FormerMember

Because I enjoy watching paint dry, grass and trees grow and observing the progress of my VA claims, I called the 800 Prize Redemption Line on Monday 23 Dec. After a relatively short period of 42 minutes, I was greeted by Robert in Salt Lick City's prestigious RO. He was able to find out that I had filed a claim on August 12,2012 for "scarring" and several other issues. Well, not exactly. It was a CUE for reducing a rating with no warning. The others were filed two months later .VA had lumped them all together and denied the CUE but closed them all out. Robert could not "see" the October filings so I asked him what he was looking at (i.e. VACOLS, WARMS, etc.) He said he was using VA's latest tool that is relatively up to date for these things--------------drumroll, please--------------Ebenefits. That's what you are dealing with. If you want to find out what's up ( or not up), try IRIS. Robert even suggested as much after ten minutes of trying to explain why he was "knowledge-challenged" and limited to reciting what I was looking at at the same time.The blind leading the deaf...

Did an IRIS to find out why VA did one claim and "accidentally" dropped the other three last week. Mind you, I haven't had the MOPH representing me since I fired them in 08. At the bottom of the IRIS is "cc: MOPH". VA couldn't find their own ass with a methane detector. Sent in an update to have them remove it and added more info. It's still there. A sends cp

And then we ask the pertinent question---What if you are represented by counsel or (God forbid) a brain dead VSO? Wouldn't it be impermissible, not to mention unethical, to go behind the rainmaker's back and contact the Vet directly? Where, pray tell is the box to check off saying you wish a DRO review? Again- AWOL. The new form is so fraught with deficiencies that it is a legal train wreck. a cp

You ask for a new C&P that is current and for an Administrative review based on the new and material evidence. Use IRIS so it gets into the system. Do not rely on the 800 Prize Redemption line. That's the absolute shortest distance between two points. If it fails, file the NOD and ask for a traditional review. Be sure to add some medical documents so that it provokes yet another de novo review. Many times this is the ticket that finally gets punched before a SOC shows up. You get an automatic de novo anytime you submit N&M evidence during the time your claim is at the RO between the filing of the NOD and the final signoff on the Form 8 certifying it to DC several years later. A DRO review, which is one more bite at the apple, is often the same DRO who denied it in the de novo stages when you kept adding the N&ME. I personally see DROs as pointless. At one time, DROs were senior retired military who understood the rigors of service. No more. They're part of the same AFGE union machine that has sadly been brainwashed by the VA and M 21. They just click on windows and insert Adobe sentences. True development of a claim as we used to know it-truly forensic, is a ship long sailed. A cp

Well, I had a guy who won in December 2012 on an appeal for HCV filed in 2006. When he won, they sent it back to Oakland who promptly gave him 20% based on a 2006 C&P. He filed a NOD on it and then, and only then, did they send him out for a new C&P to ascertain the damage. The doctor said "near constant-debilitating and Stage 4 cirrhosis which is a 100% rating. His brainchild VSO who screwed things up in 2004 and forgot to file a F-9, promptly reinserted himself into the claim after being AWOL for 4 years. He asked for a DRO review with the NOD. So Mark IRIS's VA and says what's the holdup? The response was "What holdup? You asked for a DRO review. DRO reviews are currently 585 days out. We're on it." This is not how you run a railroad and one more example of being careful who you allow in the driver's seat of your claim. Mark actually rescinded the POA in 09 and went pro se but VA continued to keep the California Dept. Of Vet Affairs on the cc: list. When he won, the Rep. just slid in behind the wheel and started screwing it up all over again. After two two-year courses of Interferon, Mark is missing a few brain cells and didn't pick up on all this. This is a perfect illustration of why you need to be on these things like white on rice. Unfortunately, Mark didn't email me until he ran out of retro dollars and asked why VA was dogging it. a

BVA does not do ratings unless your appeal is for an increase that was denied. In that case, they would grant if the degree of severity had been met versus the lesser rating awarded. Since VA is notorious for low-balling, most of them win in one form or another. On the other hand, a new claim for a disability that wins at the BVA automatically is returned to the local AOJ (VARO) where you are scheduled for a C&P to approximate the degree of severity. That sets the stage for the initial rating which, again, is usually less than what you deserve. You sure wouldn't want to put them out of business and have to lay off raters by giving you everything you were due all at once. How selfish. Merry Christmas , sir. Onward through the fog. Remember the motto: Win or Die (waiting). A Clear Prop!

Great. Now fire up the NOD machine and tell them the knees got worse while you were waiting (assuming they did). If they are worse than a 10%, it behooves you to accomplish it all in the same claim stream instead of coming back for an increase in 10 years and have them say it's just the natural effects of aging. I've seen it happen or I wouldn't say something about it. Merry Christmas and congrats. a cp

If your ENT is not a VA doctor, do this. Go here and down load the Word doc. http://asknod.wordpress.com/6051-2/ Print it up to fit your circumstances. That's why it's modifiable and not a .pdf. Give it to the ENT and it will help him understand what he has to do to substantiate his hypothesis. VA has to accept his analysis if he is indeed a licensed audiologist. VA is free to try to rebut it on the terms you mention of it being pre-service and not being aggravated by service. Your biggest evidentiary marble will be your MOS at this stage of the game. Buddy letters from fellow Vets who knew and served are a great asset. Absent that, VA is going to wrassle you on this one. You can win it because you are allowed the "Layno" (it comes to me by my five senses) presumption. If your credibility is not impeached, you will win at the CAVC and it will be a Pyrrhic victory with little monetary gain until you are deaf as a post. Just my observation but unless you need it to get to the 60% for SMC-S, it will be a empty popsicle rating- all stick and no flavored ice. Tinnitus- yes. That's the most awarded rating up to the invention of ear plugs and hearing conservation programs from OSHA in the late 80s. Actual hearing loss is most often a 0%. I got it for my left ear alone in 89 plus tinnitus. I can't hear squat over the ringing but VA doesn't count that. If they strap on the 150 dB headphones, I can hear some of it. VA's take is "Hey, you have two of those things, bud. If one goes belly up, you still have the other one. Get over it." In 2010, VA sent out a FAST letter or bulletin of some sort in 2010 that said VA docs can discuss only the disease process and progression but are not allowed to opine on the etiology or subjectively diagnose the origin. Some who have been there for centuries will still do it. Some won't. Remember, you'll never know if you do not ask. This is for application at a VAMC when you are dealing with your PCP. Do not try to bribe a C&P doctor or any QTC personnel. If you have private records, always bring them to a QTC dog and pony show. Only show them to the doc who does the deal. It's like pornography for them. They're secretly insecure and desperately want to know what other doctors think. Being wrong is right out for a MD. If you tip your hat at the front desk, they may take them away and throw them in the circular file. And by all means, have a Merry Christmas. a cp

Update is in on BVA decisions. It appears the third quarter posting is a little late. I guess VA will get the finals from the fourth quarter posted by March of '14. a cp

The old three-pronged fork, Carlie- "manifestly changed" is the chucklebump few seem to be able to overcome at the AOJs. Can it be that for 30 pieces of silver there are those who will not see? a CP

Here's the Espiritu/Layno violation:<<< I did file but withdrew because I told them the cause of my cognitive deficits were due to neurotoxicity from stress hormones during episodes of bipolar disorder and the C&P examiner wouldn't buy it.>>> You ain't a doctor, hoss. You need a medical doctor/psychiatrist to say it for you. a cp

One should be extremely careful with dependence on 3.156© for any number of reasons. VA has a storied history of throwing a wrench into that regulation. Did the Vet indeed identify these records at the outset or were they unceremoniously dragged in after the decision was final? Were the records material and would a decision to grant be based on their being probative? We all know by now that VA tends to downgrade their importance to undermine the applicability of 3.156©. We also know that they tend to say that the Vet should have brought forth these records in the initial stages of the claim. Introducing them later in the game can be prejudicial to VA (ha!). Lastly, was the claimant "helpful"? Boy, howdy is that a six lane highway to get around justice or what? Regulations are written by the Secretary and his clique. They were not written to help you. Legal verbiage looks and sounds Veteran-friendly until you translate it into Dickandjanespeak. Then you discover the concertina wire that prevents you from winning. Last but not least, be careful how you approach Espiritu. Layno is a far better vehicle for what you propose. Also, read the Clemons v. Shinseki decision here. I suspect it will give you much to base a good defense on. http://asknod.wordpress.com/2011/09/27/cavc-clemons-v-shinseki-2009-not-an-m-d/ a clear prop!

This sets up an interesting contretemps. When they grant back to an earlier date, if you had school-aged children who could have taken advantage of DEA, it creates an echo. Chap. 35 shuts down when they're 25, but if they're 38, do they get a bye due to this incongruity? Seems ''nonadversarial and veteran friendly'' not to mention the neighborly thing to do. I had one I helped who ran a doctor's office. She recouped all her medical back to 2003 when they filed for hubby's HCV, AO IHD, DM2 etc. So do tell Oh Phillip. I am preparing to sail back to 1994 and have the need to know. I suppose I could WestLaw it for $60/ minute. I don't see any precedence in CAVC/Fed. Cir. on this can of worms in the VBM. a

Yeah, they're running a little behind on mine, too. I've been waiting since April Fool's Day of 1994. Bill Clinton was president then. Hope yours gets some attention before Christmas. An interesting concept- both parties in Congress are so dysfunctional there is no clear voice speaking to the VA for intervention. VA perceives this and now feels no pressure from an inquiry whereas before it was akin to a Writ of Mandamus from above. Great. Just what we need-indifference and inaction at a time when the need for action is greatest and delay grows daily in spite of the promises.

More appropriately, I have dealt with Vets who worked under the table and never amassed a sizable, lifetime SSI accrual. When they become disabled early in life, they fall into SSD-not SSI. That's a whole different ballgame. Some I've helped get the minimum but none has ever been skunked. Someone's talking through the top of their hat. Never ever, ever, ever take No for a final answer. If you go in to the local SSI office and sit down with a rep holding that TDIU paper, I guarantee you you'll get the minimum which is currently about $968.00 /month. After two years you'll get Medicare, too. SSD was designed with you in mind. You do not have to draw off the spouse's and besides, I doubt they'd let you if you were born in the US of A. More people get screwed out of entitlements based on the "I didn't know" or Billybob's uncle said I was screwed so I just never checked into it. Boy am I dumb." What will it cost you? Or, what will it cost you if you do not go in and find out I'm right.Nobody starves in America. Look at all those undocumented aliens and their kids sitting there in Section 8 housing with Food stamps and X-boxes. They're getting------guess what----- Social Security money. Go get 'em tk. A sends

VA is an insurance co. Did you expect them to roll over? File your NOD and list the reasons why you think you got the short end of the punji stick. Point to regulations in Part 4 of 38 CFR. Point to GAF scores. Point to benefit of the doubt when awarding the next higher ratings percentage regulations. But most of all-Point. No NOD means you agree with them. Always appeal. The statistics say you aren't going to get better. This is Win or Die when dealing with the VA. Do it now when it's easy and get it over with or let it fester for a lifetime in dribbles. VA will apportion something for the ex and the kids and that is to be expected. Get it to 100% sooner rather than later by fighting it now. Best of luck. a cp

Meghp is braver than I. I will simply say ED encompasses SMC K and seems to be extraneous to this conversation. Please do not miss your 120-day suspense date for a NOA to the Court. I have seen many request a Reconsideration and all were denied. Asking for a MFR will not equitably toll the time for your NOA either. If you file the MFR, the BVA still has mandate and you cannot simultaneously file the NOA. It's a dicey Catch 22. The Court will reject the NOA in the presence of a MFR. FYI a

Spotz- Per your conversation #7 above, 60+50+20+10+10+10 (1993)= 87%> 90%. No TDIU in 1993. One must rate all ratings by date of entitlement as the base metric for the combined rating. The statutory presumption of the SMC S can only follow the accomplishment and official award of rating of TDIU (or 100% schedular). [Please remember the vernacular-a schedular rating is, by VA definition, the highest rating possible for a disability. Thus the schedular rating for DC 6260 tinnitus is technically 10%. This is confusing as VA also often refers to a "schedular" as a 100% phenomenon due to a single etiology] Yes, 50% and 30% unarguably add up to an additional 65%>70%. http://www.law.cornell.edu/uscode/text/38/1114 under (s) describes the schedular (100%) requirement but Bradley/Buie inserted TDIU in its stead. If the 50/30% awards occurred after the TDIU, that date would be for application of S. Mr. Buie's was an ongoing Fenderson staged rating of one claim stream that was uninterrupted. It might have encompassed multiple claims but it all occurred under the umbrella of one original claim that just continued to metastasize like cancer. Do not confuse it with one where periods of unappealed time occurred in between increases or newly-won claims over decades. Do you see the difference? Buie's claim, quite simply, was one long uninterrupted process. Your husband's, in contrast, is one with fits and spurts and dead times in between ratings-thus giving them finality. Unarguably though, the 50/30 is the "S" hammer. The term "statutory eligibility", or more properly phrased as statutory authority, can only refer to the two codicils expressed in 1114 (s). Either you have the requisite extra 60%, or you are indisputably housebound by virtue of SC disabilities only. Being disjunctive, either one fulfills the requirement. VA will often agree that you are H/B in the second instance, but will pawn it off on being a combination of SC and non-SC illness/injuries. It's an old delaying tactic as is most of what they do. You have to be strong. By not appealing, you agree with the rating. You make the call. Do the mirror test. Look yourself in the mirror and say "I deserve this" with conviction. If you cannot, then sit down. If you pass the audition, file the NOD and press on. God sends the Right. Apropos the Writ. I love them. For $50, you literally get to buy justice. The worst that can happen is a blatant dismissal but as we know , it always seems to somehow magically speed up the process for no earthly reason anyone can put their finger on. I call it FM-the second word being Magic. a

Standard operation procedure is to bump up, grant and go as low as possible (lowball) the amount on the due line. You have just encountered the first wall of resistance. Once the grant of TDIU is complete, it is a legal finding. A holding if you will. Unless VA can find some fault or mistake in this grant (TDIU), it is a done deal assuming you proceed in several years to P&T in a future exam. Some would point to the seminal Roberts jurisprudence on the wisdom of continuing to pursue an earlier date. VA decided to make an example of him but it has backfired. The OIG had no authority to investigate him. This will have interesting repercussions when they have to remunerate him for his four-year incarceration. You have one opportunity to complain and that is when the claim is won or in the succeeding one-year period from the date of the decision. If you do not object, it is assumed you agree. If there is unmistakable proof in the record that you were unemployed at the time of your filing and/or in the immediate preceding year, you should be eligible to that date. Remember, we are not talking about evidence developed after the filing date that would substantiate it as VA is trying to do by pinning their "date" on it-but genuine, rebuttable proof that bears out your contentions that you were dead in the water, you should be entitled to the earlier date. SSI/SSD records are, indisputably, good proof but not unless the disease/illness listed as the primary is also the primary rated illness/injury you are asking VA to base it's TDIU on. Odds are in an appeal, five minutes before you are set to depart to the BVA, VA will grant back a year earlier, find some idiotic, inconsequential date and point to it. It won't be the filing date though unless your case is airtight. Hey, get used to it. They're an insurance co. A dollar granted in 2014 is worth less than a dollar due in 2011 due to inflation. Besides, with no interest due, their philosophy is "Justice (and money) delayed is not Justice denied." I personally think they take great pleasure in it but I know in reality that the M21 computerized Ouija Board is the culprit. It manufactures standard delaying tactics until the piper has to be paid. Well, aided and abetted by a hierarchy disinclined to give VA's money away. a

I've discovered it helps to get a nexus letter from a doctor or a statement inserted by a VA doctor into your VISTA file that states in no uncertain terms that you are "Housebound in fact" if you do not drive very frequently and rarely leave home for anything. VA will often defeat this by saying "Yo. Look. He made it to the VAMC for his appts." You have to rebut that with statements from spouse/ children or friends saying they transport you because you, yourself, cannot. Be prepared for a lot of back pressure before they relent. PD is one tough cookie for VA to argue against though. Shoot. I only got Porphyria from eating Orange juice. You got screwed in the disease lottery. a clear prop

​When you attempt to reopen a claim, you must first pass a two-step test. Is it (evidence) truly new as in never seen the light of day? As for material, does it have a bearing on the claim that, in and of itself, would illuminate the accumulated evidence more clearly and possibly, when combined with prior evidence, lead to a win? If you pass those two tests (and they are far easier than twenty years ago), then the claim is reopened and you move on to the credibility issues. ROs are reknown for refusing to reopen and many successes only occur at the BVA. They are then remanded back to the RO for adjudication and a few more trips on the hamster wheel. But this has nothing to do with DROs and SOC timeliness so it would be advisable to move it to the appeals area. Sorry guys.

63-- A "reopen" of a previously denied claim will get the same treatment as if it was brand new if the evidence submitted to open it is truly classified as "new and material". It then goes into the credibility phase. If it passes muster, it is rated. Regardless of whether an FNG VSR does it, a RVSR has to inspect his work. If you win and it's over $25 K, it will require yet a third signature of either the Asst. Veterans Service Center Manager of the Big Cheese himself. Claims are claims are claims. Each is unique but the principle is essentially the same. CUE, of course is a horse of a different color. Evidence (or evidence of risk) is king here. Always has been and always will be. The date of submission of new evidence that indisputably shows entitlement to a higher rating is always the date of entitlement unless it precedes the filing for increase. In that scenario, you can only hornswoggle the boys into a year prior to your filing for increase. This is where untold numbers of Vets (at the urging of their VSOs)turn into chowderheads and accept an initial rating without appealing it. You get one shot at this. You have to prove entitlement percentages commensurate with the disease process from Day 1 of the filing. This is called a staged rating and can have big $ implications if you were on the hamster wheel for 10 years. Absent an objection (NOD), you are saying everything is hunky dory. It's called a staged or Fenderson rating and you can never go back. No Deloreans with flux capacitors. No CUE. No "They cheated me." Bitch.... or do not. Sorry you will be if you do not. Yesssssssssssssssssssss. a cp

So your SO's rating is 60+50+20+20+20+10+10+10+10= 91% as of 8/27/93. I would have pushed for TDIU then unless they just gave it to you. Back then you legally had to file the 8940 though or no dice. After that, the the upgrade to 30% from 20% for the visual loss would require a recalculation under Buie in 97. There, you would be 60/50/ 30/20/20/10/10/10/10=95% which rounds up to the magic 100%. In 1998, you began your climb of Mt. SMC-S with the addition of a new 10% for ear ring. Once again in 2003, the Buie rule book has to come out. Now you are 60/50/40/30/20/20=95 % and 10/10/10/10=30% if you take the uptick at 95%. Lastly in 2007, Buie says 60/50/50/40/30=100% Then 30/20/10/10/10/10/10= 70%. Now read the fine print of SMC -S which specifies that the additional 60% must be ratings that are not secondaries or for the same body system rated under a different code. (1) Has additional service-connected disability or disabilities independently ratable at 60 percent, separate and distinct from the 100 percent service-connected disability and involving different anatomical segments or bodily systems, This assumes TDIU standing in as a 100% P&T (but not schedular). This would be the kicker. Which disease or injury becomes the primary focus of the disability? The 60% from the Pit. surgery? It is the prime legal requisite for TDIU at that point in 1993 as a stand-alone rating but if you did not file the 8940, they would not be legally required to contemplate it. Technically, if you could point to that date and prove he had not worked in a year (i.e. from 8/27/1992) then you legitimately were entitled to SMC S much sooner as you would recompute the percentages differently once the TDIU subbed for a 100% schedular. Again, no filing of the 8940 would be a hindrance to the TDIU. The whole thing flies on the TDIU date if there was one in lieu of a finding of 100% combined that made you eligible. I see no reference to when or if your SO attained either one. a cp.

I cut mine off with a pair of scissors. What are they going to do? Divorce me or give me some horrible incurable disease like HCV?

You forget. When you file a NOD, you have to make the choice under 3.2600 whether you want a traditional appeal or a DRO review. If you choose the latter, you will not get a SOC until the end- but only if they deny it. You then file the VA 9 within 60 days of receipt of the SOC. In the event of a win or a rump decision that does not grant all you seek in your DRO review, you then file the VA 9. Only in a traditional substantive appeal do you receive the SOC directly and file the VA 9 from it. Few know that if you file a NOD and go the traditional route, you still get another impromptu review before a SOC goes out-and only by a DRO or RVSR senior to the VSR who originally rated you. Since you know this is going to happen, I often have my guys submit yet a new probative piece of evidence with the NOD such as an updated medical record that can be considered new and material. This really prompts a whole new decision under 3.156(b) and you get a much closer examination instead a rubber eyeball and rubber stamp denial approach to your contentions. J1VO. A SOC cannot be used to announce a decision either.