FormerMember

It's a daisy. Gene Groves was partially the impetus. Twenty one years of intransigence, too.

LawBob Squarepants is doing my claim up at the CAVC now, Berta. 15-112. He got my EED without even breaking a sweat (12-1980). I did give it to him gift wrapped but he made it rain.That's why we call them rainmakers. VSO must stand for Very Seldom Occurs. Clear Prop

There is still one valid use for the Prize Redemption Hotline. If you don't have an eBennies account, you can call them up to ask what progress has occurred on your claim. Hell, they read it off eBennies word for word anyway. Really. Try it. Pull it up on your computer and then ask Petunia what's up. It will be verbatim. They no longer have access to VACOLS, PIES or CAPRI. Back to the stone age. Well, that's good. It means your Fully Developed Claim is traveling so fast they can't keep track of where it is at any given moment. Or not. The 800 number is for the wildly optimistic among us.

Can you believe he gave the Sheriff of Nottingham 45 days (15 before he issued the thirty day letter) to respond? He's a raging anti-Vet liberal who thinks we're all malingering and trying to get Welfare for life. Most times it's 7-14 days to come back with a progress report. You just hang in there girl. It took me a few years to get them to go back to 94, too. It's just too many shekels for them to disgorge willingly even if they're wrong. clear prop

If they keep hamstering you, it may be time for another Writ-most especially if you've been up the ladder to the CAVC already. I'm doing my very best poltergeist imitation (Heeeeee's Baaaaaaaaaaack) there as we speak. #15-112.

Seems someone is missing the boat here. My understanding is you have an attorney. Why on earth would you be running around behind his back closing out claims at the BVA without input from him? When you seek advice here, be sure you provide all the necessary information to the folks who are going to opine on your situation. Even then, when represented, you should be contacting him and discussing the advice proffered rather than taking unilateral action that may irreparably harm your a) claims, b) standing and c) order of docketing. If you close out a claim at the BVA, there is no going back and saying "Shoot, the guy on Hadit told me to pull the plug but now I see what's up. Please reinstate the appeal." The BVA will politely tell you to make a u-turn to the VARO and refile it again. That can mean another 4 year delay-if, and only if- you have new and material evidence available to submit to reopen it. Claims are volatile and require a lot of thought. Think long and hard before you ever hit delete. Hell, for that matter, think long and hard about any filing with the VA. You hired an attorney(I presume). Why try to micromanage something you are unfamiliar with? Onwards through the VA Fog.

Berta, this touches on a possible 3.156©. If they didn't peruse the c-file thoroughly (as it would appear), the tinnitus SMRs fall into the "official service department documents that have only recently been associated with the c-file". Or, in the alternative, it rebuts the presumption of regularity in VA c&p examinations. See Rizzo v. Shinseki (Fed. Cir 2009) and Sickels v. Shinseki (Fed. Cir. 2011). Simply put, what appears regular-is regular. What appears irregular is most assuredly irregular- ergo the presumption cannot attach and the claimant has rebutted the presumption. Butler v. Principi Fed. Cir 2001. That CUEs the earlier decision and Fenderson kicks in. Then it's merely a matter of determining if the SMRs supported a compensable rating in the earlier filing. That may require a forensic retrospective c&p. Always remember, VA raters have the IQ of a pet rock. They mean well but they are in over their head. Asking them to be observant and do their jobs is like herding cats -quite challenging.

If you just won. why would you wait for it to be over and file a CUE? That makes no sense. You file a NOD for an earlier effective date based on the EOR. Once the claim is granted, it is malleable. You are allowed leeway to correct anything that is grossly wrong while you appeal. At some point, they agree and give you an earlier effective date. Do not make it harder than it needs to be as a separate filing. If you're pro se or even using a VSO, it makes no difference, They erred. Fix it while you can appeal it as an earlier effective date Fenderson issue..

I fired the MOPH in March 2008. They still send my stuff to them and have them listed even though I took Walsh to the CAVC. Shows you how well they read your files. The absolute best one was a Marine I got 280% for near me. He'd been using AmLeg but had given up on them three years earlier and quietly began doing his own. We won at the BVA with a good video hearing and an iron clad nexus the rep forgot to tell him he needed. Two good buddy letters as well. A month after the win, guess who shows up on the doorstep waving the rating and asking for a photo op for the trophy wall? Yeppers. The AWOL rep nobody'd seen in years. He didn't get his photo. Tom's wife threatened to sic the dog on him. clear prop.

Keep it on the record rather than off the record. Have him address all pending claims, not just the initial one. Take your time and do it right. I'd rather wait 60-90 days for a detailed decision that I can appeal from than a partial "rump decision" in a week that will entail another decade to sort out. VA will stretch it out to gain time anyway so do it right.

Read your fee agreement. If a VA lawyer doesn't win your claim, he doesn't get paid. Do not confuse copying fees, filing fees at the CAVC, IMO/IME fees or $120 worth of postage needed to file a huge writ as "losing money ". If you hired an ambulance chaser to file your claim, there would be some "up front expenses" unless it was iron-clad or you were homeless. A Vet lawyer makes more if it takes less time, not more. By law, they cannot charge more than 20% and you have to agree to that up front. Ambulance chasers get twice that (40%). Truth be told, I don't see why they even do it at all. By law, every lawyer must contribute 30 hours per year in pro bono work. Many do even more. Lawyers only get EAJA fees it they "substantially prevail". It's possible to win an increase for you and still get stiffed on EAJA by the Court or VA. Besides, they usually whittle down the attorney's remuneration by 30%. After that, they usually wait six months to get paid. Sounds pretty glamorous, huh? VA pays based on the lodestar or going rate for a locale. NYC VA attorneys are going to get more EAJA than one from Bugtussle, Arkansas. Lodestars range for $175.oo/hr to $350.00 hr. Newsflash. That's not big money for someone with $150K worth of student loans @ 3% interest to get his juris doctorate. I know a lot of them personally and they get some of your cases after a VSO has turned it into hamburger helper. Some are almost impossible to salvage at the CAVC. When they lose, everyone says "See. I told you so". I just wonder why they don't say "See. I told you so"when the MOPH agrees with the DRO and says you're faking it. Or s/he agrees to 0% for tinnitus without asking you first. A VA law dog is your best friend when it comes to bargaining. Most don't like the VA and they don't have their office at the RO with the VA paying their rent and phones. Think about that. Who do you want repping you? Your hired attorney or someone with 40 hours of "legal training" for free who is best friends with the guy rating you? I'd take the hired pit bull any day. Just one content contributor's opinion, mind you.

You're lucky. Going up to 625 Wagonburner Lane NW will provoke a real examination of the evidence that was not looked at. This usually provokes a reversal to correct it or a Vacate and remand to comply with the Court's dictates. Compared to the BVA and VA, this is going to happen at light speed. "Light speed" meaning about a year. Your attorney should be ecstatic that you're headin up to the Big House. Sadly, for every "win" I heard of from my readers, I'm getting a 85% negative return on Call me Bob Vets who contacted him. It's one thing to get his ear. The problem is the dickheads unenlightened employees at the BVA and the ROs who refuse to be hurried. If you cause problems, you get burned. Eventually, Bob is going to hear about it. Right now, he's getting his info "filtered" by his First Sergeant and is probably unaware of the building storm. That's why I called him before I filed my Writ this month. He and his gomers had plenty of time to do it right. Turns out, the employees don't always do what's best for Bob. Go figure. Clear prop

Your problem is a semantical one. As long as you continue to call it a submission of "new and material evidence and a second NOD", VA will continue to ignore you. They are obligated to accept new and material evidence (NM&E), date stamp it, and insert it into the c-file. It's there. It just cannot be legally referred to as a "second NOD". You file a claim, you lose. You file your (one and only) NOD with (perhaps) N&ME, and wait for a de Novo decision. VA will write you and ask you if you prefer to sit on the Group W bench and have a DRO review. VA does not accept a second NOD. What you are desiring to file is additional evidence under 38 CFR 3.156(b) which is in conjunction with the claim on appeal but submitted within the appeal period. In addition to this "submittal", you are also querying the system to find out if perhaps they dropped the ball on an "informal claim" which seems to need to be addressed. In the next Paragraph, you remind them that it appears "claims in progress and currently on appeal" are not being addressed to your satisfaction because _________________. Three separate subjects for three separate people. Think of it as a Barber, a landscape guy and a mechanic. You do not call up Serenity Hair Salon and make an appt. for a haircut and ask them to change your oil on the Pontiac and to make sure they trim the hedge this time because they missed it two weeks ago. VA is mentally anally retentive. If you sent in N&ME attached to something that said you think they ought to CUE themselves on the headache denial, you are in for some interesting litigation. VA will take this to be a new claim/contention and drop everything to start building this CUE file. This is a game of "Be careful what you ask for". If you give these bozos what they perceive as an enigma, they'll come to the wrong conclusion every time and say "Well, gee. We took it to mean he wanted to reopen his headache claim so we closed out his old one on appeal and began again. A lot of Vets do this to speed things up but it means they lose their earlier filing date." This is what/who you are dealing with. It gives them time to devote to something or someone else. Big corporations call it "Plausible denial" but VA, of course, would never, ever stoop that low.

2007 was the 1994 grant of tinnitus for $15K. 2008 was a year and a half retro @ 100% for about $38 K and the January 2014 was about $338K and some change. The Writ is for chump change- about $78K. It adds up when they forget about you. We'll give a chunk to Fisher House and Navy Marine Corps Relief. Believe it or not, the money was immaterial. My wife's family is blessed and she's an only child. We did well on investments in spite of my illness. I may not have decided to fight VA but they said I was never in Vietnam. I spent two years over there, have three combat Vs and a lot of dead friends. It pissed me off just enough to stay alive long enough to set the record straight. I didn't think it would take this long. You can call me late for dinner but never call me a liar. Clear prop

Childsplay. claim filed 3/1994 SOC 1/1995 Claim granted 6/2008 DRO denial 3/2010 BVA denial 5/2012 CAVC win 4/2013 BVA do over 11/2013 funds disbursed 1/2014 File Writ to finish it 1/2015

What rock did you find your VSO under? Why would you be arguing CUE in a live case where the decision was just announced? I could see the CUE after it was done and you failed to appeal but that is not the case here. Keep the addendum down to the facts and not your personal opinions. Cite which regulations were ignored. Cite what evidence was not considered. Ask for a new C&P as they normally look at the file and find the oldest, least offensive C&P to rate on. You've really stepped in it so I'd strongly suggest a lawyer consult before you or the VSO turn it into hamburger helper. Always remember, you do not ask for a DRO review in a NOD. VA will always write back anyway and ask which path you want to choose. This tells you that they received the NOD as well. Best of Luck.

Every win under $25,000.00 must have two signatures and one has to be the Veterans Service Center Manager (VSCM) or his/her assistant. If it's over $25K it needs three. DRO, VSCM and Director of the RO. The only guys who get away with one signature are the VR&E Independent Living Program folks. It's completely local with no VACO oversight.

We crushed up the quinine pills and mixed them with Club soda to make our Gin and Tonics on the rare occasions when we could find ice. I managed to luck out on that too but I was much further north.

Keith's trouble are almost over. Director of Comp and Pen just can't bring himself to cut the check. His hand is shaking too much. Allison is apoplectic. She told him to do it 3 months ago. Tempus fugit.

Bob and I have been discussing it for a year. I told him I was launching with or without him. I had it all written up and ready the day after Christmas. He, of course, felt obligated to fine tune it with the Cushman angle. The cites are mine for the most part. Something old, something new, something borrowed etc. I let him play with it but not the substantive wording. It sort of makes Gene Groves' BVA misfortunes pale in comparison. We always knew Hindin was a boob. When I wrapped up on the Hearing in 2011, he trotted out the old saw ty4ys. I chimed in that nothing could have kept me out of the Vietnam sandbox because everyone in my family had served in a war. I believe I used the term "Wild horses couldn't have kept me away." He gave me a queer look and said "I've never heard a Vet say he enjoyed war." Going pro se gets you in the front door a lot more easily these days. They've changed all the rules on filing now so even a pro se Vet hits a hard wall when he gets there. I see they haven't docketed it yet. That will be the acid test for acceptance. I look forward to girding for battle again. I've been out of the traces for over a year. I look forward to a quick resolution. That 's the beauty of a Writ. It's like a FDC in a month or two. Best of all we get to watch Leigh Bradley blow post hoc rationalization bubbles. Gentlemen, start your excuses.

Every once in a lifetime, you have to stand up for what they have been denying you for twenty years. Here's a primer on the perfect way to write a Writ. Belts and suspenders on every request so there can be nothing misconstrued. VA loves to feign confusion on what you are asking for. I expect they won't have any trouble reading this one. It hit the CAVC's doorstep yesterday morning at 1153 Hrs L. Bob, Leigh and Allison got their copies today as well. On the heels of Gene Groves' Writ, it ought to make quite a splash. https://asknod.wordpress.com/2015/01/09/cavc-the-birth-of-a-writ-act-ii-scene-1-the-pucker-factor/ Clear Prop.

As long as this claim is alive you can pursue the earlier effective date via the evidence (controversy). The evidence of record shows entitlement began in 2000. Effective date has to be 2002 filing. File NOD and say incorrect. You don't say CUE. It isn't. It's a brain fart that needs to be corrected at a DRO or BVA hearing. Or go to DC pronto on traditional path. If VA wants to dig in, the quicker you get it to the CAVC, the better. As long as it was a matter of record and in the c-file in 2002, you win. Then you have to fight the staged ratings battle to now. That's a nice piece of change they're trying to cut you out of. Remember, if it goes over $25 K, it needs three signatures and one has to be the VSCM or Asst. VSCM. Now , if you let this go without appeal, VA will say you agreed with the rating date or you would have NOD'd it specifically. You can never get your original 2002 date if you let this one slip away. If you filed for increase in two years and asked for it, you would not get it. You might get up to a year before the date of filing for increase but never 2002. Once you let it slip away, it's gone for good unless you can find CUE. I do not admonish you personally. I merely mention it for others. Good luck, sir. Great piece of evidence, too.

One thing many forget and that is the willingness of VA to concede error- let alone grant some huge retro. If the amount of retro exceeds $25 K, it won't get the three signatures locally unless it's as obvious as a foot missing. I've done three DROs and I'm 0/3. Fortunately, I won on appeal but by that metric, the DRO should have been aware of his own regs and statutes. Why did the OGC have to "suddenly discern" the error after 6 years. Who's running the claims dept? Can you imagine a GS-13 saying well, sir, if you'd sent in the Form 1-9 in 94, we would have issued you a SSOC and you would have been on your way to DC on appeal. VA overlooks something. If you never finished the adjudication in 1994, then you do not know what would have happened. Maybe my N&ME would have changed the outcome. Pure conjecture. And OGC Precedent 9-97 says they had to toll the SSOC to give you time to file the 9. Would you want a DRO to make that decision on your claim for $300 K. No thanks. I'd really prefer a VLJ with a real juris doctorate looking at it, not some GEICO-trained claims employee. Knowledge is power. VSOs love it as it keeps the decision local for a while longer. Lawyers love it because it's one more shot at the apple before appeal and an opportunity to fluff up the claims file with some useful NM&E. Vets don't cotton to it because it's often 585 days out after the NOD filing. If they lose (71%), they are now tail end charlie and two years behind all the folks who went straight to DC. Pick which hill you want to die on very carefully to avoid a Custer redux.

Go the IRIS route and be politely inquisitive. Ask them what the progress is since they failed to mention the items. Ask for a best guess on completion and see what they say. One thing I strongly advise my folks to do is save every IRIS commo. I had a wad of about 25 of them I submitted with my Writ yesterday. After asking them for over a year when they planned on adjudicating two claims they've been sitting on since Oct. 2012, they continued to say "Gee, we're sorry it's taking so long but claims in Seattle are running about 15 months so be patient." On the last one in November I got more blunt and asked how 15 months comports with them having it 23 months. The answer was priceless: " Claims in Seattle are running about 15 months so don't fret..." That's going to look pretty foolish in about a month. The best one was "We're sorry we can't adjudicate your ILP claim but the raters have your c-file and we don't have access to it." A month later and another IRIS query came back with "Sorry, the c-file is in DC on an appeal you've filed. When it gets back here, we'll do the SOC. IRIS is a wonderful tool because each commo has an inquiry number. It's embedded in their computer and cannot go away. When you get to appeal or a Writ, the avalanche of evidence cannot be rebutted. Always use their machine against them. Let them do the work of undermining their own case against you. Remember, these guys can't find their rear end with a methane detector in a closet.

Hell, any Vet who's interested in guns is okay with me even if they're a ground pounder. What I would do is submit it as: "Addendum to NOD filed xx/xx/xxxx concerning disagreement with unadjudicated items filed for on the same date - to wit- Bozos # 1, 2 & 3 which have not been adjudicated to date. Appellant has waited patiently for claims to be adjudicated and is worried VA may have overlooked these. In the interests of judicial economy, Veteran asks that these outstanding claims be adjudicated forthwith so as to be incorporated into any future appeal in a timely manner and to avoid piecemeal adjudication and preserve scarce judicial resources." Beat them up with their own words. This puts them on notice that you weren't born last night. It also points out they cannot do the "You didn't bitch so its moot." These claims have no true suspense dates such as the year following a denial because they are still viable legally. Being unadjudicated, they can only expire if the whole claim is closed out. Otherwise they fester like a splinter in your finger legally. If you have any added material evidence (new), you can also send that in regarding the AWOL claims. This reinforces the claim by implying you are still waiting on an initial determination and if they are going to throw a hissy fit, it's best to get all the contentions on the table early on.