dustoff Association's reunion members at the Hampton Hotel downtown on Friday morning around 1030 hours. VDA folks are the first group of maniacs I've ever encountered who, like me, lacked the common sense gene about self preservation. We tended to run or fly towards the sound of bombs and bullets rather than away from it. The speech will be about filing for VA claims and some of the newer techniques. The focus will be on Agent Orange claims, Hepatitis C and PTSD. After 26+ years, I won't say I've seen it all but I expect there isn't much I haven't seen. Would love to meet any of you Hadit members for a photo op to include in the asknod blog. We're becoming a force to be reckoned with thanks to Theresa's dogged determination all these years. I don't get out much anymore and the invite down to speak to some of the bravest men who ever served in any war yet (with me) in combat is an honor few receive. Hell, I'd go down there for an opportunity just to listen to their stories. And like me, most never got their promised medals for bravery. Funny how the REMFs all managed to get theirs! Chesty Puller once said "War is Hell. Combat, on the other hand, is something entirely different.'' Alex sends

What we're seeing is that VA will accept your N&M E and usually still issue a SSOC. They rarely, if ever, change their MO on this. SSOCs eerily resemble the SOC as if they never look at the N&M E. With the advent of a "no returns'' policy at the BVA (i.e. no remand for de novo review at the RO based on N&M E), your best bet, and the one we're all seeing a lot of success with, is submission of the N&M E only to your BVA judge for a truly "new look' at it. If the IMO/IME is probative and well- documented, the VLJ is far more receptive (and intelligent) and a grant there is far more likely. After filing CUE on a skin scarring reduction, I chose to include it in my laundry list on the Extraordinary Writ. VA promptly gave me back the 10% and I submitted a new IMO from my PA-C on my skin to the VLJ at the hearing. He didn't quibble and granted the increase to 30%. If you do it right, you win. Eventually. Why it took me 21 years is a good question. Best of luck sir.

A DRO SOC often resembles the original denial verbatim. That's why we call them the "What part of 'No' didn't you understand?" communication.

The only reference you will find for MFR is at the BVA when you are denied. It is a petition with a hand grenade pin attached to it- or was. If you asked the BVA Board Chairman, currently Laura Eskinazi, they would sit as a Board of three and debate the merits of your MFR. If you pass the test, you would get a new BVA decision by that triumvirate. Likewise at the CAVC, if your Appeal was heard by a single judge and the decision was affirmed (you lost), you could also petition for a Reconsideration or convening a panel to hear it. Both paths are discretionary and can be denied on their merits or if there is no matter of first impression that needs a precedental opinion. Technically, there is no MFR at the RO. There is, however, an administrative review that can be filed but we aren't discussing that. https://www.law.cornell.edu/cfr/text/38/19.50 Most Vets think the party stops at Part 3 and 4 but there's still a mess of magic up in Part 19 and 20. A lot of us old timers have had to go up there to bag a win. I won back to 1994 not on what I claimed [3,156(b)], but on 19.29. The buttheads told me in the SOC they were giving me a de novo decision but never did. I waited 12 years and finally began to get the feeling they were funning me. I won it all in 08 but had to fight for the earlier date. Certain things just cannot be won at the RO. If it goes over $25 K in retro, you need three signatures. If it's a Hep C claim from jetguns, forget it. You have to go to DC. Some claims are just above the DRO's pay grade to decide. Best of luck. Clear prop--kick the chocks

Always read your denial very carefully. It clearly states you have no service medical records of injured finger in service. This kind of trauma, if it is compensable, would entail going to the hospital or Emergency room. The absence of the evidence is what caused the denial. Dr. Bash can opine all day on your finger injury/scar being of service origin but with no doctor/medical report in your contemporary STRs, you really don't have an actionable case. If you use a buddy statement, you need his DD 214 and a statement with the codicil at the bottom of a 4138 (I certify that the above is true and correct to the best of my knowledge and belief) and a real life blue line signature. It has to be typed and done on one of the new forms that are online for VBMS submission. Remember anything written by hand won't fly because the word-searchable .pdf can't recognize handwriting. A scar must exceed a certain size in sq. inches to be rated as compensable. VASRD uses the Rule of Nines. I don't think there are enough sq. inches on one finger alone to add up to a compensable rating short of amputating it. However, there is referred pain as an alternate path for compensation. Look at DC 7800 scar series and see if any fit your circumstances. As for the irritable colon syndrome/UC/Crohn's, VA needs documented proof of the disease process while in service. If they are not seeing it ( and you have it), you need to resubmit it along with any nexus letter to the intake portal in Wisconsin/Georgia and "refresh" their memory. This is a rather new VBMS technique I wrote about recently here. https://asknod.wordpress.com/2015/08/30/vbms-the-new-electronic-frontier-part-i/ Time is of the essence if you chose to fight with a reconsideration. You may couch your request in that vernacular but perhaps a "Please, sir. It seems you overlooked this document when making your decision. I do not see it listed in the evidence. Could you please take another gander at it based on this? Use a 21-4138 catch-all form to ask for it. Do not launch a 21-0958 until there is nothing else for it if you intend to use this method.

I dissected the BVA dream team's statistics and ferreted out any charts worthy of use. I hope this will help some of you to realize what the VBMS is going to provoke at the BVA. It's already happening. https://asknod.wordpress.com/2015/09/18/bva-2014-report-the-laura-eskinazi-show/

If VA had made an overpayment, a waiver would be for consideration-especially if the Vet had come to depend on a 90% compensation check. Here, the DoD is involved and the disbursement wasn't in VA's purview. All they can do is to collect it and return it to DoD. That's a standard practice. VA's propensity to lowball is the obvious direction of attack. Peruse the VASRD closely and determine from any C&Ps if the ratings % was at the low end. Remember, to qualify for a higher rating, the BOTdoubt accrues to the Vet. He doesn't have to suffer each and every ailment associated with the disease/injury to qualify for a higher percentage-just most of them.

Call me Bob (Big Mac) recently attributed to all us Vietnam Vets with our whining and over-the-top propensity to file claims suddenly. Yeppers. Blame it on Vietnam Vets-the 855,000 who are still alive and somehow managed to survive this long.

I understand the wife to say he has been service connected at 40%. If so, there is no need for an IMO (IME) to link it to service nor would there be any requirement beyond a cohesive argument for a higher rating. Once a disease/injury is service connected, there is no more discussion on the why or the how. The next metric is the degree of severity. A probative IMO would only discuss the degree of disability and compare it to the VA Schedule of Rating Disabilities (VASRD) to ascertain the proper rating percentage. End of story. If the DRO review was negative (i.e. denial), the SOC would be issued and a Form 9 included in the mailing. At no time would you be required to file a VA 9 in order to obtain your SOC. In fact, absent a SOC, you are precluded from filing a VA 9. As for the attorney, if he is worth his salt, he can contact the VARO rater directly. I do it all the time through the Appeals coordinator there. This isn't rocket science.

VA has fought me and a multitude of other Vets for decades since the AO act of 89 granted us presumptive for PCT. I finally finagled a 100% rating out of the gomers for it but it took 21 years and some change. Read through and see if any of it will help you. It's precedence in that you can shape the same argument to your situation. VA simply doesn't have a rating for PCT that encompasses anemia, phlebotomies, skin scarring and some of the other ailments associated with it. They tried for years to sandbag me and went so far as deny me the earlier effective date, clawed back my 10% skin rating and then gave it all back-to 1994 no less. They tossed in the 60% bone thinking I'd go home. Not. I sincerely hope this helps any of my Vietnam brothers who suffer this atrocity. https://asknod.wordpress.com/2015/09/13/bva-porphyria-equals-100-schedular/ Clear Prop

And then the subcontractor is allowed to destroy the original file. Why not send it to the Vet after scanning? I have had three reports of documents missing from a newer scanned (VBMS) c-file than the same one produced in the 2006-2010 era. So who is supervising the scanning?

Boy isn't that the truth. Once they open a claim up to an earlier effective date and you're still talking 1994, it kinda pokes a hole in the nonadversarial, veteran-friendly balloon. I'm finally finished- but what -26 years later from 89? You light the Writ fire under their feet if you want action. I had to do it twice. 2/4 on BVA decisions. 2/3 on CAVC total. Win or Die. I subscribe to the squeaky wheel theorem. After 20 years, they finally get that feeling you're not going to go away.

If you have a newer version of Adobe Acrobat ( I have Adobe 9), you can turn it into a word-searchable document that allows you to type in key words to narrow your search. This is almost a "gotta have" these days especially if you have a 26-year old c-file that runs into 4,500 pages. I'd be happy to walk any Vets through if enough want to learn it. I've never had any computer lessons and I figured it out by googling how to do it on line. All c-files are now converted into this format before they go to the BVA or the CAVC. I helped one Vet get his and the file was so old, all the documents are still in the old 1970 format in living color. One thing we are seeing is the VA's subcontractors are scanning in the order they come to them in. My Gutenberg bible (11 folders) came to the CAVC in 52-card pickup format. Documents from 1989 were interspersed with documents from 2008. And we wonder why the raters cannot find critical documents in a timely manner. Whoever instituted the protocol of arranging c-files for VA is the guilty party. In the 1990s, they were very orderly and chronologically in order. My last trip to the CAVC was a wakeup. We had 60 days to review it and complain. Try doing that with a big file and you'll be up all night for 59 days just trying to make sure it's all there- let alone actually reviewing it for useful documents to buttress your appeal. More and more, we are seeing a slapdash, hasty copy job that omits some things like Congressional inquiries. Used to be they always documented every time you called the 800 dial a prayer number and a brief summary of what was discussed. Just remember that the VBMS system is new and full of potholes. One day it will become an invaluable tool to help us. The operable phrase in that sentence is "One day". Merely accomplishing the goal of reducing the backlog is pointless if the finished product is inaccurate and full of mistakes. I expect we can all agree on the fact that VA screws it up 65% of the time regardless of what they state. One thing I'm sure of is it doesn't incorporate all the remands from above.

VA finally has finished rating me. I just got my last 100% schedular bringing me to 262%. On top of that they granted my ILP request for a $120,000 greenhouse to keep me out of the bars. 21 years of tears finally is over. What will I do with all my spare time? https://asknod.wordpress.com/2015/09/08/bva-grahambo-runs-the-ilp-table/

And send it to one of the Intake Centers at Janesville or Newnan. Do not send it directly to your VARO. If you mail it, get a cert. mail green card to prove it. If you do it electronically, you risk having no presumption that they got it(common law mailbox rule). Good deal. Press print and send.