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JADMP

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Everything posted by JADMP

  1. Fellow Veterans, I am the author of the "VA Shell Game" article. My link In my opinion, this is the most detrimental proposal for Veterans imaginable. It would do several things. First, it would allow the VA to only pick one reason to deny a claim. If the reason offered was plausible, the Court of Appeals for Veterans Claims (CAVC) would have to allow the denial. It would allow the BVA to deny a claim and then require the CAVC to examine the record for any plausible reason that the VA could deny the claim. Finally, it would greatly limit the availability of attorney's fees under the EAJA. This would make finding an attorney to represent Veterans at the CAVC even more difficult than it is now (and thus slow the processing of claims down even further as the court would have many more non-attorney pro se claimants making arguments that are not as clear as they would be with a competent attorney acting on behalf of the claimant). I posted this to bring attention to this egregious proposal. If this law gets passed, I think that the majority of Veterans will be denied compensation and they will not be able to challenge the denial in court. Regards, Jason Perry
  2. BTW, The way to get the right to record an examination is to get Congress to pass a law mandating the right. This would be much easier than fighting this judicially, imho.
  3. It begs the question in the first place. Is there a Constitutional right to record dealings with the VA? Such a right has not been found explicitly. So, you would have to argue for such a right in the first place. But, as you alluded to, the writ of mandamus is not likely to be issued by the SC. It is known also as an Extraordinary Writ, and if there is a constitutional issue, then it would likely have to be resolved through a normal appeals process.
  4. LarryJ, You make a very good point. I generally try to comment only on the legal issues unless someone asks my thoughts on whether something is advisable. Seems to me that the reason to try to record an exam is to show that it was inadequate. Oftentimes, an inadequate exam will be easier shown by failure of the exam to comment on a required point or the examiners failure to reconcile contrary evidence (treatment records, notes, or medical opinions). So, my thought is that there are many ways to win an issue and recording an exam is likely not the best way to do this. There may be circumstances where this is not the case, but in my view it makes more sense to take the issues head on and avoid "collateral issues" that most agencies or courts would be unlikely to entertain in the first place (and may be dismissed as an illegal recording...I did not mention this, either, but there may be Federal or State criminal law issues with making a surrepticious recording, depending on the circumstances). If the exam is inadequate, that is probably the issue to address head on.
  5. The M-21-1 and M21-1MR are binding regulations at the RO level. For some purposes it is binding on the BVA as well. One of the main issues is if certain regulations are substantive rules or interpretive regulations. If it is a substantive rule, then it is generally going to be binding on the BVA. For discussion of some of these issues, you should look at VA. Gen. Coun. Prec. 7-92, Paralyzed Veterans of America v. West, 216 F.3d 1058 (Fed. Cir. 2000), and Haas v. Peake, 525 F.3d 1168 (2008). Bottom line, I think that it would be very difficult to challenge the rule on not allowing recording of exams. Does not mean it can't be done, but I think it is an uphill battle.
  6. Sure. Can you contact me through my profile (either e-mail or PM)? Tell me how to reach you (and your name, I feel odd calling people things like kw34....of course, the reverse is true, my name is Jason).
  7. It seems to me that if you were SC, there is probably an argument that you were ILOD. If you had a P4 Profile and went to an Informal PEB, it strikes me that they should have done a LOD investigation. The failure to do so may be another basis for appeal. What was the argument for SC? Were you prior active duty and the SC was attributed to that period of service?
  8. kw34, As far as the general question on appeals, there are two basic administrative options: the Board for Correction of Military Records (BCMR) and the Physical Disability Board of Review (PDBR). They have to consider appeals submitted within 3 years of the erroneous or unjust action. Past that date, they can look at older issues if waiving the 3 year filing deadline is "in the interests of justice." Now, this is a very interesting issue; it is in the interest of justice to waive the deadline if the case has merit. So, they have to look at the underlying application to see if it has merit anyway. It is a bit of a circular argument that makes the 3 years seem less important. I would never say that a valid issue should not be pursued just because it is an older claim. But, it does make things easier if you file within the deadline. After the administrative appeals, if unsuccessful, you can pursue your remedies in Federal Court. I have a preference for the US Court of Federal Claims, but you can go to the appropriate District Court. In your case, it sounds like your first issue would be the LOD determination. Did they even do a LOD determination? You state that you were in traditional reserve status when you became ill. The resolution to this issue will likely turn on the nature of your illness (i.e, was it a chronic illness that was diagnosed in drill status? The important point to look at is the LOD determinations are supposed to be made based on onset of the illness, not the symptoms). If your condition was in fact ILOD, then the next question is, what is the appropriate rating? If you reach the 30% threshold, you would be drawing retired pay immediately (% awarded times retired base pay, which for most members is "high-3 pay" calculation). If less than 30% (except for members with more than 20 yrs Active Federal Service), you would get severance pay (2 x years of service, times base pay, with the minimum years being 3 or 6 years if incurred in combat zone) with the option to elect other retirement options, if otherwise eligible. Did this answer the question? Hope it was helpful!
  9. kw34, Absolutely! That is the whole point, to help others. A question, were you retired for length of service in the reserves? Are you already drawing retired pay? I have no idea if you have any questions or issues, but if you were one of those who fell into the unfit, but retired because you had 15 yrs or more, you may want to consider appealing. (I also don't know how closely this forum hews to etiquette on hi-jacking threads, so if this question is creeping in that direction, maybe we should continue the discussion in another thread...I am sure the MODS can clarify if I have misstepped, if I have, I apologize).
  10. One other point, ARC members on orders for 30 days or more are treated the same as active duty AF. Look at the heading for 10 USC § 1201. "Regulars and members on active duty for more than 30 days: retirement" You can see that the law applies the same to active duty and reservists on orders.
  11. kw34, I also speak from experience. I am an attorney who has represented more than 300 Servicemembers (all branches all components) at the different Services PEBs. In fact, last week I appeared at the Formal PEB representing an AF Reservist at Lackland AFB. I would say that a third of my clients are reservists. You do quote the applicable regulation, AFI 36-3212. However, this does not change the fact that a ARC member with an In the Line of Duty determination (or who is eligible for the "eight year rule") and who is rated at 30% or more will be immediately retired. You reference the outcome for a member who does not reach the 30% threshold. One very important point, it is not true that ARC members have to pay their way to the FPEB. Now, you may have suffered from a unit that did not process cases correctly or told you misinformation (I have dealt with this a number of times, having units in the ARC either tell the members things that are not true, or just sitting on the case till the member separates). But, essentially there is no downside to going to the PEB (as long as you are okay with leaving the military) and a great potential for getting important benefits. There is also the possibility that she will be referred to the DoD/VA DES Pilot Program where the VA will perform the rating and the AF the fitness decision. (I have experience there, too, having been the first attorney to appear at a AF Pilot Program case...that client was also a reservist). If that is the case, then she will separate or retire with a VA rating in hand and will receive disability benefits the following month instead of waiting months (or longer) for an award.
  12. Making me glad that I am not a doctor from the old days!
  13. One other point for emphasis, a line of duty determination by the Service (which would be a necessary part of an MEB/PEB) will make service connection almost assured at the VA. "(m) In line of duty means an injury or disease incurred or aggravated during a period of active military, naval, or air service unless such injury or disease was the result of the veteran's own willful misconduct or, for claims filed after October 31, 1990, was a result of his or her abuse of alcohol or drugs. A service department finding that injury, disease or death occurred in line of duty will be binding on the Department of Veterans Affairs unless it is patently inconsistent with the requirements of laws administered by the Department of Veterans Affairs." 38 CFR 3.1
  14. I am sorry to hear about your wife's conditions. First, if she is dead set against an MEB/PEB, then this may be moot. But, the potential benefits are large. Depending on the outcome, she may be retired immediately. If she is unfit due to a highly stressful event (combat or otherwise) she will get a minimum of a 50% rating (temporary, for at least 6 months) See VASRD Section 4.129 . If retired, she and all eligible dependents get TriCare coverage. If she receives a combat related finding, she may be eligible (most likely will be) for Combat Related Special Compensation (which will decrease any offset between DoD compensation and VA compensation). Finally, the records and findings of the PEB may help with both service connection and arguing for an award with the VA. I have to respectfully disagree with kw34; "She will most likely be found unfit and if she does not have 15 years she will be adminstrativly discharged." 15 years is not a factor. You can be a recruit on the way to training and still be retired. In your wife's case, a minimum rating for PTSD would be a temporary 50% (30% is the threshold for retirement). There are substantial benefits to going through the Disability Evaluation System while on orders. There are presumptions about conditions that apply while on orders that are lessened while in a drilling status (and other substantial benefits, such as the "eight year rule" which applies while on orders and makes otherwise non-compensable conditions compensable).
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