FormerMember

Ah, Padewan. Therein lies fruit of your claim. 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. I wonder if the Kenster thought about that facet? That should be the crux of your argument. 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 the failure to receive your decision. However, the codicil 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, 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.wordpress.com/2012/02/21/cova-manio-v-derwinski-doctrine-of-latches/ There's more than one way to skin the VA cat as I demonstrated in my 94 EED win. A sends

I've traced the history of CUE all the way back to the first case-Bentley. By 1992 and a pile of losses, VA tried to say the Court didn't have the authority to even hear a CUE. The poohbahs disagreed and have been hearing them ever since. Bentley, Akins and the other early Vets won on the fact that anything that was a mistake was grounds for reversal. Russell changed all that. Then Fugo, and then Caffrey. Each one chopped off a leg of John's arguments. I think when you give them the GPS coordinates and they don't go get the records/info, then the failure in the Duty to Assist gives birth to the CUE. It did to me in my 89 case. Now I find they not only did not go get the records but went so far as to say the partial set I was able to obtain and submitted in 1991 were not considered as evidence. I lost. That is CUE. John's is CUE but VA had a different set of rules that changed every thirty minutes depending on the circumstances of the moment. I guess I'd have to throw down and go for it, though. Injustice eventually has to be recognized. a

Yes. One very big one. Why settle for TDIU? Sounds more like a 100% schedular rating is in order. Then obtain a letter from the neurologist in Orlando stating your MS is not going to improve with age like a fine Merlot and apply for P&T with it (the letter). Don't wait two years for another C&P. The sooner you wrap this up and get the P&T, the sooner any offspring/spouse can utilize Chapter 35 DEA entitlement and you can start shopping at the BX/Commissary. J1VO a cp

<<<<When you get your BBE look at the submitted evidence - some information might be missing.>>>> A masterpiece of understatement,TC.

Hold the phone. A DRO? Are you sure you do not mean your Veterans Service officer like AmLeg or DAV? A Decision Review Officer(DRO) works at the Regional Office (VARO) in the major city closest to you where you filed. They are not involved in calling Vets and informing them that they have won anywhere-least of all at the Board of Veterans Appeals in Washington DC. An "appeal" is a claim that has been denied at the RO and one you have filed a Form 9 on to seek a substantive appeal before a Veterans Law Judge. A DRO review, on the other hand, is a readjudication of a denied claim at your RO and one you choose to have adjudicated by them again before seeking the standard appeals path to DC. If you won your appeal in DC, it will be two months before you see anything in the mail or the bank. a cp

CUE. The Purple Nurple was a matter of record and apparently not before the adjudicator. As it was the seminal item that granted PTSD under 1154(b) in 2008, it would have manifestly have changed the outcome of the 2002 decision. It is not mentioned in evidence in 2002 but was clearly on the DD 214. The Bronze Star w/ V has nothing to do with this. The grant is purely based on the PH. VA is too easy to beat. They screw these things up so badly and leave a trail of florescent paint to the error. Here, they out and out admitted that they finally noticed it. AOJ, in the context of "Agency of Original Jurisdiction" will always be the VARO who tucked the last Form 8 into the c-file certifying it as complete to the BVA for appeal. The rage out here is Pomegranate Martinis with Cointreau. And yes, I would concede one.

I think you can win it based on the Purple Heart alone. This may be the minority opinion among those here who opine on it, but a lot of claims on appeal to the CAVC for these types of CUE have hinged on JCRUR evidence being available. The Purple Heart cements the deal in that it automatically proves the 38 USC 1154(b) presumption of combat. Adding a BS with a V does not increase the probative quality of the original denial decision nor do the statements of buddies. The Purple Heart stands alone as testimonial to combat. There is no need to build on it to make the claim more believable. Saying the Bronze Star with V is the clincher doesn't stand up. Once you prove unequivocally that you've been in combat, you do not need to "puff it up" with more medals or statements to prove the 1154(b) presumption. In essence, they never gave you the 1154(b) presumption of combat and thus due process was denied. Once that presumption was in place, everything you said about what happened in combat is the unvarnished truth and VA has to accept it as gospel. They didn't and you lost ergo CUE. I do not think anyone would have a problem proving it would manifestly have changed the outcome. It's pretty cut and dried. a cp

I believe a clarification is in order. The VARO who currently serves you is the one who keeps your c-file. They have complete control over your claims-both old and new. What Berta has referred to about presumptive AO claims is a unique facet. AO claims based on nuances in the old Nehmer settlements have often been "brokered" to the Pennsylvania RO as their raters there have an excellent (joke) grip on the subject. In this case, I suspect the Mississippi RO will be the arbiter. VA is not often in the habit of shipping your claim out, and hence your c-file back to an old RO simply to ascertain CUE in a prior decision. It is virtually always accomplished at the RO that services you. The evidence of the CUE, as well as JCRUR, are all accessible at the local RO. In fact, JCRUR has been around in one form or another under a panoply of different initials for decades. The problem is that VA is too lazy to request their services unless it goes up the appeals ladder. At that point, they beg for the Joint Motion for Remand to find out what they should have known years earlier. Duty to assist is a fig newton of the imagination for most of us. This is why I advocate for Vets to do their own records investigation or beg VA to access the JCRUR records. Once you go on record asking for that determination (JCRUR), if VA fails to do so, it becomes de facto failure of the duty to assist-but not before. It then falls into the category of arbitrary stupidity in the Reasons and Bases section. As benefit of the doubt and duty to assist are not CUE, it behooves you to build a record that ostensibly proves you asked for it and were ignored. Only then does it become fodder for CUE. Side bet, Carlie--$20 says Jackson does the CUE. a cp

If Rod and Ann are self-represented or represented by a VSO, then they get the benefit of Comer v. Peak and great judicial deference must be shone them. They can actually stumble around in the dark as to what, specifically, is the CUE if it is fuzzy. They can get away with this right up to the CAVC if they are pro se. At that point an attorney could take over and claim they were Hansel and Gretel in the woods and not knowledgeable enough to provide a good claims defense. How the evidence was decided cannot form the the substance of the CUE either. The VA is entitled to the presumption that the evidence was "self-evident" enough to warrant the decision. This is going to have to hinge on "the correct facts, as they were known, were not before the rater"- somewhat of a constructive possession of the evidence argument and VA was not forthcoming with it. http://asknod.wordpress.com/2011/09/27/cova-bell-v-derwinski-1992-constructive-possession/ If VA has all the evidence of where Rod was via his assignment history in-country (with JCRURS), then they were constructively in possession of the knowledge of whether he was in a combat situation that would provoke a stressor or where Rod could reasonably be expected to feel fear that would provoke PTSD. Time to search using the search function at the CAVC site to pull up some good cites. a cp

Additionally, you cannot use new Buddy statements to substantiate a win for CUE. It must be done with the existing evidence of record (EOR) at both of the prior denials that were not appealed. However, if appealed to the Court above, the Judge(s) may take "judicial notice" of the fact that you were confirmed to be a member of the unit when it engaged in combat. Nothing personal may be added. a cp

Your Regional Office (VARO or Veterans Service Center) closest to you that you have been "doing business with" is the one with your c-file. They would be in charge of doing a remand but that does not preclude the Appeals Management Center (AMC) from doing it either. I've seen that happen. What in all probability will occur is that your c-file is returned to the VARO in Jackson, MS and they will do the initial decision of whether there was CUE. I'd bet they deny initially without even looking at the record but then I don't think much of VA intelligence-gathering either. For answers, go to https://iris.custhelp.com/ and click on the bottom right "Ask a question". It's a little bit vague but just click on anything that stays yellow again and be sure to answer any sub-questions. Ask the IRIS help line what the current status of your remand from Citation Nr, XXXXXXX, Decision date and Docket No. XX-XX XXX is. This identifies your Board of Vet. Affairs claim appeal more clearly. Face it. VA needs all the help they can get. I see by the use of C&ue that you may have discussed this on a site with a pink background to it. Relax. The VA themselves, as well as the Court, refer to it as CUE-always capitalized and always absent an ampersand. Best of Luck with the EED. I've seen a few wins on this based on records turned up by Joint Center for the Research of Uniformed Records (JCRUR). VA should have known to look for records you identified that would be expected to be a matter of record. Date of combat incident, location, unit identification, brief description of incident and stressor that would clearly point to where, when and with who. Buddy statements would be excellent if available. That falls into the first requirement that the correct facts, as they were known at the time, were not before the adjudicator. a cp

Jones v. Shinseki 2012 says they have to rate you on the baseline before medication. They cannot legally take the medication into account in deciding the rating. File a NOD if they low ball you. http://asknod.wordpress.com/2012/10/27/cavc-jones-v-shinseki-diarrhea-vs-loose-stools/

O4, if he died from the condition and it was service connected, his spouse would get DIC. Or she should. a cp

A large number of Vets who come here voice a concern over the idea that VA might engage in retribution over your becoming over eager in you claims filing. Nothing could be further from the truth. However, I would ask you to review this Mekus v. Shinseki case to see exactly how the VA is held to the same legal standard (very high) that you are when you file a Motion For Revision (CUE). VA does not CUE themselves unless it is for the convenience of screwing the Vet. http://asknod.wordpress.com/2014/02/13/cavc-mekus-v-shinseki-idle-hands-are-the-devils-workshop/ VA doesn't often engage in this but they do it frequently enough to wonder. Oddly, many occur at that critical juncture when you are getting ready to attain the benchmark of 20 years (38 CFR 3.951(b)) and the guarantees that come with it. Mr. Mekus ws reaching the preservation point of ten years for his wife's DIC but the VA is equally vindictive on this. Remember, after the magic twenty, VA cannot monkey with you or your percentages. As for CUE, they better have some damning evidence. http://www.law.cornell.edu/cfr/text/38/3.951 A cp

We put teeth in mine. It wasn't open-ended. I gave up an extra year of tinnitus @$85 /month and agreed to let them dismiss my back claim without prejudice. That permitted me to refile it later. These were built-in bargaining chips inserted in 2007 when I filed to reopen. In exchange, they agreed in advance to give me my 1994 effective date. A JMR is a double-edged sword. If constructed with defined parameters at the outset, it protects you. If it is merely a tool to remand back to the BVA with no preordained conditions, then it is ill-advised. Murphy's first law applies. a

Please see this if you are filing photographic evidence with VA especially skin scarring. VA can be anally specific with their rules. You do not want something to be ignored because it was not identified sufficiently for a VA rater to comprehend it.http://asknod.wordpress.com/2014/02/11/va-claims-submitting-photo-evidence/ a Clear Prop

Negatory on donning USPS gear, sir. I can say I feel your frustration. I had to wait seven months for my file to travel less than a mile from the CAVC on 625 Indiana Ave. NW DC over to BVA at 810 Vermin Ave. NW. There it sat for several more months. And then, ... it went to the AMC. You are lucky. It's local. It will get done but it will be painfully slow. The only consolation we have in this is winning. Well, that and our good name. By denying us, they are calling us liars and cheats. That didn't sit well with me then and it still doesn't now. I expect that's why there are so many of us eager to help you and pay the VA back for their rudeness. Best of luck, sir. a clear prop

What are you hanging the HCV on specifically? If you do not feel comfortable discussing it here, PM me if you would. I've helped about 50+ get a win on this and the last unique one I'm still working on is unsterilized EMG needles in Japan in a civilian setting. The Vet's genotype is 2B which matches the predominant strain there. At 60, your service must have been around the end of the Vietnam Boundary Dispute. Don't forget the new drug Sovaldi. It's the ticket for us IFN-intolerant folks. Success rate is hovering around 85% for the Genotype 2-3 crowd. a cp

I did IFN once and woke up in an ice bath at the emergency room. I have autoimmune Hep now too. I was worried that your rating rationale for SSDI would not be the Hep. It would be better if it was. Best of luck. If you're in your thirties-forties, they'll try like hell to say you can take a sedentary job. If the SSD was for HCV, it would certainly help. If you're in your 50-60s, they probably won't make much of a fuss...unless they deny the HCV for some insane reason. Then the argument for IU works against you i. e. you're SSD'd for a non-service connected disease or injury. VA is vicious on this recently. Best of luck. Take a look at FAST letter 13-13. a

Dear Gator, A word to the wise. Get your win on the HCV first. If the 8940 has already been filed for the TDIU, oh well. As for the horde of secondaries such as DM2, cryoglobulinemia, Porphyria, fibromyalgia, etc., hold off until you have the HCV service connected. I've had many Vets file a long freight train of claims and lose because the raters saw a passel of claims and just top-sheeted it long enough to deny the secondaries-sometimes before the actual HCV decision. If the claim is based on jetguns, you'll need a a tall IMO from a good gastrodoc. If it's based on tattoos, STDs or combat blood exposure, your win will be easier. If you are at the BVA, it means something was missing in the evidence back at the VARO. One thing many overlook is the secondaries relating to Interferon therapy. Many failed the prophylaxis and retreated again with similar failures back in the late 90s and early 2000s before the addition of Ribivirin. Most who went through the txment, regardless of whether they cleared the virus, are also irreparably harmed to include thyroid cancer, cognitive dysfunction, deteriorating vision, DM2, pruritis and most especially depression. Be sure to consider these but only after the HCV win. Take a gander at asknod.org for everything there is to know about VA HCV filings. I know. Been there and done that. Shoot, I even wrote a book. Best of luck and we'll be looking at the success stories forum for your big win. a cp

OGC came to my attorney when he proposed oral arguments on AO usage up in Laos (March 2013). VA promptly bought us out. You may have already won but be careful how they phrase it. They are the past masters of the three card Monte game when they do those Joint remands. Just make sure there's iron in the words. If your atty has cajones, he'll ask for specific concessions and not an open ended JMR that "promises" to review some evidence. Too many Vets have just ended up with a new noose using the old rope e.g. same denial with new words and legal justification. a

<<<<<I am thinking even a reconsideration request might work...might..... unless VA decides to respond to that ,and appears to be working on the recon request ,while they really intend to piss away the NOD deadline.>>>> That Motion for Recon is hollow now. They'll perform the dance for you, Berta, but I agree it will be an attempt to run out the clock.Everything is being compartmentalized into NODs via the new 958s. They want fewer in-boxes at the ROs. Eventually, it will be only FDCs, regular e-filings, neanderthal paper attempts with the 526 E-Z frequent filer ID # and Administrative Reviews based on screwups identified early on by IRIS complaints. Look at Dixon v. Shinseki that came out yesterday at the Fed. Circus. RO Denver is just the tip of the iceberg for screwing Vets. They want us to fail. Indifference is the tool. It's a disease that permeates the system nationwide. It's not unique to any one VARO, either. a

The IRIS path is unique in that it makes statements by you a judicial matter of record. It becomes part of your C-file. As such, it is an important tool to register a legitimate question with regards to your claim. Once out of Pandora's box, VA is not at liberty to ignore it. It's in printed form and not subject to being "misconstrued" by a 'VA technician' on the 800 number. Additionally, as a paper (or email if you will) record, you have a tracing number and the ability to rebut an obvious error by pointing it out. You can provoke this discussion until VA takes action to get it corrected. The power of 3.156(b) is immense and underutilized as well. It helps to know these things. a cp

At the bottom of all your posts: I am not an attorney or VSO, any advice I provide is strictly my humble opinion therefore not to be held out for liable.

Think of your claim as a river (a claimstream). You put the boat in the water (file the claim) and away the current carries you. Important events occur going down the river. A C&P, a denial/partial grant, an appeal to DC for a denied higher rating, etc. occur but it is the same canoe and the same river continuously from start until it is finished. If it is discovered that there were other ingredients (injuries/diseases) present when you put the canoe in, that is the point of remuneration. It does not require a refiling now to backfill any deficiencies. Your claim is alive and malleable to modify to the circumstances. Just because you applied for something does not make you a doctor or a specialist of that condition. This is why there’s Duty to Assist but it is a hollow phrase. Some have filed for MDD and come to discover it was schizophrenia. You are not expected to diagnose yourself. This is why VA is required to assay all the parameters and automatically consider ROM in a separate musculo-skeletal examination in addition to the examination of your skin. This is an old VA trick I've written about. Divide and conquer. What occurred was you filed for cancer residuals. VA took the path of least resistance and focused myopically on the DC 7800-7805 family of scarring in hopes you will not further discuss ROM or your initial (read principal) cancer residuals filing. If you say “Ahem. And the muscles?”, accompanied by the IMO, they have to immediately review for them as well-with your existing claim. In computerspeak, your claim as filed was a folder. Open the folder and there are multiple documents inside. Some, but perhaps not all, apply to you. VA has chosen not to open the folder but narrowly rule on the skin surface issue which is the most visible. If they address what’s afoot beneath the skin, that would require a new, different investigation and an additional investigation under §4.55-§4.56 of Part Four of the ratings schedule--but not a new claim. If you let this slide, VA will call it “deemed denied” on appeal. This is another old trick. They failed to address it and you did not object. On the other hand, if you attack via IRIS while the claim is still alive and re-assert your initial, implied secondary of muscular damage, they have to take judicial note of it. It may provoke an Administrative Review of the claim and a completely different outcome. Fortunately, with IRIS, you will be able to get some (relatively) instant answers. Not so our fair young Maiden Peggy Sue. A rush to a NOD is a normal, knee-jerk reaction. In the scheme of things, an IRIS resolution through the back door along with the submission of N&M Evidence at the RO in the early stages of a low ball rating provokes a new (de novo) review (as does a NOD). The beauty of the de novo review of you new evidence (a good IMO) is the potential to resolve this and nip it in the bud. Ask for that new C&P based on photographic and IMO evidence. We all know the long arduous process and inevitable top-sheeting they will employ with a full-blown NOD. As most also must know by now, without earthshattering new evidence unequivocally rebutting the VA Examiner’s prior assessment, a SOC will be inevitable about sixteen months later –and especially if you are un or under-represented. Certainly, it will be a review by a RVSR or DRO but it will not be perused cogently. Sorry Virginia Vet. No VA Santa Claus. I am fond of bombarding them periodically with high-quality, new and material evidence as it will appear more recently in the .pdf they are now viewing electronically via VBMS (when it’s working). The window of opportunity when the claim is in its initial granting (rather than denial) will garner a quicker response to correct an error than to file the NOD and the inevitable back burner for a year or more. CUE is for desperate souls for whom there is no other way to revise a prior decision. Having a claim that is open and flowing along allows you to introduce all manner of accessories to it and point back at prior records filed to support when entitlement arose. This is not very well known, but its principle is embodied deeply in 38 CFR §3.156 (b). VA hits that spike strip so frequently they haven’t had time to revise the M-21 and straighten it out. Seriously, go to the CAVC website and use 3.156(b) as a Booean search parameter. There are new cases still in the docket awaiting a judge. That's how I won. New evidence submitted and no response from VA for 14 years until I "refiled"and picked up where they left off in 1994. (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. Parsed in DickandJanespeak, it means every time they get new evidence from you, they are required to make yet another new decision based on the sum of all the evidence of record (EOR). I guess you can see where I am going with this. The only barrier is the one year suspense date for filing a NOD if you are unable to resolve it amicably in the interim. Remember, as Carlie is so fond of admonishing you, this merely the idea of one person. It is novel but it has been tried and found to be legal. Of course you guys and gals realize VA will not be your BFF if you do this.