31Bravo

Few of you might agree that a loss at the CAVC is beneficial. However, I just got the shaft yesterday for my EAJA funds. Judge Davis dawdled for 6 months after the VA gave me everything on my Extraordinary Writ (filed in January 2015) to deny us a piddling $3,907.63. This is due to the EAJA requirement that the Court issue an order to VA to "fix" something. We presented the Ex Writ to the Judge and he, in turn, asked the VA whazzzup? Faster than you can skin a cat, I had SMC all the way back to 1994, an increase in my porphyria, my ratings for cryoglobulinemia and fibromyalgiia. Done. Just like that -in 45 days. What the Judge never did was "order" the VA to do it. Thus he denied our EAJA fees. The crux of the argument is the original filing for this in 2012. We won it all then but VA "disremembered" to give it all to me. Thus, the original CAVC decision to remand it in 2013 was the "order" needed to justify it. Based on that, Judge Davis screwed up.
http://asknod.org/2016/02/26/cavc-graham-v-mcdonald-the-buckhannon-catalyst-theory/
VA has chosen to die on this hill. Since I want each and every one of you to have the same benefit if you find yourself in this predicament, I'm filing first for a panel decision and, in the event of a refusal, I will go to the Federal Circuit to get it done. Hooo, doggies. I've never been to the Fed Circus before. This will be fun and a learning experience for us all. 

Persistence combined with happenstance wins another claim. The veteran originally filed for PTSD in 2002. He had been “addicted” to psychotropic drugs since 1995 and was getting them from the VA. In 2002 he is seeing a marriage counselor with his wife (her idea). The counselor tells the veteran he has PTSD. He goes to the VA and they tell him he needs a “buddy letter”.  He gets the letter and files a claim.  The claim is denied because they say they could not corroborate the buddy letter with any other evidence in the file. They said the file was silent for any reference to an assault. There is no legal basis to impeach a buddy letter due to lack of corroboration. They need to show inconsistencies and other flaws to impeach a buddy letter.

 
The veteran gives up on the claim.  He is still ‘addicted” to psychotropic drugs and continues to get his drugs from the VA.  He goes to an appointment to get this prescription refilled and the doctor wants to know what the problem is and why he takes these drugs.  He tells the doctor his wife’s therapist told him he had PTSD. The doctor gets all the details as explained in the veteran’s buddy letter and says that the PTSD was “as likely as not” caused by the event described by the witness”. However, the veteran had already given up on the claim and does nothing. Three years later I am talking with him and he shows me the letter. By the way this is not a veteran who I had been helping with a claim.  He was a friend of the family. At a party he told me about this denied claim. I told him to bring me a copy of the decision. This happens five years after the denial and three years after the doctor made the diagnosis of PTSD. I read the evidence and told him, “let's get this reopened”.

 
The buddy letter was written by an officer in the USN. A DRO dismisses everything saying that the event in the buddy letter was not an assault. As it turns out the event described in the buddy letter could have gotten the perpetrator three years in Leavenworth. The argument is advanced that it is not a question of whether the DRO thinks it is an assault or not.  It is a question as to whether or not the event is considered a PTSD stressor by a medical professional. I point out that it had already been determined by a medical professional and cite the existing doctors report. The DRO reads the response to his denial and realizes he screwed up. Maybe he did not read the doctors letter saying it was a PTSD stressor. He immediately reschedules another personal hearing. The officer who wrote the buddy letter is furious that they impeached his original statement and shows up at the DRO hearing. He had recently retired as a Commanding Officer of a unit about 80 miles from where the DRO hearing was being held. The DRO is now surrounded by evidence he can’t refute and awards the claim.   The veteran calls me today and tells me he was service connected at 70% for PTSD.  It took 13 years for the veteran to get a proper decision.  During that 13 year period he was a dumpster diver living on $300.00 a month.

Pete, no one is crazier than anyone else here. Allow me to revise and extend my comments. You always have the right to request VA reconsider anything they decide negatively. You may call it a plea for sanity, a rethinking of something that is obviously erroneous or a request to reaccomplish a defective train of logic based on a lack of evidence or misinterpretation of what was before them. You are free to do this any way you wish-be it a MFR bottle in the ocean or a NOD (or Admin. review-see below).
Over the years, I have caught raters utilizing the wrong regulations, ignoring the right ones or making equally obvious errors regarding case or controversy. The problem arises when they have no time to revisit the error short of the Veteran filing a NOD. There are exceptions to every rule. A smaller RO like Sioux Falls or Fort Harrison is easier to approach in this regard before a NOD is filed. It works best if the letter requesting the MFR is sent within days of the receipt of the defective decision. Sometimes it works, sometimes it doesn't. Some raters feel that once they have spoken, the next words out of their mouth are "SOC". You cannot reason with them. There is no one-size-fits-all for this problem. But make no mistake, sir. There simply is no "Request for Consideration" or similar legal tool you can file that will give you the assurance that VA will reconsider within the 12 months accorded you to file the NOD. That is the error I point out. 
I actually have high hopes that VA would someday move towards a true Court where a Veteran could arrive and present his case in person with witnesses and corroborative evidence. VA would be free to rebut the evidence and or present their own doctors to inveigh and testify otherwise. After this, a decision that was clearly and unmistakably correct would be rendered. You would be free to add rebuttal evidence you developed during the "trial" so as to avoid even needing a NOD. This semi-ex parte proceeding need not be formal like a Perry Mason trial with "sustained" or "overruled" shouted repeatedly. What it might do is give more weight to a gastroenterologist's nexus letter who has 25 years in the business over a VA examiner with an ARNP suffix opining that the hepatitis was not identified until 2001 and therefore that is the beginning of the disease. You cannot apply Maxson v. Gober to every set of circumstances. Hepatitis C takes three decades to manifest. Unfortunately, VA Examiners are not gastrodcos so we end up with these defective ratings.  Allowing poor, uneducated misleading theories into the process simply forces hopeful Veterans into the untenable position of thinking it can be fixed quickly short of a full-blown NOD. Having VSO reps touting this as a viable panacea where it simply does not exist is deceptive and dangerous.
We all know a NOD  almost guarantees a 16-20 month pause in the process but it does entail a new decision which is, essentially, a motion for reconsideration. A DRO review is identical inasmuch as it also grants a de novo decision but takes 3 years if you're lucky. Holding out the unreasonable hope that this can be repaired by writing in and asking for it is not viable for most of us. Surely you realize no two claims are alike to any degree such that one sets the metric for all that follow. What I perceive happened in your case is the self-styled "MFR" your friend submitted merely brought to the attention of the rater the error he committed. The wrong would have been righted eventually. The "MFR" merely called attention to the error short of having to actually file a true request for Administrative review in the form of a NOD.
There are innumerable legal mechanisms that most Veterans are unaware of short of a NOD. A true, stand alone administrative review is one that comes to mind. If you are convinced, and statute and regulation bear you out, you may file a request for Admin. review under 38 CFR §20.400 requesting a reading on the statute or regulation in question. This often can be done in far less than 12 months and frequently corrects a rater's brain fart. It is done at the VACO in DC, and, as such, actually is also a de novo review in its own right. I did it on my VR&E Independent Living Program request for a computer in 2011. I cited to OGC Precedent 34-97 that described my very same circumstances. It took three months from beginning to end. The VA filed it for me with my cite to the precedent and they promptly bitchslapped the VR&E gomer. I got my computer a month or two later. 
Pete, I deeply respect your expertise in this field but I am a pragmatist. If I thought a MFR was the ticket, I'd be pounding the typewriter into the night and advising the rest of you to do so. Failing that, I suggest you saddle up the horse and ride over to the RO. Park yourself in the waiting room with the largest bag of Fritos manufactured and ask to speak to the rater who screwed it up. Tell them you're disabled and have all day. No rush. 
Someday, VA may get their house in order. Until then, we'll continue to try to locate shortcuts and advise Vets of them. Pretty crazy, huh? 

If you had a bone fracture, in service, you should read this "unofficial" interpretation of VA new policy:
The fact that the examiner cites proper healing of the fractures should have no bearing on whether service connection is granted for the fracture or not, as fractures are a chronic condition which are subject to service connection per the recent guidance put out in the April 2014 Veterans Service Center Manager (VSCM) Call Bulletin (don't bother looking for it, you won't be able to find or access it). However, given that the examiner cites the current disability is due to pes planus (which I assume is not service connected) it's likely you could be granted s/c at 0% for the historical fracture and denied pes planus and the residuals. The fact that you had fractures could certainly help your case on appeal if you were to assert that your pes planus was a result of the fractures sustained in service. Wait and see what happens... I'd fight this one tooth and nail, especially if there is no evidence of intercurrent injury... It seems pretty plausible that fractures, especially of the talus and cuneiform, could result in arch abnormality.
end quote from "other" website.
Notice here what is going on.  The VA is putting out "VSCM call bulletin's", to which we have no access.  Is this a "secret handshake".   I have particular dislke when govenment agencies spend taxpayer money in "secret".    I would also like to know what ELSE VA is hiding from us.    This informal interpretation from someone allegedly in the know at VA who chooses to remain anonomyous is a glimmer of light.  Of course, we were not supposed to get this information, and that is why I reposted it.  
Remember, Shinseki got fired over "secret waiting lists", that hurt Vets.  So, now there are "secret regulatory guidelenes" which are carefully guarded from Veterans.  

Ain't no time to wonder why. Whoopee we're all gonna die. Pick an AO presumptive and ride it like a bronco, guys. I saddled up Porphyria cutanea tarda and rode it to a 100% rating. Whatever you do, pick one that kills you or can be rated for the big bucks. Forget about chloracne and all the sub-acute PN xxxxx stuff. Go for the shit that is gonna kill you. Find the doctor who will write that golden nexus that says  the cancer in your throat is due to AO. We're running out of time. There are only about 850 K of us left. 

Anyone with your mettle who jumps through the SAH hoops for a new dwelling can get to SMC O if---a big if---you qualify for it.Getting to SMC L is merely the first tipping point in a long medical process of going downhill. Many do not realize all the injuries/diseases you present to qualify for SMC have to be service connected in order to advance to the ultimate level of R2. I can't count how many Vets show up with a wheel barrow full of stuff that  eminently qualifies them for the higher reaches of SMC but few of their ailments are SC.
The gist of getting to O is simple. You need two elements of all the possible qualifiers among SMCs L, M and N. Any two will do. In your case, with two true 100% schedulars (or more) you advance to M as a "bump". You still need two of the enumerated disabilities to proceed to O. Nothing can help you make the jump without the two. Having thirty 100% disabilities or 8 Ks is not going to be the magic "kicker". The higher SMCs all hinge of loss of use- usually an extremity that aids in putting a spoon in your piehole, wiping your butt or combing your hair. If you're in a wheelchair due to loss of use of the lower extremities and collecting SMC L with an added bump to SMC M via another 100% rating, you still need some essential disability involving a loss or a situation creating helplessness. If you are capable of performing the activities of everyday living in a wheelchair and have 10 100% disabilities and all 8 Ks, you still do not qualify for SMC O. 
Special Monthly Compensation, after SMC S, or the bump (or half-step bump from an added 50% or more) you get from having another 100% disability to M, is not predicated on how much larger your rating is. I'm 100+100+60+30+10 and I still do not qualify for L. I pray I never will but I'm a pragmatist and know some day I'll go down the tubes. I'm "prepositioned" for that eventuality and will step right into M when it happens. Nevertheless, any advancement upwards to N or O (or R1/R2 as far as that goes) hinges strictly on my inability to attend to my own needs. 
For you to qualify for O, you need to peruse 3.350 and 3.352 from stem to stern and review each and every legal requirement (read qualifying disability or loss of use of) to obtain L, M or N. If you can make a good case for suffering two (or more) and it is supported by  your STRs, you win O. In addition, SMC is awarded from the date it can be ascertained that you began to qualify for the entitlement. When I finally won my claims in March 2015 after the Extraordinary Writ, it was clearly obvious that I was entitled to SMC S all the way back to 1994. They didn't do a Fenderson staged rating and try to determine exactly which day I became eligible; they simply went from the date I went over 100+60. 
In your case, the rater's scheme to revamp your claim into a "reopen" versus a NOD is simple. They want to send it through the pipeline again from the front door. They are geared up for this now since the Allison Hickey 125-day/98% accuracy mantra and it truly is the fastest way to get there. I bet the guy thinks he's going to smoke you for the retro but VA raters are d-u-m- (dum) about SMC. If they were ill-informed or sketchy on it, I'd throw in the "b" after dum and give them the benefit of the doubt.  Even if you somehow can attain SMC O, it has to be paid back to the day your evidence supports it-period. Remember, you can never "lose" SMC retro. You might have to fight like the devil for it as I did but when you prevail legally, they pay.
I see you are falling into the VSO "reconsideration" faery tale. James; there just is no such vehicle in the VA Regional Office that approximates this. If you appealed and lost to the BVA, you could submit a Motion For Reconsideration (MFR) before an enlarged Board of three Veterans Law Judges (VLJs). Other than that, if you hang your hopes on this mirage and fail to file the NOD within one year of the denial, the claim dies. With a claim for a higher SMC, this technically is not true. Remember I mentioned above that it (SMC) is due and payable from the date it can be ascertained it's owed. Getting the RO to see and acknowledge this may require a NOD but that is the only way to get there. I suggest the traditional appeals path when you do. The level of SMC intelligence available at the RO s is nil.
SMC is so misunderstood that it is rarely adjudicated correctly. VA raters tend to try to input the parameters into the M 21 maw and expect a cogent, correct answer. The M21, regardless of what anyone has ever told you, is an aid to adjudication-not the law. As with any publication, errors abound. Recent decisions about SMC S in Buie v. Shinseki precedence still have not been upgraded and result in continuing errors on it. As for CUE, I doubt anything VA does is CUE. A mistake made twice is a conscientious decision in my book. Best of luck, sir.

Interesting, Mike.  
    The VA tried that with me.  I already had a favorable competent medical opinion, and they scheduled me for another exam, who was not competent (she was an MD, but admitted to me she had no expertise/training/experience in sleep medicine/sleep apnea) and, of course, she gave unfavorable evidence to deny, and the VA denied.  In my appeal, I asked that the new c and p exam be disregarded because I have challenged her credentials, that an MD does not make her an expert in all areas of a medical nature in which she has no experience/training.    I should find out soon if my challenge to the examiners credentials was upheld.  Remember, if the VEt does not challenge the credentials by or before the BVA, the examiner is presumed competent by the presumption of regularity.  A Veteran can not challenge the credentials of the examiner at the CAVC level without first challenging them at the BVA or RO level, because the RBA is sealed when you appeal to the CAVC, and you can not submit new evidence to the CAVC.  The CAVC decides the case based on the record before the Board, and neither party can submit new evidence.  
      The c and p examiner is serving as an "expert witness"...that they examined the patient and determined, xxx and yyy, even tho the examiner need not be present at the CAVC, his report is sufficient.  The examiner, for his/her to be a valid opinion, needs significant experience or training in the field of which your C and P exam was done.  A psychologist can not opine on bone fractures, but the VA gets away with this, because Veterans do not know enough to challenge the competency of the examiner.   

Well after after having my appeal turned downed several times since 2003 the VA finally rated me at 30% for my testicular cancer even though I was told I was wasting my time. I had to again appeal my case in 2013 and I guess after all the failed appeals and me not giving up they finally seen things my way. I hope if any other vets suffered from testicular cancer that this will encourage them to file a claim and to stick with it. The only thing I was out was just my time but it was well worth the wait as it bumped my disability % up nicely. My original claim was turned in back in 2003 but they only paid me back pay to 2013 so I now have that appealed too. Since 2013 when I received compensation for my cancer I have also filed different claims for residual side effects from the chemo and have been compensated for that too. I hope my struggles with the VA encourages other to file if they they have ever suffered from testicular cancer.
R.Kelly SGT Vietnam 71-72

Go for the O James. There are three A&As in SMC but only two higher level ones specifically for it alone  L is often referred to as A&A for one simple reason. If you lose the use of your legs, you are unmistakably disabled and need "aid and assistance" in activities of everyday living. It's a low threshold to attain.
R1/R2 is "special" A&A. It means you require a paid caregiver who has medical training. R2 is paid when you need a caregiver with extensive medical knowledge who can supervise a day to day caregiver who is akin to a CNA. Usually, a supervisory R2 nurse would be an RN. Your wife could be the caregiver at R1 or R2 as long as she is supervised by the approved and licensed caregiver supervisor. R2 pays about $8,042 a month to offset the cost of that RN and the  24 hr. in-home caregiver for you. I have a friend who is SMC L due to loss of use of legs (total PN from DM2) He has a gal come in about three times a week to clean up, refuel the refer and do some shopping for him. He can function by Campbell's soup standards but not French souffles with asparagus w/ pesto crust. When you hit R1 or R2, you're in catheter land and incontinence. You need someone to cook your meals so you don't burn the house down. You need someone to wipe your butt and roll you into and out of the shower. SMC O is "fairly" easy to get based on the back door they built in with the SMC L A&A loophole. Most sneak in that way. VA will still microscope the pants off you for O. 
I thrive on SMC law. It's probably the most intense with more twists than the Mississippi. Far too many people are owed it who have VSOs that can't navigate it. If they don't understand it, most will lie and tell you the gravy train ends at 100%. Very sad.  Chloracne, huh? I came home with it in 72. Looked like a ton of blackheads on the insides of my forearms and behind my ears and the hairline at my back. I also have a ripsnorting good case of Porphyria and get a phlebotomy  every month. After 8 or 9, I go anemic and have to take 3-4 months off. I won a BVA claim for 100% rating it as analogous to dialysis. This sets a great precedent for others to use. Check it out.http://www.index.va.gov/search/va/view.jsp?FV=http://www.va.gov/vetapp15/Files5/1538035.txt
I ate AO and A blue for several years. We thought it was pretty cool beans when they sprayed it. The shit killed everything-including mosquitoes. 

James, Back the SMC boat back up to the dock.
First, regardless of what the rater told you, if you have two (2) true 100% schedular ratings ( not TDIUs) for two dissimilar diseases, you get your bump up from SMC L to SMC M due to 38 CFR 3.350(f)(4). That is the legal basis for it. Adding another 100% schedular to it will not advance you to a higher rating. Now let's see how we can get you to SMC O.
You cannot advance to R1 or R2 Aid and attendance without the SMC O predicate. In order to qualify for O, you need any two of the disabilities listed in L, M or N. It makes no difference as long as they are separate and distinct. If you have two, and one is Aid And Attendance at the SMC L level  due to some disease or injury that puts you at risk for your well being (helplessness), then you can advance to the SMC O rating. If you had loss of use of your lower extremities and are helpless, these two disabilities qualify you for O. But there is a bump codicil that also allows you to be considered for R1 or R2 when one of the requirements of O is helplessness. This is the only instance I have ever seen where pyramiding is allowed.
Regulations provide that where a Veteran shows entitlement to any two SMCs at levels (l), (m), or (n), entitlement to SMC (o) is established.  38 U.S.C.A. § 1114(o); 38 C.F.R. § 3.350(e)(1)(ii). To wit:
 
(e) Ratings under 38 U.S.C. 1114 (o).
 
(1) The special monthly compensation provided by 38 U.S.C. 1114(o) is payable for any of the following conditions:
 
 (i) Anatomical loss of both arms so near the shoulder as to prevent use of a prosthetic appliance;
(ii) Conditions entitling to two or more of the rates (no condition being considered twice) provided in 38 U.S.C. 1114(l) through (n); (iii) Bilateral deafness rated at 60 percent or more disabling (and the hearing impairment in either one or both ears is service connected) in combination with service-connected blindness with bilateral visual acuity 20/200 or less. (iv) Service-connected total deafness in one ear or bilateral deafness rated at 40 percent or more disabling (and the hearing impairment in either one of both ears is service-connected) in combination with service-connected blindness of both eyes having only light perception or less. SMC (o) can be arrived at a third way via 3.350(4). When a Veteran suffers the loss of use of extremities and is also helpless, they are entitled to SMC (o) as well. 3.350(4):
 
(4) Helplessness. The maximum rate, as a result of including helplessness as one of the entitling multiple disabilities, is intended to cover, in addition to obvious losses and blindness, conditions such as the loss of use of two extremities with absolute deafness and nearly total blindness or with severe multiple injuries producing total disability outside the useless extremities, these conditions being construed as loss of use of two extremities and helplessness. (emphasis added)
Again, the argument does not end there. Entitlement to SMC (o) meets the threshold requirement for entitlement to SMC (r-1).  The law states that when a Veteran is entitled to SMC (o) (or payment of an equal rate under SMC (p)), and establishes a factual need for A&A, entitlement to special A&A is demonstrated.  38 U.S.C.A. § 1114(r); 38 C.F.R. § 3.350(h).  The need for A&A need not be independent of the underlying disabilities used to meet the threshold eligibility requirement, as the regulation provides an exception to the pyramiding rule.  38 C.F.R. § 3.350(h)(1).
VA is going to run you under the microscope if you want R1 or R2. The requirements are strictly adhered to. SMC law is not like Claymore rules. You can't just get close and succeed. You have to be bonafide bedridden if you choose that one as a qualifying disability. Most get there via the loss of use and helplessness combination. For the record, ignore the M21. It is a guide and little else. VA raters try to use it but it's computer driven ergo garbage in=garbage out.
I have a friend in Manila trying to get this. He's 640% disabled-loss of use from waist down (paralyzed), bedridden (documented w/ bedsores), loss of use of rt extremity, grand mal seizures with no warning. He has a "caregiver" he's paying out of his SMC M. He asked for R1/R2. VA used question 13 on the 21-2680 to bushwhack him at the C&P. Dr. said he can "balance" between transfers from bed to wheelchair so that demonstrates he has not lost his use of his lower extremities. That will give you an idea of how anal they are about this.
As for any extra K awards, they all fall out when you hit R1/R2. Best of luck.
Do not use a 4138 to send this in. Use a 2680 and have your private dr. sign it. Add in anything on a continuance sheet if necessary. Be prepared for a fight.Best of luck, sir. 
 
 

Here's how you build it. We began this from the ground up. First the combat medals for 1154(b) combat presumption (PH and CIB)and then the c-file before it accidentally got shredded during the adjudication. Remember, Butch filed in 1970 and hadn't been back until we reopened this spring. We got TDIU but the evidence shows he's entitled to far more-be it via CUE or just inferred claims never adjudicated. Berta, Theresa and I discussed this on the Wednesday show with Jerrel and John but I thought Hadit members might enjoy the nuts and bolts of how we got there. It's my belief that Butch Long and his wife may be needing a financial planner soon. How VA approaches this after we confront them will speak volumes about the "nonadversarial" process they claim to adhere to. To be honest, I have no idea how many ratings at what percent he is entitled to. At "severe" for 9 MGs, I'd have to say he may get 100% from 1970. We shall see. I'm trying to talk him into getting an eBennies account to watch VA TV. They declined. They don't have internet. 
http://asknod.org/2016/01/01/cova-myler-v-derwinski-retained-shell-fragments/
 
Happy New Year to you all. I am so proud of all of you for fighting for your promised benefits. 
Clear prop. 

Hey Berta. Five year substantially protected ratings? Or how about 38 CFR 20.1403. VA can never show up 12 years later and claim they misinterpreted the evidence or even hope to prove it would have manifestly have changed the outcome in 2003.
§ 20.1403 Rule 1403. What constitutes clear and unmistakable error; what does not.
(a) General. Clear and unmistakable error is a very specific and rare kind of error. It is the kind of error, of fact or of law, that when called to the attention of later reviewers compels the conclusion, to which reasonable minds could not differ, that the result would have been manifestly different but for the error. Generally, either the correct facts, as they were known at the time, were not before the Board, or the statutory and regulatory provisions extant at the time were incorrectly applied.(b) Record to be reviewed—(1) General. Review for clear and unmistakable error in a prior Board decision must be based on the record and the law that existed when that decision was made.(2) Special rule for Board decisions issued on or after July 21, 1992. For a Board decision issued on or after July 21, 1992, the record that existed when that decision was made includes relevant documents possessed by the Department of Veterans Affairs not later than 90 days before such record was transferred to the Board for review in reaching that decision, provided that the documents could reasonably be expected to be part of the record.(c) Errors that constitute clear and unmistakable error. To warrant revision of a Board decision on the grounds of clear and unmistakable error, there must have been an error in the Board's adjudication of the appeal which, had it not been made, would have manifestly changed the outcome when it was made. If it is not absolutely clear that a different result would have ensued, the error complained of cannot be clear and unmistakable.(d) Examples of situations that are not clear and unmistakable error—(1) Changed diagnosis. A new medical diagnosis that “corrects” an earlier diagnosis considered in a Board decision.(2) Duty to assist. The Secretary's failure to fulfill the duty to assist.(3) Evaluation of evidence. A disagreement as to how the facts were weighed or evaluated.  

I think a lot of top notch executive's are skimming off the top and eventually get caught.
 Look at ''WWP''  ''Wound warriors Program'', collect Nation wide donations from large company's and wealthy Individual's  world wide and pay your top notch people in 6 figures ''plus' to help a veteran maybe fill out a VA Form for benefits  that don't cost a thing &point that veteran to a VAMC  then you can get very rich .

You have to remember, these VA Execs are usually long term VA and/or Govt employees, well versed in CYA. Quite possibly, they veiled their wrong doing in such a way, that the Prosecutors believed it was an UN-win-able prosecution and thus a further waste of Federal $$.
You would think, a Civil Tort Claim could be brought, where only a Preponderance of Evidence is necessary to win the Financial Judgment.
These VA Execs sound corrupt, not dumb. They probably even paid Fed Tax on their ill gotten gains.
Semper Fi

Buck
   Its 38 CFR 1.579 which reads:
§ 1.579 Amendment of records.
(a) Any individual may request amendment of any Department of Veterans Affairs record pertaining to him or her. Not later than 10 days (excluding Saturdays, Sundays, and legal public holidays) after the date or receipt of such request, the Department of Veterans Affairs will acknowledge in writing such receipt. The Department of Veterans Affairs will complete the review to amend or correct a record as soon as reasonably possible, normally within 30 days from the receipt of the request (excluding Saturdays, Sundays, and legal public holidays) unless unusual circumstances preclude completing action within that time. The Department of Veterans Affairs will promptly either:(1) Correct any part thereof which the individual believes is not accurate, relevant, timely or complete; or(2) Inform the individual of the Department of Veterans Affairs refusal to amend the record in accordance with his or her request, the reason for the refusal, the procedures by which the individual may request a review of that refusal by the Secretary or designee, and the name and address of such official.(Authority: 5 U.S.C. 552a(d)(2))

I found this BVA win where a veteran was granted 10% for RLS: http://www.va.gov/vetapp02/files01/0203175.txt
They rated his RLS via diagnostic code 8103: http://www.ecfr.gov/cgi-bin/text-idx?rgn=div5;node=38:1.0.1.1.5#se38.1.4_1124a
Not sure what diagnostic code was used to rate yours, but if your records show moderate or severe, they should have rated you accordingly.
I hope this helps!

Even though a rating says "Totally Disabled" or "Permanent and Total", they do not necessarily mean either in every situation.
However, because you are 63, you are not likely to be re-examined due to the age rule. I recommend you don't give up on your MD and OSA.
I hear the "don't rock the" boat advice a lot, but depending on your circumstances, there could be some really legitimate reasons to file additional claims in the future whether you are TDIU or P&T. These can include SMC (this is a big one), car or home accessibility grants, secondary conditions to help your spouse for DIC purposes, etc...
Below is a brief summary about various types of protection, but there is a lot more to each regulation. You can look up more details of each in the actual CFR documents, but I don't have the ability to paste in the links at this time.

38 CFR § 3.327: Age Rule
Periodic reexamination will not be scheduled in cases of veterans over 55 years of age, except under unusual circumstances.
38 CFR 3.344: 5 Year Rating Protection
Ratings percentages in effect 5+ years or longer cannot be reduced unless the condition has improved on a sustained basis or due to fraud. All evidence, not just a single reexamination report, must prove improvement was not just temporary.
38 CFR 3.957: 10 Year Service Connection Protection
For disabilities SC for 10+ years, SC status is protected, except in cases of fraud.
38 CFR 3.951: 20 Year Rating Protection
Rating percentages in effect 20+ years cannot be reduced except for fraud.
 
I hope this helps!
 

AND! Are you rated, (P & T, No Future Exams Scheduled)? Unless the "NFES" is stated on your award, an award is subject to review on a Diary Date basis, usually 18-24 or 36 mos. A Vet could and probably should, expect a Review just before he hits 55, the VA cut off for scheduling SC Reviews.
Even after 55 and being an actual 100SC or TDIU "NFES" rated vet, filing a new claim as a Secondary to a Current SC would open the original SC for Review. A Vet filing a New claim at that point, is in search of an SMC  A&A or Housebound Award.
As to earned income limitations, Straight 100SC - sky's the limit, IU must be below the SGI figure of $12,400 under 65 - $11,400 over 65. If an IU vet has earned Income over the SGI for (12) consecutive months, a reduction back to his original SC Rating will be proposed by the Rating Dept. With IU, a vet must report his 12 prior months income within about 60 days of his IU anniversary date. This reporting requirement ends at the Vets age of 69. Failure to return the VA Income Form within the stipulated time frame, in-dangers the continuation of the IU Award.
The VA Income form takes little, almost no time to complete. A Vet would be a fool not to complete & return it in the alloted time, Cert - Return Rect.
Semper Fi
 

I have a DAV rep  but I am working my own claim  I basically sign on with them in case I need to go to CAVC  OR Even a DRO Hearing, mine is to busy to call at times but may need them later?  if he don't answer his pgone I'll just go to his DAV Office  its in my VAMC building
Let me give you a piece of knowledge Buck. None of the VSOs have attorneys accepted to practice at the CAVC. It requires a real juris doctorate and a $1500 a year registration fee. DAV and the rest do not have these law dogs. The moment you lose at the BVA, that's the end of the trail ride. You are forced to either go to the NVLSP for a pro bono attorney or find one on the private market as I did with Bob Walsh. Too many Vets think they get the legal all the way to the Fed Circus or the Supreme Court. Truth is, there aren't many who practice at the CAVC and a dang sight fewer at the Fed. Circuit. NVLSP has a contract with a few who are accepted at the Supreme Court. Otherwise, you hear Ken Carpenter's dulcet tones arguing most at the Fed. Cir. and even quite a few at the CAVC panel decisions.
In 1992, I won 0% +0% for hearing /tinnitus. I lost the big one on my back and DAV never told me I could go to the CAVC. In fact, they never mentioned the place existed. DAV (89-92), AmVets (94-95) and MOPH (2006-2008) all never told me I needed a nexus letter. I  finally figured it out myself and won  without them. The law has said you needed a nexus since 1945. Seems one of the  46 VSOs would have copped to that and shared it with us all these years. We now have a VCAA, 95 VSOs and still we see 50% of all claims on appeal with VSOs still crashing and burning with one thing in common---no nexus letter. How many of you think that is a coincidence or an unfortunate error?  Remember, VSO service reps have to go to school to learn this game. If all you need to succeed is three things and you have a rep who arrives with none, one or two, would you think he was still sharp as a tack? This isn't one of those Maxwell Smart "missed it by thaaaaaaaat much"! games. 

So after all the years of working the VA claims as a part-time job, I received a call yesterday that my appeal/remand order was finally completed. He said the retro check should process within a few days. I was expecting a small percentage increase for the issue under appeal, but when I checked eBenefits this morning, I saw the new rating for the appealed issue: 100% (by itself). I then looked at my letters and saw the P&T box selected as 'Yes'. I'm still in shock. The retro wasn't what I thought it would be so I'll wait for the BBE to see the details. Also, judging by the new monthly compensation number, it looks like they are no longer recouping severance from my pay. Again, I'll have to wait for the BBE.
Next to my family, this is one of the best Christmas gifts I have ever received. I cannot thank all of you here enough for encouragement and support through the hoops of fire that is the VA process for benefits. I really want to thank Carlie, Pete, GA poppa, Ms. Berta, Chuck and a host of others that my mind is racing far too fast to remember. Carlie practically walked me through the language needed to request P&T, but I never had to send the request. I talked the language as I went through each conversation and C&P exam. I can at least provide my kids with a college education and my wife with benefits should anything happen to me. I'll have to look at the full spectrum of benefits now that I'm P&T. I know GA offers an increased homestead exemption and disabled veteran plates for parking. I'm not sure what else is available and will search here (Hadit!) to find it.
God bless to all, and Merry Christmas, Happy Hanukkah and a Happy New Year to all my brothers and sisters here!

News article in USA today titled VA shortcomings prolong vets. suffering.  It's about Vets being misdiagnosed at the VA medical center in Oklahoma.  Things that most of us already know about.  But as my title says HERE WE GO AGAIN.  Question, how many more will it take before they get their s--t together.  Good information but sad reading.   Thanks to all who have served.  We deserve Better.  Happy Holiday to all and god bless.  Roadrunner.

Here's a claim I began  way back in 2012. I frequently consulted with Carlie on it regarding a number of facets including CUE and earlier effective dates. I can only wish she was here to share in Butch's success.  As most know, we cannot claim any ownership of these claims for fear of prosecution by the OGC for representing Veterans without suitable credentials. I am in the process of obtaining mine but in the interim, I cannot own it. This was a long time coming. Let this be the reason every one of you set your sails and ventures forth on the claims path-for yourself or for your fellow Veterans. Theresa could not encapsulate or enunciate  the reason any more clearly- never leave a Veteran behind. Period. 
You represent three percent of the American populace yet you defended 97%. Rejoice in it. If injured in the process, you signed a contract that indemnifies you and provides for your welfare. Do not be ashamed to put in a claim for something promised by those who hired you. My friend Butch suffered needless delay for 46 years because numerous VSOs, friends and acquaintances said they would "take care of it". In the end, his daughter, born while he was in Vietnam, approached me and asked me if I had the mettle. She admonished me not to promise something I had no intention of honoring. Many others had already done that. I made that promise and yesterday it came to pass. 
We got his c-file We didn't shotgun a claim into the wind and see what stuck. We never even filed until we could see what they did in 1970. I suppose we could have gotten him an earlier effective date of 2012 if we had been willing to begin shooting holes in the dark early on. We preferred to build a claim that would stand the test of numerous appeals. Butch's claim has just begun. 1970 is the prize. His $33,000 in retro is VA chump change. Follow us through this win and NOD/ Appeal and learn how. 
You win at this poker game with evidence. I cannot begin to emphasize that concept. You never win because you're morally right or deserving. You win because your evidence is unequivocal. Justice may be elusive but when you are right, you prevail-even if the evidence doesn't surface for 46 years. It took that long just to get Butch's Combat Infantry Badge and Purple Heart. Once that was accomplished, the evidence could not be disputed. A combat presumption is the gold standard, Many of you have this and do not understand the significance of it. No American who would risk his life for America should ever have his testimony called into question. If you are willing to die for America, it suffices to say you are a credible witness. I did it backwards and got  my combat medal after I won. Had I done it with the medal in advance, it would have been child's play. Nobody was there to tell me. I had no mentors in 1989 and 1994. None of us did back then.    
Ladies and Gentlemen Veterans, I give you Butch Long- our latest member of the P&T club- an exclusive membership of 255,000 TDIU Veterans who have made the grade. 
 http://asknod.org/2015/12/23/lz-cork-success-after-46-years/
 Never in my 26 years of fiddle farting around with this crap have I ever been so honored to have a neighbor like Butch that I could help. He has lived a stone's throw from me for years and I had no clue. Our Vietnam Band of Brothers grows smaller with each passing day. Theresa's Hadit ideal created a Godsend for us here and gave us the gift of a virtual Town Hall to share our knowledge. I beg of you to pay your wins forward as Carlie and Theresa have. I'm the  FNG in this with barely 20 years under my belt. Follow our footsteps and make a difference for those who come after us. In the last 8 years, I have watched as many said they would help after their big win. Many promise.I continue to watch and wait for some of  them to honor that promise. Your knowledge is the next generation of Veterans law. Without you, it evaporates. Don't let it require each new generation to learn it all over again. 
Merry Christmas from all of us at asknod and Hadit. Remember too that it is more blessed to share your knowledge than to use us as a Wikipedia and never leave your footprint. Fifteen minutes of Facebook fame is nothing to helping even one Veteran achieve service connection for life. Pay it forward because you can. Because it is the right thing to do. And to all my Vietnam Brethren- Welcome home with Honor, gentlemen.  
 
  

Get your VA issued Hearing Aids, then climb in the boat with all the other  HL SC 0% Vets. You can NOD the 0% for Hearing Loss, just don't get your hopes up. Your word recognition (Or Guesses) from a recording and the Freq Graph generated by the computer got you the 0% rating. No real human interpretation of test results required. An increase may be possible at some future date, not too likely, depending on your age and occupation.
Depending on where and when you served, Hearing loss should be the least of your worries. If no other SC medical conditions ever develop, your basically still good to go. Development of Depression Secondary to your Hearing impairment and Severity of your Tinnitus could be a future SC Secondary  Claim.
Semper Fi

When you hit the 100% P&T wall, VR&E is hesitant about expending any monies towards a Voc Rehab program into any field. I  presume your rating is a true 100% schedular rating as opposed to a TDIU equivalent. 
VA tends to insert you into the Independent Living Program and try to pawn off cordless phones, grab bars near toilets and showers, can grabbers, sock puller uppers and the like to facilitate Independence. I asked for a computer and all the peripherals in 2011 and had to fight to get it on an administrative review back to DC. I had a great reason-asknod.org. It worked. You could also say you wish to be in communication with the Veterans Community at large and the computer will facilitate that. You do not need a true "vocational" use for a computer.  I also asked for a greenhouse and finally won that on appeal to the BVA after four years.
With a 100% P&T, VA is going to be deaf to a new rehab retraining program as there is much competition for the $. On the other hand, the ILP program only has 2,700 slots per year with a max expenditure of $180,000.00 per Vet over the 3-year life span of an ILP rehab. plan. My greenhouse  ate most of that up.  Go in and file. See if they show you the door on a standard job rehab grant. If so, demand the ILP and sharpen up your pencil. How about a woodworking shop with all the saws, sanders and planers? Make wood crafts and sell them at street fairs. Read up on 38 CFR 21.16o and .162, 38 USC 3120 and 3104. I've written about one hundred blogs on the ILP subject and published all my NODs, VA 9s etc. to give Vets a feel for the path to a win. The trick is simple. Refuse to lose. Best of luck.
https://asknod.wordpress.com/category/independent-living-program/

I am a guy and went through this with a claim for Bipolar Disorder. The VA ignored my evidence which was limited to one page in my military medical record. You know what I downloaded the forms from all three congressman's website for release of info so they could assist. They will also send this too if you call their office and speak to someone on their staff. I filled out the form and asked the congressman's office that they submit my medical info on my behalf as they were ignoring my medical info. I even sent the congressmen a copy of rating decision which showed key evidence was missing. The VA FLAGGED my file which is their way of saying a congressman was involved. I did this while was waiting on my appeal for DRO "de novo" review. Guess what? The VA recognized my evidence, sent me a letter admitting they had the evidence and granted my claim for Bipolar Disorder during a de novo review with DRO at regional office. THEY HAD TO RESPOND TO THE CONGRESSIONAL INQUIRIES AND THE CONGRESSMEN SENT ME COPIES OF WHAT THEY SAID WHEN THEY RESPONDED TO THEM! Hold their feet to the fire and you will win!