FormerMember

Over at my site, I get asked about once a day about CUE. Same for SMC. The problem is that Mr. Potato Head is not a tool for teaching CUE. I assembled this little primer to bring Vets up to speed before they go into the Frequently Asked Questions phase. Hope it helps some of you to save time if you chose this tortured path to justice. http://asknod.wordpress.com/2014/05/02/cue-the-quintessential-elements/ A sends

The inpatient records from the Naval Hospital are in St. Louis. They keep three different files there. You generally only get the outpatient "sick call" records when you petition for them. Inpatient stays are in a completely different file and listed by hospital alphabetically. The third file is your military records. Again, when you file a request for records, you have to be anally specific as to which ones you want. The folks at the NPRC are incredibly lazy and will do the absolute least amount of labor to satisfy you. I have Vets who have sent in three different requests and get new stuff each time in spite of the fact that St. Louis insisted they've sent it all Ask them specifically to research the "inpatient" records for the Naval Hospital in question. Lastly, I've seen Vets who had to write back to their last duty station to find their STRs. Sometimes they (Army especially) get lazy and fail to forward them. If you had a UCMJ violation that resulted in a discharge of any flavor, the records might not have been forwarded to NPRC. A minor typo on the SSN or DOB at the last base will send the records to the wrong place. I had a Vet whose records were lost that way because the typewriter wasn't printing a "1". His birthdate came out 5/2 /1954 instead of 5/21//1954. That was all it took to find the STRs.

We dumped more Blue. White and Orange up in Laos and Cambodia than we ever did in RVN. If they had to abort due to Wx, the default was the Ho Chi Minh trail. Little of it was in RVN. We also hosed our Lima Sites where vegetation on STOL runways were a problem. And yes, Neutralist areas w/ poppy fields up near Ban Sam Neua. Route 7 at the north end of the PDJ looked like goats had been grazing there. We called it the PDJ Golf and Country Club. a

Where it gets rated is always a quandary but generally if you have more than one claim in or a reason to remand for more development of one of the claims, the AMC will rate what has been granted. If it is something that has been horribly delayed for years or an advancement on the docket due to medical or financial hardship, ditto the AMC for the rating. Otherwise, if you never granted BVA a waiver to judge it without a remand to the AOJ (your RO), then it would be remanded back to them for the rating. AMC (and BVA) have to have the legal power to adjudicate it. A Waiver of Review in the first instance is the legal tool for them to do so. Normally, all rating is done at the VARO where you file. Congratulations. Welcome to the club. a

Sorry. I stand corrected. 10% comp. has crept up to $130.94 a month. I had a AFSC of 203X0 as an interpreter. VA reasoned that was a relatively quiet job. They didn't put it in context at 1500 above sea level in a O-1 Birddog firing a 16 or an M-79 out the right window. Or back at the Operating Location defending it at night against attack. However, my hearing decreased at some point while I was in so I got the rating.

A good baseline measurement on Tinnitus, which is the most awarded claim in VA, is to show material decrease in hearing while in service via your hearing tests at induction/ separation. Any loss of hearing during service is easy to document this way. This, in turn, implies exposure to damaging levels of sound/decibels. Newer troops these days have Hearing Conservation Programs which we did not in the Vietnam Misunderstanding. Thus they use it to deny with. However, if you had a MOS/AFSC that entailed exposure to loud noises, your lay testimony is considered credible for this purpose. Be careful. VA will take any " I don't know" or "I'm not sure" to be a "Negatory. No loud sounds." If you were in combat, it's a no brainer. You get the 1154(b) accord and anything you say is God's unvarnished truth. Tinnitus cannot be measured so it's your word against theirs. Thus, lots of us win the $125 a month lotto on this. VA considers it a plastic necklace like Mardi Gras jewelry and throws them out with abandon. Unless you flew a desk for your enlistment, it's highly likely that you can win it without a big IMO for proof. Again, no tinnitus meter means it's your subjective perception versus theirs. Why would you lie about it unless you are a gold brick. Surely we have none of those here, right?

We're probably going to find out his records burned up on Friday, the 13th of July, 1973 at the NPRC-29 years before he enlisted. Shit happens in St. Louis. a clear prop!

I suspect they granted your claim at the AMC which is authorized to do so in addition to authorizing the rating, the % and the retro. They just did mine on Jan. 28th- all the way back to 1994. Having the files sent back to a VAMC indicates other issues that will require a new C&P or update of an existing med. file. Relax. I think you're inside the wire now. You're in luck. They're so backlogged they are handing out money like necklaces at a Mardi Gras parade. a

You will learn that one of the most potent forms of denial is ignoring evidence legitimately submitted that is in the c-file. If VA wins this first round and you toss in the towel, for all intents and purposes they won because they were right. When appealed, the BVA often just rubber stamps it unless its an Acting Law Judge who wants to get it anally perfect. You can get a win there under that limited circumstance every time. Some have been there so long like Mark Hinden that they simply use what the RO used and duplicate. When you get to the CAVC and the charade is over, the OGC quickly beg for a joint remand to "correct" their error. This is SOP and a VBA means test to discover your resolve to pursue it. The more money on the table, the greater the chance this will be the case. They fought Leroy Macklem up to the Fed. Circus and still wanted another shot at redoing the denial a fourth time after his three wins. That was for 100% CUE back to 1950. Great case. a

Thanks a lot for doing it for him. There's nothing quite as rewarding as getting another his long overdue bennies. Beating VA at their own game is better than tall shot of Johnny Walker Blue or a 33 degree Miller High Life on a 100 degree/90% humidity day. The smell of a thick BBE is truly the smell of victory. a clear prop

<<<< b. Does the Veteran have any other pertinent physical findings, complications, conditions, signs and/or symptoms related to any conditions listed in the Diagnosis section above? [ ] Yes [X] No>>>>>> I don't see the Mitral valve disease rated. A SSOC is not a decision nor is it permissible to announce a decision or rating in an SOC or SSOC. It is a continuing denial of a SOC where there is a substantial disagreement over whether your claim can be granted and why not. Your Mitral Valve disease was not granted or even discussed. $100 is still on the table, ThomasC. My prediction was conjunctive on two items. I might also point out that the SVT 2003 date is still on appeal so any decision on that is years away. I'll set aside the $100 in an interest bearing account on the off-chance they grant after he sends in an answer to the SSOC. Nothing would make me happier than to hand out that C note, ladies and gentlemen. a

I stand by my prior advice, sir. Mail them nothing. I expect they'll do a new round of C&P exams on you to make sure they still are obligated to pay you. Be sure you attend each and every one of them. I've seen them "claim" to have sent out a request for a C&P with no documentation in the C-file and then claim you never showed up for the dog and pony show. Result? Denied for another three years until you get to the BVA on appeal. They have enough rope to hang themselves already. They'd love for you to send something else in so they can claim they are baffled as to what exactly it is you want them to do with it. SOP for VA, hoss. a cp

What's the reason for the IHD grant? Is it due to AO exposure via guard duty on the perimeter of Camp Friendship or did you have SMRs that showed it in service? Congrats. We are trying to establish a good library of AO wins from Korea/Laos/Thailand/Okinawa/Anderson Island/ et cetera. If you have a win based on "tactical herbicides" used in Thailand, it will add to the ability of others to win. Thank you.

Here's your problem in a nutshell. You rely on Dr. Photos for your nexus letter or his diagnosis. He has not been granted access to your service medical records (according to the VA), and thus the VBA examiner's nexus is more "probative" and based on more knowledge of the injury. In 2010, the VA sent out a letter to the VAMCs forbidding them (VHA doctors) to write nexus letters for Vets connecting their illness/injuries to service because "they are not trained in the art of subjective forensic pathology". VA Examiners (read the ARNPs at the RO) who are assigned this task are considered eminently more knowledgeable and capable of making this determination. This is also why the new DBQs do not have a slot for the nexus. I have been harping on this glaring omission since I reviewed the very first DBQ. I won't touch one. I prefer to submit actual doctor's notes and labs that reflect the true facts. I also get definitive letters from the doctor (if possible) to support my contentions. Absent that, it's off to see Dr. Bash and friends. The VARO examiner is in error. Here's why. Once you have been service connected for a disease or injury, there is no more discussion or investigation of how it occurred. It becomes a "finding". Either you are service connected for it or you are not. Once you are, there simply is no more discussion about contemporary service records or the necessity to review the c-file. It becomes a study of the here and now of the disease's progression. A VA doctor such as Dr. Photos is exceptionally positioned to make cogent observations for two very good reasons. One is that he is what we call your ''treating physician" and very acquainted with your case. Secondly, he is a podiatrist and a specialist in his field (and your malady). This cements his observations as being superior to any and all others who have less training. This what will win your case so focus on it. VA will do their damnedest to redirect attention to the contemporary service records and Dr. Photos' failure to review these "probative" documents but the fact remains that he doesn't need to. All he has to do to is to opine on the CURRENT state of affairs. Period. The Veterans Administration is also relying on some of the tenets of FAST Letter 13-13 but most importantly, they are cracking down on TDIU. Sedentary work is a euphemism for sitting down and working but fails to comprehend a) getting to and from work; b) getting up to use the rest facilities/breaks/lunch once there; and c) pain on excursion. He should be rated for pain as a separate rating above and beyond his normal schedular rating. VA is saying he is still viable in the workforce. This is what must be overcome. Dr. Photos' diagnosis is the definitive document for an appeal. His observations should be the last word on this subject. As a VHA doctor, he has complete access to your VISTA medical files on this subject (and all others) which rebuts the VA Examiner's contentions. This is Clear and Unmistakable Error. Until you appeal this to the BVA or the CAVC, you won't get any traction. Once VA goes south with their logic, they are loath to get the locomotive back on the right track. They have made a "finding" that is adverse to you. Until you can correct their defective logic, your TDIU quest will be futile. Always remember our friend Layno v. Brown (1995) Your lay testimony is credible on the subject of what comes to you via your five senses. You may not opine on things medical, but you may most definitely discuss pain, the inability to move about comfortably and your field of training preventing you from engaging in work that still requires transportation to and fro. Sedentary work is not sedentary when it entails locomotion to accomplish it. The two terms are mutually exclusive. Best of luck, sir. A As a P.S., I might add you implied you filed it as CUE. A disagreement of how the facts were interpreted can never rise to the level of CUE but--------- The Examiner clearly stated Dr. Photos did not have access to the complete record. This statement is clearly and unmistakably erroneous on it's face which will be the fulcrum for a successful appeal. Just make sure that the mistake altered the outcome (a grant of TDIU). If there were other mitigating factors you have not mentioned, it might poke a hole in the claim boat. Does he have the requisite 70% combined or at least one stand-alone rating at 60% or greater?

Good friend and fellow AO claimant dropped this goldmine into my hands the other day. We all knew we stopped for a "Marlboro moment" at Tan Son Nhut. We just never kept our tickets to prove it. http://asknod.wordpress.com/2014/03/11/making-ao-presumptive-for-thailand/ Enjoy. A Clear Prop

To distill the answer into DickandJanespeak, I need the ingredients. Did you have a lawyer? What disability. What date of filing. What date of grant. What evidence was submitted, etc. I'm shooting from the hip with the minimal amount of information you choose to share. If it was remanded back from the CAVC, it would require a grant from the BVA from whom it was appealed. The RO was merely the bean counter and rated it following the grant and remand for rating. The BVA established the parameters of the win, the effective date (maybe) and the rationale for it. The RO merely implemented it. Give me a citation number and a docket from the BVA win so I can ascertain the depth of the grant. It may be the RO chowderheads managed to bungle it. You have to admit they're adroit at that particular endeavour. On the obverse, I see you getting a new C&P when you won at about the time the remand descended to your RO. Could be they wrongly granted from the date of your new C&P rationalizing that this was the first instance in which you had proven entitlement to said rating and percentage. VA does things like that to artificially arrest the development and normal progression of your claim on the off chance you'll go away. I just had a case similar where the BVA granted and the RO gave the gentleman a 20% rating which is where he was medically when he first filed in 2002. His VSO forgot to do the Form 9 and the claim died. He refiled in 2006 but did not get a new C&P. After his win, he filed his NOD and got the new C&P where he was correctly rated at 100% P&T. Fortunately he had enough documentation to get the P&T all the way back to 06 but VA wasn't about to agree to it until they were proven wrong. Can it be you were in a similar situation and failed to file that NOD? As I say, I don't have enough information to see it yet. My kingdom for ESP. a clear prop

By not filing the NOD, you agreed with the substance of the rating. The only way to revisit this as CUE is to apply the CUE test. Three prongs must be met and each one cannot be wishful thinking. They didn't make Motions for Revision(CUE) easy for one simple reason. VA hates them. They consider them sour grapes. Rule one: You feel your effective date is inncorrect. For that to be, either the correct facts as they were known, were not before the adjudicator; or the law, as it was written at the time was incorrectly applied. Rule two states you must abide by the law as it was written at the time of your claim. A newer precedential case after your grant cannot form the basis for your CUE. Rule three is the simplest but also the trip wire: Would it have manifestly changed the outcome if the mistake was not committed? Then the takeaways begin. Benefit of the doubt is not for application. Either the decision was undebatably correct... or it wasn't. Failure of the duty to assist cannot be CUE. Unless there is not even a shadow of doubt that the mistake was blatant, then the decision stands. (the reasonable minds theory) Trying to rehash the evidence via CUE is not permitted It would appear that VA is saying you qualify for the grant of service connection but the evidence does not prove conclusively that you were entitled to it until the date they awarded it for your effective date. If you filed with evidence that clearly evinced a right to X% on _______ ___, 200_, and VA incorrectly awards you a much later date, that is CUE as long as the evidence was unarguable at the time of filing. That would fall into the category of the correct evidence, as it was known, was not before the adjudicator. The other two prongs are a given in that case assuming they didn't change the law in Part 4 concerning your disability. Here's Caffrey on the duty to assist to give you an idea of how the Court can sometimes kick our teeth in too. http://asknod.wordpress.com/2012/01/15/cue-failure-in-duty-to-assist/

Congratulations. That's almost a world speed record for the Seattle RO.

I see VA doing the usual, Berta. If he submits new evidence they will instantly grant (even though they should have in 2004). The logic will be "Claimant has now demonstrated an entitlement on March 8th, 2014 by submission of N&M E proving his contentions. However, there was no evidence prior to this in the file which could support an earlier effective date. Therefore his effective date for this condition is March 8th." My suggestion is not to submit one thing until you get an up or down on it. It's blatantly obvious they dropped the ball in 04. If you submit so much as a fart in an envelope, they will use it against you. Sit tight. They have plenty of rope to hang themselves with. If they want more or order a new C&P, LB81 will have to comply if he expects to prevail.

<<< I gained like 150lbs due to my ptsd and depression.>>> VA will use this against you and get their doctors/VA examiner to say the weight gain was what brought on the DM2. Medical science says they're correct. The nexus letter/IMO is your only defense and the only way to overcome it. I've tried to get DM2 ratings for Vets outside of the Vietnam AO presumptive. The brick wall I run into is no definite glucose tests to even show "prediabetic" with any certainty, VA will deny and do it successfully. The time to do that is the golden window of the first year after discharge/retirement. After that, it becomes almost impossible without a smoking gun in service. 38 CFR 3.309(a): (a) Chronic diseases. The following diseases shall be granted service connection although not otherwise established as incurred in or aggravated by service if manifested to a compensable degree within the applicable time limits under § 3.307 following service in a period of war or following peacetime service on or after January 1, 1947, provided the rebuttable presumption provisions of § 3.307 are also satisfied. Diabetes mellitus. (12th one down) 38 CFR 3.307(a)(3): (3) Chronic disease. The disease must have become manifest to a degree of 10 percent or more within 1 year (for Hansen's disease (leprosy) and tuberculosis, within 3 years; multiple sclerosis, within 7 years) from the date of separation from service as specified in paragraph (a)(2) of this section. Always remember, the military and VA work hand in glove to protect themselves against our claims. If it isn't in the records, it is difficult to establish as SC. Back in the old days, you could opt out of a separation physical by signing off that you got the briefing and declined it. Millions of us probably elected that brain fart after we got back from Vietnam and just wanted to go home. I expect it's required now. Anyone thinking about getting SC for sleep apnea better get cooking and file. VA is preparing to whack that one down. The proposals I've seen circulating is going to be if it is controlled via a CPAP, then you will get 30% (maybe). The rationale will be that it isn't life-threatening if it is controlled. Many do not remember the good old days of Tinnitus where you could get 10% for each ear. That evaporated in 1990 along with getting lung cancer due to cigarettes and cirrhosis due to alcoholism. The VA will grandfather the SA ratings @50% now in effect but will probably be stingy on anything in the future. In the future,look for VA butchers to offer to "surgically repair" it for free.

The answer to LB1981's question is "Yes. Your claim appears to be on a path to initial adjudication. VA will rate it and if you win your grant (which I suspect you already have), your effective date for those two claims will be the day you filed. The Court rationalizes it thusly: Justice delayed is not justice denied. The mere fact that something wasn't done in 2004 is immaterial as long as it is done eventually. You could die and your spouse legally could apply for accrued benefits and collect it. The reason I suspect you've already won is that VA would normally just cook up a wonderful "Dear Leadbelly1981, Thank you for your service. We regret to inform you that we are unable to grant the claims from 2003 because_____________. " John, A decision mailed but not received abrogates the Presumption of Regularity. If the decision in 1973 was mailed to you but returned (and clearly documented in the c-file as having been returned), then your appeal rights from the 1972 claim are still viable. As long as they did not successfully remail it to you within the permitted suspense year, then technically the claim lay in stasis and an appeal remained viable. As such, it isn't CUE but a claim for an earlier effective date based on lack of finality. This would be characterized as a "freestanding claim". Finality of a claim cannot attach to one whose claimant has not had an opportunity to exercise his/her right to contest it thoroughly (at the BVA) to its logical conclusion. You did have one last level of appeal to the BVA available to you that was thwarted by your contention that you failed to receive your decision. However, the VA response to that is the phone (and USPS) works both ways. If you moved or failed to apprise the VA of your new home under the overpass during the running time of the claim suspense date, they can say they had no way to send it to you. If you collected any of the funds within a year of the time of the decision, that too, would constitute an implicit acceptance of the decision- as is- with no effort to appeal. Of course, it would also show you were aware the decision occurred. In the obverse, if the funds accrued for a whole year or more untouched (proving your ignorance of the completed adjudication), this would be your smoking gun for the EED argument. The appeal would then pick up with the date of decision (where you left off) and you could now file your NOD with the 10% and begin that argument about Dr. Rothburd's records not being addressed. This is covered in the Doctrine of Laches which does not penalize a Veteran for failure to act on a screwup for decades. http://asknod.wordpr...ine-of-latches/

It may get ugly if VA feels they have to cover their a55. They can adjudicate it such that you will be told it was "deemed denied"-i.e. you never heard otherwise at the original claim grant in 200(4?) so you should have put two and two together and figured out it was denied. The term deem denied came up in Court one day when the BVA said if you do not hear from us, then you would have to surmise it was denied. Much jurisprudence has been written on this but the fact remains that VA continues to try to use it as a ploy to fence you out. It is untenable but that never stopped them. You use the due process clause to rebut and say you cannot appeal that which you have not received a denial on with which to begin a NOD. 38 CFR 19.25 and 19.29. Denial must be sufficiently clear for appellant to ascertain what it is VA did to him and how to proceed. § 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)) § 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))

Golly doggies. Finally. I have been preaching this for the last 4 years. A DRO review is nothing more than another in-basket for a claim to sit in. Absent any true constructive evidence, a DRO Review is nothing more than a holding area that prevents you from advancing to the BVA and a fighting chance at a win. Think of it like this, Veterans. The VA Bus has X # of seats. From 2004 to 2012, the same basic number of Vets have been rated exactly the same. In that 10-year time, we have experienced innumerable catastrophic injuries (read paraplegic, etc.) yet something is immutable. Virtually the same number of Vets are 0%-100%. Statistics tell us a fixed number of 100% Vets have to get off the VA bus (read die) in order for an equal number to board. Same metric for Vietnam in the 60s-70s. Amazing, huh? Didn't anyone wonder why we get a 10% rating when we should be P&T? And then we have to fight up the ladder for each increase for 10 years to finally attain our due? It's called managing the costs via controlling the ratings percentage. No mystery here in my book. It's precisely why the backlog will plague us for decades even if we never wage war again. VA cannot afford us. http://asknod.wordpress.com/disabled-vets-statistics-by-state/

And thank T-bird for providing a forum in which to go to school and learn all this. a clear prop