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rsm-esq

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About rsm-esq

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    E-3 Seaman

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    www.rsmlawfirm.com

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  • Location
    Washington, DC
  • Interests
    VA Accredited Attorney - Dental Disability Claims and Appeals

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  1. Hi there, This will become a battle, but hang in there... It's an uphill situation because the VA physician has clearly stated that it is "less likely than not" that your condition is related to your service. In other words, that doctor thinks it is unlikely that your cancer condition was caused by any service-related event. Accordingly, VA denied service connection. The way to overcome VA denials is to appeal and submit evidence the supports your argument. You'll need a medical opinion that supports your contention that your diagnosed medical condition was caused by an in-service event or injury. This is called a nexus letter - a professional medical doctor's formal statement that in his/her opinion it is at least as likely as not that the diagnosed condition was caused or aggravated in service. Imagine an expert witness on the stand for the prosecution. How does the defendant overcome the expert witness' opinion? By putting his/her own expert witness who provides testimony supporting the defendant's position. It's the same principle when filing an appeal for the VA's consideration. All the best!
  2. The VA treats each diagnosis as a separate claim for purposes of determining service connection and effective date. Then, depending on whether you are approved for a single or multiple service connected conditions, you will be assigned a single or combined disability rating percentage. In other words, you can appeal any individual or multiple claim denial. Just be sure to specify in your Notice of Disagreement which claim you are referring to.
  3. This sounds like the old "competing medical opinions" situation. The VA physician says your medical records do not support service connection, while your private physician says it does. In the rating decision, VA favors their own physicians' opinion and will deny service connection. Typically, here's how to go about solving this conundrum: File the Notice of Disagreement. But - and this is critical - it should be supplemented by a very methodical and claimant-specific professional medical opinion that states whether it is at least as likely as not that the claimed medical condition was caused during or aggravated by military service. The opinion should be based on the claimant's service records as well as in-person evaluation, and the opinion statement should clearly inform the VA that the physician has in fact reviewed all relevant medical records in formulating their opinion. Basically, the VA will not approve a claim for compensation until the claimant submits evidence of the claimed condition (diagnosis), evidence of in-service injury or aggravation, and a nexus (link) between the two. Submitting a favorable medical opinion is the best way to accomplish that. Do not bother sending pages and pages of WebMD articles, research material, or other outside sources because they are not relevant to your specific condition. All the best.
  4. CUE is a legal standard to request the VA to reconsider their prior decision. In other words, CUE is the basis for requesting the VA to go back and take another look at their previous decision. In order for them to even look at the reconsideration request, the claimant mist show evidence of a glaring procedural or administrative error or mistake on the VA’s part that meets the legal definition of CUE. Then, assuming there is a CUE-level mistake, there needs to be sufficient evidence that were it not for the mistake, the claimant’s claim would have had a significantly different outcome. CUE isn’t a subjective statement of what we think is an error. This is why CUE cases are difficult to prove and are rarely successful. In practical terms, to save time in an already clogged and backlogged system, appealing (via NOD) is more often than not a better option. Because if the CUE request fails (which it probably will) the claimant has to appeal anyway.
  5. Revising a VA decision based on CUE is a very difficult road that rarely results in a favorable decision. Not only is the legal criteria hard in itself to meet, but also the VA's internal regulations make it clear that only a very specific and rare type of error qualifies as CUE. CUE essentially requires that the law in effect at the time of the alleged error was not followed, or the correct facts were not reviewed, and evidence that but for the error, the outcome of the case would have been different. It isn't impossible, but a prevailing CUE case requires a thorough analysis and argument presentation. The good news, however, is that there is no time deadlines for CUE revisions... take your time and get it right. If you need help, feel free to reach out!
  6. It seems the RAMP program has had positive and negative results, and the lack of consistency makes it hard to give a definitive answer. On the one hand, many veterans have been able to resolve claims as a result of the streamlined process, but there are lots of horror stories out there as well. I generally advise clients to steer clear of any government process that limits appeal rights and the ability to submit additional evidence - which is in large part what RAMP did. To your point directly, July 2020 seems to be a long wait, but hang in there... as the folks above stated, it may help to keep the pressure on by contacting your VSO and following up with the VA directly as to the results of your inquiry. It isn't uncommon for even the inquiry request to get "lost" and have to be requested a second (or third) time.
  7. Taking it a step back, here's a bit of insight into attorney-client communication: Most attorneys prefer scheduled phone calls and emails to respond to client inquiries. At least I do. I reach out to every client at the outset of our relationship to let them know my preferred method of communication and that I'm happy to take calls and inquiries by appointment. So far, so good. When a client calls about a given case, it is literally impossible to provide an off-the-cuff, spontaneous and accurate response. Why? Attorneys strive to provide articulate information, which requires reviewing the client's case file, refreshing our memory about the issues, and then finding the time to actually follow up with the client directly. On top of that, as mentioned above, Vets Law tends to be slow moving both for the client and for the attorneys attempting to do good work while staying afloat. That means both attorney and client will be frustrated, perhaps a bit frazzled, but hopefully on cordial enough terms to see the case through to its end. For what it's worth...
  8. Hi there. Any time the VA denies a claim, and the Veteran/Claimant disagrees with the decision, the typical response is to file a Notice of Disagreement on the official VA Form 21-0958. Experienced practitioners will almost always suggest that their clients file an NOD instead of going back to file a brand new claim. Reason? To preserve the effective date. In VA law, the effective date of a new or reopened claim is the date the claim was received, or the date when its entitlement arose, whichever is LATER. In other words, if a Desert Storm Veteran files a claim for tinnitus on April 1, 2010 and it is approved in November 2010, the assigned effective date for the tinnitus claim will be April 2010. If the Veteran's claim had been initially denied in 2010, and he filed a timely NOD, then went through the appeals process to BVA and then CAVC, and was finally approved in 2015, his effective date would still be April 2010. The Veteran would receive a lump sum retroactive benefit equal to the number of months between April 1, 2010 and 2015. However, if the initial tinnitus claim filed on April 1 2010 was denied, and instead of appealing, the Veteran decided to gather additional supporting evidence and file a new tinnitus claim on June 1, 2018, the April 2010 effective date would be lost. In effect, the Veteran would have abandoned the initial claim and is now submitting a new claim, and if approved, its earliest possible effective date will be Jun 1, 2018. So, long story short... appeal is almost always the better option. If you need assistance, please feel free to reach out to me directly: raza@rsmlawfirm.com
  9. Hi there, If you're still in need of counsel I'm happy to discuss offline... email me directly: raza@rsmlawfirm.com
  10. Hi there. Yes, if you disagree with the assigned rating percentage or the effective date, you have every right to submit an NOD or appeal depending on where your claim is procedurally. A few things to keep in mind for context: 1. the disability rating is meant to be a way for the VA to compensate the Veteran claimant's loss of ability to earn a living. So, a 10% rating means that the VA believes the claimant's disability has a 10% effect on his/her ability to earn. 50% rating means that the disabling condition has a 50% effect on claimant's ability to earn... 100% means that the service connected condition(s) make the claimant totally unable to earn. 2. Generally, if a Veteran has multiple disabling conditions, the VA uses a "combined rating matrix" that essentially averages the various percentages. Multiple disabling conditions are not added together. So if you have 10% for tinnitus, 30% for degenerative joints, and 60% PTSD, you will not have a total of 100% rating. Instead, the VA will give you a combined rating of around 50-60%. 3. It will get increasingly difficult to reach 100% combined rating unless the VA determines that the claimant is unable to be gainfully employed--in which case they are rated as TDIU 100%.
  11. Hi there, sorry to hear about your VSO experience. I'm a VA accredited attorney based in Washington, DC. Happy to review your situation, feel free to reach out to me directly. If you're already represented by an attorney then please disregard.
  12. Slow and steady wins the race... sorry to hear about your troubles with the appeal and remand, but hopefully there will be a good outcome.
  13. Hi there, Typically I suggest anyone debating between a hearing versus appeal to go for the appeal route. Unless the claimant is represented by counsel, hearings tend to be fishing expeditions where the VA has free license to later use all of the testimony collected against the veteran in claim denials. Appeals are in writing and if the Board denies the claim, they are still required to provide their legal reasons and bases. That way, if there are errors, they can be addressed by a professional. You mentioned career troubles due to disabilities... have you considered a claim for TDIU (total disability due to individual unemployability)? It may be a possibility in this situation. Feel free to reach out to me directly, I'm a VA Accredited veterans disability attorney: raza@rsmlawfirm.com All the best...
  14. Getting a medical nexus statement from a qualified physician is the best supporting evidence for a VA disability claim. It is also helpful for your physician providing the statement to thoroughly review your military service records (C-File), and indicate where there is medical evidence supporting your application for benefits. Service connection for a disability claim has three components: 1) Medical evidence of a disability (diagnosis); 2) Evidence of an in-service event that caused or aggravated the disabling condition; and 3) A physician's statement connecting the diagnosed disability to the event (nexus statement). The nexus statement should clearly state that in the physician's opinion "it is at least as likely as not that [ the disabling condition ] was caused by the in-service event." Clearly showing the 3 components for service connection should greatly increase the chances of VA claim approval. Each disability claim is reviewed by a human--make it easy for them to find the relevant evidence in the claim paperwork submitted.
  15. Hi there. I'm a VA disability lawyer... happy to look into this further, but here's a start-- Your initial question was "how would you appeal this?" The answer depends on where you are in the process procedurally. I can't see the title page from what was posted, but it seems to be an RO decision letter reducing your disability rating. If so, the first step is to file a Notice of Disagreement (NOD Form 21-0958). If this is a Statement of Case instead of an initial decision letter, then an appeal to the Board of Veterans' Appeals would be the next step (VA Form 9). If this were a Board decision, then the next step would be to appeal to the US Court of Appeals for Veterans Claims. Feel free to email me directly, I'm happy to set up some time to talk in detail: raza@rsmlawfirm.com
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