bluenote

Folks, Beyond the buddy statements noted above (I suspect based upon facts provided VA denial was based on veterans' service falling outside of the VA acknowledged use of herbicide agents along the DMZ), worth contacting the National Archives Textual Branch Archives for copy of unit history (I would request information at the company not battalion/brigade level) and National Personnel Records Center for copy of morning reports (submission of SF 180 with the "other" block checked and completed). NPRC would also have copy of ancillary personnel records (beyond DD-214) that should provide clear indication of dates in Korea. As Berta noted, ROs are really not following M21-1 for JSRRC verification for veterans not specifically noted as being proximate to DMZ. Seth

Folks, I've reviewed the report in entirety. Significant for VA consideration from my humble perspective --- and it the past has taken 6-9 months for proposed regulatory response: (1) will be the reiteration of limited or suggestive association for hypertension/stroke, 810ish-850ish (this was recommended in the 2012 Report for which the VA did not make any regulatory changes). Page 15 notes the IOM was "disappointed" that pending cohort studies were not yet available for consideration; (2) recommendation for limited or suggestive association for bladder cancer, p 516-540ish; (3) clarification of Parkinson's-like symptoms, p 743; and (4) recommendation for limited or suggestive association for hypothyroidism, ps 841-860ish. I'll also note the IOM again addressed issues pertaining to non-cancerous respiratory conditions (COPD, etc..), pg 870s, maintained inadequate or insufficient but noted there disappointment that the long-term cohort study regarding COPD was not yet available for consideration (PG 15). The expected study was also mentioned in the 2012 Agent Orange Report. Seth

Folks, I've read to the IOM report a few times. I don't see the VBA changes the claim adjudication based upon the study (been wrong before). If you are dealing with the issue, first identify which chemical/biological agent you were exposed to. Providing general information to your physician about SHAD/112 is not going to be of benefit since that type of exposure differed significantly among service members. Vync, recent IOM study really focuses on morbidity so there are charts identifying the number exposed, still living, etc..

study released yesterday . . . ish. Link at http://iom.nationalacademies.org/Reports/2016/Assessing-Health-Outcomes-Among-Veterans-of-Project-SHAD.aspx Cheers

Roadrunner, don't worry . . . possible I may track changes too closely. August 2015 modification to M21-1 did leave out certain language that would effect claims for Thailand vets without MOS consistent with security details. However, October 30, 2015 change to M21-1 added the language “otherwise served near the air base perimeter as shown by evidence of daily work duties, performance evaluation reports, other credible evidence…” back to the adjudication manual.

Folks, just for heads-up. M21-1 change dated August 7, 2015 removed language from Thailand exposure issues of "otherwise served near the air base perimeter as shown by evidence of daily work duties, performance evaluation reports, other credible evidence." This language was reflective of a 2010 C&P Bulletin. . . .

Folks, For clarity, there is no direct appeal to the Board of Veterans' Appeals from an initial VA Rating Decision. The AOJ (be it through DRO or traditional appeal) will first issue a decision subject to NOD (SOC further denying, RD granting. . . or some combination of the two depending on issues present). BVA only has jurisdiction when a Statement of Case has been issued and a formal appeal by claimant/veteran has been perfected (should be through submission of VA Form 9). For what it is worth, I don't necessarily belief use of reconsideration is effective for various reasons (and I agree with USMC Vet that SNAFUs re: effective dates do occur) . . . but I do like formal guidance so that the disagreements between VA/Veteran are substantive --- not procedural --- in nature. Seth

Folks, I know this issue (reconsideration) gets asked a lot. In last few weeks, the VA amended the VA Adjudication Manual to include reconsideration of an Rating Decision before the AOJ. Worth a read so everyone is on same page at M21-1, Part III, Subpart ii, 2.F (August 2015). I uploaded section at http://legalnewsyoucanuse.com/va-benefits-news/va-reconsideration-of-an-initial-rating-decision-amended-va-adjudication-manual/ I could not figure out how to upload directly onto hadit. Cheers Seth

Folks: I'll give my humble two-cents because at the macro-level it's an issue of agency legitimacy whenever a claimant is misinformed about the nature of a request for reconsideration by either VSO . . . or more critically employees of the VA [which is unequivocally occurring]. As noted by many, a "request for reconsideration" will simply be processed by the RO as a new claim (in the case, denial of S/C a claim to reopen). There is a regulatory provision that can preserve the effective date of award to original date of claim on the claim to reopen, but EED before establishing service-connection is throwing the cart before the proverbial horse. By its nature, a request to reopen requires the claimant to submit new and material evidence as an initial threshold evidentiary inquiry. Below is the general framework for what is considered "new" and "material". My principle concerns are this is not being explained to claimants when they are filing a "request for reconsideration". Moreover, I don't feel confident that veterans (most of which have never seen much of the evidence associated with the C-File) can properly assess whether a statement or document is material or new . . . not because the veteran is not smart enough or doesn't have knowledge of Title 38 but because they are emotionally involved in the claim and commonly feel that the RO simply misconstrued the nature of the evidence in the existing record. In short, there are circumstances where its in the veteran's interest to submit a "request for reconsideration" . . . mainly because the timelines on appeal have created that scenario; however, the individual needs to be informed about the nature of the claim, what evidence would need to be submitted, and the consequences of not timely appealing a prior Rating Decision. I don't believe that the system (VSO/DVA) currently has the ability to provide that level of information. Seth ______________________________ Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a).

Suefreedom: I believe there is a IOM report on Project SHAD/112 expected by end of fiscal year. More info can be found at CDC/IOM and VA Publichealth websites. As for exposure issues for civilian pop, the type of exposure was targeted (unfortunately towards servicemembers) so I suspect you'll be chasing ghosts . . . Seth

Berta, Understand the general application of Section 4.6 (consideration of evidence), but gentleperson's bet that the basis for CUE was something more specific (for example, VA ignored a medical opinion in the record assessing etiology as SC without contrary evidence) in nature than that. The Board may have cited 4.6 in a string cite (although I have never seen this). Regardless, if the VA granted a request for revision based with that section as a legal predicate, kudos to you :) Asker, one thing to be aware of is the evaluation of a request for revision (CUE) will be based upon the record and laws that applied during the original adjudication of the claim. Consequently, after pulling the operative medical evidence available at the time of the original adjudication you'll need to go back to the CFR, specifically that diagnostic code, that existed at the time of the original adjudication. Link to obtaining CFR at www.gpo.gov. For even older CFRs (trust me this does occur), local law school will have copy, or can otherwise be obtained through internet. Good Luck, Seth

Navywife: Failure to provide a C&P examination at the time of the original adjudication of the claim cannot form the basis for a request for revision (CUE). If your issue is rating percentage for an operative period of time in the past, the evidence at the time of the original adjudication of the claim would need to clearly and unmistakably demonstrate that the individual was entitled to a higher rating percentage for that period of time (i.e. no factual dispute between then-existing medical records). In order to figure out what evidence was available during the prior adjudication, look towards date stamps (mixed bag depending on the RO), dates of medical examinations, and - frankly - the order that the documents were placed in the C-File. Section 4.6 and other provisions regarding evidentiary weight of evidence and normal burdens, do not apply in the context of a request for revision (CUE).

Just for clarification, if you file the VA Form 21-8940 the RO should not open up a claim for individual unemployability. TDUI is not a claim. What should have happened is the RO should have opened up a claim for increase or S/C for any disability that you listed in Block 7 as causing you to be unemployable.

Based upon the provided facts something is procedurally amiss. If you filed a Notice of Disagreement in relation to a recent Rating Decision the next sequence of events would be notification of the Statement of Case (in the absence of the VA granting full entitlements for the claims subject to the NOD). Once you received the SOC you then have 60 days to file a VA Form 9 (substantive appeal to the Board of Veterans Appeals). It the facts are as described a SSOC would have no application to your claim based upon status. Somewhere the wires are being crossed. Seth

There is a provision for requesting an extension of time to file a Notice of Disagreement for once the time limit has expired for “good cause show” pursuant to 38 C.F.R. § 3.109(b). That said, and in my humble opinion, this will likely end in an unsatisfying result for the veteran. As Jbasser indicated you can file a request to reopen (requires new and material evidence) for a condition that was previously denied or a claim for increase in disability rating if your condition has increased in severity since the prior now-final Rating Decision. Good Luck Seth

ASKNOD: Thank you for the link, I missed the citation in the McMillan case. I was hoping the CAVC would address the retroactive application for cases currently pending, but no such luck. Hopefully, McMillan or his counsel will brief this issue to the Fed. Cir. so we can all get resolution. If McMillan is out there :), there are some good reference points for arguing the contra in a recent Supreme Court case, Chaidez v. United States (and, unfortunately, some not-so-good case law from the CAVC). If you are a veteran that already established service-connection based upon service-connection which Walker overturned I wouldn't be overly concerned about the VA CUEing. There is established case law that stands for the principle that new court interpretations of the law should not form the basis for severance of service-connection. See Berger v. Brown, 10 Vet. App. 166, 170 (1997) (“opinions from this Court that formulate new interpretations of the law subsequent to an RO decision cannot be the basis of a valid [clear and unmistakable error (CUE) ] claim”). In military parlance, we just need to adjust fire and overcome. Seth

A recent GAO report also details the VA's efforts to transition to a fully electronic claims system. . . the GAO also commented “we reviewed VBA’s backlog reduction plan, we found that it fell short of established criteria for sound planning." http://www.gao.gov/assets/660/651066.pdf Just found out that a warrant officer I used to serve with is now one of the VA program managers charged with implementing the this system. Based upon my experience with him, we are in good hands. Seth Director

10thFO: I suspected that is what occurred (this sounds like a proposed adminstrative chapter rather than the initial reading of an Article 15 or court-martial). Don't worry about the Soldier signing the adminstrative chapter paperwork, his refusal to sign the paperwork (which was essentially a notification of rights) would still have resulted in the command initiating chapter proceedings. That said, he needs to speak to a military defense attorney, even if the Soldier is considering retaining private counsel. I spent the better part of seven years handling such issues so feel free to email me if you have any questions. I know most of the true expert practioners of military justice (not the ones with just pretty websites . . . but the ones who have been handling these issues in uniform and now as civilians for 30 plus years), so would be happy to provide their contact information if needed. Seth Director

meghp0405: I truly do understand your concern and have encountered issues with personality disorder diagnosis both while active-duty and handling veterans issues. That said, re-enlistment paperwork is going to be separate process from any attempt by the command to initiate an adminstrative discharge. In my experience, the command will not normally initiate chapter proceedings if the servicemember is near their ETS unless their is an underlying misconduct issue. Further, it is rare that adminstrative separation for purely mental health reasons will result in a discharge that is not honorable (military characterization of service, not VA). As stated, there are resources available to the Soldier both in uniform and through numerous pro bono organizations and I would be happy to provide contact information if requested. If the poster is considering retaining private counsel, I personally know most of the practioners who handle such issues and would be happy to provide referral information. Seth

Sorry Berta, trial defense services (TDS) is defense end of the JAG Corps and independant from the installation/unit commander. The servicemember will be required to go through TDS counseling if chapter proceedings are initiated but squeaky wheel gets the oil and always better for the servicemember to understands his/her rights before the unit decides to take any action. TDS may refer the servicemember to a legal assistance JAG officer, depending on the nature of the issue/branch of service/installation. There are numerous pro bono organizations that may be able to also provide assistance. I mentioned the ABA program since it is relatively new but has the potential to be a stove-pipe organzation for the numerous veteran-related pro bono organzations out there. Seth

jordan0226: Has the unit initiated adminstrative chapter proceedings? My advice is he talk to the installation's TDS office even if he hasn't received his chapter paperwork. Feel free to email me with with the installation information, I may have a POC at that installation or a local pro bono organization that can assist. The ABA started up a pro bono project a few years ago. Most of the requests seem to be family law related but many of the volunteers are former active-duty or reserve military attorneys. http://www.militaryprobono.org/ Seth

The Supreme Court denied both cert petitions today. The chance of getting a grant is extremely slim so I'm sure all of the parties are not shocked by the outcome. http://www.supremecourt.gov/orders/courtorders/010713zor_5426.pdf Seth

Berta, I am currently working on a case where the application of 38 C.F.R. 3.109(b) will be an issue going forward (long story involving accredited agent who managed to request an extension but never filed a NOD). There was a BVA decision that analyzed this provision in 2008. The BVA cited examples such as mental illness and incapacitation as "good cause". The decision can be accessed http://www.va.gov/vetapp08/Files1/0805945.txt The BVA considered the claimant's request under the three-part test established in McCreary v. Nicholson, 19 Vet. App. 324 (2005) for analyzing equitable tolling for late filing of an NOA. While non-precedential, the BVA's analysis is consistent with other areas of law addressing good cause for late filing. Good luck Seth Director

As a follow-up, I believe both cases were distributed for conference today. Usually, the disposition results will be published the following Monday. Seth Director

Bronco, "Director" was bestowed upon me at birth and is not a reflection of knowledge or authority. . . it's my last name. Trust me, throw a rank in front of it and it has confused many folks. As for cert grant (which is only about 1% of total petitions), I believe there is a greater likelihood of the Supreme Court addressing a pure question of law regarding the jurisdiction of a federal district court to review systemic timeliness issues (which are not related to a specific VA decision, as argued by petitioner ) in the VHA and VBA, rather than what appears to me to be to me a factual question. Assuming the Supreme Court accepts petitioner Byron's argument that Fed. Cir. failed to acknowledge the "futility rule" it would appear to me that the Supreme Court would still need to delve into a factual dispute as to whether or not the record was sufficiently complete so that remand was "futile". Additionally, there is somewhat of a circuit court split in VFCS v. Shinseki (though admittedly not as clear as the petitioner indicates when you read the underlying cases) and, at minimum, the dissenting opinion agreed with petitioner in the 9th Cir. en banc decision. Personally, I would love to see both cases granted and --- as the Supreme Court told me in 2007 cert petition --- I've been wrong before. Seth