VetlawUS

Yes, I had them represent me. The fact that they contacted you probably means:
Pros:
1. You had a recent denial at the BVA
2. NVLSP identified what they refer as "errors" at the BVA that they can easily win.
3. They will represent you at no cost to you.

You were probably referred to them by the DAV. They can help you, but, again, you get what you pay for, tho its much better than just going with a VSO. They probably found something incorrect, such as an inadequate "reasons and bases" for decision, or something like that. They only want cases they KNOW they can win, but that does not necessarily mean its good for the VEt. They are experts and wrote the VBM.

Cons:
Dont expect them to go to bat for you with anything except the most winnable cases, and, even then, you will probably be pressured to "settle" because that means they collect fees and, well you may not get much. They dont really seem to want to go to court.
Dont expect a large settlement.

If you can afford another attorney, then that is probably best. They talked me into settling for almost nothing and that put a "w" in their column but I have to now go back and get back on the hamster wheel to really get what they should have fought for me, but wont, because there was a higher chance they would lose. They are intent at keeping their "w" ratio very high, even at the expense of Veterans.

The good news is that, if your claim is accepted by NVLSP, you have about a 90 percent chance of a win. (But, you would likely get a lot more from a more aggressive law firm, as NVLSP is not that aggressive..they only want "sure" wins, and they will only fight for that one thing..not the rest of it.

I've been representing Veterans at VA Regional Offices around the country for 7 years, and NEVER have heard of a Reconsideration of a Ratings Decision.

This concept has been popping up a lot the last year, and so I wrote about it on the Veterans Law Blog:

http://www.attiglawfirm.com/move/reconsideration-va-rating-decision-appeal/

I have asked every VSO that says there "IS" a Reconsideration process to point me to the CFR cite that allows it, or to the VA Procedures Manual (M21-1MR) that lays out that process, and nobody has ever been able to show it to me.

I suspect that what VSOs are calling a "reconsideration decision with new evidence" really a "reopened claim with new and material evidence", and that VSOs are talking Vets into doing this to boost the VSOs numbers (on paper) showing how many claims that they handle, but I'm just speculating from what some VSOs are telling me.

If you have New and Material Evidence, and it is DURING the one-year appeal period, file a NOD. NEVER try to reopen a claim that is still appealable - it's the surest way to LOSE your earlier effective date.
The ONLY way to protect your original filing date for past-due benefits purposes is to file a Notice of Disagreement within 1 year of the Notice of Action Letter delivering the rating decision.

Chris

The simple formula that I use in my client's sleep apnea claims (and that I teach in my book) is this:

A: Understand the full scope of the Diagnosis
B: Select multiple paths to service connection
C: Load the file with lay evidence of symptoms and limitations from service to diagnosis.
D: Tie it all together with the right kind of medical evidence - for both nexus and rating.

It's not easy, but it's a pretty simple approach that works almost every time. Why? Because I believe that Sleep Apnea is the big medical issue that Veterans will face for the next 30 years.

For those of you that don't know, I am the author of the one and only Comprehensive Guide to VA Sleep Apnea Claims...it's only available as an eBook right now...but it's a monster. 165 pages....spent 9 months researching and writing it...talked to hundreds of Vets, read thousands of cases/denials, spoke to a dozen or more doctors, and put it all together into one comprehensive guide. I'm not here to pitch my book, but if you're interested, read a little more about it here.

1) The thing that DRIVES your Sleep Apnea claim is the diagnosis. Why? There are 3 (arguably 4) different types of Sleep Apnea, and each of them have VERY different causes. If you have Central Sleep Apnea, and try to argue that it was caused by a deviated septum or nasal injury in-service, you will likely not win. Why? This is like arguing that the power in your house is off because you didn't pay the water bill.

2) Once you know the specific type of Sleep Apnea that you are diagnosed with, you have multiple points of attack in a Sleep Apnea claim - there are 39 medical conditions (that are frequent among Veterans) which are known to cause, be caused by, or aggravate, sleep apnea. That's 3 different paths to service-connection right there.

3) You do NOT need a sleep study in service, or a diagnosis in service, to service-connect sleep apnea. What you need is lay and medical evidence tying together the past and present symptoms, limitations and diagnosis.

Hope that helps.

Chris Attig
www.VeteransLawBlog.org

The simple formula that I use in my client's sleep apnea claims (and that I teach in my book) is this:

A: Understand the full scope of the Diagnosis
B: Select multiple paths to service connection
C: Load the file with lay evidence of symptoms and limitations from service to diagnosis.
D: Tie it all together with the right kind of medical evidence - for both nexus and rating.

It's not easy, but it's a pretty simple approach that works almost every time. Why? Because I believe that Sleep Apnea is the big medical issue that Veterans will face for the next 30 years.

For those of you that don't know, I am the author of the one and only Comprehensive Guide to VA Sleep Apnea Claims...it's only available as an eBook right now...but it's a monster. 165 pages....spent 9 months researching and writing it...talked to hundreds of Vets, read thousands of cases/denials, spoke to a dozen or more doctors, and put it all together into one comprehensive guide. I'm not here to pitch my book, but if you're interested, read a little more about it here.

1) The thing that DRIVES your Sleep Apnea claim is the diagnosis. Why? There are 3 (arguably 4) different types of Sleep Apnea, and each of them have VERY different causes. If you have Central Sleep Apnea, and try to argue that it was caused by a deviated septum or nasal injury in-service, you will likely not win. Why? This is like arguing that the power in your house is off because you didn't pay the water bill.

2) Once you know the specific type of Sleep Apnea that you are diagnosed with, you have multiple points of attack in a Sleep Apnea claim - there are 39 medical conditions (that are frequent among Veterans) which are known to cause, be caused by, or aggravate, sleep apnea. That's 3 different paths to service-connection right there.

3) You do NOT need a sleep study in service, or a diagnosis in service, to service-connect sleep apnea. What you need is lay and medical evidence tying together the past and present symptoms, limitations and diagnosis.

Hope that helps.

Chris Attig
www.VeteransLawBlog.org

We request DROs in every single case, with the exception of one case.

Here's my thoughts pro/con on the DRO process. Like another poster said, if you have your ducks in a row, you can usually resolve the case right there with the DRO.

Here's how I (generally) approach a DRO hearing.

Even though the waiting list for DRO is 6 months to 2 years (smaller ROs have shorter wait times), if you skipped it and went for a BVA hearing, you would still have to wait 1-2 years on remand while they develop the evidence. The official statistic is that between 2-5% of cases get resolved at the DRO conference. My experience is that it is much higher.

Keep in mind, if you have a medical or financial hardship, request an expedited DRO hearing. Most ROs will bump you up on "the list".

Chris

The VA is required to consider SMC if they grant a "total and permanent" 100% rating.

If they do not consider it - DO NOT FILE A CUE CLAIM (unless you have no other legal recourse ... i.e., your appeals are final, and you have no ability to reopen). A CUE Claim should be a claim of last resort when there are no options left.

Instead, if you are within the time to file an appeal (1 year from the Ratings Decision) file a Notice of Disagreement appealing the denial of SMC in the Ratings Decision that granted a 100% P&T rating.

If you are not within that time, file a claim to Reopen to consider SMC...wait til you get the SMC, then file a NOD challenging the effective date using the argument that the VA should have inferred SMC from a grant of 100% permanent and total disability. Only after losing all those appeals do I think it wise to file a CUE claim.

Here are a few posts from the Veterans Law Blog to help out:

Read about CUE Claims - and what makes them difficult and dangerous - here.

Here is some basic information about what goes into a Notice of Disagreement.

Failure to decide "inferred claims" like SMC is one of the Top 5 Most common errors that the BVA makes.

Hope the answer, and the links, help.

Chris

From your story, I am seeing some indicators for the cluster symptoms for GWI. (I'm not a doctor, of course, but your case sounds similar to other PGW cases I've handled).

You probably know this, but GWI is covered in the regs at 38 CFR 3.317.

Here's a general methodology that my Firm uses in GWI Cluster Symptom cases....

(Quick Caveat: keep in mind, this is not legal advice, and no post by me in this forum can substitute for legal advice from an accredited attorney. This is just meant to educate you about the procedural steps involved in claims like this)

Here are the procedural steps my firm follows in GWI Cluster Symptom cases:

1) Document every symptom and limitation you are facing. I say "screw the 21-4138"....my attorneys and staff use the Sworn Declaration form (linked below). Here's why I say "screw the 21-4138".

2) Have anyone that you know - spouse, friends, co-workers - document the symptoms and limitations that they are witnessing. Consider using the Sworn Declaration my Firm uses.

3) Get a copy of all of your military service medical records - and all of your post service treatment records (VA and private)

4) Get a copy of your VA Claims File. Here's what that is and 3 ways to get it:

5) Take those to your primary care provider - or better, a medical expert - and request that the a medical opinion as to whether these symptoms are a diagnosed condition, or whether they are cluster symptoms which evade diagnosis. Ask that he/she specifically opine whether the "cluster symptoms" are related to your military service. And don't forget to ask that they use THESE "Magic Words" in their opinion.

Hope that helps. Sorry you are going through all that.

Chris

The VA is required to consider SMC if they grant a "total and permanent" 100% rating.

If they do not consider it - DO NOT FILE A CUE CLAIM (unless you have no other legal recourse ... i.e., your appeals are final, and you have no ability to reopen). A CUE Claim should be a claim of last resort when there are no options left.

Instead, if you are within the time to file an appeal (1 year from the Ratings Decision) file a Notice of Disagreement appealing the denial of SMC in the Ratings Decision that granted a 100% P&T rating.

If you are not within that time, file a claim to Reopen to consider SMC...wait til you get the SMC, then file a NOD challenging the effective date using the argument that the VA should have inferred SMC from a grant of 100% permanent and total disability. Only after losing all those appeals do I think it wise to file a CUE claim.

Here are a few posts from the Veterans Law Blog to help out:

Read about CUE Claims - and what makes them difficult and dangerous - here.

Here is some basic information about what goes into a Notice of Disagreement.

Failure to decide "inferred claims" like SMC is one of the Top 5 Most common errors that the BVA makes.

Hope the answer, and the links, help.

Chris

The VA is required to consider SMC if they grant a "total and permanent" 100% rating.

If they do not consider it - DO NOT FILE A CUE CLAIM (unless you have no other legal recourse ... i.e., your appeals are final, and you have no ability to reopen). A CUE Claim should be a claim of last resort when there are no options left.

Instead, if you are within the time to file an appeal (1 year from the Ratings Decision) file a Notice of Disagreement appealing the denial of SMC in the Ratings Decision that granted a 100% P&T rating.

If you are not within that time, file a claim to Reopen to consider SMC...wait til you get the SMC, then file a NOD challenging the effective date using the argument that the VA should have inferred SMC from a grant of 100% permanent and total disability. Only after losing all those appeals do I think it wise to file a CUE claim.

Here are a few posts from the Veterans Law Blog to help out:

Read about CUE Claims - and what makes them difficult and dangerous - here.

Here is some basic information about what goes into a Notice of Disagreement.

Failure to decide "inferred claims" like SMC is one of the Top 5 Most common errors that the BVA makes.

Hope the answer, and the links, help.

Chris

The key thing that the VA needs to see in a DIC application is that the service-connected condition was a contributing factor in the Veteran's cause of death.

It is important to note that the service-connected condition does NOT need to be the SOLE or the PRIMARY cause of death...it only needs to be a contributing factor.

The cleanest way to do this is to make sure that the death certificate identifies the service-connected condition as a primary or contributing factor in the cause of death.

In some cases, we have had a Death Certificate amended to add a service-connected condition as a contributory cause of death - but be aware, the VA will challenge the credibility of an amended death certificate - seek the advice of an accredited VA attorney if you plan to have the death certificate amended.

If the death certificate does not clearly show that a primary or contributing cause of death was the service-connected condition, then you will likely need a medical opinion that shows that the service-connected condition contributed to the cause of death.

Here is some other helpful information about DIC Claims:

What Survivors need to Know about DIC claims.

The VA has a Duty to Assist Survivors in a DIC Claim.

Don't forget to include an Accrued Benefits claim when filing for DIC.

Don't forget these "Magic Words" in a medical "nexus" opinion.

Hope the posts help.

Chris

Mark,

One thing I noticed in that private opinion is that the doctor didn't review your C-File. That's one of the reasons that the BVA will "discount" a private medical opinion. Get him a copy of your C-File and have him include the statement: "I reviewed the Veteran's C-File in making this opinion".
It's one of the "Magic Words" that needs to be in a Private Medical Nexus Opinion.

As to your other question, this gets a little trickier.

When a C&P doc identifies a "new" condition that could be related to your military service, but the VA does not address it in a Ratings Decision, you might have what is known as an "Inferred Claim". Generally, an "inferred claim" is one that is not SPECIFICALLY raised by the Veteran, but is "reasonably raised" by the facts in the record.
The VA routinely ignores "inferred claims".

The process allows you to do 2 things, and I do BOTH when representing my clients:

#1: Include the Inferred Claim as part of your current appeal. If you still have time on the 1year clock, even though you have filed a NOD, file what I call a "Supplemental NOD".

#2: File a "new" claim for secondary service connection (or service connection based on aggravation) on the additional condition. That way, if they deny it in the NOD "track", you have a second "track" to continue your claim. You can always argue for the earlier effective date later, too.

Hope this helps. I wanted to give helpful information about the process, without leading you to believe it is legal advice (which is not).

I would be very interested in knowing if Dr. Anaise's reports are helpful. He has been calling my firm a lot lately. We are usually very careful about what experts we use - so the VA doesn't "burn" them. Please share more feedback on Dr. Anaise on or off list. You can always reach me through a "Mail Call" submission on my site.

As for the cost, our overage fee is usually in the $150-$1500 range, although the cost varies widely depending on a few factors:

1) level of expertise required (a forensic pathologist for an accrued benefits claim can easily reach the 5 figure range, whereas most audiology reports/exams are going to be around $150).

2) How much time needs to be spend educating the doctor on how to write an opinion for a VA claim - this is MUCH different than the other types of reports that are written for other types of cases because our "Burden of Proof" is so low.

If you get an independent medical expert, don't forget these "Magic Words"

Chris

That's a really broad question, but let me see if I can help steer you on the right path.

The VA is supposed to consider ALL evidence when deciding a claim. This includes both Lay and Medical Evidence.

Lay Evidence has a PURE RAW POWER that no other evidence has in a VA Claim (click the link to read more)

The analogy I make is this:

Lay Evidence is the Bullet (click to read more)
Medical Evidence is the Rifle.

Using one without the other has the effect of making your evidence less valuable or in some cases useless.

On the Veterans Law Blog, I talk about using "5-Star Evidence" - evidence that is probative, material, relevant, competent and credible - to prove up a claim.

If the VA, or the BVA, fails to consider all of the lay or medical evidence favorable to the Veteran, this should be included in your Appeal.

Filing a CUE claim is a "hard row to hoe", particularly if you have an easier path of filing an appeal within the one-year appeal period.

The key, in my mind and experience, has been to load your claim with Lay Evidence of symptoms and limitations, and "fire it downrange" with Medical Evidence that considers and talks about that Lay Evidence.

And hold the VAs feet to the fire by filing a NOD any time a decision fails to consider ALL the favorable medical and lay evidence in the C-File.

Hope that helps.

Chris

Thanks for your post, if I wasn't already lawyered up, I would be definitely seeking your services. Well done website

That does not look right to me.

I see this all the time: the examiner marks symptomatology for PTS and other mental health conditions, but assigns a rating that is not consistent with those observed symptoms and limitations.

We just started working with a client who had something VERY similar happen - symptoms documented by the Examiner support a 50% rating, but the rater only gave a 30% rating.

Why do they do this? Raters aren't medically trained, and I believe take a gamble that most Vets don't know that they can appeal the determination of an Impairment Rating through a Notice of Disagreement (NOD).

The solution: file a NOD asap and challenge the low ball impairment rating. Here are a few blog posts to help get you started:

1) Read more here about the "Mystery of Impairment Ratings"

2) Here are 6 ways to challenge the C&P Examiner's evaluation. (These are NOT the only ways - just some common challenges we make in our cases).

3) Here are 8 Tips for making sure that the VA didn't "low-ball" your PTS rating (the theory is the same for all mental health conditions, as they use the same ratings table regardless of the actual mental health condition service-connected).

4) Read about the Mauerhan case: it is one of the 10 Cases Every Veteran should know - and it is an admonishment that in mental health rating, the VA MUST consider factors outside the Rating Table that impact a Veteran's occupational and social limitations.

Hope those help!

Chris

I've been at this for 7 years (representing Vets), and I've never met many of my clients.

This can be a good thing - it typically means we got the case resolved through a telephonic DRO Conference (or without need for a hearing in the first place). This saves my clients money (the only costs our clients pay AFTER they win are travel costs and expert fees).

However, if my client has a DRO Conference or BVA hearing, I will be there in person and will meet my client. I also have told my attorneys that they are to contact every client we have at least 2 times a month - the first time to see how they are doing, and the second time to tell them what we have done in the claim.

Also, I wrote a FREE ebook that has the "8 Things Every Veteran Should Know Before Hiring An Attorney"....including 8 things you may not know about attorneys that represent Veterans, and a 25+ question checklist to make sure your attorney knows what the heck he/she is talking about.

Here's where to get a FREE Copy of "8 Things Every Veteran Should Know Before Hiring an Attorney."

Great to see you here, Chris.

Chris makes an excellent point. Show me the CFR. There isn't one anymore than there's a tooth faery. VSOs, God bless their pointed little heads, are woefully unprepared for what is in store for them after an initial denial. There is no more bargaining at ROs as was common back in the 90s. The books are cooked with an eye to denial. If 85% lose their claims perennially and that figure has remained static for decades, then it can be said there is a "process" at work here that is not well known. Administrative reviews do occur in VR&E requests but that is probably the closest comparison to a Motion for Reconsideration. Absent any legal training and/or a JD, you are letting rank amateurs run your claim. It figures they'll make up law to prolong the fish-on moment.

Using the actual phrase "Motion For Reconsideration" (or MFR), we can only discern it in requests for denials at the BVA where a Veterans asks for it and an expanded "Board" of three VLJs. As your chances of getting an answer within 120 days are between slim and none, you endanger your ability to file your Notice of Appeal with the CAVC within the allotted time. This is no coincidence. Other than that, it is a chimera. So many of you who have not had the benefit of having your teeth rearranged by VA numerous times may labor under the misconception that we do, indeed, inhabit a nonadversarial ex parte process where every benefit possible is extended to the Vet if deserved. For instance, if using a VSO, were you aware that when your VSO-defended claim arrives in DC, it often is argued by a VSO different from the one you filed it with? VSO's have a limited number of appeals teams (currently 5) and defend Vet's claims on a first come, first served basis. If you are defended on paper by DAV, it is not uncommon for your appeal to be handled by a team consisting of MOPH, AmLeg and VFW gomers if no DAV chuckleheads are free to do so. Scary? You bet. Then throw in no Juris Doctor degrees when you are up against 500 VA staff attorneys with that JD after their names.

And as for horse-trading in the back room, this is often where it happens. You read about it in your BVA decision where it says "Hearing loss and tinnitus are granted at 0% and the claims for Sleep Apnea, Ischemic Heart disease, Parkinson's et al are denied. Have a nice day, hear?"

The only nonadversarial part of this process is the tenor of the denial. Most consist of an abject apology for being unable to grant your heart's desire. The kick in the teeth is the proffered olive branch to come on back if you unearth any more new and material evidence that would merit reopening the claim. I use the technique of the Everlasting Gobstopper from Willie Wonka fame. I assemble a library of evidence and submit something new after each denial. 38 CFR 3.156(b) demands a de novo adjudication on any claim denied if n&m evidence is submitted-even if it is tendered after the Form 9 and the away game in DC has begun. You can milk a claim to an eventual win simply by beating them to death with 3.156(b) over and over. It's an art form so be careful not to step on your necktie and submit something that doesn't qualify as n&m.

A

Guns are free. Cleared in hot on heading 270.

Welcome, Chris!

We sure appreciate your presence and contribution to the military community. http://www.attiglawfirm.com/blog/

Thanks for dedicating your energies to helping Veterans win claims. My Daughter is using Bob Walsh out of Battle Creek, Michigan. So far so good. Welcome to Hadit. Terry

Chris....we have conversed or emailed in the past.......Good to see ya here!!!!!!

Men and Women, this is a Great veteran's attorney and I am glad he came on aboard .....


We get about a million hits a year at hadit and we have by now over 10,000 members.....

I just posted the Washington Examiner link Chris, and felt very depressed about the whole VA system but you gave me a new impetus to , as I said in the radio show I did here last week, to 'pick the scab , so that it bleeds.'

Bleeding can help get rid of infection......

We have all been negatively infected by VA's callous disregard for our claims and the health of our veterans.

( if you recall, I am Berta Simmons Cohocton NY, widow of a vet , dead due to VA health care (FTCA/ Section 1151 1998)

Also Dead to misdiagnosed and untreated DMII under AO 2010, and due to AO IHD (Nehmer) 2012...awarded after I got them to CUE themselves on a ludicrous denial ....then 3 weeks to my proper award.

I hope every one here reads your Veterans Law Blog.

Our mantra here is Knowledge is Power.

If I didn't know VA 38 101 and Va case law I would have never gotten my proper awards.

Thanks again Chris.........it is Great that you have joined us. welcome here!

The VARO and VAMC can say some of the most rediculous absurd things in order to reject a VET. Don't feel rejected it is just that they do not have anything and are pumping you for any negative information that you will provide to them.

It was good you got a lawyer. If you would have stayed with the VSO remember 0% of 0 = 0.

I think you made a good decision.

Yes, the VA will weigh the evidence sometimes even though it is there own evidence repeating their own evidence. This is really sick.