FormerMember

Generally, the date of entitlement is the date of claim. This is inviolate like the speed of light. If it were a reopen for increase, and if your medical records could prove entitlement to a higher rating up to a year before your claim for increase, that would be the highest and best rating and date of claim. VA believes that if you want something like a rating, it behooves you to speak up and ask for it. They say they are not mindreaders and cannot intuit that you wanted it earlier or they would have done so. Therefore we are limited to the date we file for our claims. I think this is fair. No one told me to go off base in 1973 and file for my injuries. Nowadays they do to the point you can file while you are still in. I don't see where that is adversarial or entitles anyone to a date earlier than filing. I feel this would be unfair to other Vets to clog the system with unwinnable claims. When you file, it should be for legitimate circumstances and proven entitlement. Shotgunning an EED into the dark on appeal in the belief you can win when the law clearly states otherwise is irresponsible. I advocate long and hard for the most complicated of claims that are the most difficult to win. I fight long and hard for what is legitimately entitled and no more. No spaghetti filings to see what will stick. The delay is long enough as it is without making others wait interminabley for an inevitable denial.

VA is fast tracking AO claims... or was under Shinseki. They have a special unit in every VARO trained in doing presumptives for herbicide exposure. File it. If you die before you win, the better half gets it. Did you ever cough up blood? I started about a year after I got there. The Flight surgeon said to switch to Marb lights which had just come out in 70. Didn't help much until I DEROS'd in 72 after two tours. Hey, I'm still alive and only came out with Porphyria. Some like you have it even worse. Best of luck. Welcome back, sir.

VA will schedule a new C&P in two years, usually following a 100% schedular rating. You can attain P&T sooner by having your PCP write a letter stating you're not going to be ready for the Boston Marathon any time soon and may (or will) be even more debilitated by 2018. I have used it numerous times for my guys/gals. It helps to pepper the letter with the word "chronic" and "irreversible". The 5 year rule is only to prevent clawbacks of a rating prematurely. You become substantially protected after five years against it but are only immune after 20 years. After five years, it will require at least two C&Ps to overturn a 100% schedular-or any rating for that matter.

Try this. Each rating is spelled out as to legal requirements http://www.law.cornell.edu/cfr/text/38/3.350 Or...

Ah, the Hadit success line. How sweet the sound. Call me Bob can work. Of course, it can backfire but let's keep our positive mental attitude hats on. Congratulations, Jaszper. Now it's time to start working on the SMC S.

It ain't over until the 100% fat lady sings https://asknod.wordpress.com/2015/02/22/cavc-birth-of-a-writ-act-iii-scene-3-two-tickets-to-paradise/ Wrong Mr Basser. I've got my eye on a 65 clip wing cub tail dragger that's rigged for acrobatics. Clear prop

VBA has put the kibosh on VHA doctors writing nexus letters. If you have a civvie doctor you deal with, have him read this. https://asknod.wordpress.com/6051-2/ It explains it in no uncertain terms. Reassure your doctor and tell him his opinion is not subject to legal scrutiny. It's his personal opinion.

VA chieu hoi'd this PM directly from Cheeseville, Wisconsin. Gave me SMC S back to 94 before the Writ $hit hits the fan next week. Best $50 I ever spent. Who would have thunk it? DROs at Cheeseville and Newnan now?

Simple. Get a new nexus letter that restates the theory based on the existing medical evidence. On appeal, VA would be forced, in the existing claim, to defend their Examiner's logic and nexus. If the medical evidence clearly refutes his/her conclusions, it's a no brainer and VA loses. VA can claim to their deathbed they looked at the evidence but if the weight of it contravenes their own arguments, it is clear and unmistakable error. Something all of you should know is that VA is under the gun to clear the decks by the end of 2015 and pave the way for the 125 day- 98% correct claim. To that end, the raters are just blindly denying as many as possible and pushing them all into the BVA's lap on appeal-assuming you decide to appeal. If you do not, the denial decision is 100% correct. I suggest you read the article I wrote yesterday about BVA Deputy Administrator (and BVA VLJ) Laura Eskinazi who is faced with this deluge of appeals. It's an eye opener on what is now afoot. I do not exaggerate except about deer antlers and fish. https://asknod.wordpress.com/2015/02/20/wowserupdate-all-kinds-of-news/

If you are doing your claim yourself ( without a VSO or lawyer) there is a little known trick hidden within Comer v. Peake. You are deemed mentally insufficient to be a lawyer and have no training. As such, you are allowed to make mistakes. You can go ahead and refile (reopen or whatever) a new claim for TDIU or what ever your heart desires (70% for the Adjustment disorder) and point out all the evidence overlooked during the pendancy of your present claim.. If they grant, you can then use Comer to point out that the old claim was still viable and they should have considered the refiling or reopening as a NOD that you were unhappy with the old rating. This is a win/win for you if you prevail. You get a) the 70% and maybe TDIU now without waiting and b)can leisurely argue the earlier effective date later at the BVA and the CAVC. You will win. Of that there is no doubt. VA is so set in its ways it cannot fart its way out of a wet paper bag. Learn to use VA regulations against them.

You can see his grant letter now. "Welcome to the VA System. You are now service connected as of yesterday. We'll hear no talk of 2009 because you did not appeal that decision. Therefore it is final. Your new and material evidence, presented for the first time on 1 March 2015, finally shows proof of service connection. That will therefore be your service connection date. We cannot go back to 2009 because you did not supply us with this document then even though it wasn't issued until last year. That's the bummer about time. You can never go back. We are assigning a non-compensible rating to this as you have not provided evidence that your injury/disease is incapacitating for more than a week per year. If you feel this decision is in error, please fill out form 21-0958 Notice of Disagreement and tell us why in less than a year."

Well, If it passed through the hallowed halls of the BVA and was denied, you file with them at 810 Yellowbrick Rd. NW 20420 and ask for a Motion for Reconsideration. You can legally do this at any time after a BVA denial. If you won a review, this would set your old decision aside and generate a new de novo review based on your argument. If they refuse to reconsider, it's off to the races at the CAVC. On the other hand, if they somehow erred and missed it at the RO, you politely supply them with the correct evidence and say "Please send the retro to my local branch of the Bof A and be quick about it." Again, if they choose to deny, you saddle up pronto for the BVA and do not waste any time playing DRO poker. If they reach a modus vivendi with you , all's well. If not, again, it's off to the CAVC where you win. Good luck.

Determining an effective date is simple. Even though we are mindless, dumb, two-legged (or less) Veterans, we are essentially pro se- even under the tutelage of VSOs. As such, Moody v. Principi instructs that each and every entitlement, as well as a determinative effective date, must always accrue in a nonadversarial venue in the Veterans' favor. If a Veteran foolishly opens a claim for increase during an active claim, it must be interpreted that the vapid Veteran simply misunderstood the rules of the road. Since the existing claim is open, the RO must correctly interpret that the "new claim for increase" actually was an "informal" NOD because the poor deranged Veteran did evince the requisite "Please, sir. May I have a larger bowl of porridge?" verbiage necessary for a rater to know he/she was unhappy with the initial reopened claim award. This is known as a claim stream. It began when you file initially and remains inviolate until you step on your necktie and fail to file a NOD or substantive appeal sixty days following any SOC during the pendency of the newly reopened claim. As a perverted analogy, my current claim stream began in 1994 and is still on appeal to the AMC and a Writ to the Court to command the VA or BVA to finish their task. It is unbroken because they left it unfinished in 1995. It is currently unfinished because some of the Joint Motion for Remand was ignored. I filed a NOD with the AMC over their decision within the 12 month issuance of the 1994 effective date just in case they pulled this same stunt. They did. It is still alive and awaiting their response. Chances are you'll be chasing this up the ladder but the effective date will always be 8/15/ 2013 based entirely on 38 CFR § 3.156 (b). If your misguided request (or a VSO's) for increase within the appeals period was mistaken for a brand new increase claim, that can hardly be your fault. The Presumption of Regularity states that VA raters are competent in all they do, poop ice creme and walk on water. If they misconstrued your NOD for a higher rating than awarded initially for a brand new claim for increase, that implies the Presumption has been rebutted. Ergo what appears irregular is irregular and the Presumption cannot attach (Butler v. Principi). VA will attempt to argue that your evidence did not establish entitlement until the date of the newer DBQ but that is not entirely correct. When you filed in 2013 for increase, it was a reopening of an existing claim. VA has the power to extend the effective date back to a year before that asked date of increase if the evidence supports it. Nevertheless, it is incumbent upon VA to act promptly when you do ask for an increase, to schedule a C&P at the earliest convenience to make sure the Vet gets what he is entitled to at the very earliest moment the increase is indicated and requested. You are not required to put them on your speed dial and keep requesting the proper rating over and over within an appeal period in the guise of a new reopening for increase each time. Conversely, VA is obligated to view your attempts at remuneration in the most favorable light rather than the most unfavorable to you financially. Congress never intended such an absurd reading of 38 CFR. regardless of what VA tells you. We and our VSOs are given the Presumption of Stupidity under Comer v. Peake. Unless and until you strap on a real law doggie, anything you send VA requires they give it the most minute inspection to ascertain A) what it is you desire and B) as soon as possible. If a law dog had sent that in for you, it would most certainly be interpreted as a request for an increase because the atty. is a lawyer and expected to know better. Because you did it pro se or via a VSO, it can only be read as a NOD legally. A CAVC judge will rule accordingly. I hope that clears it up. It's all over but the fighting. Always build yourself a time line. Who did what and when? When did it go astray? Why? What is the controlling regulation/ law? What does/did the evidence consist of and when was it introduced? Once the claim is reopened, the effective date will always be either the date of request or up to a year before. Even if VA sends you out out for a new C&P two months after the filed request, the effective date still has to be when you asked for it. You cannot ask for a C&P. VA must do that. If, during the course of the appeal as here, you introduce even more evidence into the c-file showing yet more disability, VA must rate you further back because they failed to investigate during the course of the claim. You should not have to chase private doctors for IMOs and DBQs to substantiate your contentions. If you do and prevail within the time period of the appeal, the effective date must incorporate their stupidity for failing to perform due diligence themselves. Again, rebut the Presumption of Regularity and the whole charade falls down. All you are left with is the Presumption that the Vet is entitled to the date of reopen as VA cannot rebut it otherwise. Game. Set. Match. All this hinges on one simple fact.I assume you reopened with some evidence to support an increase in 2013? If so, you're wearing the walk on water shoes.

I like to think of old SMC S claims as "tardy" rather than CUE. You are not trying to revise an incorrect decision (CUE) so much as to point out that you were entitled to it on X date and they, in their haste to rate, simplemindedly forgot or overlooked it. SMC in any venue , be it K, S or L, is still due and payable when the entitlement arose. It makes no difference when. Once you prove entitlement, they have to pay it back to the day the medical records prove it was due. It's not so much a legal battle to assert your rights but an evidence argument which is far easier to win. And don't worry about pissing the VA off. If anyone could do it, by now VA would have found a way to hang Berta and me. We've cost them years of litigation alone.

You only need two signatures ( 1 VSR and 1 RVSR or DRO) for anything under $25,000. award. Three if it goes over including either the VSCM or AVSCM. Good Luck.

It appears they updated it in 2009 but the change is minor. From personal experience, I know the addition of N&M E at the time of the filing of the Form 9 automatically provokes a de novo review. If that is the case, you cannot ask for a docket number at the RO. The obvious comes to mind. What if the N&M E results in a grant? You then have the unneeded appeal on the VACOLS books. "Add appeals to the Board of Veterans’ Appeals (BVA) docket by updating the Veterans Appeal Control and Locator System (VACOLS)" . This clearly states that the denied claim shall be inserted into VACOLS but does not allow for a docket number to be assigned until receipt by the BVA. Putting it in VACOLS assures you it will be given a date so it is heard in proper sequence but no docket #. Here's 38 CFR 19.35 & 19.36 § 19.35 Certification of appeals. Following receipt of a timely Substantive Appeal, the agency of original jurisdiction will certify the case to the Board of Veterans' Appeals. Certification is accomplished by the completion of VA Form 8, “Certification of Appeal.” The certification is used for administrative purposes and does not serve to either confer or deprive the Board of Veterans' Appeals of jurisdiction over an issue. § 19.36 Notification of certification of appeal and transfer of appellate record. When an appeal is certified to the Board of Veterans' Appeals for appellate review and the appellate record is transferred to the Board, the appellant and his or her representative, if any, will be notified in writing of the certification and transfer and of the time limit for requesting a change in representation, for requesting a personal hearing, and for submitting additional evidence described in Rule of Practice 1304 (§ 20.1304 of this chapter). § 19.37 Consideration of additional evidence received by the agency of original jurisdiction after an appeal has been initiated. (a) Evidence received prior to transfer of records to Board of Veterans' Appeals. Evidence received by the agency of original jurisdiction prior to transfer of the records to the Board of Veterans' Appeals after an appeal has been initiated (including evidence received after certification has been completed) will be referred to the appropriate rating or authorization activity for review and disposition. If the Statement of the Case and any prior Supplemental Statements of the Case were prepared before the receipt of the additional evidence, a Supplemental Statement of the Case will be furnished to the appellant and his or her representative as provided in § 19.31of this part, unless the additional evidence received duplicates evidence previously of record which was discussed in the Statement of the Case or a prior Supplemental Statement of the Case or the additional evidence is not relevant to the issue, or issues, on appeal. (b) Evidence received after transfer of records to the Board of Veterans' Appeals. Additional evidence received by the agency of original jurisdiction after the records have been transferred to the Board of Veterans' Appeals for appellate consideration will be forwarded to the Board if it has a bearing on the appellate issue or issues. The Board will then determine what action is required with respect to the additional evidence.

Well, not exactly. The RO is tasked with making sure everything is in order and then issues the Form 8 certifying it as ready. Only then is it entered into VACOLS. The BVA, however, issues the docket number after it arrives in DC physically. If you ask for a BVA Board hearing, the certification doesn't occur until after the hearing (one year). Any submission of evidence w/ a Form 9, unless a waiver of review in the first instance is filed with it, provokes another year of waiting for someone to take another gander at it before they issue a SSOC. Even then it can languish for a while ( a year) until someone gets around to the Form 8. Most do not realize that VA is fond of taking TDIU appeals and shipping them to DC without the SSI/SSD records which they know are required to be included. The BVA promptly (one year) remands it back to the RO for the SSI info (one year). You can see how it takes a decade to get one of these done if you are not proactive and assemble the evidence yourself. Never assume VA will include the SSI stuff, Never. This is why I strongly disagree with hanging around the VARO waiting for justice if it is a complicated claim. ROs are loathe to take the responsibility. Getting it up to the BVA is paramount for difficult claims and having everything in front of the VLJ when it gets there is even more important. Putting SSI records in the search bar for 2014 BVA appeals will generate thousands of IU cases remanded for lack of the SS records. VSOs seem to be oblivious to this requirement or at least fuzzy on what is needed before you launch to DC. Considering they have the right to look at your C-file, it seems elementary to ascertain the documents are on board before they launch it. J1VO

We missed you on the show last Wednesday, Stretch. Watch out for those chuckleheads at the VAMC. They gave me MRSA, three unneeded operations and a septal infarct. They're practicing rather performing medicine. They also remodeled my tummy at no extra charge with recalled alloderm. But I guess you knew that...

Yep. There's nothing more satisfying than whipping out those green cards and saying "Au contraire, ma cher. Regardez ceci!" Funny thing is they don't apologize. They just say "You have now proved you filed your substantive appeal in a timely matter. We'll get back to you in about three years."

Everybody's overlooking the thrust of Miz Spotz' query. If you request the BVA Board hearing locally at 810 Vermin Ave. NW, your personal VSO does not, I repeat, does not, fly to DC. If you have a National chain like DAV or Amleg representing you, they have reps there who will represent your interests. If you have a state organization like Texas Veterans Affairs, they contract with one of the big boys to do it. Again, with a VSO, remember you are allowing a service officer (also a total stranger) with no Juris Doctorate to defend you against 500 of VA's finest law dogs. Always remember the Roman Colosseum--- Lions 5 , Christians 0. Once you lose at the BVA, you can no longer add evidence or develop your case to it's optimum. NVLSP and NOVA will not jump in for a pro bono gig until you show up at the Big House. Free legal help has many connotations. You do what you have to do, young lady but I'd advise an attorney unless your case is an open and shut one. If it turns into a Watermelon seed-spitting contest, you'll want an attorney with biiiiiig cheeks. Lottzaluckz.

If you analyze it, it was one of the biggest screwups in VA's checkered history. He really wasn't entitled to it by rights but once you open Pandora's Cookie Jar, it's hard to moonwalk it back. It's one of those decisions that makes you smile-then bust out laughing. Shinseki filed to overturn the Court's decision and took him up to the Fed. Circus. There,their oral argument went along the lines of " Well, your Honors, what we propose to do is remand it back to his RO for a de novo decision." The justices queried the OGC dude as to whether that might not result in his losing his CUE claim. The VA's litigator, with a straight face, said "Well, we can't possibly know that yet until it happens." The Court decided that once you announce that win, it's all over except for the sound of the cash register opening.

Leroy Macklem's was the largest going back to 1950 for 30% with a Fenderson. By using the contemporaneous comp. tables I figured it out at about $980K.

One thing many overlook, Berta, is the ability to win a reopened claim and then file the NOD for the earlier effective date without the trouble of trying to use CUE to attain the earlier date. That's a mouthful, but broken down it simply means that once you have the tenterhooks into it with the win, the whole enchilada is open for inspection simply on the basis of the Evidence of Record (EOR) . All too often, VA leaves a trail of toilet paper out the door and down the steps exhibiting their stupidity. As you so aptly point out, reviewing the EOR is essential to finding the errant thread to unravel the sweater. One misphrased statement in a SOC or SSOC, one incorrect assuption based on lack of the evidence in front of the rater is all it takes to create a flawed rating. Most are not astute enough to discern it. I spent thirteen years and an eternity thinking they had blown me off. When I won, I began the process you described above. I analyzed every document and came to the decision that it simply wasn't over. I never heard anyone sing-let alone the fat lady.VA stepped on their necktie when they said "Yeppers. We got the new EOR and we'll get back to you". They spent eight years saying "Well, okay. We did say that but you never filed your Form 1-9 so it's a push". VAOPGCPREC 9-97 poked a hole in that argument but they still refused. This is why really big retro payments will always be fought strenuously to the death. Even though there is no evidence that the Excessive Awards Program is still in force, I firmly believe it is merely an uncited footnote to any big retro payment in excess of $100K. CUE is a tool in the judicial box but so are 3.156(b) and (c ). Choose the right tool for the job and you won't find yourself trying to slot a flathead screwdriver into a Phillips head screw. 38 USC and 38 CFR are like a double-decker box of Whitman's chocolates. There's something in there for every Vet if they have an idea what it is they desire. Resorting to CUE automatically when you find error is not always advisable if there are viable alternatives. Why use dynamite when you can simply open it with the proper key? I'm inherently lazy so I search for the least time consuming approach. I've also learned to hold off pushing "Print" until I peruse every conceivable argument. It's going to take aeons to accomplish anyway. Why rush the quiche into the oven and run the risk of it falling flat? As LawBob likes to say. You really only get one good shot at this from the outset. Many are consumed with idea of getting that compensation check several months or years sooner. They miss the bigger picture that they will be getting it for life. Until VA starts paying interest on retro, there's simply no reason to rush into it. clear prop

If you are claiming CUE at the BVA level, make sure you enunciate each facet and delineate the rationale. CUE allegations have to be anally correct. You can't shotgun a litany of "They dissed me in 04". Each error has to be explained clearly. If it is one of evidence (controversy), it can only rest on evidence available at the time that was not correctly interpreted. It can never boil down to a disagreement with the way the evidence was decided. Either the decision was clearly and unmistakably correct... or it wasn't. If it is case (a law broken), you have to point specifically to the right one(s). Finally, you have to prove that the outcome, but for the error, would have been materially different (more money in your pocket). Think of it as a two legged stool until you get to the third leg (changed outcome). If you prove all three, you win. clear prop

The VARO can change any decision revoked if it can be proven to be CUE. 38 CFR § 3.105 discusses this in detail as does § 20.1403. 1. If the VLJ decides that the 2004 rating was reduced in error, is 2004 the new effective date for the corrected rating? Yes. 2. If the C&P results show that the condition got worse since I filed the appeal, when might the effective date be? Would it be the date of filing, or the date arbitrarily decided by the VLJ, or??? Your date of claim will always be the date of entitlement. If a decision is reversed (CUE) on appeal and the old original date of filing is reinstituted, the date evidence proves an increased rating is deserved for a disease/injury will be the date of the exam or record showing the increased disability. Fenderson v. West (staged ratings). 3. If both conditions are granted (error in first decision, then an increase due to the condition getting worse), what then? You get more money. The only way a VARO can revise a decision (CUE) would be if you never appealed it to the BVA. If you did, you have to file the Motion to revise the decision with the BVA. Obviously, the VA cannot have the VAROs across our fruited plain revising VLJs' decisions. That would be uncivilized judicially speaking. Each "court" has it's ascendency. Similarly, the BVA cannot overrule a CAVC decision ad nauseum all the way to the Supreme Court.