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Everything posted by broncovet

  1. When you appeal the effective date, you dont have to specify WHEN that effective date is. You can simply appeal the effective date to be PRIOR to the one given in the decision. The BVA is charged with applying USC 5110 and render you the earliest date allowed by law when you appeal the effective date. Of course, you should argue any of the items under USC 5110 which applies to you. In (one) of my BVA appeals, it was denied BUT, I actually got another year of retro because they did not apply USC 5110 regarding an INCREASE . https://www.law.cornell.edu/uscode/text/38/5110
  2. CUE, and 38 CFR 3.156, contrary to popular belief, are not "the only" methods of winning an EED. For example, VA often overlooks it when the Veteran applies for benefits within a year of exit from service. 38 5110 explains it this way: Or, in the case of an increase USC 5110 permits up to a year's retro:
  3. If you feel the attorney fee is excessive, start by discussing that with your attorney. If you and your attorney can not come to an agreement, you can contact the BVA about the disputed fees. You probably signed a contract with an attorney (a fee agreement). What did it say? Its been my experience that 20 percent of the retro is considered "routine". If they charge more, some up to 33 percent, they often have to "justify" the increase fee. As for me, I hope my attorney gets a new boat, a new car, and a bunch of other stuff with my fees..because that means I will get 5 times more. (20 percent times 5 equals 100 percent). If your fee paid to the attorney is 20 percent, or less, then its probably not excessive. If its greater than 20 percent, I would first ask, "why"? If the attorney had to hire IMO's and stuff..then you should pay them. You had a choice on whether or not to hire an attorney or self represent or VSO. You chose the attorney. No, you dont always see what they do behind the scenes. One thing they need to do, among others, is read your file. That may take a week or more, depending on how long it is. Of couse, the attorney can have legal assistants go through some of that stuff...as well as organize and index it.
  4. You posted, above: Maybe THAT was where I got the idea you were applying for "secondary to...." You dont have to take my advice. You are welcome to be super specific on your application. I have read, however, of Vets who applied for diagnosis xx, only to find it was denied because a doctor said he had xy, instead. I dont recommend "burning down the direct sc bridge", but instead, let the VA rating specialist do his job and decide if your condition is primary, secondary, or presumptive. It should not matter to you. VA mostly thinks Vets are idiots, and are totally uninterested in us suggesting how they do their job, by classifying a condition in "presumptive", "direct" or "secondary". One reason: VA lingo is not the same as mostly every one else's. For example, "working" means something different to many than to VA. "Working" means SGE at above the poverty level in the most recent 12 months. I have gotten good results from "not" trying to make myself appear too smart. I do not have to tell VA "everything I know"...just enough to win benefits. Remember, the VA is looking for things to use against you that you tell them. I wish that were not so, but that has been my experience. That is why I say, "less is more". Some years ago, the DAV did a NOD for me. It was very, very short. The Veteran disagress with the decision dated 1/2/03 on all issues. He requests a DRO review with no hearing. Signed, Ima Vet. That simple NOD worked well. Now, I do like to explain the reasons I dispute the decision, but not for 8 pages of telling VA how they mistreated you.
  5. Your letter is a bit hard for me to follow. And, I might add, I have about 2 years above a Bachelor's degree. So, my suggestion is that your CUE letter be simple enough that an 8th grade educated person could understand it, because that is probably who will be evaluating it. I think maybe you "cut and pasted" too much of the decision(s) that may not be relevant, rendering it difficult to follow. Here is a suggested format that may be easier to follow: The Veteran alleges the VA violated 38 CFR 4.6 as follows: The decisions dated 27 Feb 04 and 22 May 01 are in conflict with each other, and did not take into account the medical exam dated 8/22/03. (Now explain how the exams conflict, and how the 2003 exam supports the criteria for a higher rating).
  6. I dont have experience working for VA, but I have been answering Vets questions here since 2007. I do NOT recommend you getting too specific when you apply for benefits. Its the raters job to figure out if you have direct service connection, secondary, or presumptive. It sounds like you have a copy of your cfile..this is good. Remember, tho, that was likely out of date by the time you received it. If you insist on specifying in your application, "Secondary to _________", then I suggest you do so in such a manner as not to preclude presumptive or direct SC. In other words, you could apply for "voiding function", both primary, secondary, and presumptive as applicable. You see its gonna take medical evidence anyway. Our lay evidence wont suffice to garner all 3 Caluza elements, required for SC. So, why burn down any bridges when you dont know how a c and p examiner will opine? The CAVC has ruled the Veteran can "point" to the body part he wishes to apply for, a Veteran need not have intimate anatomical and medical knowledge to receive VA benefits. In fact, I have seen VETS get TOO specific on applying for benefits. One Vet mentioned he applied for c5..issues, and his back pain was later diagnosed as c7. It wound up delaying his claim a lot by trying to play doctor. Yes, I have studied Anatomy. But you have got to realize different docs view the same thing in a different way. So, let the doctors diagnose, treat, and supply nexus for your conditions, and I dont recommend you apply limiting to a specific diagnosis or nexus, as I often see Vets winding up getting benefits they thought they would not get, and getting denied on benefits they thought were a slam dunk. Remember the VA is not a unified body. Different decision makers will arrive at different conclusions given the same evidence. In my case virtually EVERY decision ever made on my claim was at least somewhat of a suprise. Probably the least suprising was my last decision at the CAVC. My attorney thought it would be remanded, I figured as much, and it was remanded, but not for reasons I had predicted.
  7. I suggest you listen to Berta in regard's to CUE. 38 USC 1509 a, that you posted, does not seem relevant to me. I think Berta suggest citing 38 CFR 4.6 in many/most CUE's. https://www.law.cornell.edu/cfr/text/38/4.6
  8. You can also find it here: https://www.va.gov/disability/about-disability-ratings/effective-date/
  9. 38cfr 3.114 explains some of this: https://www.law.cornell.edu/cfr/text/38/3.114 The Veteran should get the greater amount. M21 also explains it: Part III, Subpart vi, Chapter 08. Miscellaneous Authorization Issues
  10. Its not enough to be diagnosed with OSA to establish the claim date. You have to apply. If you have already applied, and been denied, then you can appeal and it should be successful provided that you not only have all the Caluza elements, but also you need a letter from your sleep doc that your cpap is "medically necessary". If you are persuing a claim for SMC S (housebound) via "statuatory SMC S" then you need a single 100 percent plus 60 percent combined seperate and distinct.
  11. Like yourself, I dont see well and I increase the font size..it helps a lot. As Berta said, apply for an increase, if conditions worsened, and also for TDIU.
  12. Ok, are you currently working? It does not matter how much money you have, but if you earn "substantial gainful employment", then you are not eligible for TDIU. SGE is defined as earning the povertly level or more, which is "about" 12,000 during the most recent 12 month period.
  13. 1. C and P exams which, altho they may well be faulty, are not CUE. The C and P examiner is "presumed" to be competent, and the opinions accurate, unless the Veteran, or his representative challenge the compentency of the examiner. A doctors error is not CUE. There is a path to correct errors on our medical reports: https://www.law.cornell.edu/cfr/text/38/1.579 2. "Outcome determinative" not only suggests SERVICE CONNECTION, but a disability percentage as well. If you were awarded a 0 percent SC rating, that is not necessarily outcome determinative as there is no difference in compensation between a 0 percent SC and NSC. Many Veterans fall here, you have to show that, if not for the VA error, you would have additional compensation. 3. Sounds reasonable. 4. Likewise, sounds reasonable. Remember, tho, how would the VA know you had 2 periods of military service? Did you document that you told them that you had 2 periods of service with seperate records. This sounds more like 38 CFR 3.156 c, rather than CUE. I think its helpful to think of CUE "not as an error", but rather a "standard of review". (I got this from reading CAVC and BVA decisions). The will state something like"......is a question which will be evaluated under the CUE standard of review." There are at least 4 requirements to CUE, and you must meet all of them. 1. The error must be pled with "specificity", and must be undebatable. 2. The error must be outcome determinative. You can not "bring down the cue" because VA forgot to dot an i, then allege they gave you the wrong rating. You have to demonstrate how/why its outcome determinative. 3. The error must be based on evidence and law AT THE TIME THE DECISION WAS MADE. A change in laws (or evidence) is not cue on VA's part. 4. The Veteran no longer has "benefit of the doubt" standard of review, instead, he has to prove his claim beyond a reasonable doubt, so that it can not be debated. Berta is a wizard at putting together CUE's, but, for the rest of us we struggle.
  14. Asking how long it will take, is like asking how far is it to your grandmothers house, when no one knows your grandmother or where she lives. If you want a guestimate, we need more information. What lane did you switch from/to? You see a higher level review will be processed faster than SCL, because they dont have to wait for additional evidence. Of course, since its after Feb. 19,2019, you could also have opted for a board level appeal. If you went from HLR to SCL, its gonna add some time. (one year) If you went from SCL to HLR, it may save you some time. (6 months) If you asked for a hearing, its gonna take much, much longer. 2-4 years If you are going to the BVA, its gonna take longer, and there are 3 lanes to the Board, also: With new evidence and a hearing. 3 to 6 years With new evidence and no hearing. 2-4 years Without new evidence with or without a hearing. Maybe as soon as a year. Of course, the short answer is "no one knows", but Im gonna be foolish and guess anyway. I made these guesses based on the BVA chairmans report. However, since you are in RAMP you have either gotten or wont need a SOC (around a year) And you wont need your claim to be "certified" to the BVA (another 18 months) Finally, my experience is that it takes your VSO about 18 months to file a brief. My VSO lied to me and told me that it did not matter that I had a docket number and my place in line was held. That was a bald faced lie. I called the BVA and had no docket number assigned.
  15. I think you nailed it when you called it a fiduciary "process", reminding you that we "process" chickens and turkeys, and that "process" is not all that beneficial from the turkey or chickens point of view. Now, I have NOT had experience with a family member being the fiduciary, but I have heard horror story after horror story of a VA appointed fiduciary. It would not suprise me one bit if they did run a credit/background check on you. You see..you would be/are responsible and, if that goes hay wire, then VA has some liability there, since they are involved with the fiduciary selection "process". (I hate the word process, as you may have guessed). If you think your credit report is lacking, then YOU should consider someone else, like another family member or trusted friend, but I think its a good idea for you to appoint someone that maybe you can look in on from time to time. I dont know there is a minimum score, but the VA wont permit YOU to confiscate property from your father, after all, the VA has their OWN corrupt fiduciary department drueling over taking over your father's finances. Those fiduciary's use that designation as a license to legally steal. Its in your best interest, as your father's heir, to get involved with the fiduciary selection "process" if you dont qualify for whatever reason. If you do qualify then, of course do that. According to this flyer, yes, VA will do not only a credit check, but more: https://benefits.va.gov/BENEFITS/factsheets/fiduciary/FiduciaryFactSheet.pdf
  16. My advice is to file for benefits, and you can check your medical records at your local VAMc, AND IT SHOULDNT TAKE MONTHS FOR THAT.
  17. This is a "classic" VA denial of due process. Hopefully, you have this documented. Now, be sure and file for those benefits, dont wait until you get the cfile. (It could be years or it could be never.) You see, you still have to file for benefits and your effective date will still be the later of the date of claim or facts found. One problem with this is, by the time you get your cfile, it will be out of date as new information could have been added or taken away. It would be like your bank sending you your balance statement once every year. It would have little to do with todays balance.
  18. You posted: First, you dont "ask your counselor" to "be on ILP". You have to apply, then file a nod if denied. At least as important, your counselor has shown you he cant be trusted. Therefore, when he tells you something again, look at what he says suspiciously. It sounds like he is "saving himself work" and saving on his budget to lie to you. This is consistent with what other VA employees tell Vets, and they wonder why Vets dont trust VA? ILP is for severely disabled Vets, and, even tho its administered by voc rehab, it has nothing to do with rehabilitating you for work. The assumption with ILP is that you cant work, but you need help "with independent living".
  19. About 100,000 claims were "resolved" by the VA simply deleting them, without a decision. Its "shreddergate 2", which is accomplished easier, now, by the use of the "delete" key. I read this recently, and no, I dont have a link. Its not anything new. There is pressure for VA to reduce the backlog, and "poof", the backlog is gone compliments of the delete key. This said, ebenefits and vets.gov is unreliable. You need to get a representative to look into VBMS to see if its there. Or keep calling..you choose. You have made a point that the PRO SE Vet is discriminated against. He cant see his VBMS file while with many representatives (that chose to jump through the hoops to gain access to VBMS) can. I think its a violation of due process, ripe for a writ of mandamus. Vets have a right to see their file, and the one they mail you is out of date by the time it arrives by snail mail. (Stuff is constantantly added or deleted to your cfile, on a daily basis). There are 3 reasons why VA denies pro se Vets access to their VBMS file: 1. It saves them money and keeps Vets in the dark. 2. It is a IT security problem that VA does not want to solve. (The VA really already solved it. You see, your ebenefits account is where you change your bank account info, so it has to be secure and not allow unauthorized access. The VA does this by requiring an "in person" authentication (usually by the VAMC librarian). 3. Because they can.
  20. You might need a tatoo of this to remind you: It sounds like you have it figured out, above. You need to APPLY for ILP, and ignore his comments. If its denied, then appeal. This is the way it is for benefits, and the way it is for ILP. ILP equals "Independent Living Program", and the severity of your disabilities makes you qualified...it means you are too severe to go back to work. Now, dont hold a grudge against this VA employee. You will likely see him again. This is the way VA "rations" ILP.
  21. Im going to supply my source: VA FAILURE OF DUTY TO ASSIST IS NOT CUE: https://helpdesk.vetsfirst.org/index.php?pg=kb.page&id=1874 In relevant part: "The VCAA does not apply to CUE actions. See Livesay v. Principi, 15 Vet. App. 165 (2001) (en banc) (holding VCAA does not apply to Board CUE motions); Baldwin v. Principi, 15 Vet. App. 302 (2001) (holding VCAA does not apply to RO CUE claims). In other words, the VA has no duty to assist claimants with CUE claims. See Livesay, 15 Vet. App at 178 (noting that the CUE "movant bears the burden of presenting . . . specific allegations of error"); 38 C.F.R. § 20.1404 ("The motion must set forth clearly and specifically the . . . errors, of fact or law in the Board decision, the legal or factual basis for such allegations, and why the result would have been manifestly different but for the alleged error."); see also Andrews v. Nicholson, 421 F.3d 1278, 1283 (Fed. Cir. 2005) (noting that the duty to read pro se filings sympathetically applies to CUE motions); Brokowski v. Shinseki, 23 Vet. App. 79, 85 (2009) (whether a sympathetic reading of a veteran's filing raises a valid claim is a factual inquiry, reviewed under the "clearly erroneous" standard)."
  22. Ok, so if you have a 2019 decision, and you disagree, appeal it by filing a nod on the applicable form. You can appeal a disability percentage, a denial, or effective date(s). Again, a failure by va in dta is not cue. If there was error in the decisions, then bring that issue out in your appeal. If non compliance with regulations resulted in an incorrect effective date, appeal that also. If you met the criteria on an earlier date, then appeal the effective date. You do have a period where you can dispute the c and p exam. Its probably too late, however, to dispute a 2013 c and p exam, however, unless this was the bases of the 2019 award. When we do pay for an imo, the va will require that our medical professional state he reviewed the records. However, when VA hires a c and p examiner, that exam is presumed to be valid absent a challenge from you or your representative. You could have been given an exam by a janitor, still, if you dont dispute it, its presumed valid. Let me explain it another way: VA is not perfect. They make errors. If an error they made results in a lower benefit, or an inferior effective date, appeal. Yes, you can cite 38 cfr 3.156 b or 3.156 c in your appeal if you are submitting new and relevant evidence. If the VA fails to reopend due to n and relevant evidence, then that, too, is an appealable issue. But, I dont recommend filing cue based on va's failure to dta, that dog wont hunt.
  23. Probably not. The effective date is the later of the date you applied or facts found. Its rare when you could get military compensation and disability compensation at the same time. However, if you apply with in a year of discharge, you should get retro back to the date of discharge, so apply.
  24. If you read about CUE, you will find that failure in DTA is not cue. It ALSO has to be outcome determinative. Notification errors apply after you have been awarded benefits, and dispute the effective date. Example: When you get a decision, VA is supposed to notify you of your appeal rights. If they did not notify you of appeal rights, then it can toll the decision date, enabling you to appeal beyond the one year appeal period. In other words the one year appeal period does not start until you are "notified" of your appeal rights. Now, the VA does not have to "notify" you that you are eligible for benefits you have not yet applied for. The burden is on you to apply..its not the VA's fault you did not apply for whatever reason. The vA is not require to "go on a fishing exhibition" to search your records for conditions to which you may be eligible for benefits. Instead, you must "specify the benefit sought" and apply for benefits. If you go to a VA doc, the VA "assumes" you are seeking TREATMENT, not benefits, UNLESS you tell them otherwise. Let me see if I can explain it another way. You must meet the caluza elements in order to be SC. After you demostrate you meet the caluza elements, the VA should assign a disability percentage. Lastly, they figure an effective date. If you dont meet the caluza elements, no amount of VA's failure to notify will mean you get benefits. You simply dont meet the criteria, and VA's failure to dta or notify is irrelevant. You do have a point, however, about inferred claims. Now, this is all about effective date. If VA awarded OSA for 50 percent with an effective date of june 2, 2018, and you can show that you applied in 2014 AND met the criteria at that time, then you can appeal the effective date. But dont get the cart before the horse. The effective date is irrelevant if you have not been sc for an issue.
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