FormerMember

Here's a good one. Fresh off the VBMS Computer. Thailand Vets can win. It takes finesse. 
https://asknod.org/2019/11/11/veterans-day-2019-udorn-rtafb-my-band-of-brothers/

VA Claims Insider is not accredited. The VAOIG and VA Accreditation are both preparing to drop the hammer on all these fly-by-night  "Vet Helpers". Expect to see a Congressional Statute in the works soon making it illegal to poach Vet's compensation checks.  

VA Claims Insider is not accredited. The VAOIG and VA Accreditation are both preparing to drop the hammer on all these fly-by-night  "Vet Helpers". Expect to see a Congressional Statute in the works soon making it illegal to poach Vet's compensation checks.  

VA Claims Insider is not accredited. The VAOIG and VA Accreditation are both preparing to drop the hammer on all these fly-by-night  "Vet Helpers". Expect to see a Congressional Statute in the works soon making it illegal to poach Vet's compensation checks.  

This one is simple. Remember to research and you'll find everything. §3.350(a)(2)(i)(a),(b) 
(2) Foot and hand.
(i) Loss of use of a hand or a foot will be held to exist when no effective function remains other than that which would be equally well served by an amputation stump at the site of election below elbow or knee with use of a suitable prosthetic appliance. The determination will be made on the basis of the actual remaining function, whether the acts of grasping, manipulation, etc., in the case of the hand, or of balance, propulsion, etc., in the case of the foot, could be accomplished equally well by an amputation stump with prosthesis; for example:
(a) Extremely unfavorable complete ankylosis of the knee, or complete ankylosis of two major joints of an extremity, or shortening of the lower extremity of 3 1/2 inches or more, will constitute loss of use of the hand or foot involved.
(b) Complete paralysis of the external popliteal nerve (common peroneal) and consequent footdrop, accompanied by characteristic organic changes including trophic and circulatory disturbances and other concomitants confirmatory of complete paralysis of this nerve, will be taken as loss of use of the foot.
VA is adamant that you have a doctor state in no uncertain terms that "no effective function remains other than that which would be equally well served by an amputation stump at the site of election below elbow or knee with use of a suitable prosthetic appliance." Even then, VA will fight you on this. I've had doctors state it in haec verba and still have to appeal to the BVA to win them. VA doesn't like granting the higher levels of SMC- especially LOU of both lower or upper extremities.
It's easier with Parkinson's. Just get your neurologist to state you have an immense fall danger and that endangers your perambulation. You can also rely on Tucker v. West; Jensen v. Shulkin; §3.809(b); §4.10 and a few others. Remember, the injury has to be separate and distinct from any other disease or injury to try to get to SMC o/R1/R2.
 

Great win. Never enjoyed helping a Veteran more than this one. 
https://asknod.org/2019/10/31/born-to-be-wild-the-newest-100er-club-member/

VA insists ILP is still a vehicle to take you back to work. If you can't work, then how is that possible? VAOGC Precedent 34-97 says "avocational" as in hobby. No one will acknowledge that yet it is one of the few precedents that control. The other one is that all your disabilities, not just SC ones, must be considered in awarding ILP. VA refuses to acknowledge that as well. ILP is 7/8 of the VR&E iceberg you never see.

I think the answer is simple on this one. Mr. James G was just awarded 100% SC for his heart (The award letter (received Sept. 5th 2019) say's they will schedule says they will re-exam me between April & October 2020 !!!)  100% is an extreme rating for a heart. The note under §4.104 DC 7000-7011 says:
 Note: A rating of 100 percent shall be assigned from the date of hospital admission for initial evaluation and medical therapy for a sustained ventricular arrhythmia or for ventricular aneurysmectomy. Six months following discharge, the appropriate disability rating shall be determined by mandatory VA examination. Any change in evaluation based upon that or any subsequent examination shall be subject to the provisions of § 3.105(e) of this chapter.
The Examiner discusses April to October-well within an acceptable re-examination period for a final rating after the temporary 100% rating is over. September 5th plus six months is... March 5th. 

I think the answer is simple on this one. Mr. James G was just awarded 100% SC for his heart (The award letter (received Sept. 5th 2019) say's they will schedule says they will re-exam me between April & October 2020 !!!)  100% is an extreme rating for a heart. The note under §4.104 DC 7000-7011 says:
 Note: A rating of 100 percent shall be assigned from the date of hospital admission for initial evaluation and medical therapy for a sustained ventricular arrhythmia or for ventricular aneurysmectomy. Six months following discharge, the appropriate disability rating shall be determined by mandatory VA examination. Any change in evaluation based upon that or any subsequent examination shall be subject to the provisions of § 3.105(e) of this chapter.
The Examiner discusses April to October-well within an acceptable re-examination period for a final rating after the temporary 100% rating is over. September 5th plus six months is... March 5th. 

The answer is no. Your SA is secondary to your PTSD so VA will not count it as separate and distinct. 20+20+10= 42% which rounds down to 40%. Which is not to say they won't make an error and give you SMC s. It will create an overpayment and VA can recoup it at any time.
P.S. As others have commented about the possibility of a grant of  SMC at the (s) rate predicated on  §3.350(i)(2), I  will address it now as well. I presumed Ray AO would have discussed he had agoraphobia of other psychiatric disabilities (or potential risk of harm to himself or others due to insomnia or hypersomnia) had he wanted information on that potential entitlement facet (substantially housebound). 
As he specifically asked if he was entitled under §3.350(i)(1), I addressed that question as to whether the sleep apnea would qualify, not if he was substantially housebound. It would appear very clear that Ray AO is more than acquainted with 38 CFR than others give him credit for. He  knows the potential disqualification of secondary conditions such as sleep apnea if they are not separate and independent. Ray AO would need to submit a VAF 21-2680 Housebound form signed by a doctor stating he is substantially housebound in order to be granted entitlement to SMC (s). 
I chose to read the complete post from start to finish. Ray AO clearly and unmistakably cited to that which he was inquiring about - entitlement to §3.350(i)(1). Nowhere in the four corners of his post could I ascertain anything else. 
"I’m going directly to the point after this. 
Do I actually qualify for SMC’s1??"
  

I'd like to thank Theresa for letting me help other Veterans on this site. Some eventually come over and ask for representation if they keep losing. My Vet Ed here was not one of them but he regularly read the site posts  The other three last week all began here. Hadit.com is an excellent  resource for those novices who know very little and are eager to win their claims. For those who cannot fathom the ins and outs, there are always folks who will carry the water. I'm honored to be one. 
https://asknod.org/2019/09/05/vba-portland-ed-the-lrrp/
 

On February 19th, the pathway to the BVA RAMP opens. I have 6 clients I'm putting into the process. Many are CUE claims. Obviously, if you claim a CUE in 1970 or 1993 as I am for my clients, they cannot artificially give a haircut to the CUE and arrive at an effective date of 2018. That's a mighty tall violation of due process. Not sure who is spreading the rumor about earlier effective dates. I did see some discussion to that effect in the SCR and HLR lanes but nothing in the Fed. Register or the published PL 115-15.
I remain confident the time involved in litigating in the Legacy system of appeals will gradually diminish. After all, isn't that the point of RAMP-to reduce the backlog and clear out the "docket closet"?

I apologize if I came across as superior in any way. I have a sarcastic streak and it appears it offends some.  I have studied how to win claims for 30 years. I have been bringing that knowledge here free to all who ask for it now-both here at Hadit and my own site- for over 10 years. I am not proud of myself. I chose to help other Vets the best way I knew how. I chose to learn VA Law and become a litigator rather than just sit here offering advice. Don't confuse pride with commitment. The only thing I'm proud of is being admitted to practice at the CAVC without a Juris Doctorate. Only 46 have been accorded that honor. I'm proud of my three combat V's for Valour above and beyond the call of duty in less than 2 years. If anything, I'm proud I managed to survive two tours back-to-back in Laos and Vietnam. Many of my friends didn't. That's why I predominantly serve Vietnam Veterans before the VA.  If you (or anyone) offer bogus advice, why sure, I feel it needs to be challenged. Do you suggest I just let you keep on misleading Veterans by pretending to be knowledgeable about VA law?  In your own words sir- As I understand it the focus of this site is to help and support other veterans.   
Let's cut to the chase sir. If I offer poor legal advice to my client and act on it causing my client to lose, the OGC will revoke my accreditation-forever. If you offer poor legal advice and the Veteran uses it to his or her detriment, you are free to just enter a new claim thread and continue offering more of the same. In short, you suffer no censure or consequences. My attempt here was to clarify what is, and what is not, CUE.  I merely try to correct that error using real legal cites and precedence. I will continue to gladly suffer your insults if it helps even one more Veteran succeed. 
I helped over 750 Veterans attain a minimum of TDIU or 100% before I became accredited in 2016. Free. No charge. I did all the work and wrote the legal briefs-and not because I'm proud of myself. It's satisfaction in a job well done. And, might I add, correctly done. As we live in America, you have a right to your opinions but you do not have a right to recklessly interpret VA law incorrectly. That is the crux of your problem with me. This isn't about pride.  
It saddens me when someone runs out of legal or logical arguments and finally resorts to hurling insults. That generally indicates they have no more cogent rebuttal to offer. Accept my profound apologies if I upset you. Were you to familiarize yourself with VA law,  I wouldn't need to correct you nor apologize. I respect you as a Veteran and my motives are simple-to ensure you and others win. My advice was aimed solely at that metric. By my estimation, you are positive you are right. Had you been right, Dawsonatl's rating narrative would freely admit a clear and unmistakable error had been made in his decision. VA is not adverse to admitting CUE. See attached below as proof of my statement. 
When CUE exists, it is recognized-not glossed over or ignored in a VA ratings narrative. If you (or Dawsonatl) think the VA examiner just "forgot" to include the CUE discussion in Dawsonatl's decision, you are sadly mistaken. 
 
r1 redacted.PDF

Dawsonatl states: <<< I have to respectfully disagree, if I would have followed this advice verbatim I would not have filed my CUE and won it.>>> Sure you would have. You could have sent in a letter and said "You screwed up my rating decision. Please fix it-pronto." Calling the color red black doesn't make it black just as calling an error CUE doesn't make it -ipso facto-CUE. 
I read over your entire thread, sir. You mentioned that the award "correction" failed to mention the phrase 'CUE'. This is exactly what I am saying. It is not a true CUE until it is poured in concrete (unappealable). That is why there is no mention in your award letter of any admission of CUE. It is also why Kanewnut will never see any admission of CUE-if and when he prevails. VA makes errors all the time. We all know that. Are they CUE? Yes, in a colloquial sense but not a legal sense. 
As for the comment our esteemed contributor Geekysquid submitted in Dawsonatl's thread : <<<38 USC is built on 38CFR which is built on Public Laws.>>>>, you may want to go back to law school, sir. I, too, got a good belly laugh out of that chestnut. I also liked your comment about the "First Circuit" (We also know the BVA, CAVC, and First Circuit frequently take a dim view of that habit.). I'm going to assume you mean the Federal Circuit which is identified as "F.3d" on legal cites. Do tell. Where do you come up these legal revelations, sir?
I have said this repeatedly but it bears reiteration. Any here who essay to offer legal advice with no legal training can make matters worse. The legal axiom for doctors is  "First, do no harm." Berta (and many others of you) have learned quite a bit of VA law and some are even well-versed in CUE. I admire all of you for that. All of you are also free to disagree with me and I take no offense but I do ask that we compare apples to apples and not oranges to orangutans. I will repeat- Dawsonatl did not have a CUE. He had an adjudications error that was subsumed by a corrected ratings decision granting his TDIU. That, folks, is not a Motion to Revise. You cannot cite to §3.105a. The error was corrected before the appeal period expired. In VA law, as in any kind of law, proper semantics (i.e. legal terms) are the defining rule. One who files a Motion to Revise is not a Veteran, a claimant or an appellant. S/he is a "movant". Feel free to bandy about the term "CUE" as much as you want but simply realize that until your time to appeal a decision runs out, it's an "adjudication error" and nothing more. You can always resolve it just as Dawsonatl did-without resorting to a CUE filing under the auspices of §3.105(a).  And for the record, I strongly advise no one to use a HLR for anything-even an attempt to "fix" an incorrect rating. 
VA will accept a CUE filing but may not CEST it if it is not a true CUE. It depends on the rater and the VARO. Most will now, after the new AMA inception, refuse it and tell you to use a 996 HLR.  Best of luck and I mean that sincerely. If I could, I'd represent everyone on this forum before the VA. Unfortunately, I do not have the time. Besides, there are quite a few VA Agents in-the-making here who should apply for accreditation. Any one of the regulars here has 10 times the knowledge of a VSO service representative. 

I'd like to thank Theresa for letting me help other Veterans on this site. Some eventually come over and ask for representation if they keep losing. My Vet Ed here was not one of them but he regularly read the site posts  The other three last week all began here. Hadit.com is an excellent  resource for those novices who know very little and are eager to win their claims. For those who cannot fathom the ins and outs, there are always folks who will carry the water. I'm honored to be one. 
https://asknod.org/2019/09/05/vba-portland-ed-the-lrrp/
 

Here’s a nightmare of a claim. The Vet had no STRs in his NPRS file except for his eye records. He admitted snorting the white lady in the late 1980s to a VA nurse in 2015. She immediately wrote down “HCV due to bloody shared dollar bill(s).” That pretty much put a fork in any potential claim.
He approached the VFW about filing his jetgun claim in 2016. They laughed him right out the door. No attorney or agent would even talk to him the moment he mentioned the toot. And then he called me.
Regardless of what you’ve heard about me, I refuse to arbitrarily deny representation to a fellow Vietnam or Thailand Vet when it comes to Hep C. I was there. I contracted it, too. It almost killed me by 2006. I told him to go ahead and file knowing full well he’d get denied. We obtained an IMO from one of my doctors for free due to his being indigent. It sank like a rock. We filed the NOD and got another "No". After filing the VA 9, we obtained an IMO from a good hepatologist but that was not going to be the winning ticket. I asked for a Travel Board hearing in Oakland so I could present my Vet and his lay testimony in person.
We had the hearing March 28th, 2019 at the Oakland Puzzle Palace. The Judge, Matthew Blackwelder, wasn’t very receptive to a grant until he read the IMO while we were sitting there in front of him. He mused and said it was indeed an interesting case.
The funny thing about jetgun cases is you could never win them at the local Fort Fumble under the old Legacy system. They’d refuse to grant even if you had a buddy letter from Jesus Christ himself. This one was really no different. We had nothing but lay testimony and some eyeglass prescription records that didn’t say much  which was really nothing useful. Worse, he’d had an STD which wasn’t in the STRs because they were AWOL. When all you have is lemons, make lemonade.
But...an STD like Gonorrhea leaves antibodies forever. I suggested we hold the record open for 90 days to obtain a blood test showing the presence of same. The Judge said “No need to. I have enough here to make a decision.”  I was worried. I took that to mean we had a better chance of winning the Powerball Lotto. I was positive I was going to be arguing this one at the CAVC. We won Wednesday.
Of all my wins, this is by far the best. It’s the only one I’ve ever won solely on the strength of the Veteran’s lay testimony . Don’t get me wrong. The IMO was very instrumental in the win but I doubt we would have prevailed without a face-to-face hearing. A picture may be worth a thousand words but a Travel Board hearing is worth a thousand pictures.     
Steve BVA Win redacted.pdf

I'd like to thank Theresa for letting me help other Veterans on this site. Some eventually come over and ask for representation if they keep losing. My Vet Ed here was not one of them but he regularly read the site posts  The other three last week all began here. Hadit.com is an excellent  resource for those novices who know very little and are eager to win their claims. For those who cannot fathom the ins and outs, there are always folks who will carry the water. I'm honored to be one. 
https://asknod.org/2019/09/05/vba-portland-ed-the-lrrp/
 

I'd like to thank Theresa for letting me help other Veterans on this site. Some eventually come over and ask for representation if they keep losing. My Vet Ed here was not one of them but he regularly read the site posts  The other three last week all began here. Hadit.com is an excellent  resource for those novices who know very little and are eager to win their claims. For those who cannot fathom the ins and outs, there are always folks who will carry the water. I'm honored to be one. 
https://asknod.org/2019/09/05/vba-portland-ed-the-lrrp/
 

I'd like to thank Theresa for letting me help other Veterans on this site. Some eventually come over and ask for representation if they keep losing. My Vet Ed here was not one of them but he regularly read the site posts  The other three last week all began here. Hadit.com is an excellent  resource for those novices who know very little and are eager to win their claims. For those who cannot fathom the ins and outs, there are always folks who will carry the water. I'm honored to be one. 
https://asknod.org/2019/09/05/vba-portland-ed-the-lrrp/
 

Buck, he no longer has HCV but all the horrific secondary side effects from it- i.e. fatigue, malaise, cognitive dysfunction, cirrhosis, ascites, esophageal varices/bleeding and a host of other deficits. VA was hoping to deny based on the cocaine but they didn't plan on a agent stepping in. Secondaries are what we now use to win with-not the actual disease being present. I do see a lot of the Vets who did the old Interferon beginning to  relapse so no one can say it's gone forever. The next shoe to drop for most of us is Liver cancer. There's no repair order for that one.
My Vet will get a new c&p where they will dx all the present symptoms and issue a rating. He's pretty much comatoast for work options. We'll get 100% or continue to appeal.  I don't say this to brag but there's a reason I have three Vs in less than two years over there- I don't give up. I'll be doing this until I seize up and kiss the keyboard. Theresa says it best... Leave no one behind-ever.

Here’s a nightmare of a claim. The Vet had no STRs in his NPRS file except for his eye records. He admitted snorting the white lady in the late 1980s to a VA nurse in 2015. She immediately wrote down “HCV due to bloody shared dollar bill(s).” That pretty much put a fork in any potential claim.
He approached the VFW about filing his jetgun claim in 2016. They laughed him right out the door. No attorney or agent would even talk to him the moment he mentioned the toot. And then he called me.
Regardless of what you’ve heard about me, I refuse to arbitrarily deny representation to a fellow Vietnam or Thailand Vet when it comes to Hep C. I was there. I contracted it, too. It almost killed me by 2006. I told him to go ahead and file knowing full well he’d get denied. We obtained an IMO from one of my doctors for free due to his being indigent. It sank like a rock. We filed the NOD and got another "No". After filing the VA 9, we obtained an IMO from a good hepatologist but that was not going to be the winning ticket. I asked for a Travel Board hearing in Oakland so I could present my Vet and his lay testimony in person.
We had the hearing March 28th, 2019 at the Oakland Puzzle Palace. The Judge, Matthew Blackwelder, wasn’t very receptive to a grant until he read the IMO while we were sitting there in front of him. He mused and said it was indeed an interesting case.
The funny thing about jetgun cases is you could never win them at the local Fort Fumble under the old Legacy system. They’d refuse to grant even if you had a buddy letter from Jesus Christ himself. This one was really no different. We had nothing but lay testimony and some eyeglass prescription records that didn’t say much  which was really nothing useful. Worse, he’d had an STD which wasn’t in the STRs because they were AWOL. When all you have is lemons, make lemonade.
But...an STD like Gonorrhea leaves antibodies forever. I suggested we hold the record open for 90 days to obtain a blood test showing the presence of same. The Judge said “No need to. I have enough here to make a decision.”  I was worried. I took that to mean we had a better chance of winning the Powerball Lotto. I was positive I was going to be arguing this one at the CAVC. We won Wednesday.
Of all my wins, this is by far the best. It’s the only one I’ve ever won solely on the strength of the Veteran’s lay testimony . Don’t get me wrong. The IMO was very instrumental in the win but I doubt we would have prevailed without a face-to-face hearing. A picture may be worth a thousand words but a Travel Board hearing is worth a thousand pictures.     
Steve BVA Win redacted.pdf

DROs beg me to use a 526 EZ to accurately capture the Vet's name, rank, airspeed and tail number in all those squares they are putting on the forms now. You can also file it on anything that floats your boat by law. VA has told us in the last month they are coming out with a new form for that in the very near future. Define "near future". Until then, you can buy one of those metal cutting computer-driven doomoflotchies and file it on 1/64" steel plate. Just keep the sheets down to 8.5" X 11". My favorite is those endless paper towel roles in VAMC bathrooms. Just keep waving your hand in front of the IR sensor until it's long enough...

The SMC rating is correct. SMC L is awarded for the A&A. L 1/2 is awarded under §3.350(f)(3) as a 1/2 step increase to the intermediate rate between L and M due to additional independent ratings at 50% or higher. The migraines must not be related to the PTSD rating in order to get this as the GERD and tinnitus would not combine to reach 50% or more. VA expresses this as SMC at the P rate and parenthesizes it as SMC P (L 1/2+ K). 

Here’s a nightmare of a claim. The Vet had no STRs in his NPRS file except for his eye records. He admitted snorting the white lady in the late 1980s to a VA nurse in 2015. She immediately wrote down “HCV due to bloody shared dollar bill(s).” That pretty much put a fork in any potential claim.
He approached the VFW about filing his jetgun claim in 2016. They laughed him right out the door. No attorney or agent would even talk to him the moment he mentioned the toot. And then he called me.
Regardless of what you’ve heard about me, I refuse to arbitrarily deny representation to a fellow Vietnam or Thailand Vet when it comes to Hep C. I was there. I contracted it, too. It almost killed me by 2006. I told him to go ahead and file knowing full well he’d get denied. We obtained an IMO from one of my doctors for free due to his being indigent. It sank like a rock. We filed the NOD and got another "No". After filing the VA 9, we obtained an IMO from a good hepatologist but that was not going to be the winning ticket. I asked for a Travel Board hearing in Oakland so I could present my Vet and his lay testimony in person.
We had the hearing March 28th, 2019 at the Oakland Puzzle Palace. The Judge, Matthew Blackwelder, wasn’t very receptive to a grant until he read the IMO while we were sitting there in front of him. He mused and said it was indeed an interesting case.
The funny thing about jetgun cases is you could never win them at the local Fort Fumble under the old Legacy system. They’d refuse to grant even if you had a buddy letter from Jesus Christ himself. This one was really no different. We had nothing but lay testimony and some eyeglass prescription records that didn’t say much  which was really nothing useful. Worse, he’d had an STD which wasn’t in the STRs because they were AWOL. When all you have is lemons, make lemonade.
But...an STD like Gonorrhea leaves antibodies forever. I suggested we hold the record open for 90 days to obtain a blood test showing the presence of same. The Judge said “No need to. I have enough here to make a decision.”  I was worried. I took that to mean we had a better chance of winning the Powerball Lotto. I was positive I was going to be arguing this one at the CAVC. We won Wednesday.
Of all my wins, this is by far the best. It’s the only one I’ve ever won solely on the strength of the Veteran’s lay testimony . Don’t get me wrong. The IMO was very instrumental in the win but I doubt we would have prevailed without a face-to-face hearing. A picture may be worth a thousand words but a Travel Board hearing is worth a thousand pictures.     
Steve BVA Win redacted.pdf

Buck, he no longer has HCV but all the horrific secondary side effects from it- i.e. fatigue, malaise, cognitive dysfunction, cirrhosis, ascites, esophageal varices/bleeding and a host of other deficits. VA was hoping to deny based on the cocaine but they didn't plan on a agent stepping in. Secondaries are what we now use to win with-not the actual disease being present. I do see a lot of the Vets who did the old Interferon beginning to  relapse so no one can say it's gone forever. The next shoe to drop for most of us is Liver cancer. There's no repair order for that one.
My Vet will get a new c&p where they will dx all the present symptoms and issue a rating. He's pretty much comatoast for work options. We'll get 100% or continue to appeal.  I don't say this to brag but there's a reason I have three Vs in less than two years over there- I don't give up. I'll be doing this until I seize up and kiss the keyboard. Theresa says it best... Leave no one behind-ever.