FormerMember

Any claim not mentioned specifically in a letter of explanation of a decision for benefits is deemed denied if not delineated as being deferred or requiring further investigation. If they don't mention it, it's considered moot. Moreover, if you do not protest by filing an objection or query, it is really moot and you are presumed to not have any druthers on the subject anymore. The repair order for that is to file an amended NOD 21-0958 specifically asking for appellate review of the prior enumerated (and still not adjudicated) items you filed for. This protects your right to appeal them to the BVA and the CAVC. VA does this a lot thinking you have the IQ of a pet rock and a short memory.

You can thank the Wounded Warrior Project for the dichotomy. They personally lobbied hard for this and specified it should be for one class of Vets only- post 9/11. They had enough Wow at the White House and swayed Congress into it. When Bernie took over in 2012, he blew an ass gasket and began deliberations on making it for all of us. WWP retreated and said "We were only trying to help our buds." I doubt it will catch air with the new kids in town next week. I saw Trace Adkins on TV last night passing the hat for them and singing "From the fields of Vietnam to the hills of Afghanistan..." I have a good friend here in Purdy Washington. Gordon was twenty feet behind the guy on point who stepped on a Bouncing Betty up in Quang Tri province in June 67. His buddy evaporated from the waste down. It took off the top of Gordon's skull ear and his left eye, He was looking to his right when it went off or he'd be blind. One leg is way shorter than the other and his left hand is severely impaired by muscle loss. SMC S and a K for ED. They rebuilt his face and ear using pieces of his ass. He jokes and says if they'd taken an equal amount off both buttocks, maybe he could have gotten another K. He's alive and didn't lose his sense of humor. He should have Caregiver's rate because his wife stays home to care for him but-Sorry Charlie- Wrong war. They said the sum of his disabilities tends to disqualify him from A&A 1 because some of them are NSC. We're working on it. Shoot. Wouldn't want Old Gordon scamming the VBA for a couple hundred more a month, huh?

Look at your 214 closely. They usually annotate overseas service and where. It wasn't on mine but I kept orders showing I was there because by then I'd seen what they did to Lt. Cally at My Lai. The next thing is the military always issues "I was there" medals for in-theatre and in-country. If you have combat medals like a CIB, Purple Heart or a Bronze star they should be on the 214. Marines have a Combat Action Ribbon. If you are accorded the combat endorsement as described in 38 USC 1154(b), everything you say is considered to be the truth unless rebutted. Obviously alien abduction is right out. If you claim IBS due to PG syndrome, by law they have to believe you if you are 1154(b). <<<<<<<<<Service connection for IBS is denied since this disability neither arose during service in the Gulf theater, nor was it manifested to a compensable degree after the last date of service in the Gulf theater during the Gulf War,>>>>>>>>>>>> Appears from this that they are giving you the in-country, boots on the ground presumption, though.

It can't be worse that Seattle. We don't tan. We rust. I do a phlebotomy every month to reduce the effects. The tradeoff is pernicious anemia and danger of another myocardial infarct. I, too, wish I had my life back building homes. Helping Vets is an acceptable, rewarding second career. Ohio is too cold. The cryoglobulinemia tears me up and I can't go out in weather below 38 F. We have a net avg. of 55 year round. I'm not big on religion but I'll have a word with the Big Guy and ask him to intercede in your case. Apparently he heard me in SEA in 1970. I called him 'Howard" back then as in "Howard be thy name." I do agree with your sentiments that I do not want anything I'm not entitled to. I'm almost finished on the CYA project for my wife. I wouldn't want to leave her to the devices of a VFW chowderhead with a POA. SMC is underawarded and misunderstood. It's a minefield of ands and ors. No two can agree on what Congress intended. English was my major. Best of Luck. a

I vote you NOD for L 1/2. Or go for the 100% MDD and shoot for M. Sorry you are pre 9/11 for Caregiver. We can thank the Wounded Wampum Program for that. Your husband, who has a destroyed life is not entitled to the $2100/mo. stipend simply because of date served. Congress never intended such an absurd result but WWP talked them into it. It's the biggest dichotomy in VA law to date. I foresee you getting it soon as the law is ripe for dismemberment or revision. Since the govt. never rescinds anything, it means we'll all get the caregiver $ some day to get rid of the inherent inequality.

Again, you are confusing two sets of metrics. Read §3.350(i). Do not go into the minutiae of M 21. Ignore it. It's like the Mississippi River- it crosses itself too frequently and is useless except for denial rhetoric. §3.350(i) Total plus 60 percent, or housebound; 38 U.S.C. §1114(s). The special monthly compensation provided by 38 U.S.C. §1114(s) is payable where the veteran has a single service-connected disability rated as 100 percent, 100% refers to a schedular rating. You have 70% which is 30% less than a 'true' 100%. 38 CFR is a compendium of semantics as you can see above in discussions about disjunctive versus conjunctive linkage. The demonstrative operable verb here is "has". After 100%, you will notice the dreaded conjunctive 'and'... (1) Has additional service-connected disability or disabilities independently ratable at 60 percent, separate and distinct from the 100 percent service-connected disability and involving different anatomical segments or bodily systems, or (2) Is permanently housebound by reason of service-connected disability or disabilities. This requirement is met when the veteran is substantially confined as a direct result of service-connected disabilities to his or her dwelling and the immediate premises or, if institutionalized, to the ward or clinical areas, and it is reasonably certain that the disability or disabilities and resultant confinement will continue throughout his or her lifetime. TDIU is a 'rating' as determined by the Buie vs. Shinseki line of jurisprudence. So is a SMC. While a single 70% qualifies you for TDIU, it is not the same true predicate for a SMC S 100% schedular consideration but it is a decision that you are substantially unemployable and VA agrees to give you 100% compensation. There are many ratings that do not have a 100% ceiling. TDIU requires a base 40% as one stand alone minimum plus an extra combination of diseases or injuries separate and different from the primary disability equaling 70% via §4.25 math. In the alternative, a minimum of a 60% stand alone rating can suffice with no extra ratings at all. The unemployment test in Fast Letter 13-13 is the metric. See also §4.16. SMC S can only be attained via the 100% schedular route on paper but Buie upset that. After arrival, most can qualify using the Howell v. Nicholson test to get SMC S. VA more frequently insists on the plus 60% unless you have some pretty unique disability like mine (Porphyria Cutanea Tarda). or SC for muscle/spine/cervical injury. Ignore that. If you can prove you don't drive or get out much, that pretty much screams 'housebound'. This line of legal reasoning is still a work in progress in that Buie says TDIU IS 100% for SMC S purposes which is confusing. We don't argue with success and it appears that you are on the far side of 'S' in A&A 1 based on that. Lastly, you're confused on the bump up wording you mention. When you become progressively more ill, your debilities increase. If you went back and got rated 100% schedular on MDD (which is all I can see you using because it has a 100% schedular rating) you would still have to have an extra 50% combined ( let’s say with some DM2, tinnitus and bad knees bilaterally to get the ½ step bump up from A&A 1 ( L) to L ½. You'd need a genuine 60% of different extras to get the Housebound if you were not A&A 1. Concurrently, you would have to have two 100% schedular disabilities to move from A&A 1 (L) to M. Try to think of that bump codicil in SMC law as an extraschedular rating for being 100% X 2. You have to qualify for the L (or A&A 1 ) in order to even get in the running for the bump up with the extra 50% or 100% above the 100% schedular predicate. Your personal A&A 1 rating is predicated solely on A&A so your back/legs/etc. have to be service connected for this to work. I've met guys who have about the equivalent of a 1000% rating but a lot of the injuries are not service connected-ergo no SMC S. Consider SMC a gift of a grateful nation for losing a few too many pieces of your factory-issued birthday suit or being severely injured enough to have lost mobility and ADLs. TDIU is a different path to a 100% compensable rating and will always come up short of a true schedular rating. Once you head down the TDIU path, you're departing from the regular path up the ladder to SMC S. You personally have arrived via the A&A 1 path. While it is functionally equivalent to an L rating for compensation, it isn't a true 'L' rating. Your next logical step as you get much older would be A&A 2 but that will be a long way off. Eventually you will be a true "L" or "M" rating quite possibly with a A&A rider when you get much older. Lord knows what you stepped on, ran over or crashed to earth in that boogered you up so bad. I’m sorry for you. I know what it’s like, unfortunately. I drove a gurney for a year in a VAMC. I’m on the mend but I’ll soon have the extra 100% which will still only entitle me to the S ‘housebound’ rate of pay for now. When I finally start circling the drain and need the A&A, I’ll be entitled to that bump up to ‘M’. I dread that day and that level of debility. I'm not seeing the K(s). VA is a lot of things but they are chintzy on the higher SMCs. Thank you for being so selfless and serving your country. Few Americans hear that call. P.S. Buie stands for the idea that it makes no difference in what order your disabilities were granted. Thus, if you got 70% for MDD, the sum of your other disabilities , if they were different body or anatomical systems and added up to 60% or more, would entitle you to housebound. You are past that at A&A but didn't pass the M test yet. I like to "reach" with VA so I might be tempted to argue the 1/2 bump to L1/2 based on that slug of ratings you have above and beyond the TDIU. What the hey? You may get famous at the CAVC and supplant Buie for a new interpretation of the 50/100% bump logic. Nothing ventured-nothing gained.

<<<<<<<<<<<<<<<<<<SMC K criteria are met (loss of use, due to disabilities, pain, and medications)>>>>>>>>>>>>>>>. Look at the list of ailments that K is awarded for to determine this. Loss of, or loss of use of is a broad term. If you have a diagnosis, for example, of loss of use of a creative organ such as erectile dysfunction, there's a K unto itself. But if your disability is so great walking without any prosthetic devices, to include a wheelchair, it can be interpolated that you have loss of use of your lower extremities. This is what I assume provides the floor for a SMC L rating. The K for ED would be in addition to that. You cannot say that you are entitled to A&A 1 and say you are entitled to K for each leg because the L rate incorporates that disjunctively (note the word usage "or") : (b) Ratings under 38 U.S.C. 1114(l). The special monthly compensation provided by 38 U.S.C. 1114(l) is payable for anatomical loss or loss of use of both feet, one hand and one foot, blindness in both eyes with visual acuity of 5/200 or less or being permanently bedridden or so helpless as to be in need of regular aid and attendance. VA's use of "and" makes a rating dependent on all listed criteria (conjunctive) whereas the usage of "or" (disjunctive) makes each item a stand alone requirement. This is where even accomplished VA raters (assuming there are some) step on their neckties. Absent any more input from you or clarification of just what has been lost via amputation or lost usage complicates a cogent answer.

Try this one on for size first. https://asknod.wordpress.com/2013/02/27/special-monthly-compensation-what-is-it/ If you have A&A 1, you are SMC L. That L (or A&A) comprehends all those 70s, 50s, 40s 20s and 10s above. You can have 3 Ks simultaneously before you move on to M. Always remember too, if your disabilities are all of one common etiology, they are one disability in the SMC world for S. Imagine a BouncingBetty dinks you with Retained metal fragments in 6 different muscle groups. It's all one injury for SMC. You are SMC S (A&A 1) which is basically L. You have to start losing arms and legs closer to the next joint or loss of use to keep moving up the SMC ladder. The closer the amputation to your body, the higher the SMC category (i.e. L to M or M to N). The only exception to this rule is if you have two 100% schedular rated disabilities. Thus if you are 200%, you get an auto bump from L to M, or from M to N or from N to O. The bump party stops there. If you are 50% above a 100% schedular, the bump is a half step from L to L 1/2. SMC law is the sum of the missing parts. What I can't figure is how losing a forearm at the elbow only get you another $218 a month over the loss of, say, just the hand.

Them 7.62s sure do smart don't they, 3022? I flew right into one.

Keep your eyes peeled at the CAVC. These IED adjudications get batted back and forth on remands because they have other, secondaries that now have to be considered under Moody.I think that slows them down to about a decade from RO to CAVC but eventually one is going to hit a jackass DRO who doesn't understand what it feels like to have an IED go off under under or near you. I personally can't imagine but it's bound to put a dent in you and chip some paint off. A Mk 82 500lber will part your hair smartly and slow a jeep down 4 mph even a 1/4 mile away. These guys deserve to get a pass on the check ride. Hopefully, they will go to panel rather than SJM and we'll all benefit from it. And if y'all are in town Jan. 2, come on down to Indiana Ave. and say hi. I'll be there filing the Writ from hell.

I showed VA my orders for Vietnam in 1994 with my NOD. They finally admitted I was there in 2007. They're always running a little slow, sir. Maybe VA thinks those Combat Vs on medals stand for Vodka. Don't worry. Send it in (again). If the poop hits the fan, we'll cover your 6 and lead you out of the jungle. You have my word. Happy New Year.

Hoo, doggies. You want to come to work for us?

Not to put too fine a point to it, but reading a denial is often the route to a reversal. K9MAL makes a good point but glosses over the rater's rationale for Mr. Grenier's denial. Therein lies the secret to success... <<<<<<<<<<<<<The VA examiner noted all references in your service treatment records were to gastroenteritis, which is self-limited. There is no evidence that you were treated for IBS while on active duty, also, while you have a current diagnosis of IBS, current symptoms do not warrant a compensable evaluation.>>>>>>>>>>>>>>>>>>>>>> This is why you need the nexus. I don't blow bubbles here when I give advice. I've been doing this since 1989. The reason I finally started winning at it is probably the same reason Bertha encountered such continued success. I read each VA document completely and discerned the real meaning of the phrases. Giving advice to others about how you, Johnny Vet, won your claim is unique to your circumstances. Each Vet's are equally unique and subtly different. This is why you cannot cite to a bunch of BVA decisions and say "See, he won and he had the same thing as me." Winning a claim and being remunerated properly requires a little more finesse than licking the envelope flap and adding postage. In my book, I described this as a recipe not unlike baking a cake. You cannot substitute baking soda for baking powder and expect the same results. Beating the VA is really childs play as any here can see. Time consuming-yes- but not impossible. Their raters work off an antique Adobe Acrobat II (2, not eleven) program tied into the M21-1MR and have a finite choice of denial language. Denials are simply a necessary first phase in a long battle if you are not properly prepared initially. Everything I, and indeed some of the other knowledgeable souls who inveigh here offer, is the shortest distance between two points-filing and a win. Unfortunately, as most of you can also see, a large number arrive here after a denial rather than strapping on the parachute and filing a flight plan before turning onto the active runway. 85% of you will lose the first time out because you think the VA and your VSO rep are your BFFs. The statistics bear me out. But what the hell do I know? I'm just the resident "content contributor". My daddy once said "Advice is like weeds in the garden in early spring. Sometimes it's hard to ascertain the vegetables you planted." Many offer advice here and some of it is outstanding and well-reasoned. Pick and choose based on your own unique situation. Avoid the group mindthink that all claims are alike. Trust me. They are not. Weapons are free, gentlemen. Cleared in hot on heading 275, over.

If you read that FAST letter, you see one flaw that may queer the deal. It says you must qualify for SMC "L" to be eligible for SMC "T" which is basically R2 with a new name. You list your disabilities but fail to mention loss of or loss of use of an extremity. General rating and development rules apply to claims for SMC (T). In addition, before considering entitlement to SMC at the (T) rate, Rating Veterans Service Representatives(RVSRs) and Decision Review Officers (DROs) must establish entitlement to A&A benefits at the (L) rate. Procedures governing award of SMC (L) for A&A are outlined in the Adjudication Procedures Manual M21-1MR Part IV, Subpart ii, Chapter 2, Topic H, Block 44. § 3.350 (b) Ratings under 38 U.S.C. 1114(l). The special monthly compensation provided by 38 U.S.C. 1114(l) is payable for anatomical loss or loss of use of both feet, one hand and one foot, blindness in both eyes with visual acuity of 5/200 or less or being permanently bedridden or so helpless as to be in need of regular aid and attendance. (1) Extremities. The criteria for loss and loss of use of an extremity contained in paragraph (a)(2) of this section are applicable. (2) Eyes, bilateral. 5/200 visual acuity or less bilaterally qualifies for entitlement under 38 U.S.C. 1114(l). However, evaluation of 5/200 based on acuity in excess of that degree but less than 10/200 (§ 4.83 of this chapter), does not qualify. Concentric contraction of the field of vision beyond 5 degrees in both eyes is the equivalent of 5/200 visual acuity. (3) Need for aid and attendance. The criteria for determining that a veteran is so helpless as to be in need of regular aid and attendance are contained in §3.352(a). (4) Permanently bedridden. The criteria for rating are contained in § 3.352(a). Where possible, determinations should be on the basis of permanently bedridden rather than for need of aid and attendance (except where 38 U.S.C. 1114® is involved) to avoid reduction during hospitalization where aid and attendance is provided in kind. Here is the definition under (a)(2) for hand foot loss: (2) Foot and hand. (i) Loss of use of a hand or a foot will be held to exist when no effective function remains other than that which would be equally well served by an amputation stump at the site of election below elbow or knee with use of a suitable prosthetic appliance. The determination will be made on the basis of the actual remaining function, whether the acts of grasping, manipulation, etc., in the case of the hand, or of balance, propulsion, etc., in the case of the foot, could be accomplished equally well by an amputation stump with prosthesis; for example: (a) Extremely unfavorable complete ankylosis of the knee, or complete ankylosis of two major joints of an extremity, or shortening of the lower extremity of 31/2 inches or more, will constitute loss of use of the hand or foot involved. (b) Complete paralysis of the external popliteal nerve (common peroneal) and consequent foot drop, accompanied by characteristic organic changes including trophic and circulatory disturbances and other concomitants confirmatory of complete paralysis of this nerve, will be taken as loss of use of the foot. My guys have run into this at the Seattle RO. Raters there use their bellies for a porthole which tells us where their head is located: It is not a formal requirement that the veteran be rated 100% for his or her service-connected TBI. The statute and regulation relating to regular A&A (SMC(l)) do not mention a 100% schedular requirement . The VA Adjudication Procedures Manual Rewrite (M21-1MR) states: A single disability rated 100 percent under a schedular evaluation is generally a prerequisite to a determination of need for regular A&A. Any lesser disability would be incompatible with the requirements of 38 C.F.R. § 3.352(a). VA is big on promising us all manner of largesse. When it comes time to cut the check, we find the Thursday rule in small print that says it only applies if you were born on a Thursday and can prove it. SMC T is being rationed out very sparsely. So far, it has been rough for the ones I helped. They are missing one of the ingredients or don't make the 100% schedular test. All three I did are on appeal to DC. One was a DRO review and he basically reiterated the "Sorry. You have all your hands and feet. Missed it by that much." You also mention needing the A&A about two days a week. VA will eviscerate you on that alone if you do not require it on a daily basis as described in § 3.352(b)(5): (5) The provisions of paragraph (b) of this section are to be strictly construed. The higher level aid-and-attendance allowance is to be granted only when the veteran's need is clearly established and the amount of services required by the veteran on a daily basis is substantial. Merry Christmas

Yeppers. This has a Fenderson v. West staged rating all over it, too. File the NOD and make darn certain sure you ask for the higher rating percentage but more importantly, the earlier filing date that was denied initially. Mr. Basser's advice is spot on. While VA is required to consider TDIU, there is never any guarantee the local yokels will do so. Thus throwing in a 21-8940 is a good side bet to cover your bases. If you are using a VSO, be careful you do not discover the son of a gun is bargaining away your ratings behind your back-something a POA permits him/her to do with your explicit permission.

Sorry Tbird. I didn't see your post. Go to my site and read about individualized Independent Living Programs. I've been through the mill on it and currently have a F9 on a greenhouse in. The gomers who run the whole VR&E program for a VARO will be the ones in charge of your ILP and they are horribly stingy. With 2,700 slots open annually to the most severely disabled among us, and a maximum allowable expenditure of $65,000.00 per Vet locally without going to VACO in DC for a higher authorization amount, you would think it was a slam dunk. I had to fight a year to get a a computer out of them for what should have been a legit. enterprise.(asknod.org). You ought to get one for Haddit easily. Each VR&E program is an entity unto itself with no oversight from DC. Very strange way of running a railroad considering you can't fart at VA without three signatures. As for ILP, it is a nuanced approach. Yes, you have to fill out a Form 1900 and you can find them over at my place. Yes, to the dog and pony show and a brief interview. Once it is determined you are not going to begin your new career at Walmart, you go down the ILP path and a counselor tried to fit you for a cordless phone and grab bars at the toilets and shower/tub. VA just revamped the M28 in a further effort to curb VA's largesse. Each succeeding War, VA enacts new barriers to this 1980 program. They tried to make it strictly vocational in 96 and lost on a OGC precedent. It does comprehend recreational pursuits but they are getting stingier by the moment. Any big $ items will require a true administrative review in DC which is a Godsend. It's a viable first step before a full blown NOD and appeal. My good friend Bruce in Atlanta got a 30X60 heated greenhouse with raised tables and a hydroponic feeding system in 2008. He fights hard for his buds thereabouts. Woodworking shops, photo/art studios etc are the norm. OGC PREC 6-2001 opened up the world of the outdoors to us. Everyone needs some sunshine. I'm fighting for one too just to preserve our right to access this valuable program in a meaningful way. https://asknod.wordpress.com/2014/06/03/va-ilp-the-secret-handshake/ ​Make no mistake. VA is just as recalcitrant in providing you with VR&E for avocational pursuits as they are in granting claims. Same game, slightly different rules.

K9MAL- It's called theCongressional Interests Section or just the CI. That's a section of the VARO that deals with inquiries from Congressmen/Senators. They carry the fire extinguisher around and put out the fires. Usually a minimum of a GS-10 or 11. CIs have great people-to-people skills. And no, calling Bob- even if I started this thread-did not pan out. Next step is January 2nd at the CAVC. VA has had twenty years, nine months and 14 days to get my claims finished. Mrs. Jean Erspamer spent ten years at this and it appears the CAVC is beginning to lose their patience. They are unused to the idea of being ignored as they were in Groves. See https://asknod.wordpress.com/2014/12/01/cavc-groves-v-mcdonald-we-misfiled-it-its-okay/My arrival ought to just frost them. I do hope it's a panel decision. clear prop

VHA is VBA is DVA. Bell v. Derwinski.1992. If VA had constructive possession of documents identifying your whereabouts at the VHA or VAMC you frequented before getting out of Dodge, then they have no legal leg to stand on. Just because VA's left hand does not know what the right hand is doing is no excuse. No presumption of regularity attaches to the mailings.

Attached is what I won on. I pried it loose from the hospital over there in 1991 and sent it to the VA with my TDY records showing service in Vietnam. They promised to review it and get back to me. They never did and when the VA finally got around to go looking for them they had been destroyed. My actual AirAm service records records were sealed until years later . I got them on an FOIA in 2009. I was technically flying for them when I was shot even though I never was transferred out of the military. The AF said they didn't issue PHs to those who were employed by USAID or AirAm back then. My ID said USAID French teacher. I refiled in 2007 with the exact same evidence. VA granted 16 months later and finally admitted I was in-country. The AF gave me all the medals except the PH and Air Medal this year. My shot record even shows me getting my Gamma Globulin shot at the US Embassy in Vientiane the day I was evaced back to Udorn. Maybe I just shot myself in the leg to get that spiffy GSW scar. Stolen Valor types will do anything. Besides, you folks all know Vets are inveterate liars and goldbricks. The pink sheet was the winner for proof of in-country. Project VTY 277 was called Palace Dog. This is why we should all be packrats if we want to win our claims. clear prop AirAm medrecs from Tango 11.pdf

85% of all claims are denied the first time out. Welcome to the club. "Presume" nothing-ever. Once upon a time in 1970, I "presumed" I was bulletproof. A gook proved that was all wrong.

<<<<<<<<<<<<<<My concern is why my VSO is not giving me any solid advice. >>>>>>>>>>>>> The answer is simple. Your VSO has no legal training. A 40-hour MOPH intro to claims filing does not a juris doctor make. Lawyers are trained in the art of evidence gathering as well as what will win the day. I've had Vets arrive at my doorstep with all manner of evidence. Most of it is historical as they remember it. Little or none was probative or helpful in proving the claim. Watch a few Judge Judy shows to understand this concept. Lay evidence. properly written or assembled, and when plausible, is a godsend to any claim. Conversely, merely saying "This is the way it happened." contributes nothing. VA calls this a historical recitation. Reciting the facts as you remember them and committing them to paper does not corroborate them. If a doctor writes it all down as you present it, it does not constitute your medical history. ​Allow me to give you an example. I filed in 94 for hep and Porphyria. My Air America records were not part of my SMRs. On my separation physical, I listed hepatitis as a disease suffered during my service in SEA. Here's how VA treated it back then and does today. Layno v. Brown is the benchmark for what you can attest to. I would have been better off stating I had orange-colored skin, lost 38 lbs and spent 6 weeks in a building with a lot of people who wore white and called each other Doctor or Nurse.

What is missing here is a statement from your doctor stating that it is more likely than less likely that the current IBS you suffer is the same disease process you were seen for while in service. I.E. the "gastroenteritis " was merely the beginning onset of your IBS. He then needs to cogently reason why he believes this. Any evidence of continuity of symptomatology is further proof of chronicity of the original tummy ache. Once you have this, you can win. I have told Vets a million times that DBQs do not have a box for the doctor to write the nexus in so they don't. VA receives it and promptly adds theirs in there for you. Mighty thoughtful of them to do so and also mighty funny how they all say "not service connected" . When you get your own doctor to say it, magic things happen. When magic things happen, you win. When you win you have money to get cable TV. No mystery here, Phil.

Remember that the Presumption of Regularity in delivery of the mail is only granted when the mail does not come back as undeliverable.. It did in your case. If they mailed it to the wrong address a second time, it didn't improve the chances of your receiving it. You're golden with what you have. Put it in a fire safe just in case. You have a marvelous paper trail that VA is inadvertently created for you proving their ineptness. Sit back, let an atty. fix it and plan the ways you can enjoy your retro check which will be there in about 2 1/2 years if it catches a tailwind. clear to active runway

Roger that. You are never going to win that 2004 earlier effective date at at your local Fort Fumble. Get it to Vermont Ave. at your soonest. And call a Lawyer tomorrow morning as soon as you roll out for crying out loud. This is a carefully choreographed dance that can have no missteps. You have one opportunity to get it right. Make it so, Number One. Merry Christmas

No sir. You do not give up the ship. You are not an attorney. You do not know of suspense dates and such. My statement above is me playing the Devil's advocate as VA would. You had these records in your possession. Period. So what? They're legal mumbo jumbo to most. How could you know that VA's failure to contact you was a violation of due process? Now for some constructive law. There are either one, the other or both of two things you can fight on appeal of a claim. You are appealing the law (case) or the facts (controversy) or a case of both. Here, it is case. You have not been served or mailed a copy of the denial. If you had, you could appeal from it. That it happened in your absence while your zip code was flexible is of no matter. When these things happen, everyone stops what they are doing and waits for you to re enter the system. Again, without any law training and a real lawyer representing you at any time in the past, you are blissfully ignorant. You do not know what happened to the 2004 claim. You could not know they denied you because they were never able to tell you so. If and when you win, you suddenly discover that the old claim was never closed out by the failure of the mailing, you can raise a stink and claim your effective date as 2004 and cite to Henderson. This can only be done at the time of the original win for the claim or within that golden first year to object with a NOD. All the more reason to get on the stick, sir. It's elementary VA law if you know what you are doing. You will win it but you have to have a good legal mind to guide it. And by the way, I receive no Hawaiian cruises or tickets to Disneyland for referrals. I get to sleep at night really well though. Your legal recourse is this. If you have not mailed in a NOD on the CUE denial, do so and include this new theory. A homeless gal in exactly the same circumstances got this equitably tolled and continued her old claim. VA will never grant it as it is almost a matter of first impression for the CAVC. That phrase means it has never been adjudicated in VA law to VA's satisfaction. It has, but not under the exact same circumstances as yours. Nevertheless all the claimants in these cases won. You will have no problem getting an attorney for this. If you need one who can actually sound this out like Phonics without blowing bubbles, private message me and I will give you several. I say many attorneys might be quick to take this because there is a large pot of money on the table that can be won. After you have kited the new NOD, an attorney taking over would merely be picking up where you left off. He would never be allowed to revamp a CUE claim if you hired him before the filing of the NOD. He'd have to refile it with the new theory. If you have not filed a NOD on the actual win- again- here is another opportunity to pull 38 CFR 19.25 out of the hat and claim the earlier 2004 date as the correct one. This is why you need a take-no-prisoners leagle beagle. When in doubt, look at my flag below. Never Chieu Hoi to the VA. Never. If you do, it's counted a a win for VA and they use it to defend their statistics.