FormerMember

Berta is excruciatingly correct in that aspect. BVA VLJs have to cite chapter and verse their CAVC cite to support their decision. VAROs do not as they build their predicate out of the M21-1MR. I used BVA decisions exclusively to construct all my appeals. That's where I get things like VAOPGCPREC -9-97 for an EED.

The first batch just popped up. http://asknod.wordpress.com/bva-hepatitis-decisions-2011/ You don't have to go to my site. I just put the link in if you're lazy.

Worse. I'm claiming 20%@DC 7345, 40% @ DC 7704 and 10 @ DC 6260. They refused since 4/2009 DRO, BVA denied 5/2012. OGC just asked for Motion to Dismiss and a pow wow 3/04. They have until 4/03 to act. If they balk, we go in the front door and ask for a reversal. PFB (praying for Bartley)

Vets confuse one thing on Fenderson regularly. Joe had initial claim(s) that he won, not claims for increase.Therein lies the difference. The varicose veins were not appealed properly on his Form 9 so he had to start over on that. When you file a claim for compensation and win, your disease or injury will invariably worsen over time. Given VA's proclivity to dawdle and take forever to adjudicate them, things go south in the interim. Thus, the ingrown toenail you had at separation proceeded to get worse as you waited for the rating. When issued, it was already outdated and required an upgrade to the next higher % due to toenailopathy. If you are denied and appeal to the BVA, chances are after three years it will again deteriorate. If denied yet again, you may end up at the Big House on Indiana Ave. NW with an amputated toe still awaiting an increase from 10% to 20% even though you now are eligible for 40% and SMC K. If you file for an increase on an existing rating, you can only get a retro rating up to a year prior to your filing-but only if you can support it with medical records. This retroactive stricture does not exist in an original claim. Fenderson ratings become cash cows where VA screwed up a claim and let it lie fallow like mine for 13 years (now 19). CUE claims are another big source of Fendersons as well. VASEC tried mightily in 2004(?) to throw out a Fenderson on an old CUE saying Joe's jurisprudence was not in existence when the CUE occurred. The Feds disagreed and he got his big ticket. I forget the case but it was a daisy and set the precedence for Fenderson's application in CUE claims predating his case. Fenderson is only applicable during that golden first year following your win. If you do not file a NOD disagreeing with your award, it is assumed they got it right and you agreed with them. You cannot return several years later and say they screwed up. Oddly, a Fenderson can go on and on for a long time. I see one on my horizon. Next month, when OGC agrees to my 1994 date at ?% on DC 7345 (the old hepatitis rating) I can medically prove that I am entitled to 20%. VA will try to lowball with 10 or 0. That will be the beginning. It will go on until they grant the 20%. At some point between 1994 and 2000, I became more ill. My earnings went down dramatically. I didn't spend a lot of time at the doctor's office and the records do not conclusively prove it. Your SSI records are very valuable if your medical evidence is scarce. Since VA granted 100% in 2007, I will need to come up with something to prove that I am entitled to more than the initial 20% as I progress to the 100%. I will lean heavily on the SSI to prove it. My serious medical records proof begins in late 2006. It will be a prolonged Fenderson because each cave in by VA that is less than what I want or deserve will entail a new NOD with their rating decision. This will start the appellate process all over again. To throw in a monkey wrench, the rating code changed in July 2001 when they inaugurated DC 7354 for HCV. The criteria is subtly different from the old (DC 7345) to the new and may create a contretemps where they have to jump up to 40-60%. They cannot go backwards as it is forbidden.What's more, it is also prohibited because by then I'll have a substantially protected rating older than 5 years with no change for the better. By the time Bob puts paid to this, it'll be over 20 years old. He can finally have his mid-life crisis a little late and get that new Corvette he's been dreaming of since his last divorce. If you think my case is extreme, consider one of a gal I helped to improve her win on a CUE all the way back to 1979. http://asknod.wordpress.com/2012/08/25/cue-a-rare-error/. She started by researching at my site and asking questions way back when. When she won, she was stunned and came to me worried. They tried to pawn off a 0% on her! VA begrudgingly granted a 10% to the present day (2007 filing) and then started taking it back for monies paid at separation. She is busy a) filing the NOD and b) collating a wealth of private medical records she's been collecting to buttress a well-orchestrated Fenderson to the present. She may be on her deathbed before she reaches fruition with these yokels. It will definitely be the Fenderson to end all Fendersons when she's done. Or....? VA may cave in (which I doubt). I referred the lady to our mutual Michigan friend LawBob Squarepants as I suspect she needs his able talents to prevent VA from rolling her like a drunken sailor. She had no idea Joe Fenderson even existed let alone his importance to her in the scheme of VA law. To understand Fenderson, you have to go back to AB v. Brown (95?) where they held that a Vet seeks the highest rating possible when he files. Anything less would be uncivilized. VA will make no effort to ascertain if you deserve more and often ignores the evidence before them to grasp at a lower rating. But Vets know that part, right? Check this one out:http://asknod.wordpress.com/2011/09/27/cavc-fenderson-v-west-1999-staged-ratings/ I love this subject. What could be more fun that bearding the lion in his own den? Why, a Fenderson so you can do it repeatedly for years and years. It also proves God comprhends judicial humor. More anon.

Remember this , too. The BVA say they have done away with the Extraordinary Awards Program.(EAP) after it was declared illegal. Nevertheless, they have an unwritten rule that they aren't going to part with large settlements without testing your mettle and desire to fight for it. Thinking foolishly that this might induce them to grant my EED back to 1994, I went the DRO route after my win in 2008. A year later, even with 8 1/2 X 11 glossies and a power point presentation, the RO refused to budge. It would have been a Fenderson culminating in about 60% from 94. They fought me tooth and nail on every contention to the point of having three different arguments for why they did what they did in 94. Finally, at the Court, they changed their argument. Sometimes you are not going to roll these guys at the RO level no matter how good your argument. There are many from the Miss Peggy Pink Site who contend that VA follows the Grant when you can. Deny if you must. theory. I don't buy it. Once they make up their mind to deny, it becomes their mantra. I won an increase from 10% to 40% for Porphyria Cutanea Tarda for phlebotomies on a DRO but they still denied the 94 date. They were wrong and they knew it but they stood their ground. I like the philosophy of "on any given day, at the right RO, in the best of circumstances, you can win it." It all depends on the luck of the draw that you get a DRO with intelligence. Is there such an item at the RO? That's debatable.

Logic dictates that if you have no new evidence to submit, asking for a DRO Review instead of proceeding to the BVA is pointless. Asking someone to re-review the same thing and decide differently is loosely the definition of insanity. Why would you expect a different result? On the other hand, if VA has made an error based on a misinterpretation of the statute or regulation, this would be advisable.Simply asking for a do over at the RO is pointless absent anything new to rebut the old decision. As for the BVA having legal training, this applies to the aforementioned possibility of an error and their ability to see it. VARO personnel are remarkably dense and depend far too much on what the magic M-21 8 ball spits out. The VLJ at the BVA has a coterie of about 10-12 staff attorneys who research the decision (sometimes) and come to a different conclusion(occasionally). Lastly, a DRO review will take a year from denial if not more. An appeal to the BVA will cause the claim to sit awaiting certification for a year at the RO before transmittal to DC. In VAspeak, that's an in-basket problem. There's no room to put the claim in DC so it sits at your RO waiting its turn to go to appeal. I prefer moving forward all the time. Going to DC is preferable to waiting for a new denial with no new evidence. If you have the resources, you can file the appeal and still pursue new evidence while you wait. You may submit it up to 60 days prior to the BVA decision without fear of a remand to reconsider it if you have signed the waiver of RO review. Every case is different. Ask for advice. Never stand pat.

What I see here was a perfect place to file a Writ of Mandamus to compel the VASEC to comply with the NOD. Very poor advice from the VFW. A Writ would have put the bacon on the BLT in less than six months. If you have proof of mailing and there is no argument about the presumption of regularity ( that the the USPS delivered it) then equitable tolling kicks in. You do not have to resubmit the document. VA has to produce it and right now. If they cannot, then you are free to submit whatever you want as an original document in lieu of the 2010 NOD assuming there are no copies. VA is the guilty party. Your green card is your ticket to Paradise. Getting back in line just put you back another three years to any meaningful resolution. Add another for a DRO to manufacture a SOC. I did the same thing. I filed in 1994 and VA dropped the ball after my NOD. I refiled in 2007 and won. Like a dummy, I went down the DRO road and lost another year chasing the EED. No dice. Now I'm at the CAVC and VA has finally (five years later) admitted they may have stepped on their necktie. They're offering 94 and an olive branch to walk away from Indiana Ave. I could have just gone to the Court first and said "Yo, about 1994. When are we going to complete that? I'm still waiting." In your case, VASEC would have about 90 days to answer as to why 2010 didn't happen and about another 60 following execution to produce some meaningful conversation about how he was going to make your boo-boo all better in no time flat. Meanwhile the Court would be in his shirt pocket observing the whole thing in case he decided to slide a little. Those are the decisions we like to read about.We haven't seen a good one like that since Jean Erspammer did it back in 1991.

VA has increasingly insisted (although it had been declared immaterial) their own doctor's IMO or the C&P is more probative because the VA doctor had the whole c-File to review. If your IMO is merely a compendium of "The Vet reports that...", VA will say that it is subjective and not nearly as informed as theirs. This is happening more and more to get around the CAVC decision saying that even if the private physician has not read the STRS, then his nexus is still probative because a Vet is capable of reporting symptoms he can ascertain with his five senses. VA is affirming more and more VARO decisions this way. Always get and provide your IMO doctor with you STRs. It at least puts your nexus on a par with theirs. After than it's all about who provided the most nuanced nexus with the best supporting medical research backing up their reasoning. In the same vein, emphasize your IMO is written by a doctor schooled in the science of your disease/ injury. VA uses proctologists to opine on cancer.You, on the other hand , will require an oncologist rather than a podiatrist. VA can use a lowly CNA or ARNP and say he/she is knowledgeable. If you use less than a MD with 4 abbreviations after his name, you may lose. If you show up with an ARNP or PA's nexus, don't be surprised if the VA wins with the proctologist. Lastly, if VA sends out for an IMO with an "independent VHA expert", you have sixty (60) days to contest his/her credentials and discover they did the bait and switch with the butt doctor instead of an oncologist. Keep that in mind when you start shopping for an IMO. Regardless of what the Courts have decided on the treating physician rule, having your own doctor who has known you and your disease process/ history of injury many years does carry a lot of probative weight Remember always-bare conclusory facts, unsupported by objective evidence are accorded no probative weight and are not considered viable evidence regardless of who is trying to moonwalk it by the judge. A VLJ may deny but it won't pass muster up at the big house.

I see you are referring to 38CFR 20.1403(e): e) Change in interpretation. Clear and unmistakable error does not include the otherwise correct application of a statute or regulation where, subsequent to the Board decision challenged, there has been a change in the interpretation of the statute or regulation. Having found myself on the wrong side of the fence with VA so many times, I now parse every regulation I can find on the exact nuances of a claim. I stand corrected for my semantics. Read the first part slowly and you will see it is not CUE, per se, but VA going back and applying the correct application of 3.303(b) vis-a-vis 3.309. The regulation, 3.303(b), has not undergone a "change of interpretation". It has simply been misread and nothing more. If VA made a mistake by granting less than 20 years ago, they can simply point out they"misread" the clear meaning of it and only now have come to Jesus. Look at Russell, Fugo, Layno and their progeny for precedence. VA can go back and cure their mistakes. A CUE claim would be more in the vein of these where new meaning was derived from existing law. 3.303(b) wording has never changed (remarkably) since it's more modern inception in 1947 therefore it has not experienced a "Russell" moment (manifestly changed the outcome) or a Gilbert (clearly and unmistakably erroneous) one. The old (incorrect) 3.303(b) interpretation is merely a brain fart and will almost certainly be showing up at the Court in five years when some poor soul gets the 3.303(b) haircut on his 7-year old continuously chronic bad back. I pray otherwise but I know them. They can't let this moment pass without several thousand crucifictions. It's what they dream of.

Going into the VA lion's den without an IMO/nexus has always been like swimming with hungry sharks- even before Caluza was decided in 1994. I find it odd that VA, who is a past master at denial techniques, allowed this to slip through the cracks for nigh on to 60 years before they made this argument to the Court. It's a lose/lose for Vets in most respects but if it was predicated on a false premise, then Vets will have to learn a new work around to accomplish what they were accustomed to all these years. Hadit and crew will just have to teach Vets how to fashion a better mousetrap. Vets are remarkably resilient so this should only be a temporary setback. The problem is the large number of more recent claimants who have won based on it. With the advent of the searchable .pdf and the introduction of VBMS, this defect is going to stand out like an 81 mm flare on a moonless night. Lots of Vets are going to be receiving some unwanted mail announcing VA's intent to rescind their ratings if they are based on an incorrect reading of 3.303(b). They will be the losers who have to start over.

You sure don't need a fart detector to find the stink on this one, sir. With all deference to the Bergman and Moore Law dogs, the Fed. Cir, couldn't have made this more clear if they had hired an airplane for a week with an enormous sign in tow. if it isn't in 3.309 then you cannot use 3.303(b). Period. Everyone will now need a nexus letter if they don't have one of the chronic diseases enumerated in 309. Dr. Bash and the Brothers Ellis are in high cotton. It's enough to make you want to find some venture capital and start your own QTC for Vets.

First fallout from Walker-- 7 days later (at the CAVC no less). http://asknod.wordpress.com/2013/03/03/cavc-mcmillan-v-shinseki-bad-news-travels-fast/ This is just the tip of the iceberg. In a month, this precedence will be in about 3 out of 10 new denials..

LawBob Squarepants epitomizes what I would want in any attorney. He's a Vietnam Vet, he used to be an attorney for the VA and he is nothing if not ruthless in getting his point across. These are three prerequisites for any VA attorney in a judicial atmosphere that ignores due process. Just keep pounding the point home until they recognize or acknowledge it. If not, keep appealing higher. Vets who recently won (in the last five or so years) who relied on 3.303(b) based on a disease or condition not listed in 3.309(e) are in for a rude wakeup call when VA comes knocking. Rarely have I seen the Fed. Cir. upset the apple cart and reverse course so abruptly. I fully understand the logic but the repercussions are going to be like a tsunami coming ashore.

Berta- the enigma arises because 3.303(b) only deals in disease-not injury. 3.303(a) is the only one that envisages hearing and hearing loss. This whole decision hinges on the fact that Walker's rationale for his claim of chronic continuity is based on a condition (hearing loss), not a disease that caused hearing loss. The VASEC nailed it with: The Secretary thus concludes that “every ‘chronic disease’ is persistent or long-lasting, but not every persistent or long-lasting disease is a ‘chronic disease’” for purposes of §3.303(b).” Walker supra. Oh. And by the way, VASEC called Bob today and wants to talk turkey (finally) Bob said "The bid is now 3 no trump.".

This will be ugly for Vets. It upsets Savage v. Gober, Barr v. Nicholson and several other newer ones including Groves v. Peake. Suddenly a chronic disease is the only thing that can exhibit continuity. A chronic injury cannot. Expect a landslide of CUEs issued in the next several years as VA goes back and cleans up the broken glass. http://asknod.wordpress.com/2013/02/25/fed-cir-walker-v-shinseki-%C2%A73-303b-says-what/ I do hope SCOTUS overturns it but I somehow doubt it. Vets are not exactly high on the list of priorities these days as much as we are told otherwise.

Just a minor legal point- A SOC is followed by a Form 9 to complete the substantive appeal. A NOD, on the other hand, is filed in conjunction with a disagreement with a decision. You have 60 days to submit new evidence a la 38 CFR 3.156(b) in order to provoke a SSOC or a grant. This is covered by 38 CFR 19.31. VA is in the habit of filing the claim in the circular receptacle if you fail to perfect the substantive appeal. Since it will take them a year to review this, best to submit new evidence as well as the Form 9 and hash it out without losing the claim due to failure to complete the substantive portion. See also VAOPGCPREC 9-97 for guidance.Best of luck.

Consider this enigma, too. They wrote 3.350(f)(4) up such that it only allows a maximum advance up the SMC ladder to O and no more will afford entitlement to the next higher statutory rate under 38 U.S.C. 1114 or if already entitled to an intermediate rate to the next higher intermediate rate, but in no event higher than the rate for (o). What this means is that you can only take advantage of the 3.350(f)(3)(4) 50% &100% schedular rule to go up to O or four (4)100% ratings above and beyond your initial 100% schedular. Notice there is no talk of being paralyzed from the neck down, blind, deaf or in need of Aid and Attendance in conjunction with the 100% ratings nor is there any discussion about which bodily function is affected. . The codicil incorporated into 3.350(f)(4) is dispositive of any other regulation or the prerequisites required under the SMC. That is, until you read the last part of either (f)(3) or (4) In order to take advantage of this at the SMC-L rate, the Veteran would have to have lost the use of both feet, one hand and one foot, be blind or bedridden if a strict interpretation of the subparagraph is read. In the application of this subparagraph the single permanent disability independently ratable at 100 percent must be separate and distinct and involve different anatomical segments or bodily systems from the conditions establishing entitlement under 38 U.S.C. 1114 (l) through (n) or the intermediate rate provisions outlined above. That does put the fork into it. Absent the requirements of SMC-L, all those 100% schedulars are good for are a glorified SMC-S. But... you can advance to SMC-O via three 100% schedulars above and beyond the requirements of SMC-L. Mea culpas are in order. Sorry Tanker. You are probably correctly rated. However, I wouldn't accept it as cast in stone. I am the perennial positive thinker. Were I faced with this, I would file for it and hire Ken Carpenter or Virginia Girard -Brady to do my appeal based on the ambiguity and unclear wording. In any event, the strictures for employing this are so high as to almost preclude anyone from attaining it. High, but not impossible. Explore the possibilities, Tanker. Does you peripheral neuropathy so completely disable you legs so as to make them substantially useless for ambulation? You mention a power chair (scooter) for mobility. Obtaining a carefully worded nexus might create the conditions to support SMC-L. In that case, you could claim the (f) (4) rule and attain SMC-M legitimately. However, you could not advance beyond that unless you further complied with the SMC-M 1/2 requirements. The mountain becomes steeper and steeper the further you progress up the SMC ladder via this path. Each succeeding step requires you to qualify with the prerequisites of the intermediate if you wish to go higher. VA law is always in flux. The VASEC has chosen to add this to 38 USC 1114. It isn't in the statute so it can be attacked. The interpretation of 38 CFR is still a matter of first impression at the Court.

38 USC 1114 is a guideline. 38 CFR 3.350 (f)(3) and (4) are the definitive regulations that control this situation. Read only what the VASEC has written into this and no more. Ignore SMC-S. That is an artificial barrier to understanding and becomes a moot point in short order as you will see.. In addition to the statutory rates payable under 38 U.S.C. 1114 (l) through (n) and the intermediate or next higher rate provisions outlined above --looking only at this, you can see it is disjunctive- i.e. an addition to the rating codes above and beyond what is enumerated in the statute. additional single permanent disability independently ratable at 100 percent apart from any consideration of individual unemployability will afford entitlement to the next higher statutory rate under 38 U.S.C. 1114-- Here's the disqualifier. You must be rated 100% schedular for one disability. If you are rated again with another (second)100% schedular disability that does not encompass the same condition (i.e. separate) and it affects another body function divorced from the first 100% schedular award, only then are you entitled to the next higher award. Since SMC S is the stepping stone to a higher rating (via 60%) and predicated on a percentage value , it follows that the VASEC intended the next jump to be SMC-L. The disqualifier is clear. Unlike in Buie where a TDIU can stand in as a separate 100% rating qualifiying you for SMC S, , 38 CFR 3.350(f)(4) demands a true 100% schedular. A TDIU P&T would not be a qualifier as it is less than 100% schedular. VA rated me for PCT at 10% and said that would encompass my phlebotomies. They did not volunteer that DC 7704 Polycythemia Vera has a rating of 40% for this. I asked and they granted. Similarly, do not expect VA to arrive hat in hand and say "Pardon Us. We just noticed you have two schedular ratings and a shit ton of others that add up to more than 50% so we now are going to start paying you L from ________ date." They might notice it by 2015. Then again, they might never notice it. Obviously JVretiredvet cannot comprehend it as it's written so it stands to reason that the boys down at the VARO are going to be equally flummoxed. File... or do not file. I merely point out the financial remuneration will be greater if you do. You are free to seek counsel with those who disagree. That is why this site exists. I stand corrected. See my post below.

Chalk me up at 21. I came home on May 19th, 1972 coughing up blood after two years in Thailand and Laos. Marlboro Reds were deemed the culprit. My skin continued to blister and leave scars. By 1989, my wife was sending me to doctors for a dx because my skin was suffering horrible mechanical trauma. It was then determined to be subcutaneous strep. Then subcutaneous staph. Then Rule out poison ivy. In 1992 a skin specialist, freshly back from a symposium on AO in Las Vegas, dx'ed the Porphyria. VA said no dice in 1994 because I didn't file within one year of last exposure(1973) and couldn't show any red clay between my toes or on my boots. Try this logic on. How do you file for a disease nobody knows about until 20 years later or is willing to admit is related to AO? AO has been a long time in denial and even longer as to where it was used. With only 860,000 left holding the presumptive papers, they still have not touched on the overwhelming evidence of autoimmune disorders. That will occur when none can profit- much like "sub-acute peripheral neuropathy" or chloracne. You have to admit. VA is good at denials. When I conclusively proved I was there and even had paper to prove it, they moved into argument #2- you didn't go see a doctor or complain about any AO problems until 1994. Well, gee willikers. No duh. How can you complain (or file) about something they were denying was related to it? Their logic defies reason. But then, it always did and will. Many trees will be subsumed for pulp to print their apologies on after we're gone. Shoot. They may even strike an AO medal and give it to our kids posthumously. It makes me feel all warm and fuzzy at the prospect.

Shocked. I am shocked. The VA doesn't always follow the rules? Round up the usual suspects. Assemble a posse. Someone fetch the hounds from the kennels.

Interesting. The old Knick knack, paddy whack give the Vet a bone approach. Up the ankle to 30% and the thumb to 20% but ignore the IU and pray he's never heard of it. Working is his obvious IU barrier but 100% for any one of those other conditions is never going to come to pass. Attaining it on PTSD is becoming increasingly more difficult now that VA controls the vertical and horizontal on bent brain C&Ps. Gone are the days of your treating psycologist/psychiatrist inveighing on your behalf and prevailing. JTL111 is going to have to revamp his GAF score dramatically (no small feat) downward legitimately VA will pore over his records and conclusively "prove" that he can still engage in sedentary work that doesn't entail ankle/thumb/knee manipulations. Lord help him if he has anything higher than a high school diploma. That will doom any IU. similarly they will "prove his PTSD does not warrant a higher rating by virtue of a stable GAF and the virtual absence of a handful of other indicators like suicidal ideations, etc. In sum, he has a lot of small potatoes that add up to a large but non-threatening work impairment. Were he to have a 50% for pretzel brain and 60% for lumbar/cervical, this might fly. Tinnitus and toejamb football do not an IU make nor will you ever see 100% schedular for an ankle-let alone a knee or a thumb. I do not subscribe to the Safeway Slip of the Month Club path to financial security so I don't see his suddenly winning the 100% lottery on the brain. VA is not the brightest light on the Christmas tree but they'll see through this in a heartbeat. Besides, it would be dishonest and I abhor that. A Vet is free to apply for whatever he feels is SC and pursue it right or wrong. If he does it purposefully to attain an undeserved rating, that is a Bozo No-No. Suddenly quitting your job or contriving a "showdown" that results in unemployment during this increase filing will be viewed by VA as orchestrated for a higher brain %. That can backfire horribly. I do not imply this gentleman might indulge in this scenario. I simply point out the pitfalls. I often counsel Vets to concentrate on the Big 100% Prize from the outset. I have seen too many string together pearl necklaces of 10 and 20% ratings only to hit the magic 60% wall. Here, it's 90%. Each new 10% adds about 1% in the 38 CFR 4.25 world. They never get there but they are nevertheless saddled with what they have wrought. VA sees this and will point out that no single, individual disability, by itself, is debilitating enough to render them unable to pursue (and attain) meaningful employment. Forewarned is forearmed. If the bent brain box is a severe handicap, so be it. Focus on it to the exclusion of all else. Build your case slowly and carefully with many doctor visits and a lot of documented evidence. This one isn't going to be resolved in two or three years. If the PTSD matures like most do, the rating may float upward as the disease progresses but not before a decade or more passes. There are exceptions to any rule, but the die is cast on this one now. It might be time to fold and wait a while for new cards and a better diagnosis. Rx? Don't quit your day job yet. One last point. If you didn't appeal the 50% for the PTSD initially, you agreed with them that it was the proper rating. It's somewhat difficult to return later and explain your GAF is sinking like the Titanic and you were mistaken. With that said, I wish you the best of luck and appreciate your feeling it necessary to serve your country. I see you were also smart enough to do it in the Air Force. As I pointed out to all my Army and Marine friends after Vietnam-why did you walk when you could fly? How do you guys think you got flat feet? Was it that really neat blue color on the CIB that made you go for 11Bravo MOS?

Allow me to elucidate. You would have won the tinnitus/ hearing with or without the VSO. 11B is a "No duh!" for hearing loss. So is Artillery. The next thing you need to know is VA hands out hearing loss/tinnitus at 0% like beaded necklaces at Mardi Gras. Try going for TDIU on hearing or 20% for that matter. You'd have to have almost total loss in one ear and a goodly amount in the other to even talk about 40%. Tinnitus is 10% max. or $1.25 a month. Peanuts. VA is not so forthcoming when it comes time to go over 30%. Ask Vietnam Vets with DM2. VA doesn't want to start paying the better half and the rug rats. Always remember, they are an insurance company albeit a government one. The object is to save the company money by denying. Why is that such a hard concept to absorb? 85% of us hit the wall- many of whom are deserving. After a good 10 year fight some win all they are owed. I'm into it 23 years. VA is still fighting me. Why? That's what they do. They have tons of lawyers and money. You, on the other hand, do not. I will prevail if I can live long enough. I just want them to admit they cheated in 89. I'v almost maxed my rating. Money isn't the issue. It never was.

An IMO will not avail this gentleman. As BroncoVet pointed out, the CAVC (and the 3rd Circus) are Courts of Law, not triers of fact. Mr. MOS1833 would need a remand for some defect of law in order to submit new evidence such as an IMO. Once the RBA is sealed at the BVA and the decision ink is dry, no more evidence is allowed to be entered into the record except under a mutually agreed upon scenario between the the parties as well as the court clerk. This is extremely rare. Asking VASEC to allow in (or to send out for) an IMO at this point is not going to be greeted favorably. Absent some earth-shattering legal epiphany, he will not be granted a Full Court review. His case must have had some significance if he even received a panel review. That it failed indicates much. If your own attorney says it's not viable, I don't see how asking for a full Court review will breathe new life into it. The Fed. Cir. won't even look at it if a matter of law is not raised.

And few people know AirAm had two PC-6Cs outfitted for AO spraying. They kept them down at L-08 Wattay (Vientiane) and loaded them for spraying up at 20 Alternate. The tanks were in the cargo area behind the pilot and invisible from outside. They sprayed downwards out the belly hatch. There is so much to learn and use for claims. The internet is a Godsend for Vets.

Here's another piece of the puzzle that will help Thai/Cambodia/Laos Vets. The truth is out there. http://www.viet-remf.net/The%20Exclusion%20of%20Thailand%20Veterans%20Report.pdf We sleep at night with one eye open at asknod.org. VA doesn't want this out of the bag because it would put them and Uncle Sam in the poorhouse. The military wasn't about to let on that they were running C-123 spray aircraft out of Udorn and NKP. The King of Thailand forbid it. The fact is , it was closer to the trail flying from up-country than from Bien Hoa. Check out the pictures for your claims.