FormerMember

<<<<<<<<My recent readings indicated that approximately 4 months before the actual BVA Hearing is scheduled to take place, the VARO Certifies the appeal and forwards the Claims file to the BVA. >>>>>> This is a physical impossibility, sir. The c-file must be present for viewing at the hearing. The hearing takes place at the ...VARO. Ergo, the c-file must co-exist with the VLJ. Following the hearing, the c-file has a Form 8 inserted declaring it "certified" and off it goes via USPS to 810 Vermin Ave. NW. I had an appeal in 1992 that sat on a VSO Team's desk for six months because it was forgotten. And a head's up. The VSOs use Tag teams at the BVA. Last I checked there were eight VSO teams composed of multiple members (3-4) of the Big Six VSOs working in tandem on claims. No single organization has it's own unique team comprised solely of their own service officers doing your appeal. Sadly, they can hold on to the file for as long as they want to as well. I might add a PS to say that with VBMS, the file can actually exist in two places at once but VSOs are notorious for wanting it there at the RO during the hearing to refer to. This has the added disadvantage in a paper c-file situation of depriving the VLJ from viewing it first hand in a videoconference setting.

Special Monthly Compensation is an award separate from a rating and is applicable at the first time it can be ascertained it is due and payable. If G I Fist can prove entitlement to A/A in 2001, VA would be obligated to pay that. AB v. Brown (1994) assumes Vets are applying for the highest and best rating they can get and should not have to pester VA for each and every entitlement. Moody v. Principi furthered this concept in that VA is obligated to ferret out any and all issues that a Vet might be entitled to to include informal claims. This certainly would include an investigation as to the applicability of any SMC in 2001. It never hurts to try but if you feel you were not that disabled in 2001, it would be a moral matter. Do the mirror test. Go to the mirror and look yourself in the face and say "I am entitled before 2011" and see if it sticks. That's the problem with your conscience. clear prop

Ah, sorry, JuanP. In that case, your mother-in-law's mother would have to have had boots on the ground in the RVN. There are no recognized diseases transmitted from the paternal side of the family so your father's service in the Navy would have no bearing, I'm afraid. a P.S. Here's the link for your mother in law to peruse, sir. There are quite a few diseases/birth defects. I did not see MS. http://www.law.cornell.edu/cfr/text/38/3.815

Here's the scenario. If your claim has been certified to the BVA with the Form 8 and transmitted to DC, asking for a hearing will necessitate a remand for a hearing. Scheduling a hearing, even a videoconference via your RO, will be a year out from the date of the remand. At the sixty day cut off point when it goes to the VLJ, there is no turning back. Asking for a hearing rightfully should be exercised with the filing of the Form 9 or shortly thereafter. As for a presumptive disease associated with AO, you would have had to have manifested spina bifida at birth and certainly before age 18. In order to claim that, your birth mother would have to have served in Vietnam. As you were accepted into the service and granted the Presumption of Soundness, I'm not sure how you could claim that unless they missed it at your entrance exam. a

Ah. Strong in the force is this one...yessssssssssssssssssssssssss.

. I find it disturbing to offer any Veteran advice in a total vacuum of knowledge. Legally (and morally), it's a Bozo No-No. The VA legal process is already a minefield. Add in bent brain syndrome and it allows the imagination to run amuck with endless possibilities all predicated on a very limited understanding of the award. Best to follow Carlie's advice. Take a vacation from it and bask in the sure glow of your success. You'll have 365 sunrises and sunsets to contemplate your navel and discuss it here. Congratulations on a battle well fought, sir. Although it wasn't mentioned, if you have additional ratings that bring your total up to 70% or more, you are still eligible for a TDIU rating. VA quite often defers this decisional process to assemble more data. Rarely do they throw in the towel without cutting down a few more trees for more paper to discuss it on. One thing you can bet on in this process is the guarantee of a low ball rating initially clear prop.

The presumption of soundness at your entrance examination is the last arbiter in this. If nothing was noted on the SF88 at entry, you were assumed to be "whole". If VA has nothing to rebut it with, then your injury, by rights, cannot be denied based solely on a pre-existing injury even if you report it. The military is anal about that exam. Every wart and scar is annotated. If you never said you had anything wrong with your back, they cannot imply it now. On the other hand, if you gave VA carte blanche to go digging in your pre- or post service medical records with a 21-4142 and they find it, that's a different story. This is why I always retrieve records for VA to "vet" them myself prior to submittal. VA has no need to look at how many times I broke my arm to rate me for Hepatitis C. a

They date stamped your unsigned Notice of Disagreement? You bet they did. It proves one thing. It arrived within the allotted one year but was invalid for a NOD due to lack of your signature. The one you have signed and remitted again, if it is past the one-year date, will be signed and VA will timestamp it showing it is past the one-year suspense date and it will prove to be the document that shows you did not timely file it. VA will usually take this as a request to reopen and whatever happens in the future (grant of SC?) will have an effective date of the time stamp of the newly received NOD. You could win by going up to the CAVC and arguing it by virtue of the intent. However, the law is the law. Waiting until the eleventh hour and the 59th minute is ill-advised for any number of reasons. a

Quite simply, I have been doing this for some time. VA is not in the habit of granting equitable tolling of suspense dates. I foresee them denying the returned NOD as being filed past the one-year date for appeal. I have seen this many times and indeed suffered the same fate in 2010. I was in the Seattle VAMC for almost a year. A DRO decision and SOC continuing a denial were issued while I was incapacitated and an inpatient in April 2010. I recovered enough to take over my appeals again by late July and filed the Form 9 asking for the equitable tolling of the sixty days due to being medically incapacitated. VA refused and I am still fighting them as we speak. My JMR from the CAVC granted me all my claims back to 1994 but VA clings to the belief that the failure to timely file a F9 in 2010 supersedes a grant akin to a CUE motion granting my earlier effective date of 1994. If they are unwilling to grant that to me, I doubt they will see reason on this one over a signature. Additionally, there is no legal path to reversing the decision. See the law on free-standing claims for late filings of NODs/Form 9s. The law is dispositive and there is simply no law to support equitable tolling in this case. Considering we inhabit a "non adversarial environment where every doubt is resolved in favor of the Vet", you will hit the wall if you date the NOD now. It must be backdated such that it falls before the one year suspense date. Even with that prior date, it is doubtful they will honor it. I pray otherwise but experience in this field tells me it will be unavailing. The VA mailed it back to you for a signature knowing full well that this will drive a nail into the coffin. It merely completes the paper trail for a denial based on failure to appeal within the one-year allotted time. Best of luck and I do pray I'm wrong. a

I smell trouble.

<<<<<<<<<All in all it went very good . Just have the right evidence and be car(e)ful with IMO because she mentioned that Vets not all, but some are paying doctors to fill out false IMO >>>>>>>>>>>>>>>>> Whoa, there pilgrim. In all my days working claims, I have yet to hear of a suborned doctor's nexus letter. I have read of a Vet who extensively remodeled his best friend's DD 214 and sent the new one in with his claim but he was an employee of the Baltimore VARO. He was caught granting fake claims for even more of his buddies by the VAOIG. Somebody bragged to the wrong person at the VFW Bar. It happened about five years ago. I have kept close track of this since Keith Roberts did his 4 years for "falsifying" his claim in 04. He was exonerated but that never makes it back into the newspaper. ​I call 4 pinocchios on that one. It reflects exactly how they think of us and our credibility. clear prop

Going for a DRO hearing on a claim filed in 2010 is a whole lot different that going for one on an earlier effective date of 1994. VA's propensity to fight is directly proportional to how many signatures are going to be needed on the decision. If it goes over $25 K, it needs three instead of two and one has to be the asst. VSM or the VSM himself. If it goes over $100 K, it will go to DC on appeal almost always. Nobody at the VARO wants to be accused of giving away the farm. If it goes over $300K you are headed up to the Big House regardless of how sweet you smell or how many arms/legs you lost. Shinseki took Leroy Macklem up to the Fed. Circus trying to overthrow his 1950 CUE grant. That was some serious change pushing almost a million. Apples and oranges. a

That may be true of hand-written records from the Vietnam era and the early 80's before typewriters and computers. With the word-searchable .pdf function on all Adobe Reader products, VA can find the word "is" wherever it's used and moreover misdefine the meaning of it too. Of course, if you have this VBMS tool and your entire record is scanned into one, you yourself can find anything that's typed. Evidence wins claims but we know VA's storied inability to find that which we submit. This circumvents that problem and creates a record that cannot be "erased". A .pdf file is encased in concrete. My wife has a program that will defeat it and allow modification but the end product easily reveals the tampering. It will speed up claims immensely because VA rater errors will be decreased. The only thing we have to defeat then is the arcane M 21 language but that is childsplay. Read this on how the new frontier is developing on our claims future-young and old. If you don't have computer savvy, you are going to be at the mercy of a VSO. https://asknod.wordpress.com/2014/10/28/va-form-9-everything-you-always-wanted-to-know/ clear prop

Nor will you find them in 38 CFR §3.309(e). VA quit looking at new diseases for presumptive inclusion after Parkinson's/IHD/Hairy "B" cell leukemia. They have absolutely no desire to do more research. All investigative work will cease in 2016 absent any action by Congress to extend the time limit for research. Currently, our numbers of Vets who were exposed are dwindling at a horrific rate. Last check was 860,000 of 2.9 million in-country. Hell, there are more Korean Vets alive than those of us exposed to the rainbow defoliants. clear prop

My daughter had a major TIA Thanksgiving Day 2004. Her hair went white in a month. She was 27. My son came down with ulcerative colitis about 7 years old in 1994. Private well on my property. No chemicals. I came down with Crohn's at 45-virtually unheard of. I had two years of heavy Orange and Blue exposure back to back. My second grandson was born with a malformed penis. None of these have ever surfaced in any family tree. Mine. My wife's or my son in law's. Coincidence? I'm actually lucky. I can control the porphyria cutanea tarda with a phlebotomy every month. It's odd that virtually all the diseases we V Vets come down with are all skin/breathing or oral (digestive) ills. Of course, how many ways could you ingest it? Into your lungs, into your food or onto your skin transdermally. VA apparently hasn't considered all the vectors or prefers not to. a

Ah, BroncoVet. The power of paranoid thinking. This is why we have thirty day letters to hold their feet to the fire. The days of shredding are over. The new way is to "misconstrue" what it is you are attempting. With the new forms even that fig leaf is being removed from their repertoire. a

Here's more enlightenment for Gastone about the "reconsideration" conundrum versus a submission of NM&E after the initial denial. I have asked for but never received a new, brief look at a denied claim in 25 years. Some law dogs refer to it as an administrative review and that exists to a degree. It requires a water carrier at the VARO who is smart enough to explain it to a dense GS-9 VSR, too. You can file NM&E again and again and receive numerous SOCs and SSOCs following a denial until you run the risk of a) running out of NM&E or b) having to file the NOD within one year from initial denial. Your authority is 38 CFR 3.156(b). http://asknod.wordpress.com/2012/08/05/dro-reviews/ chocks free

BroncoVet wrote this for me in 2012 http://asknod.wordpress.com/2012/05/13/to-dro-or-not-to-dro/ Clear prop

<<<<<<<<<<<<<<<<<<<ASK, Take me to school, your experiences and opinions please.>>>>>>>>>>>>>>>>>>>>>>>>>>>>>> One answer: http://asknod.wordpress.com/ Appeals, hearings, "reconsiderations" (a fig newton of the imagination) and more. All carefully analyzed for your reading pleasure. My first "DRO" hearing before there truly was one was July 11th, 1990. They ignored my Air America evidence because it wasn't "service department records". My latest one was a Travel Board Hearing in front of Judge Mark Hindin. He's about 4'9'' and has a short man complex. I lost because he couldn't follow the bouncing ball. You have to dumb these things down to the level of a Kindergartener. One thing that I find works is a timeline showing the progression of a claim. Every date you received a piece of paper must be annotated and a copy of it presented at a hearing even if it results in duplication in your c-file. The SMRs from the Air America Hospital in January 1971 are in mine about 16 times. They finally spotted them when I got to the CAVC but not a day sooner. Get the picture? Traditional appeals are sweet when you hang NM&E on a NOD. It guarantees they are required to take an extensive gander at it or risk violating 3.156(b) and sometimes ©. It's taken them over a decade to recognize what 3.156(b) implies and obey it. It cost them over half a mil in my case. DRO reviews, absent anything of substance, are a waste of time from where I sit. They put you in a holding pattern and are a wonderful in-basket with the backlog. A traditional appeal gets eyes on the claim immediately as soon as you rebut with a NOD. Asking for the 3.2600 route is like putting it on ice. All the logic developed is now lost and has to await a new set of eyes and brains. Being a DRO does not impart (or imply) intelligence. These guys use the M21 Ouija board. It's a computer that spits out an answer to your query. Ask it the wrong question and you get a six year appeal out of it. Remember, 85 % of you are going to be denied. Many are unjust but that is because the M21 is constructed to deny, not grant. As for benefit of the doubt? That is a pipe dream. BOD happens when they cannot find a logical reason to deny anymore. CLAVU

The form Toddt printed above is a vacuum cleaner and a shopping spree giving VA broad authority to fetch a wide variety of records from the public domain. This is exactly what you do NOT want. I don't suppose any of you have heard of the term "control of evidence"? If you have no control of what they go out and seek, with your permission I might add, you may be dismayed to find they have found both good and deleterious evidence. Parse this phrase you are agreeing to by signing and think it through. "In order to waive my rights under the Privacy Act, 5 U.S.C. 552a(b), and under any other federal or state law or regulation which controls access to my records, I give my prior written consent to the National Personnel Records Center (Military Personnel records), St. Louis, Missouri; to the Department Of Veterans Affairs; to the Department of Health and Human Services; Social Security Administration; or any other public or private Custodian of (including, but not limited to, hospitals, Clinics, and current and former treating physicians), or agency that possesses or controls my military, veteran, medical, mental, Sickle Cell Anemia, infection with Human Immunodeficiency Virus (HIV), drug or alcohol treatment, Discharge Review or Correction Board records and files, to disclose fully and promptly to the person named above, his agents, or to any other person designated by this person, any and all records contained in my file which I or any other person designated may request. This authorization does not constitute a Power of Attorney or Retainer or any other form of agreement which would require someone represent me. You are giving them (VA) carte blanche to wander afield and excavate anything pro OR CON. Why would you give anyone that power over you other than a law dog you have signed a contract with? You want to focus on one thing to win your battle with VA. You have to manage the documents you submit. If you are filing for a back claim, VA has no need of mental illness files or vice versa. Control the input and control the claim. A request for a c-file should be just that. The left, center and right side pockets-period. Not the records from Mt. Altoona Community hospital showing you admitted inhaling Peru's annual production of white lady in 1982. Obtain your own records as you do this. Go to ROI yourself for your VA VISTa records. Go to Mt. Altoona Hospital yourself or ask them to send them to you. Never sign and turn in a 21-4142 to the VA. Always redact that which is not probative of the claim. Really, ladies and gentlemen. This is claims 101. Don't volunteer for the breathalyzer unless they ask you to. If you must, use the VA Form 3288 and specify what you want. Be careful. http://www.va.gov/vaforms/va/pdf/VA3288.pdf 25 years of doing this wrong is why I caution you. Clear prop.

Fourteen months and you didn't complain? Lordy, you are long suffering, Gastone. Here's the quick way to get it. I've never had any of my guys go over 3 months and most in far less. You have to let them know who's boss, hoss. http://asknod.wordpress.com/2013/09/30/getting-your-c-file/ Mine came in four BBEs and was almost 19 inches tall. That was in 2009. It was on a cart at the Travel Board hearing and about 24 inches front to back by 2011. Maybe it's time to get a new copy and see how big it's become. I heard from the RO excuse lady the other day and she tells me they still have not converted it to VBMS .pdf yet. Never fear these jerks. Never. They are govt. employees.

Oldman 273--You might want to also revisit the latest revision to M28-R (revised 3/31/2014) on the subject of the Independent Living Program. http://www.benefits.va.gov/vocrehab/independent_living.asp Seems they gave it a haircut again and it now is only for can grabbers, cordless phones, socks puller-uppers and electric can openers. Maybe a garage door opener. No more riding lawn mowers or tractors. No more woodworking shops with all the saws and planers. No more metal detectors or jacuzzis for pruritus. Seems we are independent in our everyday activities of daily living to such a degree that they cannot even find 2,700 souls to fill the slots. Not even one in Wyoming or Vermont since 2004 record keeping began. Seems someone has been cooking the ILP books for years. On paper, you can get $25-40 K at the local level and up to $60 K with VACO approval. In reality you can hope for a computer w/ peripherals and printer /copy/scan (Dell) which pencils out to about $1K. http://asknod.wordpress.com/va-ilp-stats/ I won with an administrative review to DC VACO VR&E because of my blog. I'm still waiting on my greenhouse. I filed in May 2011. I got my computer in August 2012. Start early. Cleared in Hot, over. P.S. Looks like they changed the URL again. That happens a lot.

SMC S with spouse and no rugrats @ Housebound rate is $341 more than regular 100% (i.e. $3358.64 versus $3,017.60). Now, for SMC-A&A which is technically SMC L, its $3556.56 which is $198 more than just SMC S. See 38 CFR § 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. Now, if you had a 100% P&T rating and another one that was 100% schedular on top of it and were at the housebound rate, and you suddenly qualified for SMC S A&A (SMC L), it (the extra 100% above your P&T) would automatically bump you up to SMC M which is $3925.01 (or $369 more than SMC L). If you were at "M" and had the extra 100%, you'd move to N. If at "N', the extra 100% would bump you up to "O". Interesting how this all works. Little rules no one knows. The same bump works with a 50% rate and takes you up through intermediate ratings of L 1/2, M 1/2, and maxes out at N 1/2 . SMC is like a ratings world unto itself that obeys no logical rules. There are more permutations of "What if I'm missing..." than you can count. Throw in a maximum of three Special Ks at the same time (until you get to R1) and the numbers get interesting to say the least. There are no simple tables to encompass all the possible permutations of SMCs. Thus if you think VA raters are challenged by this you're right. This is the area where more errors occur than any other. Call your smoke, over.

You would be surprised how many fail to show for their hearings. Most do not call in advance and free it up for another. The Vet following me in April 2011 Travel Board hearing was a no show. The gal stuck her head in and told the Judge (Mark D. Hindin). He allowed me to continue and my hearing ended up lasting an hour and forty three minutes. It didn't help as I lost there but I did get a lot of evidence submitted from Air America FOIA that was instrumental in prevailing at the CAVC. If it were me, I'd beg to sit on the Group W (wait) bench on Travel Board Hearing Days as a "space-A" just in case. But hey. that might speed up VA justice and actually work. Coming out hot

Two options summarized in three words. Win or Die