FormerMember

Signal Battalion Soldier posits this: <<<<<The CUE was already denied a few weeks ago, and it wasn't under this theory. As I understand it CUE is a one shot deal, so I wouldn't now be able to inject this theory into the mix would I?>>>>>>>>>>>>>>>>> CUE is a many splendored thing. What you cannot do is reargue the same theory. You can argue a brand new one though. If you are pro se, and only if so, you are allowed a vast amount of leeway here. In the NOD of the CUE claim, you may change canoes in mid-stream and change the contention or simply add a new theorem. VA is forced to give you a bye for your ignorance. So, you opine and say "After further research in my c-file, I note the failure to attain the Presumption of regularity re the mailing of my denial in 2004. I received neither and your records clearly show them being returned as undeliverable. Therefore, equitable tolling was, and still is, for application here. The effective date is clearly and unmistakably in error due to VA's failure in delivering the denial decision. Technically, this isn't CUE anymore. This is a violation of due process as your 2004 adjudication has never before been legally completed. It is in cold storage unless and until VA can prove that you have received the denial via a mailing on their part. 38 CFR 19.25 is for application: § 19.25 Notification by agency of original jurisdiction of right to appeal. The claimant and his or her representative, if any, will be informed of appellate rights provided by 38 U.S.C. chapters 71 and 72, including the right to a personal hearing and the right to representation. The agency of original jurisdiction will provide this information in each notification of a determination of entitlement or nonentitlement to Department of Veterans Affairs benefits. (Authority: 38 U.S.C. 7105(a)) You have yet to "legally receive" your 2004 denial and your right to appeal that "determination of nonentitlement to Department of Veterans Affairs benefits." has yet to be realized. That's not CUE. It's an incomplete adjudication that's been temporarily stymied. VA should have pushed pause in 2004 and got out the Rolodex to find you. If they don't, you're merely on hold. You need a good law dog, Cowboy. There's a lot at stake here financially. In the alternative, they might argue that by possession of your c-file, you can reasonably ascertain that you were denied in 2004............. BUT........................ the "clock of equitable tolling can only begin with your receipt of the c-file. Thus, on paper, you now have 365 sunrises and sunsets from date of receipt of c-file to legally file your NOD of the 2004 denial. Got it?

Hooo, doggies. You are in high cotton. If VA is/was unable to contact you, the claim goes into the deep freeze. This failure to communicate creates equitable tolling. The doctrine of laches allows you to return any time you get your defecation lined out and start over. https://asknod.wordpress.com/2012/02/21/cova-manio-v-derwinski-doctrine-of-latches/

You may want to rein in for a moment, hoss. If you complain to the BVA, you will induce an automatic remand for that missing SSOC. Baaaaaad idea. To keep from playing ping pong and preventing the BVA krewe from sending it back automatically as defective due to the failure to issue said SSOC, you should ( in my estimation) promptly send in that aforementioned Waiver of Review in the first instance of the nexus letter you mentioned. Here's how VA, and more appropriately, how the BVA works. Any appeal that arrives for substantive appeal is inspected minutely to be sure it is complete in every respect. If, by God, the VARO forgot to include your SSI/SSD records (if you are already on SSI/SSD) the BVA gomers automatically kick it back to the VARO for them to collect and merge with the c-file. A one year delay minimum is the punishment for the round trip. This is why I often advocate for my Vets to obtain them themselves and submit them as evidence to get them into the c-file ahead of time. The same will apply with your N&M Evidence. Some rocket Juris Doctor fresh out of law school will ascertain there has been N&M E submitted and the chowderheads at the RO neglected to do that one last de novo/SSOC review. They promptly push the remand button and send it back absent a Waiver of Review. There are two schools of thought and they are both predicated on the old pre-judicial review (1989 VJRA) era. Old school VSO thinking is one more bite at a new (local) RO decision via a de novo or DRO review is one more possible shot at justice. Nowadays, that isn't true. A remand of this nature gets a brief glimpse and a wave-off. VA is too busy to devote valuable senior RVSR assets to a BVA remand that is often a matter of first impression (legalspeak for a new aspect of law never encountered). They prefer to hit the M21 "figure out a denial logic" and push print. Adobe Acrobat II kicks in and back it goes to the BVA to sit and await a new "review". I teach getting the flock out of Dodge and before someone with a Juris Doctorate at the BVA rather than a VSR with 40 hours of GEICO Insurance Claims school training on the clock. Of course, that is merely my idea of how to run a railroad. Others may weigh in here and tell me I am all wet. After all, I am merely a "content contributor". However, I do hope this helps you make a more informed decision on your future.

No, VA is not required to automatically mail out an SSOC. Here's why. If you submit New and Material Evidence (your new nexus) the VA is required to do one of two things. First, they have to readjudicate it de novo (from a brand new perspective of looking at all the prior evidence as well as the new nexus). Next, if they grant, they have to rate you. If they continue the denial, only then would they send you a SSOC continuing your denial. Even if you have already submitted your Form 9 substantive appeal, and it has not been certified with a Form 8 signed yet, they can perform the de novo review. If the Form 8 is completed, simply file a waiver of review with the BVA and make sure that puppy doesn't come back to the RO like a bad penny.

You technically need five years under your belt @100% to attain the sobriquet of no improvement but you mention the magic paper ("The Dr. stated it is a lifelong and not expected to get better".) That's the ticket to Chapter 35 benefits. I cannot stress how important it is to push for it now in light of your child's age. I did so and managed to get my son in on the tail end of it for law school. Remember, the Chapter 35 bandwagon is only good until the child's 25th birthday. Likewise, your spouse is entitled to four years of college as well with a 12 year suspense date. Check your state for benefits. Mine (the other Washington) pays the freight for the tuition completely. VA throws in about $965 a month for 45 months. clear prop

You don't have to thank me. Tbird is the one you wish to direct that to. We're just the hired help. Besides, you'd do it for me if the tables were turned. We don't ever leave them behind. Never again. Clear Prop

Entitlement to SMC-S (HB or A&A) runs from the date of documented proof -but only after you file and win for the predicate. It is not a claim you file for. It is an entitlement that is awarded based on the facts. If you suffered that which would provoke the SMC S in 2008, that would be the entitlement date. An entitlement can only be awarded secondary to a claim when all the facts prove you qualify for it. It is not necessary to CUE a failure to award SMC. You simply have to prove by a preponderance of the existing evidence that you were entitled to it at the time you filed for the conditions you won on. SMC S is one of the least understood compensation items in VA's ratings arena. Read the following and it will really open your eyes to what SMC-S is.... and is not. Most Vets have no idea what SMC-S was designed for and the intent of Congress when it was enacted. https://asknod.wordpress.com/2014/08/25/cavc-howell-v-nicholson-what-smc-s-really-says/ a

<<<<The SSOC I got mentions nothing about a Decision at the RO and sent it back to the BVA for my 2008 BVA decision.>>>>>>>>>>>> The regulations clearly deliniate what you can and cannot do with a SOC (or SSOC). A SOC is specifically designed to tell you several things. It carefully explains all the possible CFRs that are relevant or that were used to arrive at a denial, the parameters ( all specific issues implied in claims) of the denial, and, most importantly, is a convenient way to attach a Form 9 for your substantive appeal to the BVA. From the CFR: § 19.29 Statement of the Case. The Statement of the Case must be complete enough to allow the appellant to present written and/or oral arguments before the Board of Veterans' Appeals. It must contain: (a) A summary of the evidence in the case relating to the issue or issues with which the appellant or representative has expressed disagreement; (b) A summary of the applicable laws and regulations, with appropriate citations, and a discussion of how such laws and regulations affect the determination; and © The determination of the agency of original jurisdiction on each issue and the reasons for each such determination with respect to which disagreement has been expressed. (Authority: 38 U.S.C. 7105(d)(1)) And then a SSOC: § 19.31 Supplemental statement of the case. (a) Purpose and limitations. A “Supplemental Statement of the Case,” so identified, is a document prepared by the agency of original jurisdiction to inform the appellant of any material changes in, or additions to, the information included in the Statement of the Case or any prior Supplemental Statement of the Case. In no case will a Supplemental Statement of the Case be used to announce decisions by the agency of original jurisdiction on issues not previously addressed in the Statement of the Case, or to respond to a notice of disagreement on newly appealed issues that were not addressed in the Statement of the Case. The agency of original jurisdiction will respond to notices of disagreement on newly appealed issues not addressed in the Statement of the Case using the procedures in §§ 19.29 and 19.30 of this part (relating to statements of the case). (b) When furnished. The agency of original jurisdiction will furnish the appellant and his or her representative, if any, a Supplemental Statement of the Case if: (1) The agency of original jurisdiction receives additional pertinent evidence after a Statement of the Case or the most recent Supplemental Statement of the Case has been issued and before the appeal is certified to the Board of Veterans' Appeals and the appellate record is transferred to the Board; (2) A material defect in the Statement of the Case or a prior Supplemental statement of the Case is discovered; or (3) For any other reason the Statement of the Case or a prior Supplemental Statement of the Case is inadequate. © Pursuant to remand from the Board. The agency of original jurisdiction will issue a Supplemental Statement of the Case if, pursuant to a remand by the Board, it develops the evidence or cures a procedural defect, unless: (1) The only purpose of the remand is to assemble records previously considered by the agency of original jurisdiction and properly discussed in a prior Statement of the Case or Supplemental Statement of the Case; or (2) The Board specifies in the remand that a Supplemental Statement of the Case is not required. (d) Exception. Paragraph (b)(1) of this section does not apply in proceedings before the General Counsel conducted under part 14 of this chapter to cancel accreditation or to review fee agreements and expenses for reasonableness. (Authority: 38 U.S.C. 7105(d); 38 U.S.C. 5902, 5903, 5904) [67 FR 3104, Jan. 23, 2002, as amended at 73 FR 29879, May 22, 2008] Thus a SOC or SSOC can never be a vehicle to announce a grant of SC or increase. It is strictly a tool to use in your upcoming appeal. VA once mailed me both in the same envelope. I had just gotten out of the hospital in 2010 and was hitting on 4/8 cylinders. I missed my 60-day suspense for the F-9 before I regained my senses. Stuff happens. Now, with all that said, if you sign a Waiver of Review and send it in to the BVA, they will remand it (if necessary) to the Appeals Management Center (AMC) to do the required repair order. This is good. You get it done quicker. Besides, who do you want mishandling your claim? A dufus 26 year old GS-9 VSR in Detroit or an experienced GS-13 at the AMC in DC who has seen everything? Why let them send it back to the RO for some procedural hiccup like forgetting to go get the SS records? Sometimes these things get lost. Let the BVA judge decide it without interminable remands back to your local puzzle palace. BVA VSO Appeals Teams like to remand you to death for every possible shot at another decision at your local RO before it gets stuck in DC. This is why they love DRO decisions. You get to camp out at Fort Fumble in Detroit while all your buddies take the traditional appeals path to DC and get there two years ahead of you. To me, a SOC is "What part of 'No' don't you understand?" A SSOC is "Are you deaf?" clear prop

Looks like he's 100%, not TDIU from the title and his query. If you have received the 100% rating for your disease and wish to make it complete with a P&T, then you probably also know that when they gave you the 100% letter, it said something to the effect that you will be receiving a new C&P exam exactly two years from now to see if your condition has a) gotten better: b) stayed the same or c) gotten worse. If b or c, then they will grant the P&T. If you have school age kids, you can go to your doctor and get a letter saying Vet201060 is never going to get better and there's a high probability he may get a lot worse due to his service connected disease/injuries. File the letter w/ VA and ask for P&T now. It is an entitlement and not so much a rating % .

One thing you should consider if you cite to 38 CFR 3.156. You should be specific as to which section -i.e. (a), (b), or (c ). Each has different facets and none are alike. If you refer to ( c) as in new evidence such as Service Dept. Records which are only now being associated with your c-file, all well and fine. Pardon me but I sense you are saying your realization recently of the contemporary SMRs revealing several mentions of Bronchitis constitutes 3.156(c ) evidence. Sadly, it does not. If you yourself had a copy or even the original SMRs and submitted them recently in conjunction with this claim, then yes, they would fall under 3.156(c ) assuming VA did not have them or retrieve them from the NPRC. 3.156(c ) has become a minefield for VA. Previously ensconced over in 3.400(q) until 2004(?), it was well hidden. VSOs were clueless. With it's relocation into 3.156, it became far more visible. VA promptly started saying "Well, hold on. This new evidence did not materially contribute to a win all by itself" which is a prime ingredient. Hell, they even did it to me. They said yes, you have Porphyria but you were never in RVN ergo no AO exposure. After showing boots on the ground, they promptly denied again based on my failure to show it manifested within a year to a compensable level (10%). By ignoring my lay testimony which was protected by my 1154(b) combat protection, they got away with it. We made an end run around that and my doctor simply said it was secondary to my Hep C. 3.156(c ) jurisprudence is still a work in progress as we see every day up at the CAVC. It is becoming far more important with each case based on it. VA fights equally hard in each case where it is employed to narrow the scope of the win to a "Well, okay but it happened on a Thursday so it is not material or applicable to anyone who suffered this type of injury disease on a Monday." I nicknamed this the "VA Thursday rule" years ago after Ambassador William Sullivan (Laos-1970). He preferred we didn't drop napalm (ever) up there but if we did, he preferred it to happen after Thursdays to make sure it missed the newspapers. By Monday it was yesterday's news and escaped attention. We were careful to CYA and send him a TWX on Sunday night informing him the "exigencies of war" demanded it's use but he was unavailable to approve it. VA has likewise tried for the last 10 years to limit the force and implications of 3.156(c ) with ridiculous arguments. They lose them all and we are gradually finding (c ) to be a useful tool. It has it's applications in law but I do not believe yours is one in this particular case. CUE is a very difficult concept as well. You can have all the ingredients and still lose because VA claims it was not outcome determinative. The CAVC is loath to disturb these things so we usually get short shrift. The Fed. Circus, on the other hand, has no compulsions about handing down bitchslaps if they are in order. a sends Merry Christmas

You are asking us to take a shot at a running buck in Pennsylvania from Colorado. Without your c-file, none of us can make that pronouncement. Well, some of you will but none with any legal acumen. If you had clear and unmistakable evidence of Bronchitis in service in your SMRs and you had gotten a nexus letter saying the Bronchitis (asthma) you have now is the same as the illness/condition in service when you filed the original claim, then you could win your CUE. If you file CUE on a decision where you had no nexus of record, and later produce a diagnosis (with nexus) proving it now in 2014, it doesn't mean there was a CUE back then. Only if the nexus was part of the EOR (evidence of record) in the original filing, would it then be CUE. Refer to the two lists (3.309 and 3.307) and for the statute of limitations for the illness/injury/condition to manifest. VA caught itself screwing up on chronicity for 50 years with Walker v. Shinseki (Fed. Cir.) Used to be, if you could prove chronicity ( continuing problem of something in service that still exists) you did not need a nexus That's 38 CFR 3.303(b). Unfortunately, 3.303(b) qualifies that by citing to 3.307. If it isn't on the list (or you manifested it after the presumptive period), then you have to have a nexus via 3.303(a). Lots of Vets are finding that out now. VA has simply erased a buttload of CUEs by reinterpreting, well, actually correctly interpreting what they wrote in 1961 on 3.303(b). Pretty slick, huh?

Might want to start a new thread elcamino77us. Looks like this one got hijacked. For the record, it is impossible to run a claim through to a BVA decision this quickly unless you're a blood relative of Allison Hickey. If you filed a NOD about a year ago, chances are it's either a grant or a SOC. Depends on what was in the NOD. Relax and enjoy Christmas, sir. Worrying about this will ruin the season. But, if you must, here are some ebennies hints. If you hit the wrong selection at View my status, you may end up reading the wrong result. Here's the status button. If you choose #1, the open claims choice, it will take you here and show you the status of an existing claim. Similarly, if you chose the appeals function, you find yourself here looking at the slow pace to a docket in DC. Days here in BVA days are measured in Jupiter days. Below open claims are older completed ones that often confuse the claimant. If you click on any of those, you may get an erroneous reply showing you are finished there (at the BVA) One trick we all look for on claims recently decided at your local RO is the VA payment history. This will often show the check to be deposited in your favor a week or so before you even get any rating paper. If it was done at the BVA, it will take several months to get back to your RO for a rating. One exception to the rule is if you gave the BVA a waiver of review. In that case the AMC will rate it and send the decision from there (Eye Street) in DC around the corner from the BVA. We call it the 59th RO. Ho, ho ho! Clear prop

Sweet. Might be time to call Bob. I sure hope you have the tracking number. If so, call the USPS@ 800-222-1811 and have them send you confirmation. You can also go online at USPS.com and type in the 20 digit tracking number and get confirmation that way. After you do so, you type up a nice letter informing VA that they should check with their tired, over- bonused employees in the mail room to confirm it's not lying in a corner. Since they probably do not have a copy or cannot find the one you sent, you pretty much hold the cards as to what was mailed. Send them a new one when they finally chieu hoi and admit they lost it. I've had this happen twice. It rolls their socks down when you look up the employees in the mail room and find the one who signed the green card for it. You then write " It appears as though Mr. Clyde Ulrich (GS-7) signed for it on July 11th, 2011. Here's the tracking number. Please research your records as the USPS swears you have it. In fact, for your convenience, here's an actual copy of the return receipt with Mr. Ulrich's signature. If you do not have it, then the Presumption of Regularity is not for application in my claim and equitable tolling is for application. A complete audit of the evidence in the c-file will then be in order also. When would be a good time for you to do that? I'm free next week-say Wednesday @ 0800?"

Britton-Please see your Private message board for my reply to the above. a

Allow me to illustrate something for you. One thing that always eventually comes into play is wearing too many hats at the baseball game. Eventually someone like VA notices and says "Hey. I thought you were a neurologist but you're here today opining on gastroenterological conditions like HCV and the purported SGOT readings in 1969: http://www.index.va.gov/search/va/view.jsp?FV=http://www.va.gov/vetapp14/Files2/1416337.txt Third, the opinion by Dr. Bash and Dr. Chudzik that exposure to Agent Orange caused elevated SGOT levels and/or the Veteran's chronic liver disease is not supported by the evidence of record or medical literature. To the extent that Dr. Bash notes that the 2008 IOM suggests a raise of liver enzymes in Veteran's exposed to Agent Orange, the Board points out that the Veteran's elevated SGOT levels occurred in early 1969, but he did not go to Vietnam until September 1970. This is what I refer to as continuity when you build a claim. If you do not build the timeline, you get certain facts into the equation in the wrong order and everything works out until it's plotted on the timeline graph. Or worse, your medical facts are unsupported by science. Either way, the whole case suddenly disintegrates. Worse, as here, the evidence then is used against you and VA uses your supposition to fashion your own noose. IOM has the last say on what's in 3.309(e) anyway so it's a moot point here. While I admire Dr. Bash for what he does for us, someone other than the chief opiner has to be in charge of the evidence room. That's you or hire a lawyer to supervise it. In the same decision, the VA evinces scorn at Dr. Bash's qualifications. That is not good: A September 2005 document from Dr. Bash, a neuro-radiologist, is styled as an independent medical evaluation. Dr. Bash indicated that he had reviewed the Veteran's claims file and medical records, including service medical records, post-service medical records, imaging and laboratory reports, other medical opinions, and medical literature. He opined that the Veteran's failed liver state was a result of "either/both an extension of some occult liver pathologic process that he had in service which raised his SGOT values or/and a result of this patients loss of hepatic reserve (hepatocytes) during service when he had months of elevated SGOT values." With respect to Agent Orange, Dr. Bash stated that Dr. Brown did not discuss the Veteran's liver cell loss due to Agent Orange in service, noting that the 2008 IOM report referenced a link between Agent Orange and liver enzyme elevation and that this should be a basis for service connection. Veterans would do well to have nexus letters that address the disease and it's characteristics rather than simply impugn another doctor's findings. Peer-reviewed articles or Dorland's/Cecil/Merck medical tomes are the benchmark and VA's own studies are even more on point. And absent that, one thing that will never happen without a peer-reviewed AMA article in your favor is adding anything to the AO presumptives list like liver cirrhosis without the IOM weighing in. They are set to close up shop in 2016 and Vets have been hitting the wall on HCV/Liver problems = AO since 1991. It's still VA 5,000 Vets 0. Dr. Bash appears to be trying to attack this as a dual entitlement under a direct cause and/or as an AO presumptive. I could list thousands and they all say the same thing as this. This one is only unique because we have the battle of the doctors and "My doc's better than your doc" argument. When this occurs, they look at your specialty. Sadly, Dr. Bash came up short on gastrodoc credentials as well as the faux pas on the AST being higher in the states before Johnny Vet went to RVN. In this case, the Board finds that Dr. Brown and VA examiners' opinions that the Veteran's chronic liver disease was less likely than not related to service are more probative. There are a number of reasons why the Board favors these opinions over those of Dr. Bash and Dr. Chudzik. First, the Board points out that the Dr. Brown specializes in gastroenterology and hepatology, the specific area of medicine at issue. Hence, he has the esoteric knowledge and expertise required to make the necessary determinations in this case. Cf. Black v. Brown, 10 Vet. App. 279 (1997). See also Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993). On the other hand, Dr. Bash specializes in neuro-radiology and Dr. Chudzik is a primary care physician. While they presumably have some general medical knowledge of the issues at hand, they do not share the same level of expertise as Dr. Brown. I find it works better to rebut with kindness as VA does. Ignore the ARPN VA examiner's opinion (or whoever's) and focus on why your nexus is far more probative. But mostly, you cannot be a jack of all trades and a master of one as here. If you are going to win, you have to create an unequal playing field. One winning technique we at asknod like is to slam the N&M evidence in out of the blue with no waiver of review at the AOJ in the first instance and make the VLJ decide with your newer, most excellent unrebutted nexus versus an old VA one that is equivocal at best. I've won three that way but I feel they were technically "gimmes" that should have been granted below at the AOJ. clear prop

Close out date = Form 8.

File one of the new 3288s >> >>https://asknod.wordpress.com/2013/09/30/getting-your-c-file/ Make sure you mail them directly to RMC and do not go through Cheeseville Wisconsin or Newnan Georgia. Cleared in hot

I think I'd personally give the VA's Records Management Center a request for them. In this day and age, very rarely do records end up there unless your c-file has had no activity in 30 plus years. I'm working on one right now for a Vet who got 10% for scars after getting clobbered by a VC 60 mike mike mortar in 69, He filed on the way out in 70. No activity since. When I went looking for his records, VA said the c-file was at the RMC in St. Louis. Two requests have not dislodged them. Monday is the OGC "$h*t or get off the pot" letter day. Next stop is the CAVC for a Writ if I don't have them in 20 days. You have to be proactive on this because we sure as hell know VA isn't going to be. The CAVC is rife with decisions remanding back to BVA for Schafrath violations. Why wait until you get one of those " We are so sorry we were unable to grant you SC but the absence of the records gave us no other recourse". Yes, but if they had not lost them, we wouldn't be in this pickle, ne c'est pas? It's well known that VA's idea of a diligent search for the SMRs does not comport with the CAVC's interpretation. Here's their address if you want to grab the bull by the horns. While you're at it, I strongly suggest you round up any VISTA records from the VHA at your VAMC if you have not already. It's impossible to fight a battle without knowing what the enemy knows about you. Murphy's dictums include one rarely cited: A slip of the finger on a number key can render the search useless. They did this to me on my birthday once and it took six months to find the entry error. http://www.va.gov/directory/guide/facility.asp?ID=5380 Happy Thanksgiving and the best of luck on this, sir.

Roger that, Berta. I advise my guys and gals that unless they are covered by 1154(b) to walk a fine line. Just saying you have X stressor(s) does not a claim make. Credibility is one of those gifts we enjoy like the presumption of soundness. An overactive piehole has destroyed more claims than I can count. Repairing them is often a tall order. As you know, I work for Vets with nebulous risks that are hard to pin down with medical evidence where HCV is concerned. Knowing it didn't manifest for 30 + years had always allowed VA to use Maxson v. Gober up until recently. Same for AO stuff when the military record is less than clear on being in-country. Bent brain requires that special touch as well and often the credibility factor is the tipping point-most especially with women and MST. In the new VA paradigm, we are the purveyors of our own evidence. Duty to assist has always been a hollow concept anyway. Every item has to be viewed from several angles so as to be seen in the best light. I don't mean to criticize any here but having an MD put on the Perry Mason suit is almost waving a red flag in front of them. regards The "content contributor"

Check the FRE ( Federal Rules of Evidence) Chapter 8 defines credibility and the potential for endangering it. Granted, the VA doesn't subscribe to the FRE but they accept much of its premises. You are believed until you or those you have testifying on your behalf demonstrate their involvement undermines their (and by extension-your) credibility. The cards are already stacked against us. VA will use any perceived imperfection or inconsistency/collusion to deny. It takes one statement to pollute the credibility well and years of litigation to refute and set it aright. I have this happen with combat Vets from Vietnam. VA doctors are renowned for "assuming" HCV arrived in a syringe full of heroin. Absent a UCMJ notation, the willful misconduct aspersion is frequently used via some "admission" at a Kumbaya group therapy on the Vet's part. Most I know do not go crowing about their drug habits-even if they had one. In two years back to back, I never saw anything more serious than pot or White Horse (speed). Neither involved shooting up or snorting. Most guys I served with over there were consumed with trying to stay alive and being on their toes. Best of luck, sir. a

Just my unsolicited opinion, but never let a doctor, especially the one providing your nexus letter, opine on the legality or judicial posture of your claim. I really do not care if he is a registered VA attorney. There becomes a time when the VA perceives his investment in the claim is too tainted financially rather than an independent medical opinion. You do see my meaning, I hope. Your claim hinges on his nexus letter which is supposed to be supported by his knowledge of medical matters. When he inveighs on the CUE, or what he perceives to be CUE, with no juris doctorate after his name, it becomes polluted. VA can say he is too heavily invested in the outcome to be objective. Even if he has the JD, if he is not representing you, it also becomes a conflict of interest as to who is driving the claim boat. Never blur that line if you can avoid it. a

Re: DRO versus Traditional appeals I look at claims as a river or claim stream. The CAVC does too. Thus, a claim has it's inception at filing and 85% of the time proceeds downhill to a denial. That's why we have asknod.org and Hadit.com. If it can go haywire, it will. When and if you desire a hearing at the local level, be it an administrative hearing, a simple confab with the rater or a DRO hearing, it will entail a delay. Asking for a DRO review under 38 CFR 3.2600 also means an extraordinary delay because there are X number of Decision Review Officers available. They are GS-12-13s and there aren't many. Getting a date for a hearing delays your claim. Yes, in an ideal world you'd like to accomplish it locally. If it doesn't encompass cutting edge jurisprudence, it can occur at the RO but the delay is extraordinary. I do not condone waiting for a DRO to adjudicate it if the answer has a high probability of rejection. Absent anything new to submit, or a gross distortion of the facts, your SOC will arrive within two years. On the other hand, the delay for a BVA hearing is artificial. VA merely warehouses your traditional appeal at the RO for an equally interminable time before forwarding it to DC. Newsflash. The BVA has become as constipated as ROs. By filing the Form 9, you are asking for a docket date. This marks your time in line to certification. Certification is a five syllable word for making sure the postage is correct. If you also request a VLJ hearing either at the RO or the DC, it will compound the delay. I have written that a Traditional appeals path results in a new de novo decision at the RO anyway-albeit by a senior rater rather than the DRO. The difference is minor. The rater can get his two signatures and your win the same as the DRO. If it goes over $25 K, it needs three signatures. It happens sooner too. If denied again on the traditional path, you are now in the Form 9 line and sitting on the Group W bench. A travel board hearing at your RO is often a year or more out and a BVA decision another 15 months on top of it- minimum. My point in all this is ---Do you go for a DRO hearing (on the record) so as to include your contentions in the c-file for a potential appeal or go for an informal one where you can lose and none of your rebuttal is part of the Evidence of Record? Tough choice. If you lose due to ignorance on their part, you are now joining the line behind your brother and sister Vets who filed the Form 9 almost two years before you. Statistically, they have a 23% better shot at it and sooner, too. I advocate for BVA VLJ decisions because if you are right, once you get over the jurisdictional hump of RO and BVA denials, you arrive at a real court (CAVC) with real rules and real authority. Your appeal will be heard in less than 10 months. Your chances of achieving the win or a JMR are infinitely better at the CAVC. 65% of appealed claims are resolved in the Vet's favor or a do-over with a high probability of success ensuing there. Simply put- do you wish to fritter away time on a very difficult, hard to understand claim locally with, God forbid, a brain dead VSO at your elbow or do you want to get it in front of a real judge? 23% of appealed claims to the BVA are decided in your favor. No one has any statistics on AOJ error because they refuse to divulge it. All we have are the anecdotal stories of all you Vets who come here with your tales of woe. That, to me, indicates a 50% plus error rate which, incidentally, is often documented by VAOIG inspections of Regional Offices. Making a decision of this magnitude must be predicated on each Vet's individual circumstances. One size does not fit all. I often worry when I read of a Vet telling another to do what he or she did based on the barest of facts. Understanding Case or Controversy in a law setting is not a hit or miss undertaking. If you are unknowledgeable and offer advice, you endanger another's claim. As for advocating pro or con for a local versus appealed claim, consider what the contentions are. If they are cutting-edge matters of first impression, you're wasting your time at your RO. They simply do not have the capability, let alone the authority, to be making decisions of any magnitude. Likewise the BVA. No one has the corner on legal knowledge. Look at what the Federal Circuit handed down yesterday in O'Bryan v. McDonald. Hell, even the CAVC gets it wrong some of the time. Choosing the right venue is often the path to success. https://asknod.wordpress.com/2014/11/21/fed-cir-obryan-v-mcdonald-hoist-on-their-own-vaopgcprecs/

DC 7806 uses the Rule of nine (9). If you are not familiar with it, it may be why you are having difficulty absorbing the gist of DC 7806. http://en.wikipedia.org/wiki/Total_body_surface_area. VA doesn't advertise it so you may not be aware of it. Each segment has to be totally involved. If not, a percentage determination has to be arrived at via an arithmetical means. A dermatologist measures it and computes it. Remember also that it's disjunctive as in X % of total area OR X % of exposed areas. Exposed areas are short-sleeve shirt exposure, short pants and head/ neck /scalp. VA tried to rate my Porphyria under DC 7815 and said phlebotomies were "constant or near-constant systemic therapy such as corticosteroids or other immunosuppressive drugs required during the past 12-month period" and gave me 10%. I objected. Then they switched to DC 7704 and said 40% for phlebotomies but the VA examiner said I was totally disabled and was housebound because of photosensitivity and the anemia associated with phlebotomies. VA now says they don't have to follow the C&P findings... Then they took the 10% under DC 7815 back and gave me zero. I had a complete (private) skin exam and bingo-19.25% of exposed areas affected. You need one if you want to call them on 7806 or any of the Rule of Nine ratings between DC7800- 7823. The phlebotomies are considered heavy duty the same as Kidney dialysis as in 4.115. VA disagrees with me. But then VA rarely agrees with me so far. a Clear prop

Roger on the hearing. If you didn't sign a Waiver of Review in the First Instance with the BVA, you claim will be in danger of a remand back to the VARO if there is any legal error or the C&P exam is out of date. This happens sometimes when there is an appreciable delay from VARO to BVA. Signing a Waiver keeps it in DC and the AMC can control the remand instructions remotely from DC. With a VSO repping you, we in good conscience should not be advising you to take actions contrary to your or their best efforts but then, what the hell. I haven't met more than twenty Service Officers over the years that could actually file and win a claim. You probably have better odds on winning the Lotto or doing the claim yourself. Sounds like you at least know something about the process.