FormerMember

Kate New and material evidence filed: 1) subsequent to the initial denial; 2) during the suspense time limit of one year following the initial denial, or 3) up to, but before, an appeal has been decided by the Board of Veterans Appeals hall be considered as part and parcel of the appeal denied and is considered to be filed in connection with claim that was pending at the beginning of the one year window of the appeal period at the AOJ. Rarely, if ever nowadays, is a claim decided within a year following submittal of N&M E after a denial. I make the distinction thusly. You are free to submit new and material evidence following a denial without invoking an official Notice of Disagreement (NOD) during the 365 days following the receipt of the denial letter. You must, however, file a NOD before the 365 days expire or your filing date is lost-even a submittal of the N&M E that you are waiting on for a new decision. This is the Gordian Knot the VA has been unable to untie since the inception of the Fully Developed Claims path(FDC). Should you submit N&M E after a FDC denial, you are constrained to await a response. If that response is not received within the 365 days of the denial, you, must, by law, file a NOD to keep it alive before the cock crows on the 365th day. Once you do, your claim is no longer considered a FDC. It turns back into a traditional pumpkin with mice at midnight. At that point, you get in a new line behind all the smart feller's who filed a NOD with N&M E. The FDC was a much ballyhooed path to a rapid resolution when it came out, but, like most gift horses, it has some cavities if you look in the mouth. Tried and true approaches to winning claims locally have come and gone over the years. One that has stood the test of time is 3.156(b). VA rarely pays attention to 38 USC or 38 CFR because they myopically focus on the tenets of the M21 and depend upon it as their Bible. This produces some interesting law such as what happened to me. In 1994, I submitted N&M E with a NOD which was simply not done then. Either you submitted N&M E to continue the claim via a de novo review or you filed the NOD and listed the reasons why you felt they were wrong. My filing with both produced a wrinkle. One month later VA proceeded to issue a SOC and awaited a Form 1- 9 Substantive Appeal form from me instead of looking at the N&M E. They did, however, make the mistake of acknowledging the receipt of the N&M E and promising a de novo review. That put the claim in limbo where it sat until I reopened it in 2007.In today's world, you obviously do not get a SOC a month after a NOD. The lag time is at least 16 months in most cases and perhaps longer. Even the FDC claims involving resubmittal of N&M E will hit the one year wall without a de novo review. That makes them as useless as nursing devices on male ungulates. VA has a denial policy, unless no one had noticed, of approximately 85%. That in no way implies 85% of Veterans file frivolous claims, however. It merely reflects a predisposition to deny all but the most obvious claims like missing appendages. The rest of us are required to sit on the Group W (wait) bench and wend our way through the halls of justice at a very slow pace. Eventually we prevail as you can see from reading this website and mine. Evidence is king in this business. Without it, you are defenseless. VA has simply taken it to a new plane and ignores a large volume of the evidence for as long as it can legally, in a desperate attempt to get caught up. They have resorted to reinventing the way they classify "pending claims" several times to create ever more in-baskets to catch the overflow. 3.156(b) is merely a device to create more opportunities for "mini-reviews" of you claim without resorting to those cumbersome DRO reviews that are one of the in-boxes I just described above. In 1990, a DRO review was a critical reassessment of your claim by a well-educated (and often an ex-senior enlisted man) who was knowledgeable about the military process. Submittal of the N&M E often resulted in a swift reversal and a grant if the proffered evidence was on point. Nowadays, that cannot be said. Claims languish for years awaiting review. In the interim, there is no additional investigation. When the review resumes, things fall through the cracks. Old C&Ps become the basis for the re-rating. Failure to search the c-file for a newer one is the culprit. As much as the new VBMS is touted as the gold standard, very few VAROs have instituted it (18), the bandwidth is too narrow and/or high volume usage grinds it down to the speed of dial up internet. And like the ACA computer last fall, it crashes frequently. The idea is to be poised with the N&M E sitting there waiting to be mailed in the event of a denial. Mail it in certified mail return receipt requested (green card). Follow it up with a query on IRIS that the rater will see shortly thereafter. Too many are losing e-filings on eBennies to the nether regions. If they (VA) don't have to sign for it, again, the common mailbox law is trotted out and it is presumed you never emailed it or never attached the .PDFs/.JPGs to it. God forbid that the Presumption of Regularity ever attaches to emails because VA will start saying they notified you and it is presumed Google or Yahoo Mail delivered it. Clear Prop!

Don't confuse "New" and "Material". They are two disparate items. Something that is "material" can exist in the records and be unrecognized as being material or probative enough to merit a review. Resubmitting it with illumination in conjunction with a "new" IMO can often be the lynchpin in an AOJ win. We have many things in our c- files. It is imperative that you have yours to ascertain what it is they should have but don't. Or, in the alternative, what they have but are not considering due to being dense or purposefully obtuse. RVSRs work off a computer-generated M21 1MR template and merely check boxes after doing a cursory survey of the c-file. Often, they rush through them and top sheet or use the older C&P that doesn't comport with the truth. Or, if there is only one negative C&P, they use that. The idea is to deny any claims that are tentatively speculative if possible to make room for other easy-to rate-claims. Two days ago, they hit the 2,000.000 mark on pending claims. They are overwhelmed. Raters are unaware they are harming you. They are constructing a claim like a rolling assembly line in Detroit. They only see the facet in front of them-never the whole picture. Whether this is purposeful or simply their idea of the perfect way to review the evidence is immaterial. The end result is flawed and they refuse to change. The Court has defined "new evidence" as evidence that has never before seen the light of day that is pertinent and, in conjunction with other assembled evidence, might help prove the claim. It must be material in that it must pertain to the claim and have a bearing or help to illuminate the de novo decision in light of all the assembled evidence. The VA doesn't always interpolate it that way so what you and I clearly see as something that would be probative is often discounted or ignored in an effort to deny. The object being to dissuade you from appealing. Here's why. 1.4 million claims filed per year (and climbing) =928,000+ denied= 58,000+ appeals up to BVA= 22% of the 58 K win= 4,600 appeals to the CAVC= 63% remand rate for error. Do the math. VA is playing a game of poker and they bluff until called at the CAVC. Most of us fold before we get there because we refuse to see and call them. The only impediment is time and we certainly have lots of that. Some die waiting. You are dealing with an Insurance Co. that could care less. Win...or Die trying. God sends the right.

New and material evidence I've written about this several times but allow me to reiterate it again. Look closely at 38 CFR § 3.156(b). At any time during the course of your claim at the Agency of Jurisdiction ( AOJ aka your Regional Office), a Veteran submits new and material evidence (NM&E) to the claim (such as a new IME/IMO), it requires a de novo (brand new) adjudication in conjunction with all the previously submitted evidence of record (EOR) in your c-file. The submitted information may also be EOR in that it is pertinent (material) to the claim and clarifies or enlightens/alerts the rater to a possible brain fart on his part. This graciously allows everyone to pat themselves on the back and right the wrong without anyone’s ego being bruised. I'm also sure it's why they invented yellow hi-lighter pens. Ratings personnel (usually GS-11s or 12s aka RVSRs or Rating Veteran Service Representatives), once they have made a decision on your claim and obtained the needed three signatures (to deny or grant), are removed from the process. Any submission of NM&E must automatically be given a de novo review by a superior-either a Senior Rating Veteran Service Representative (SRVSR - GS-12 or 13) or a Decision Review Officer (DRO - GS-13 +). This is, in essence, a mini-DRO review of sorts. Most Vets do not know this. It also takes less than 585 days. You are only allowed to submit that new and material info that is needed within one year of this decision in order to keep it at the AOJ. I have helped one guy who milked out the N&ME game by continually feeding in more contemporary service medical records (SMRs) all the way into the BVA after his hearing. He was a pecker checker in the Air Force and wisely snagged his own SMRs when he left to “preserve” them. And yes, he won. I’m sure the RO was wondering where he was coming up with them but they continued to deny-something I feel is almost cast in stone on really contentious cases like Hepatitis C and PTSD. If they deny, you’re generally headed to DC no matter what. It’s because they don’t want to take responsibility for a political or medical hot potato. Far, far easier to punt on 4th and long. That's often why SSOCs sound a lot like the SOCs. You could submit a NM&E buddy statement from Jesus and still have to appeal. And that's all I'm gonna say about that.

You may ask for a hearing, Carlie, if you go the DRO route, but it is not an absolute prerequisite of a DRO review request under 38 CFR 3.2600. I suppose if you are going to ask for a review this way that a hearing might be advantageous but as you point out, it will severely retard any hope of an early decision. I am 0/3 on them and all had good N&M E. I did a hearing on the one in 1990 to no avail as well. Also beware of VA's propensity to just slam you with an unrequested DRO review. I filed a NOD to my September 2013 CUE claim denial in April of this year. I sent in an IRIS query about something else last week and they informed me quite in passing that my "DRO review on the CUE" was currently running 585 days at the Seattle Office. One problem- I never asked for one. In fact, my NOD specifically asked for the traditional path. VA is in such disarray that I think it is foolish to squander one's time at the RO a moment longer than necessary to get the flock out of Dodge and on to DC. Unless I miss my guess, VSRs are unaware of the parameters of 3.156(b) or pointedly ignore it. To SB0311, I say this. Never ever give up a claim. VA sees it as a sign of weakness and will leverage you with it forever. As long as you meet all your suspense dates and keep the claim viable, you will eventually prevail with no loss of "big chunks of retro". VA is renowned for their ability to misconstrue the facts like a brain-addled ADHD kid. Ignore them and press on. It all gets sorted out eventually. The important thing is to keep it alive and not allow some gomer VSO rep to tell you he knows better. Most of them can't find their derriere with a methane detector set on high. Alex sends

I got the bad news on the DRO shortage from some raters in the Columbia, SC RO about three months ago. It still hasn't improved yet. They're AFGE and have been blowing an ass gasket with the CO. They just want to do their job but can't due to the lack of personnel authorized to do the reviews. Vermin Ave.'s response is "We're working on it." a Clear Prop

You filed a FDC or Fully Developed Claim. They have a policy of denying virtually all but the obvious claims so do not lament. Since your claim was denied in Sept. 2013, it is still alive. There was no need to "reopen it". Sounds to me like you may have an inept VSO gomer doing this. Here's the drill. You've submitted new and material evidence. If they have not ruled on it and "redenied you" by September 2014, then you have to file a NOD. If you do, make sure you include the "overwhelming positive new evidence" you described with the NOD. It must be new in that it has never been submitted to VA before and it must be material or in some way be pertinent or instrumental in the the approval of the claim. A word to the wise. Mail it in certified with return receipt requested. Do not file it on eBenifits. We are getting hundreds of reports of denials where the electronically submitted records never made it into the file before adjudication. Coincidence? Who knows? Eliminate the risk. I suspect you have not reopened your claim. You have merely submitted new and material evidence into the same original claim stream. As such, if VA fails to make any kind of decision soon, you are best advised to get with it on the NOD. A DRO review is merely a 585 day in-basket at most ROs right now. If you lose there, you get in the BVA line for about another three years. Assuming you have this nailed to the wall with the evidence, you'd be better served heading east to DC pronto. The line for a traditional review process on your appeal is getting longer by the minute as Vets recognize they will be fiddling around waiting for a BVA docket as long or longer than a DRO review. VA is woefully short of DROs right now. Since they prefer to hire from within, and there aren't enough RVSRs with time in rank to qualify, the whole DRO review process has slowed to a crawl. Much like an overwhelmed FEMA shelter in a hurricane that's full, they are "brokering out" our claims to other Regional Offices- further slowing the process down. Baltimore was sending them to Detroit last fall who was overwhelmed, Go figure. It's like musical chairs.

<<<<A proposal to change a benefit (i.e. to decrease a SC rating) is also not an issue for appeals action.>>>> Last time I checked it was. http://asknod.wordpress.com/2014/06/17/cavc-wells-v-shinseki-the-va-giveth-and-the-va-taketh-away/ Seems the Senior Veterans Service Alliance is having a senior moment. Additionally, there is no discussion of the availability of the United States Court of Appeals for the Federal Circuit or the US Supreme Court. Somebody should enlighten these fellows.

A de novo review is not as it appears. When you submit N&M E during the appeals window following denial, your de novo review is done by the VA RVSR's boss-often a DRO. Therefore you are getting a de facto de novo decision without asking for a DRO review. A de novo review includes all the evidence filed previously and the new evidence you submit. VA is, by law required to view it in an entirely new light and give the appropriate balance of weight to the new evidence submitted in conjunction with the old evidence.. This produces a new decision (or denial) but as long as you do not go past the one year statute of limitations on filing the NOD, you can do it as many times as you wish. Your NOD must be filed within the requisite year or you lose your effective date of filing. You can disagree with a decision by filing new evidence in conjunction with 3.156(b) any time after the initial denial. 38 CFR 3.156(b) states: (b) Pending claim. New and material evidence received prior to the expiration of the appeal period, or prior to the appellate decision if a timely appeal has been filed (including evidence received prior to an appellate decision and referred to the agency of original jurisdiction by the Board of Veterans Appeals without consideration in that decision in accordance with the provisions of § 20.1304(b)(1) of this chapter), will be considered as having been filed in connection with the claim which was pending at the beginning of the appeal period. (Authority: 38 U.S.C. 501) This is how I won my effective date all the way back to March 1994 in November (2013). VA fought me all the way to the CAVC before folding. a

Chris makes an excellent point. Show me the CFR. There isn't one anymore than there's a tooth faery. VSOs, God bless their pointed little heads, are woefully unprepared for what is in store for them after an initial denial. There is no more bargaining at ROs as was common back in the 90s. The books are cooked with an eye to denial. If 85% lose their claims perennially and that figure has remained static for decades, then it can be said there is a "process" at work here that is not well known. Administrative reviews do occur in VR&E requests but that is probably the closest comparison to a Motion for Reconsideration. Absent any legal training and/or a JD, you are letting rank amateurs run your claim. It figures they'll make up law to prolong the fish-on moment. Using the actual phrase "Motion For Reconsideration" (or MFR), we can only discern it in requests for denials at the BVA where a Veterans asks for it and an expanded "Board" of three VLJs. As your chances of getting an answer within 120 days are between slim and none, you endanger your ability to file your Notice of Appeal with the CAVC within the allotted time. This is no coincidence. Other than that, it is a chimera. So many of you who have not had the benefit of having your teeth rearranged by VA numerous times may labor under the misconception that we do, indeed, inhabit a nonadversarial ex parte process where every benefit possible is extended to the Vet if deserved. For instance, if using a VSO, were you aware that when your VSO-defended claim arrives in DC, it often is argued by a VSO different from the one you filed it with? VSO's have a limited number of appeals teams (currently 5) and defend Vet's claims on a first come, first served basis. If you are defended on paper by DAV, it is not uncommon for your appeal to be handled by a team consisting of MOPH, AmLeg and VFW gomers if no DAV chuckleheads are free to do so. Scary? You bet. Then throw in no Juris Doctor degrees when you are up against 500 VA staff attorneys with that JD after their names. And as for horse-trading in the back room, this is often where it happens. You read about it in your BVA decision where it says "Hearing loss and tinnitus are granted at 0% and the claims for Sleep Apnea, Ischemic Heart disease, Parkinson's et al are denied. Have a nice day, hear?" The only nonadversarial part of this process is the tenor of the denial. Most consist of an abject apology for being unable to grant your heart's desire. The kick in the teeth is the proffered olive branch to come on back if you unearth any more new and material evidence that would merit reopening the claim. I use the technique of the Everlasting Gobstopper from Willie Wonka fame. I assemble a library of evidence and submit something new after each denial. 38 CFR 3.156(b) demands a de novo adjudication on any claim denied if n&m evidence is submitted-even if it is tendered after the Form 9 and the away game in DC has begun. You can milk a claim to an eventual win simply by beating them to death with 3.156(b) over and over. It's an art form so be careful not to step on your necktie and submit something that doesn't qualify as n&m. A Guns are free. Cleared in hot on heading 270.

Gee, Carlie. You have to watch these kids all the time. Motions for reconsideration are like cotton candy. Nobody at the VSOs seems to know that. I've seen a lot of guys time out on that and have to refile. Some even waste a few years trying to do a Freestanding Claim and find that out at the BVA. The VlJs must get a good chuckle out of it over Happy Hour across the street at Gordy's Bar and Grill. a

I'm sure I'm on the ten most wanted list, sugar.They concocted some outrageous SSOC to deny my ILP greenhouse on the 7th of May. Rebutted w/ NM&E again. Now the SSSOC and certification. I wrote Ric a letter but they gave him the boot before he could read it. Someone passed it to the Head of VR&E at the CO and she got the honors of listening to me when she called. One thing's for sure. They gave me the 94 P&T to shut me up. Newsflash. It didn't work. On a happier note, the AF finally got around to issuing my medals to my Congressman. He's delivering them personally and pinning them on next Friday. Guess I'll have to give the dog a bath and saddle up the pony. Vets are suddenly big business. Clear Prop

If VA had a hit squad, BroncoVet and PR would be toast by now. We must cost them a lot of time and money with our shenanigans. Congrats CID. Glad to see it was accomplished in this lifetime.

I advocate sending them a "reminder" that the expeditious treatment of the claim is being ignored via the IRIS system. More has been accomplished with this underutilized tool that I can tell you. Sometimes a bottle in the ocean is all it takes to spur them to respond. A Writ at this stage would be a horrific waste of $50 and gain you nothing. The definition of expeditious at the CAVC is within 18 months. They kowtow to the VA in spite of what is said to the contrary. However, when it gets out to two years, they lose patience and a Writ will light the fire. a

<<During the past 10 yrs I've added 20, 10, 10, 10 and 10 but because of the combined ratings table they continue to deny, even though once you're 100%, they can't use the ratings table, as it's similar to double jeoprody(sp)>> This was what I was referring to, PR, when I said I disagreed with you. The 4.25 table is employed to add everything up. If you have one single schedular rating, and then start adding more, the only vehicle with which to add them is the table. Thus, assuming you have a 100% schedular and the additional ones above, I see 100% plus 48 (50)%. [20 +10 = 28 +10 = 35 + 10= 42 + 10 = 48 which rounds up to 50%]. I expect VA would deny as it's less than the additional 60% needed. I do see VA use the disparate body systems rule as the vehicle to deny frequently. That's what they do. They're rude, argumentative, adversarial and generally always get things wrong. When you get into 3.350 (or 38 USC 1114) law , there has to be a metric to measure what's needed to attain S or the bump you get from an additional 50 or 100% rating that pushes you up one notch from L to M or M 1/2 et cetera. Winning strictly on being "substantially housebound'' often boils down to a doctor making the appropriate pronouncement on the 21-2680 much like a nexus. It may require some reasoned logic. My attempt to get it in 2009 was denied. They used the argument that some of my problems were not service connected and thus not eligible for consideration. They conveniently overlooked my C&P exam saying "must avoid sun". I expect I'll win it but to do so means never throwing in the towel. I'm glad Mrs. Spotz sees fit to carry the flag forward. I hope you do as well. Each victory, however small, sets the stage for the next Veteran. One last note. If you do not get S when you feel entitled to it, file for it. I did. Don't ever expect VA to arrive out of breath and say "Whoa, dude. You left some money on the table. Thank goodness we figured it out. Here's the check." When I win my S, I'll come back and tell you wonderful folks all about it. I hope it doesn't take another 20 years as my 100%P&T took. Win or Die a

Okay. I think I see the problem. Bradley and Buie are on point here as they illustrate that the predicate for TDIU can metamorphose as additional ratings accrue. The sticky point that might queer the deal is simple. If the predicate for the SSI/SSD was TWO items rather than one stand-alone condition, VA will say you miss the SMC S boat because one individual condition, solely by itself, is not the predicate for the TDIU. I don’t know what order your ratings were awarded but VA cannot use the SSI/SSD records to the exclusion of all else as their rationale for saying “Well. The reason he got SSI is he had A and B wrong with him.” VA is not beholden to SSI law and they reiterate it all the time. Their ratings are all that matter. If the hubster has a 70% and it renders him unemployable, that should be the lynchpin for TDIU. As such, any and all other conditions , assuming they entail different body parts, can be assembled via 4.25 to achieve the extra 60%. Here’s ammo to rebut it. http://asknod.wordpress.com/2014/02/13/cavc-mekus-v-shinseki-idle-hands-are-the-devils-workshop/ Note VA opted out of the blue to revisit Mr. Mekus’ claim after it was already 10-year protected. This sets the precedence to reopen it and reassign the rating a new basis in fact. They failed the CUE test but that is immaterial here. The important thing to note is that you can rearrange the order of the conditions (via Buie) to seek and obtain the highest and best rating possible (AB v. Brown 1995) and use the 70% for the TDIU if it can be proven that it, alone, causes unemployability in its own right. Mekus stands for revisiting claims to revamp them to comport with the actual facts. It was a futile CUE exercise on VA’s part but gives you the legal right to do the same thing. Sauce for the goose, etc. Read Mekus carefully and use the cites they refer to in order to fashion your case. The important thing about SMC-S and case law like Buie shows it makes no difference in the scheme of things which came first-the chicken or the egg. The end result is a compendium of ratings that have an aggregate value of over 160%. The order most advantageous to the Veteran should be the one employed by VA. I also beg to disagree with PR on this. The 4.25 table, once you have accomplished the TDIU rating, is employed to add up the remaining ratings. If they add up to 60% or more and involve disparate body systems, you win the S. Period. SMC S is unique in that it is awarded at any time it can be proven you were entitled to it. It does not hinge on when you filed for it or if you suddenly qualified for it more recently. The effective date of the claim is the focal point for SMC-S. Thus, if you win an old claim and it provokes the SMC S retroactively, then that is the effective date for the S and there is no more case or controversy on the issue. It is convoluted case law but I love judicial contretemps. There is so much VA law that is in flux. VA would have us believe it is all settled and we cannot disturb it but that is the essence of law. It is not immutable. Certain aspects of it are but we inhabit a nonadversarial judicial environment that encompasses a Veteran-friendly venue in which to present our claims. Every benefit that can be awarded must be awarded us. There is no room for them to interpret it. That is the job of the CAVC, the Fed. Circus and the Supremes. Your appeal simply will situate it in the proper venue for a nuanced, correct interpretation. I’m sure Willy Gunn didn’t go in thinking he was going to get his front teeth rearranged on Buie. I look forward to seeing your name enshrined right up there with Gilbert, Mekus and Macklem.

I still see a problem in phraseology, Lotzaspotz. The diagnostic code uses percentages to rate your illness/injury. They come in increments of 0, 10, 20, 40, 60 and 100% for many diseases. They come in increments of 10, 30, 50, 70 and 100% in the case of mental illnesses/PTSD. Some end at 60% for back injuries. A "100% schedular rating'' is one stand alone rating-not a compendium of several different ratings that add up, using the 4.25 tables to 100%. 100% schedular is 100% for one, and only one, disease or injury. To win SMC S with TDIU, again, one single disease or injury must be 60% or more and be the sole cause for the TDIU, not the other means test of 40% for one and the rest adding up to 70 %. From what you are saying, you are adding several different ratings together to arrive at 100% and calling it "schedular". Correct me if I'm wrong. Sorry if I misunderstand you.

Careful on that phraseology, C75. 100% schedular comes first.-then P&T- usually two or more years after unless you know the trick to speeding it up. At that time you become 100% P&T, VA has no argument about considering TDIU@ P&T the same in spirit. That argument fell by the wayside before Bradley. Buie simply refined what order you could consider them as having been awarded so as to maximize SMC-S to the earliest date it was ascertainable that Mr. Buie was entitled to it. I know a few Vets who are 100% schedular but have not been granted P&T yet so there is an orderly progression. Once you have that 100% schedular or the TDIU, wrap up the P&T and get that 10-year clock ticking , the next battle is either collecting that extra 60% or proving you are essentially housebound in fact. I'd fill out on VA Form 21-2680 from a doctor, preferably your VA PCP if you have one. Send that in and see what happens. Ask him to make the statement "Substantially housebound" and you're in. Make sure you submit it personally. These documents sometimes don't get there through VA channels at the VHA.

<<<Fighting this battle right now at the COVA. My husband is 100% schedular rated, with one of those ratings at 60%, but he also has a 50% rating for a condition upon which the SSA based his disability award.>>> Perhaps there is some misunderstanding of what a 100% schedular award actually is and that is what is causing the confusion. A 100% schedular rating is 100% for one (1) disability. TDIU is basically a 100% rating for compensation purposes, too. Make no mistake about it. If you have a compendium of ratings and none of them, in and of itself, is actually 100% for any given disease/injury, or the TDIU is not for one specific disease/injury, then you do not have a true 100% schedular rating. Some Diagnostic Codes do not go up to 100% so it is impossible to attain it but if you are granted TDIU, that stands in place of it. So, Lotzaspotz, if the SUM of your disabilities adds up to 100%, that is different from 100% schedular. Does that shine any light on it? VA is big on semantics if you had not noticed yet. a sends

Read Buie here and see if you can wrap your noggin around it. Lotzaspotz is spot on. VA doesn't always do the right thing. It might take some congressional grease to get it in the right venue.http://asknod.wordpress.com/2011/09/27/cavc-buie-5-v-shinseki-0-2011/

I suppose someone will come along and state the obvious so I will now. If your disease/injury is so debilitating as to keep you "substantially confined" to the immediate environs of your house or property, that qualifies you as well ( assuming you have the 100% P&T). Currently, I do not meet the extra 60% to qualify for SMC S but my service connected Porphyria Cutanea Tarda from AO requires me to avoid the sun. My soon to be cryoglobulinemia keeps me inside in temperatures below 40 degrees to avoid the subsequent Raynaud's phenomenon. This qualifies me for being "substantially confined" but VA has not acknowledged it yet. Actually, the PCT alone should be the predicate but you know VA. They suggest SPF 2000 sunscreen creme and a very large umbrella. Good to go, bro.

Correction. You only need a TDIU rating to qualify for the 100% requirement of SMC S. This was decided long ago in Bradley and Buie. One single disability at 60% or above can be the predicate for your P&T. Once that is satisfied, you begin adding up (from scratch) the other disabilities from largest to smallest using the 4.25 table. If the disabilities are separate and not of one etiology, then you qualify if you go over 60%. Special monthly compensation (S) is not hard to comprehend. If you have separate and distinct disabilities that affect different parts of your body, and they equal or exceed an additional 60%, then you qualify-period. Using what you have listed, add them like this. 70% (PTSD) +60% (bladder)= 88% + 40%(lower back) = 93% + 30%(rt. shoulder)= 95% which is now enough to equal 100% . That's 100% total, not 100% schedular. You still have 30% for asthma, 20% for neck and 10% each for tinnitus, right knee and right ankle. Begin again. 30% + 20% = 44% + 10% = 50% + 10% = 55% + 10% = 60%. Now, if the etiology of the right shoulder, lower back, neck, rt. knee and left ankle is one common cause -say from a parachute accident, you'd have a problem. One single disease such as the PTSD (or the bladder), needs to be held to be a stand alone reason for unemployability or TDIU. This becomes the fulcrum for the P&T rating. Once you attain that as Mr. Buie did, the rest of the ailments are viewed as separate body issues that are unrelated to the PTSD. The bladder alone (at 60%) would qualify you for SMC S all by itself. Don't get caught up in the math of adding 8 or nine ratings up. One, and only one, disease or injury is usually the culprit (and thus the path) for unemployability. Get that if you have not already. Armed with it, the SMC is awarded based simply on your other ratings for different body systems that add up to or exceed 60%. If you attain an additional 100% above the original one granting you P&T, you also will get a bump up from SMC L to SMC M when you reach the higher, more debilitating part of life in the future. The bump carries through to SMC N. I see far too many Vets attempt to string together a pearl necklace of ratings to do this. Focus on the one that is going to kill you or make you unemployable and get the 100% schedular or TDIU for it. After two years, go for the P&T unless it is never going to improve. In that case, go for the P&T immediately. Once you have the P&T, with your other ailments, VA will see it and award you the SMC S. You may have to remind them to do so but most raters would spot that long list of ratings and add it up themselves. With VA, assume nothing (of course). Best of Luck. a

Roger that. Leave no one behind. Clear Prop

Could I solicit answers to these following questions from forum members? Q: How many member(s) make-up a Travel Board Hearing? A: One, unless your judge retired after your Board hearing before your case was adjudicated. In that event you get three in order for there not to be a tie. You also have the option of demanding the other two attend a hearing as well. Q: Are any of the member(s) of the Travel Board Hearing a Veterans Law Judge? A: Yes. The Board now consists of one (1) VLJ hearing your case. Prior to 1994, there were 20 sections of three-judge Boards. One of them was always a doctor. In order to speed up the backlog, they allowed Boards to consist of a single judge and eventually retired all the doctor judges as Colvin v. Derwinski forbid the practice. Q: If the member(s) is a VLJ. Do they write up a decision before submitting it to BVA to get BVA to concur? A: Your VLJ hearing your case takes it back to DC and lets his crew of 8-12 VA staff attorneys (future VLJs) do the arithmetic. He then makes a decision based on their assessment. They write it up and he signs it. Q: If the member(s) is a VLJ and writes the decision. Will the decision on ones appeal come sooner, rather than later? If so, how long? A:It makes no difference. Your appeal is docketed based on it's arrival in the inbasket. If you petition for advancement on the docket under 20.900©, that will advance it to three months or so. Average in and out at the BVA is 16 to 20 months from transmittal. Sometimes the VARO holds on to it for a year before certifying it and issuing the Form 8 as the BVA have too many backlogged in DC. Q: Finally, once a Veteran receives a docket number. Can anyone make a prediction on the current length of time before a decision is rendered? A: 14-18 months if it isn't remanded. Best bet is to sign a waiver of review when you get a docket number preventing that from happening. Thanks, Good luck

Pete992 nailed it. It's exactly what I did. I won and then asked innocently "But sir. The date is wrong. I filed in 94 and you are saying date of grant. I disagree." No CUE battle. No big fight. It's a Fenderson affair. VA just doesn't know it quite yet. Once you get a can opener into it, it's fair game until a) you miss a suspense date or b) the Fed. Circus says it doesn't hold water. I've been busy getting ready for my son's graduation from Gonzaga courtesy of the Chapter 35 and Uncle Ric but I wanted to express the same sentiments as Pete did. Why make it harder when you already have the monkey by the short hairs? Your P&T is done and secure.Unless you engaged in fraud, they cannot rescind it. It has nothing to do with this claim and there is no negative linkage. I wonder who spreads these rumors that VA is going to come and take your ratings away if you get in their face? If that were the case I'd be toast. Hell, for that matter, so would Berta.

63 Sierra wants to relitigate the evidence. How the evidence was evaluated can never be the predicate for CUE. 3.105 is rather simplistic. Read 38 CFR 20.1403 which is what you will probably be using when your Motion gets to DC. Start at the beginning and find the loose thread on the sweater. Keep tugging it until the sweater unravels. This is the essence of CUE. It has to be visible from outer space. If you have to take more than ten seconds to explain it, then it probably was open to more than one interpretation. This is where I get into hot water with Vets who feel aggrieved. They firmly believe they got the ugly dog but never objected at the time when it was most advantageous (i.e. appeal). Failing to appeal only preserves your CUE right to file a Motion to Revise but it becomes a very dicey, adversarial endeavour. It wasn't designed to be easy or we'd all be doing it. Quite often, as most Vets know, error that rises to the level of CUE occurs in VA jurisprudence. Since most of us used VSOs back then, we got sub-par justice. Trying to right the wrong hinges on VA writing down the error where it is quantifiable, easy to discern and easily proven to be incorrect. If you have to go into 15 pages of laws/regulations to make the case, you'll never get over the outcome determinative facet. There are simply too many permutations that can ensue when you keep entering variables. Too many of you build a beautiful legal castle stating error and never point to the one room where the smoke detector is going off. Outcome determinative is an "If..., then... proposition. CUE, by it's very nature , usually is a very simple mistake. The outcome of that error is almost always going to change subsequent history. John999 is correct about VA not listing evidence for denials prior to 90-91. I have one with lots of Sorry. You lose" and no explanation whatsoever as to why. Winning the CUE will require that you have this burning bush. Always remember that CUE is an error of fact or law, either one or both, that sets the stage. The winners in this game prevail because they compel the judge to see it could only occur in one fashion. Outcome determinative errors are an oxymoron. Mathematically expressed , it's E=AO where E is Error and AO is Altered Outcome. Any decision incorporating error and denying you compensation is going to manifestly change your checking account balance. Proving it is like mating porcupines and requires great dexterity. T-bird and others here have gratefully provided you a wealth of knowledge on how to mate porcupines. a