FormerMember

According to the thread, he's already at M with a bump up from SMC L from the 3.350 F (4) which was already Aid and Attendance, Mr. L. I think he needs to be looking at R1 and that is whole different ballgame. VA defends that like Seattle in the red zone on 4th and goal. You could throw SMC O against the wall to see if it stuck: (2) Paraplegia. Paralysis of both lower extremities together with loss of anal and bladder sphincter control will entitle to the maximum rate under 38 U.S.C. 1114(o), through the combination of loss of use of both legs and helplessness. The requirement of loss of anal and bladder sphincter control is met even though incontinence has been overcome under a strict regimen of rehabilitation of bowel and bladder training and other auxiliary measures. One thing most do not understand is that R1 is given if you qualify but do not use a "licensed" caregiver. R2 is paid for a licensed one if required. and boy howdy will VA weigh in on the need for a licensed one to keep you out.

LOU of bladder falls into (h) Special aid and attendance benefit; 38 U.S.C. 1114®— (1) Maximum compensation cases. A veteran receiving the maximum rate under 38 U.S.C. 1114 (o) or (p) who is in need of regular aid and attendance or a higher level of care is entitled to an additional allowance during periods he or she is not hospitalized at United States Government expense. (See § 3.552(b)(2) as to continuance following admission for hospitalization.) Determination of this need is subject to the criteria of § 3.352. The regular or higher level aid and attendance allowance is payable whether or not the need for regular aid and attendance or a higher level of care was a partial basis for entitlement to the maximum rate under 38 U.S.C. 1114 (o) or (p), or was based on an independent factual determination. 3.352(a) inability to attend to the wants of nature; The three extremities rule: (5) Three extremities. Anatomical loss or loss of use, or a combination of anatomical loss and loss of use, of three extremities shall entitle a veteran to the next higher rate without regard to whether that rate is a statutory rate or an intermediate rate. The maximum monthly payment under this provision may not exceed the amount stated in 38 U.S.C. 1114(p). Technically, there is no stricture of piling 3.350(f) (5) on top of 3.350 (f) (3 or 4) . VA might plead differently but few of us ever get this disabled and try to test the rule. In the past we've always had VSO minders who dissuaded us from even thinking about attempting this. I'm even working with a gal who's husband is in the TBA zone after the VA weenies dumped him on the floor in the VAMC. She's going to try to put a can opener into SMC T even though he is pre-9/11/2001. Any statute/reg. that is legally at odds with others sets off a wave of disparity in the administration of benefits. SMC is so unique, I doubt anyone has ever examined all the possible permutations or combinations that can present. As such, each is a unique matter of first impression. We pretty much know what VA's take will be but that's immaterial. It's what the Fed. Circus or SCOTUS' take is.

There's nothing as satisfying as bearding that goat, sir. I've personally had that pleasure twice of doing the Four no trump with the green card and say "Why, isn't that Frank McGonnagle's signature from the mail room? I see on VA's roster of employees that he's listed as a GS-7. Looks like the Common Law Mailbox Rule applies from where I'm standing." It's worth two pictures on the cover of RS.

Wilson v. Derwinski is still for application in spite of Walker. Walker merely eviscerated the predicate based on 3.303(b) but in no way impaired it's bright line rule where 3.303(a) is concerned. Think of a disease process like this. You have an event either before or in service and well-documented. It's part of what we call the Evidence of Record (EOR). VA will try mighty hard to diminish this event into an "acute but resolved before separation" or "evidenced before enlistment and did not increase in severity". The fallback on the second is that "any increase was due to the natural progression of the disease/injury process." Sound familiar to any of you? I was handed the acute but resolved one on my back claim in 1989. My SMRs even sated "Sgt. has been scheduled for complete ortho workup in March. I was discharged Feb. 21. All the EOR stated categorically that the injury was chronic and ongoing. Get it through your heads. They deny as a matter of course in hopes you'll go away. It has nothing to do with intelligence or fairness. It isn't because they are braindead. They are an insurance company with no competition for service. They regularly deny 85% of the time and have been since the War of 1812. Nothing new here. It wasn't until 1995 and Caluza v. Brown that they let slip we needed a nexus letter from a doctor to win. VA has a Cliff Notes book on denials that is about 5 pages long. They never deviate from it. You will rarely get justice at the RO level unless your arm/leg is visibly missing and was documented as being removed by a Purple Heart. Hell, even then they deny because they don't read the file. Hopefully this will change with word-searchable .pdf versions of our c-files as the VBMS eventually does what raters never could-----read the file in its entirety. Don't be disturbed that VA seems to be underhanded or is cheating. It's their modus operandi and has been for over a century. Sadly, a large majority of you simply fold up the claims tent at the first denial and go home to SSD/SSI with no fight. That is why we have sites like this-to inform you about these VA proclivities. The only way to beat them in the VA poker game is to find out what cards they are holding. Most of us with a viable claim eventually win at the BVA or the CAVC when VA can no longer hide the truth or shade it to deny with. I look forward to the day they hold one of these turkey raters accountable for hanging a Vet out to dry for 22 years like me. That would be justice.

<<<<<<<<<<<<How long is the wait for a DRO review? I'm tired of the regional office!! >>>>>>>>>>>>> I have a news flash for you. A Decision Review Officer (DRO) is usually a GS 12-13. Worse for you, Saints13, they are located at the Regional Office and only at the Regional Office. There is no special Regional Office populated strictly by Decision Review Officers except for maybe the AMC in DC. A DRO review is a legal option in the appeals path that occurs after a denial, following a NOD filing and before substantive appeal is certified to the BVA (see 38 CFR 3.2600). If you are tired of the Regional Office' handling of your claim/appeal, the very last thing you want is a DRO review. It almost guarantees you'll be there for another 500 days (Oakland = 585). Just a head's up. With USB Hickey's admonition to clear the backlog decks by 2015, VAROs across the US have instituted a "deny and appeal" stance to rid themselves of initial claims backlogs. This simply overloaded the DRO process and the BVA. The backlog still exists-just not at the RO ---on paper. Best of luck.

Get one of those new 21-526 e-z electronic forms and fill it out and print. Next, find the reason you're due the SMC- K and the medical evidence to prove it. Figure out what effective date it is due from supported by the SMRs. Use that as your effective date. Asking for SMC is not so much a claims filing but an entitlement VA always seems to disremember. The date you ask for it is immaterial as it is awarded based on when you qualify(ied). K entitlements are fairly obvious. A missing arm or leg (or both). Blind in one eye, totally deaf, Masectomy(ies), having both your buttocks shot off, loss of or loss of use of a creative organ, etc. Some will require more than photographic proof. You may have up to three (3) K awards simultaneously. I think Uncle Sam is chintzy. $102 bucks a month extra for losing your foot? $204 for both? Jez. I forgot. They give you free prosthesis stuff.

Wilson v. Derwinski (1991) (#90-673) The regulations require continuity of symptomatology, not continuity of treatment.

A nexus mentions you, your injury in the service and it's relationship to your injury now. An abstract such as the one above, if it doesn't list you specifically, is useless. It merely describes what might happen and what happened to some other Vets. Also, sorry to say that unless you are pursuing Agent Orange presumptive claims, you cannot achieve continuity of chronicity using 3.303(b). Walker v. Shinseki struck that one down. You must use 3.303(a) instead.Big difference. If you are not as well-versed on this as you appear, a VA attorney may be a really good idea. You don't want to screw this up.

I take all my excess squash to the food bank if they get away from me and get big. After about 20 visits, they pull down the shades and don't answer the door. Fighting VA should not have to be a lifetime avocation, but when they pick the wrong honcho to throw down with, they often find themselves in an interesting quandary such as yours and mine. I long debated going after them on the now-declassified Air America records I FOIA'd in 2012. VA declared anything related to that were not service dept. records. They put it in writing in 1989 saying "PMRs (personal medical records) are not proof of service connection." The records clearly identified me as "Sgt." What they hey. It's only good for a back injury claim from 88-94 when the 100% kicks in (maybe 20% at the most) so less than $3000. But now they pissed me off again... I hate that when that happens.

Sometimes there's just not enough runway to get airborne. After almost 22 years of litigation. with success an arm's length away, a CAVC Judge says "You didn't make the case, senor". Back to the hamster wheel. What the hey? I would have been bored in retirement. https://asknod.wordpress.com/2015/03/22/cavc-birth-of-a-writ-act-iii-scene-9-welcome-to-the-hotel-california-again/ Onward through the Fog. Right, Berta? ----X---- o o Clear Prop

The EAP was dead before I filed my NOD on my EED for 1994. Nevertheless, VA fought for seven long years to the CAVC to avoid it-not once but twice. Mandate issued Friday on 15-112. Davis told me to go piss on a flat rock. Back to the hamster wheel for the 100% for PCT and the ILP greenhouse.

<<<<<<<< i sent a primary care letter stating that i my bilateral hip pain could very well be related to service >>>>> This is why you lost in the beginning. Nexus letters must be couched in quantifiable terms. "Could have", "might have" and "probably are equivocal". It has to be in the M 21 format of "at least as likely as not" on up to "more likely than less likely" or simply "is due to". Next, a good nexus letter has to state that the doctor perused your service medical records. It's not chiseled in stone, but if VA's Examiner says s/he did so and your doctor didn't then you'll lose at the RO level. The VLJ is not going to ask you questions like Perry Mason on cross examination in Court. It's ex parte and you are free to spin your story. I prepared with a loose leaf folder for each issue. I had every medical record ever produced for each issue and the pilot's crash report on the aircraft. I had pictures. I had my wife to offer lay testimony about my back since 1981 and how it deteriorated. I had "buddy letters" from my kids testifying to my inability to pick them up in their youth due to lower back pain and radiculopathy. In short, Paul. There are no questions to be asked but you need to have all the answers and the right ratings criteria/ diagnostic codes language before you to provide or cite to. Another thing. If your records were unavailable and had not been associated with your claims file until recently, your ratings should be effective the date you filed in 2004. VA likes to fun you and give you the date of reopening. Yours falls into 3.156 © or Service dept. records that previously existed but only recently have been associated with the file. Do you have a copy of your c-file to cite to? That is a must. It's hard to fight them if you don't know what cards they're holding. Also. I pray you aren't contemplating this with a VSO unless s/he is skilled.

While I agree, I still maintain the "absence of evidence" is not "evidence of absence". The legal decision you are grasping for is "Absence of evidence is not negative evidence". But here, neither is it positive evidence. A claim is built on an incidence in service (LOD) documented in the medrecs. Absent the evidence it ever happened, there is no argument for a claim. Vets are not allowed to supply their own version of medrecs recited from memory. VA calls that "history". Combat Vets are accorded more leeway under 38 USC 1154(b) but that in no way excuses them from having a nexus.

You win because you don't go away. They know you are right. Pretend it's a game of tennis. Eventually you hit the ball back and they drive it into the net... or just give up and give you what you were promised when you signed up. Oddly enough, I might not have fought so hard for my benefits if they hadn't called me a liar. They said I was never in Vietnam. That hurts. I spent more time elsewhere where there was far more AO and A Blue but still lost good friends we were never able to recover. Two years of it. When they deny based on faulty info, you throw down. I sure didn't figure it was going to go into overtime like this but hey, bring it on. Fighting VA at the CAVC with a Writ (right now) is like shooting fish in a barrel when you have the high ground.And... it's fun. Always smile when you do this. Especially at the RO. Let them know you might have been born at night, but not last night. When you smile a lot, they get worried because most of us are bummed out or stressed. It makes VA personnel very uncomfortable when you do because they think they are missing something important they should know about.

What is VA basing their presumption that you had a pre-existing dx of Legg Calves Perth on? Did you provide them pre-service records showing it ? Did VA excavate the civilian records? If you have a pre-existing disease/injury and fail to divulge it at enlistment, the Presumption of Soundness cannot attach. 3.105 covers that in "errors of omission". If you are going to hang your hat on 3.310 and say it got worse in service, that will be a controversy case. VA technically only has to prove there were no cases of aggravation during service to get past 3.306. It's easy to overcome VA rebuttal of Soundness if nothing is a matter of record. If there is bonafide evidence showing preexistence, the rules change. Then you have to prove it was exacerbated in service and not a case of natural progression. Horn is on point but only insofar: It does not necessarily follow, however, that an unrebutted presumption of soundness will lead to service connection for the disease or injury. The appellant must still demonstrate a current disability and a nexus between his current disability and the injury or disease in service. See Holton, 557 F.3d at 1367; Dye v. Mansfield, 504 F.3d 1289, 1292-93 (Fed. Cir. 2007) (affirming this Court's finding that the presumption of soundness does not eliminate the need to demonstrate a causal connection between a veteran's current condition and his in-service injury (Horn v. Shinseki 2012)

You have the job of convincing a Veterans Law Judge (VLJ) that one (or both) of two things is wrong. Case or controversy. Case means you have to cite law/regulation that was violated/ignored. Controversy is how you and VA view the evidence. You have to show, by a preponderance of the evidence, that what you are asking for is due you. If for increase, your evidence for must prove a higher rating is justified. If a new claim, that the evidence for is at least in equipoise with that against. You also have to have the Caluza triangle, of course. (Disease in service/disease now/ doctor's letter connecting the two.). Your job is not to instruct the Judge on what the rating should be as a number. You stress the factors that are required in the diagnostic code. A VLJ has no authority to make a rating decision unless it is an appeal for a higher rating. If a new claim on appeal, all s/he can do is grant or deny. If granted, it is returned to the RO for your rating percentage. Hope that helps, sir.

Here's an interesting story akin to this. Marine goes ashore in 68 at DaNang for liberty off the USS Long Beach (CGN-9). Gets drunk and buddies convince him @ 0200 it would be a really good idea to get big naked lady tattoo on right upper arm (RUA). Vet has tattoo done and Commanding Officer is not the least bit impressed. Vet has planned on being a teacher when he gets out and, now sober, see the buxom lady on his right shoulder as a future problem. Vet has tattoo painfully removed in small sections by ship's medic and sewed up over several months. It leaves a biiiiig scar. All is documented in the SMRs. Vet gets very ill in 2002 and diagnosed with Hep C . Applies to VA for comp. Med recs list tattoo on LUA (left upper arm). He loses all the way to the BVA (from 2002 filing to 2010 appeal) but on the way finds ship's medic who removed it at CGN-9 reunion. Buddy letter falls flat because VA examiner says nobody can remember back 40 years. Additionally, buddy's letter provides no proof he was aboard CGN-9. At the BVA hearing, the Vet provides medic's DD214 showing proof of assignment as medic to CGN-9. Vet rolls up sleeve and shows scars of tattoo removal to VLJ. Vet rolls up left sleeve to reveal ...nothing. Vet wins. Moral of story? Tattoos happen... usually early in the morning in the presence of extreme ETOH. Beware Marine buddies with good intentions on shore leave.

<<<<<<<<<<<<<<<<<<< he [Horn]later experienced pain in his hip and was released.>>>>>>>>>>>> 1) Injury in service, 2)injury now. 3) Nexus or IMO. I (Paul Colrain) was denied because...no high impact injury or trauma could be found in my file... I think Number 1 is your problem. J1Vo

That's why Theresa and others like us began websites for Veterans. 16 hours of training on how to fill out 21-526s, 4138s and Form 9s isn't enough time to train Homer Simpson's monkey Mojo how to fetch a beer. While I certainly appreciate what VSOs do for us, their abilities in the world of Veteran's benefits are less than successful if we only win 15% of the time. Witness the large number here who regularly win and measure that against the Veteran populace as a whole. The statistics are extremely lopsided in our favor when we have the information with which to prevail.

Let me show you all something. A Form 9 should list the errors on your rating in Box 10 rather than why you should have won or been given a higher rating. You are mixing the two areas into one. First, you identify what VA did wrong in Box 10. Second, you explain why and what the proper outcome should have been in a separate argument. This is a major reason why VA gets to send these up to the BVA because the Veteran fails to state that which he disagrees with or mixes the arguments into one. This is Appeals 101. Don't feel bad. I made this error a thousand times before I learned how.

Might be time to take a gander at a Form 9 and familiarize yourself with it. . BVA Appeals are conducted and decided at only one place-810 Vermont Ave. NW Washington DC 20420. A "Traveling Board" is a Veterans Law Judge (almost always one [1]) that holds a hearing at a local Regional Office face to face with you. He does not render a decision while at the Regional Office. At the conclusion of your hearing, the c-file, if still in analog mode, is then assembled for shipment, a Form 8 is tucked in and the whole shebang is forwarded to DC. If it is in the new VBMS digitized mode, it can be transmitted instantly via computer but still sits in limbo until the docket # assignment comes up. There, the same VLJ's staff attorneys will give it a one-day review for sufficiency. If there is something amiss, such as no SSI folder, it goes back to your RO for a remand (one year). If you signed a waiver in the first instance, it is remanded via the AMC-but still remanded back to the AOJ nevertheless. Things that delay it can also be your helpful VSO Team who takes it out of the library and puts it in his in basket for a six month snooze where the VLJ's troops cannot get at it. VLJ's are currently cranking out 1.1 decisions per day. Take about 100 VLJs and that's 110 per day. Take 230 days a year available times 100 Judges and you see 24,000 decisions a year. The backlog is in the hundreds of thousands... Do the math. Find a hobby. Remodel the bath and the kitchen. Take up Macrame. Buy Rosetta Stone and learn French.

I hate that when that happens Berta. (The broken scanner).

VA likes to roll these all up into one ball. If the issues granted have been developed, then you would get an immediate rating within the next 90 days. It takes time to return a c-file to the RO. Remanded items, depending on the RO's backlog, will be scheduled out for a C&P. If you have a third party in your neck of the woods, like QTC Inc. doing them, you get scheduled out about three weeks. It takes 90 days from receipt of the C&P exam results to the time a rater picks it up to rate you. Some get much more rapid ratings such as the Sioux Falls RO in South Dakota or Fort Harrison Montana. The backlog there is nil. Oakland, Seattle and Houston are a swamp of old claims. St. Pete's is the worst right now because too many Vets choose to live in that area. Detroit and Baltimore are out aways too. If they are too far out, they farm it out to another RO to do it. So yes. They will probably assemble it all and give you one grant and one SOC a few days later. AB v. Brown in 1995(?) assumed that every Vet was seeking the highest and best rating he could get so it is presumed that if they rate you at X% you may still opt for a higher rating. Rather than produce a piecemeal litigation, they will put it all in one BBE. Best of luck.

Yessir. An acting Law Judge. Cherry. FNG. They haven't been polluted yet. Good job. And so much for sending in microfiched documents. I send in SF 8.5 X 11 (white) in paper format. Seems yours were never viewed. We call that top-sheeting. Who would have thunk you'd be the smart one to appeal?

<<<<<Just got off of the phone with my rep. She was reading through the stuff and said since it was worded so weirdly and that I haven't gotten any back pay yet we are holding off in sending in the withdraw appeal from BVA until Friday.>>>>> Holy shiiiiiiiit, Batman. Withdraw an appeal after waiting for years to get there? Even a partial grant and you have no idea what it contains? Are you mad? Has your "rep" taken leave of her senses? Do tell. Which VSO does is this wunderkind work for of which you speak? I want to warn all my friends in Winchester, In. to avoid her like the plague. I have another news flash for you. Everyone-everywhere- is having problems getting their claims adjudicated in a timely manner. It began shortly after the War of 1812 and rumor has it that it is actually getting worse. The BVA is blocked up worse than an 80 year old lady who ate a pound of sharp cheddar in case you hadn't noticed. But that is merely one disenchanted Veteran's opinion, mind you.