FormerMember

HOT OFF THE PRESS http://www.index.va.gov/search/va/bva.html?QT=&PS=&RC=1&MS=3

Hot off the presses. From now on, this is the form to file your NODs with. USB Allison "Wonderland"Hickey told me so herself. http://asknod.wordpress.com/2013/05/16/new-nod-form-21-0958-from-va/ It's so new, they don't have a .pdf fill out version yet. You can download it and fill out by hand. Be sure to write in insanely small letters with a burnt out ball point pen so they'll need a magnifying glass to read it.

I think this is the problem. You need, injury in service (check), current injury (check), and doctor's nexus (IMO) tying the two events to one another with supporting logic and a nuanced argument. Simply getting a doctor to say you are injured and in pain is elementary. Getting him to link the two is the cement that will hold it together (Caluza , Shedden or Hickson). VA is stating that there was not a diagnose condition to suport the buddy letter and wife statement regarding in service ocurrennce. For the record, you are not required to have your buddy or wife diagnose what your doctor diagnosed. They have no medical training to do so in any event. Each piece of evidence in a claim must be salient and contribute to a decision in order to be "material." If anything, you (or VA ) has it backwards. A doctor's diagnosis does not have to support the lay testimony of a buddy. Conversely, a buddy's (or wife's) letter can support a doctor's diagnosis. That would be the purpose, would it not? Each piece of evidence you submit builds the bridge to your claim. All you are missing is the Independent Medical Opinion (IMO) to complete it. Look more closely at the diagnosis. It is the crux of the issue. Degenerative disc disease? Arthritis? Then connect the diagnosis to what happened in service. I don't know what "RMC" is but if you have anything saying VA has the STRs, then that is the smoking "constructive possession" gun. Medrecs at VA do not disappear. Well, maybe in Dayton. They sometimes end up in a file closest to yours alphabetically though. My C-file has numerous misfilings of other Vets' info in it. My advice is rather elementary. Find the medrecs pronto. If VA has them, make them produce them or explain why not. When the records are missing, by law VA has a special obligation to go overboard to help you. All I've seen are "special denials" when this happens since I started doing this. You would also need a letter from NPRC saying "Not it! We gave them to VA." They only hand out copies now (2013) but used to send the original file to the VA in the 80s. VA has gotten a shady reputation of late because they lose a lot of stuff. Or at least that's what I've heard. Good luck.

Two things you need to know about Bob, Doug. He was there. He has red clay on his boots just like us. The next most important thing is that he used to be a VA law dog. He didn't cotton to what they were doing to Vets so he decided to work for us rather than against us. Listen to him weave his magic here at the Federal Circuit this last Monday for Mr. Henderson. http://www.veteranslawlibrary.com/files/Fed_Cir_Audio/2013/Henderson_2012-7028.mp3 No need for any hat-tipping. I trust you'd do the same for me or any one of us here if the shoe was on the other foot.

Add55p needs a diagnosis of a specific injury. A nebulous reference to pain (Sanchez v. West) without a diagnosis of a specific injury is his problem. VA is fond of asking you what you are filing for. If you are vague, they will "construe" it for you. Here, they construed Mr. add55p simply suffers from some unidentified pain and nothing more. No investigation into what the etiology of the injury was is not an excuse not to perform duty to assist and gather the evidence. In the same vein, it is a two-way street in that the Veteran needs to present some form of medical proof that he currently suffers from a disease or injury. Simply claiming it does not prove it. We are all aware of the Caluza triangle or Shedden elements needed to prove a claim. Since there is no Diagnostic code for pain, add55p loses. VA says they have no medrecs. Unless he served after WWII and before 1963 in the Air Force and his last name started with A-H, the records did not burn up in 1973. It's a classic Mexican standoff. add55p has no injury (just pain) so he loses. VA has not (and will not) make an attempt to investigate what the pain is because add55p was not specific. As for where the medical records are, if VA cannot come up with them, then the buddy letter has much to offer. I would not accept the VA's claim the records are "gone". Often, they get left at the last base you served at. You need to go in search of them. I suggest the internet. If you were an in-patient, there is another file of medical records apart from SMRs in St. Louis. There are three different files on each Vet. Inpatient (hospitalized records), outpaitient SMRs (or now STRs), and your actual military records. SMRs only deal with out-patient, sick call events. A word on the buddy letter. You have to stick with it now since it is in the record. Your buddy can supplement it with a newer letter and make sure it only discusses what he could have perceived with his five senses of vision, hearing, etc. at the time it happened. He is not a doctor but is allowed to testify as to what he saw, heard, smelled, tasted or felt with his hands. (Layno v. Brown 1994). Same for the wife. A word to the wise. The "new" revised buddy letters must not contradict anything already said or they will be tossed out as lacking credibility. That also throws the first letter in the trash can along with the second one. add55p's chances of winning at a DRO review would be increased dramatically if the buddy could personally testify at a DRO hearing in view of the lack of STRs. Ditto for his wife. But most of all, Add55p needs a bonafide diagnosis of something specific broken, bent, twisted, and permanently damaged that was caused by the accident in service that the buddy witnessed personally. Whoever determines that also needs to write a nexus letter that says it's at least as likely as not that the injury was related to the incident in service. Second-hand hearsay in a buddy letter will not put the bacon in the sandwich either. Watch a few Judge Judys to get the feel for how VA views hearsay conversations. . Best of luck on the endeavor, add55p. And thank you for being so unselfish with your time. Few hear the call. Fewer yet sign the line. Knowledge talks. Wisdom listens. Ignorance preaches. I read that on a sign today. I don't know where this one fits into the formula. I'm not the sharpest tool in the shed.

Oh, dear. I apologize, Carlie. I just thought a dose of reality was in order. A VSO once looked at me sagely with all the wisdom of the world in his eyes and said "You do know, Mr. Nod, that VA is not your friend?" I'm sure you are well aware of what a SOC looks like by now. Twenty pages of regulations and half a paragraph of denial and rationale. My personal best from them was thirty one pages of a DRO diatribe ending in"Exactly what part of 'no' is it that you don't understand?" I had a long talk with Doug and he's now had an equally long talk with our good radio talk friend Mr. Bob. Mr. Bob is shocked- I say shocked-that VA would treat this Veteran so unemotionally and dispassionately. Doing the Fenderson for an empty ice creme cone should come as no surprise to anyone. A gal came to me several months ago with a similar tale. She single-handedly beat the jokers at their own game and won her CUE all the way back to 1973. And the ratings envelope please... a whopping 0% to 2009. After the NOD, they begrudgingly gave her 10%. That's when she got the impression they were funning her and not taking her seriously. She promptly armoured up with a rainmaker. Thank you all here for creating and providing such a warm, caring environment for Veterans like Doug to inquire without recriminations. He was very well-served not by me but by the mere presence and tenor of the site. Any one of you could have chimed in and given him similar advice on the why and how of what didn't transpire and should have. I just happened by and opened my pie hole first. AO is one of those things that has more regulations, time strictures, and trees cut down to immortalize it in print than any other rating subject concerning presumptive diseases. Consequently VA rarely gets them right due to that very same problem. Your logo at the top says it all... "Leave no one behind". I had the misfortune to have that happen 43 years ago. Never again-ever.

When you're dealing with the VA, the learning curve is very steep. If you don't understand the statutes and regs, VA will be more than happy to explain them to you in your denial and SOC in great detail.

Jez, Doug. This just gets better by the moment. The medical records were at the VAMC? The Court of Appeals for Veterans Claims decided a case way back in 1992 called Bell v. Derwinski. It stands for what is called "constructive possession". VA had your records in their possession and never associated them with your claims file. Bell was decided July 21, 1992 so any claims that were decided before then are not applicable. However, you mention they dilly-dallied around with yours until 1995 for a denial. Now you can see why they gave you the 1990 date without too much fuss. Since this is the same claim stream now from 1990, you are entitled to what is called a retroactive Fenderson or staged rating beginning with a rating commensurate with your illness/disease severity. I think the 1983 date has merit. This is part of the original Nehmer #1 claims era and far more lucrative.Depending on where you are standing legally, you may be in high cotton.

Regardless of why they denied him, he's eligible for more. Look at 38 CFR 3.816. At any time you file for a disease and it later becomes presumptive, that becomes the date of claim. Whereas here, Doug went in for a Agent Orange registry exam in 1983 shows he was attempting to get some satisfaction from VA. That, technically, could be construed as an informal claim for benefits for AO. I'd darn sure fight for it because it's a ton of backsheesh bucks. If he has the definitive medical records showing txment and being under the care of a doctor, it has to be compensable. Patients do not visit their doctors for social chatter. Fight it with all your heart. I wouldn't rely on a VSO for this because it is cutting edge jurisprudence that is light years past their capabilities. You are going to end up fighting this to the BVA . It is the last opportunity to get all the evidence in before the inevitable appeal to the CAVC. You can get a half-hearted raise in ratings percentage but will never get that 100% from your RO. They just aren't prepared to grant that much that far back without a donnybrook. As a side note, the reason they (VA) sent you an application for benefits to file for the NHL was because they had identified you as a candidate for this via your Agent Orange registry. This is an open admonition that you were owed compensation. VA is not in the habit of seeking anyone out and asking them if they want to file. Good luck from a fellow Vietnam Vet, sir.

Draw a picture of a python swallowing hundreds of frogs. Put big lumps in the middle. This is the VA right now. All they are doing is swallowing faster (denying faster) to eliminate what's in front of them. There is no plan to fix this. Public opinion demands they do something-anything. Obama has already told Eric this is getting to be a political liability. USB Hickey just can't bring herself to approve these and do an audit later. Thus we'll have rapid denials with the same 40% accuracy rate until the perceived backlog diminishes. Strike that. The accuracy will diminish exponentially. The lump will reappear at the BVA because all you smart Vets will appeal these outlandish denials. We still have the same number of VLJs at the BVA (60). They, in turn, will be even more overwhelmed as if they weren't already. Their schedule currently is one decision per day.. Certifications (Form 8s) of appeals will just pile up at the VAROs in ever-greater numbers awaiting transmittal to DC. Nothing has changed except that denials will be sooner rather than later. There won't be an appreciable change. VA cannot change from within. They simply don't know how. This is a classic example of yet a new ploy to assuage Congress. When it falls flat like a cheap souffle, VA will come up with yet a new plan or a new scapegoat. They always do.

Mr. Rogers gives good advice on the timing. I filed a CUE in August 2012. When queried on the progress, VA insisted they never received it. I sent them a polite letter giving them the USPS article number off the Green card and the name of the mailroom clerk who signed for it. What was lost was suddenly "found" and the VARO proceeded with the claim. Well, they said they were proceeding. Ebennies say it will be accomplished NLT August 2014--well within the expected 2015 for the resolution of the claims backlog.

And thus a new "free-standing "claim is born. In several years, you'll get to the BVA and they will grant the request under equitable tolling and reopen your claim. It will begin all over again at the RO. Hamster wheel indeed. Now you see the need for the magic green card. Technically, the date of the postmark is the date of VA acceptance.There is a date stamp on the green Certified Mail receipt showing the day received. If you were less than 100 miles from the RO, it should have arrived in time. Check the card date for its arrival in the VA mailroom. Somebody is blowing bubbles if you have that much documentation that the filing was en route. Always remember there are two rules . You must prove the common law mailbox rule (proof of mailing). VA receives the more lax "presumption of regularity" which expounds that if they dropped it in the USPS pouch with the correct address, you received it. Best of luck.

Charles is not on point. Remember that there were two decisions. The unfinished 1980 denial is preserved by 3.156(b) as the Feds pointed out. Until VA issues a SSOC on that decision, Mr. Charles' claim is still open. The second, 1983 claim is what VA maintained subsumed the 1980 decision but it can't. Until the SSOC is issued on it, the 1980 claim is in the freezer. Charles stands for the fact that a second, unappealed (and indeed incomplete) decision on the same claim was attempted but abandoned without a decision. Thus the 1980 claim was not subsumed in 1983 as VA would like to believe. Refiling again and again never addressed the new and material evidence submitted after the original denial in 1980. Thus, any award on the claims in 2013 is just a continuance of the 1980 adjudication. Now that he has won, it will be remanded all the way back down to the AOJ for an award and an initial rating and THAT, ladies and gentlemen, will finally subsume 1980. Since it is going to be in his favor, a Fenderson staged rating will be forthcoming and a ratings % commensurate with documented medical records will be accorded after a long nasty fight. Oddly, SSD or SSI records can be employed to show markedly depreciated earnings or even TDIU. For a parallel of sorts, look at Bond v. Shinseki http://asknod.wordpress.com/2011/10/08/fed-cir-bond-v-shinseki-2011/ or perhaps King v. Shinseki. Here's some law to throw at it --http://asknod.wordpress.com/2012/12/09/pending-claims-doctrine/ King is on point for Kechup56 : Section 3.156(b) is intended to be a veteran-friendly provision that allows for the assignment of an effective date of the date of the original claim when certain requirements are met. 72 Fed. Reg. 28,778 (May 22, 2007) (explaining that §§ 3.156(b) and 3.400 “provide a claimant-friendly effective date rule for awards based on evidence received while a claim is on appeal or before the appeal period expires”). To accept the Secretary’s position that the Board correctly determined that the September 1996 RO decision was final would be to allow VA to ignore this claimant-friendly provision. It would also create the possibility that VA, by not considering evidence submitted during the one-year appeal period following the RO decision and simply waiting for the RO decision to become final, deprived the appellant of the earlier effective date associated with his December 1995 claim. This would be antithetical to the nonadversarial, claimant-friendly nature of VA proceedings. See Sanders v. Nicholson, 487 F.3d 881, 889 (Fed. Cir. 2007) (noting “VA’s uniquely pro-claimant benefits system”); Young v. Shinseki (2009), Muehl v. West, 13 Vet.App. 159, 161 (1999) (holding that records constituting new and material evidence received within one year after RO decision rendered RO decision nonfinal); 38 C.F.R. § 3.400(q) (2009) (providing that, as to new and material evidence received within appeal period, “effective date will be as though the former decision had not been rendered”). So... been down to the Dodge showroom looking at the new 2013 Magnums yet? Best of luck and watch your six at the RO. Sit in a corner and put your wallet in your front pocket. Take your protein pill and put your helmet on, too. You are in for a wild judicial ride. VA will deny this right up to the CAVC and cave in outside on the front steps at the 11th hour.

Well, yeah. I don't have a membership per se. If you need the knowledge you take it. I never had anyone show up that was obnoxious and rude. Most guys with HCV are like me and dieing from it. The rest took the "cure" and got fried. The ones over at Aunt Peggy's all went to SSI and filed because someone told them they were probably going to be considered drug addicts at the VA. Hadit probably has some excellent stuff on this disease too. Never limit yourself to one site. Some of the civvie ones like Hepatitis Central have some excellent health tips. That's where I found Ultrathistle. It has soy goop in it and it helps the body absorb it better. There's always more information around the next bend. Perseverance is the password and the middle finger is the Magic Handshake at the VA. \\!// (o o) –oOOo-(_)-oOOo–

To Relpats-- at the bottom of each post is a compendium of widgets-all of which can be clicked to take you somewhere. The next to the last is the word Comments. By clicking that, it opens a view of all comments and allows all of you to ask pertinent questions-or give answers to other Vets. The Comments section is the forum style you have here for all intents and purposes. Any Vet can speak his mind with no worries of recrimination. I think I set the squelch bar a little high on expletives because many who are religious do not enjoy reading four letter words. My mouth will never get me into Heaven but I don't pee in my own well either. I apologize if it isn't marked better.

I apologize to Hadit for using their name in my diatribe towards a misinformed medic. Every one of the gentle ladies and men here are a credit to their site for what they do to help Veterans. When someone publishes information knowingly incorrect, I cannot bear to allow it to pass. Criticizing one site can have ugly ramifications for all. That is the gist of my apology. I hope none of you think ill of me for trying to set the record straight. If you wish to view the post -- http://asknod.wordpress.com/2013/04/21/more-quackery-from-ye-old-witch-doctor/ No vets were harmed in the writing of the blog-just some egos.

Interesting analogies. The most apt is certainly "Anything you say may be used against you" with a codicil (if we don't lose it).

PR above has lots of good info (as usual), Your file is composed of three parts-left, center and right pocket. The left is used for dependency issues. Marriages, divorces, and number of dependents along with birth certificates are located here. The center pocket is the one of interest. It contains all ratings decisions, evidence submitted and evidence used in adjudications. The right pocket is for VR&E issues, training programs you've enrolled in, GI bill info if you used the program and VA Loans for houses. If you are actively engaged in a claim, it is a poor time to ask to get a copy of it. It requires pulling the file from adjudications and taking it to the room next door to the shredding area. There they make a copy for you. As Phillip mentioned, they technically have 30 days in which to comply but I've never seen it done in less than 90. Some have waited longer due to this current bump in the road called the backlog. Remember, this requires a GS-5 or higher to accomplish. Copy machines are incredibly complex these days and you have to be careful. You may be surprised to find other people's files mixed in with yours. They hope to cure this problem when they go paperless. Most importantly, filing a claim with no knowledge of what your opponent has as evidence already is foolhardy. Consider them like an opposing attorney. You need to have a "discovery" phase where all the cards are laid out on the table. From then on, the only things that can get into the file are rating sheets, C&P results and the evidence you tell them to collect. Your submissions will be included but you'll keep copies of those and know about them. If an "event" occurs like a C&P, you can ask for a copy of it. If you have a VSO, you can view it with him on a more regular basis if you wish. With the advent of the paperless VBMS, I suspect they will soon have a "blue button" similar to the MyhealtheVet that will permit a download at your residence via Ebenefits.

John- That is an interesting point. I filed CUE because the VA refuses to consider that medical records from an "off-road" Air America Hospital in 1970 in the boonies are " official service records". This will be an interesting case when it gets there. Anything produced by any entity during your service should be probative, admissible evidence. VA would put the added stricture in that they be "official service dept. records". All laws are malleable and subject to a new interpretation because every possible combination of circumstances has yet to be encountered. Each is unique and demands a more nuanced examination of the facts surrounding it. That's why I love law. VA law is even more interesting for that matter alone.

This one is really unique or I wouldn't come over here to share it. The Vet has drug issues and the IMO (#2) says they are equal to (but not more so) to the non-drug risks. Vet wins. This just never happens. Usually the drug misconduct outweighs any other consideration. This is a first for jetguns as a documented risk equal to any other. http://asknod.wordpress.com/2013/04/06/bva-hcv-win/

As with all legalities 3.156©(3) specifies that An award made based all or in part on the records identified by paragraph ©(1) of this section That means what it says. If VA can weasel out of it (and they try regularly), they will say the records you produced are (or were) not material in the grant. You have to be anally perfect when you bring them in and present a cogent argument as to why you would not prevail with an EED without them. It is not as stringent as a "manifestly change the outcome" standard (CUE). It's more along the lines of the "preponderance of the evidence" level.

His PCPhysician declared his DM2 was at least as likely as not related to his HCV. The RO promptly ignored it and denied. Shortly thereafter, he won his HCV. VA didn't go back and fix it so he filed CUE for it. They agreed and granted it. What they didn't do was give him 40% because he didn't have a note from his doctor telling to watch his diet and refrain from any 5K Fun Runs. Now he has to go back and get that entered in. Then back to the RO with the letter and so on. By 2014 he should have it sorted out- just before he dies.

A JMR from the CAVC is now running 6 weeks back to Vermin Ave. From there to your VARO is about six month turnover to a rating if it's an original claim. An increase might move faster if the medical info is onboard.

Gee. Anybody ever hear of a Notice of Disagreement? Did the word "appeal" come to mind? Ten years is a lot of time invested to consider walking away if the decision is adverse. I'd hold my cards and reconsider folding just yet, hombre. Whatever you do, come back here and tell us what occurred and why. I strongly suspect you just need more guidance than a VSO can offer (or is willing to). Wishing for the best.

Always remember, Special Monthly Compensation, be it "S" or even "R-2" is not a claim. It is an entitlement based on your physical circumstances. If VA did not spot it (the 100% +80%) somehow, that is error on their part. It requires notifying them. You do not "claim SMC". You inform them that you are eligible as of "X" date as evidenced by your ratings sheet in your c-file if they fail to award it. The M21 computer is supposed to spot this and regurgitate it automatically but no system is perfect and the backlog is so horrendous they may just be ignoring it. You might have to have your PCP write up a little note saying you are "housebound in fact" if you are rated less that 100% plus an additional 60%. Remember, the CAVC has decided that you need to be in "substantial compliance" with the requirements of a rating or SMC. VA does have the authority to grant "S" based on the individual's circumstances even when the lack of disabilities beyond the 100% schedular are absent. Thus, if you have Hepatitis C at 100% and PCT at 40% but are advised not to go out in the sun due to photosensitivity( or something similar like cryoglobulinemia/Reynaud's phenomenon), you can make your case. VA will only look at service -connected diseases/injuries when making this call. If you are indeed housebound in fact and are rated less than the required 100% plus an additional 60%, you may have to return to the VARO with a new filing for diseases secondary to the 100% to up it to 60%. This is what I am doing as VA turned me down in 2009. I'm at 100+ 40 +10 and lack a 20% rating to "legally" reach 60. VA can and will do this. To keep their minds on it, I included a request for "S" in addition to the new filings with my claim. As for the old admonitions about being "greedy", VSOs have been blowing bubbles about that for decades. After five years, any rating is protected if there has been no measurable improvement in the patient.It is cemented after 20 years unless predicated on fraud. Overthrowing the 5 year caveat is rare and must be predicated on sustainable, proven improvement that is expected to continue- not a flash in the pan remission for a year followed by Stage 4 cancer returning. As for a VSO not being aware of SMC? Well, I rest my case on the idea of using a VSO for anything other than a social outlet with it's own bar/restaurant. They mean well but they have no legal training. Look no further than the BVA decisions where the VA says you have no legal training and you did not bring a nexus letter from your doctor. Imagine having a VSO involved in it for 5 years on appeal and they fail to bring up this requirement which has been established law since Caluza in 1994. Hundreds of thousands of VSO-repped Vets find themselves wearing these fake ruby slippers every year.