Copy, Highlight, And Send In Va Regs With Nod?

[tssnave]

Just curious who has sent in VA regs to the VA with their NOD and how it played out.

In another post (Ricky's Reconsideration thread), Berta made the following comment:

I suggest you send as evidence a copy of the entire regs found in 38 CFR 3.317 and highlight with magic marker

I (TS) have actually thought of doing that with my NOD since they didn't bother to read and apply their own regs but I didn't want to piss them off and instead only quoted the reg and gave the citation (38 CFR.....) but now I'm wondering if sending them a copy of their own regs highlighted with the applicable information may be a good plan and wonder how successful this course of action has been for others.

I am literally working on my NOD right now - have 12 tabs spread out on the table and am in the middle of copying my IMO, and other docs.

They denied me a higher rating based on "does not impact your ability to function indepednetly" when the C&P report states I have problems w/ Actitives of Daily Living (ADLs). A VA reg defines (literally in the definitions section) ADLs has having to do w/ self care (hygiene) and Instrumental ADLs as having to do with functioning indpendently (driving, household chores). My C&P report says yes, I have problems with those issues so how they came up with it doesn't impact my ability to function independently is beyond me. All they need to do is apply their own definitions.

Do you think it would be helpful for me to include the VA regulation with the ADL and IADL definitions in my NOD?

They did list "moderate" beside each ADL/IADL but my contention is that the very fact that you have problems, whether it be mild, moderat, or severe, with IADLs meets the rating criteria for 70% and having problems with ADLs meets the rating requirement for 100% since there is no mention whatsoever of independent functioning or problems with activities of daily living in the 50% rating criteria.

What do you think about this argument?

Furthermore, there is another VA reg I quoted that talks about how being unemployed impacts your ability to function independently (duh - if you can't hold down a job how are you going to function independenlty?) and I'm wondering if I should include a copy of that reg as well since there are numerous notations in my C&P exam about my not being able to work due to my sc disability.

Should I sent this reg in as well with my NOD?

Anyone with experience with mental disorder ratings or other issues where sending in the regs has helped an NOD, please chime in. Now's the time because I am in copy and collate mode and hope to get this NOD done this weekend.

Thanks for all the help and support. I want so badly to one day post on the "Success Story" forum!!

Thanks,

TS

Edited August 17, 2007 by tssnave

[cloudcroft]

I don't see how that could possibly hurt you, only HELP you. As you say, in your case the VA seems not to have read/applied their own regs...so do it.

That's what I did...and I suspect that's a small but still contributing part of my own "success story."

Basically, I submitted whatever I thought helped my case such as a few Statement in Support of Claim forms either arguing my case or pointing out errors I felt the C&P docs made, etc., citing a VA reg or two and any appropriate CVA decisions relating to my case. BVA decisions are not in the same class (not legal precedent) but still, I researched BVA cases similar to mine to see the way the BVA thought and decided partly because I suspected I might end up there. I did. But some vets cite the BVA, too...this may let the VA know how YOUR claim may go when/if it gets that far...and decied it properly so it does NOT go to the BVA.

In short, submit whatever you think will help your case -- regs included -- to BE SURE the VA is made aware of them and/or are using them in your case, and, your bringing it to the VA's attention is there in the written record in case you need that proof later on if it goes to the BVA level...that the VA still disregards their own regs.

Good luck,

-- John D.

Edited August 17, 2007 by cloudcroft

[Jay Johnson]

I did it with my wife's case and she won (not saying that was the reasoning though). Sometimes those %#@$! at the RO think they can ignore their own rules and that you are too stupid to notice, so copying them and highlighting the relevant points shows them that you understand, full well, your rights and VA law.

It can only help imho.

[Philip Rogers]

I recommend it. I've done it and it's worked well for me and other claims I've helped with. If nothing else it reminds them of the curent law/regs and that they are not dealing w/a Bozo, so they can't use their usual BS decisions and get away w/it. jmo

pr

[Berta]

When I wrote to the BVA- asking for immediate remand due to legal errors in my claim-it was a very short letter-

I just stated the pertinent regs,with a few enclosures highlighted of the ones RO broke and ended this brief letter with the statement that I am well aware of my rights as a claimant and am always a click away from 38 CFR, M21-1 and the VCAA and I wanted an immediate remand to the Buffalo RO.

My POA-to their disadvantage if I have to file a complaint with the GC on them-absolutely refused to support my remand request. They stated again and again that my VCAA letter was legal-

but if course it wasnt and the POA was shocked when the fast remand occurred.

VARO got my BVA letter too- when the files came back to them.

I sent a print out of the VCAA to the director of my POA too-

since he didnt know what a legal VCAA letter was (documented)

It certainly pays in my opinion to let the VA know that you know what regs apply to your claim.

These guys are correct.

I also had to send the DRO job description to the DRO I got -I was her first claim as a DRO and right away she failed to even get close to following proper DRO procedure.

Nothing in the DRO job description states a DRO can prepare a De Novo review by simply copying and pasting the past decision and narrative from the older SOC.

VA regs and case law are in my opinion-

just like the Declaration of Independence- what I mean is Benjamin Franlin said, when the Declaration was written-'it is't perfect but it is all we have got'.

I think VA regs are almost perfect and the ones that aren't (such as "foot on land" AO regs) are certainly being tested-as any VA regulation can be.

Every person here can make public comment on any proposed VA reg at the Federal Register site.

VA manipulates these regs into causing many denials-

we can do the same thing to rebutt our denials with them.

I use M21-1 -1MR alot- it is the Handbook of the adjudicators and raters.

It spells out very clearly what the VA is supposed to do regarding the claims process.

The actual regs are mandatory to highlight and send for CUE claims- that is- the regs that were in existence at time of the alledged CUE.

Dont forget General Counsel Presedent Opinions too as well as CAVC cases that have established precedent.

Edited August 18, 2007 by Berta