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  • Can a 100 percent Disabled Veteran Work and Earn an Income?

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    You’ve just been rated 100% disabled by the Veterans Affairs. After the excitement of finally having the rating you deserve wears off, you start asking questions. One of the first questions that you might ask is this: It’s a legitimate question – rare is the Veteran that finds themselves sitting on the couch eating bon-bons … Continue reading

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asknod

CUE Karmageddon

Question

I love antique CUE. VA makes so many mistakes  it's almost impossible not to find one of these in your files. Finding another after you find one in the same decision is a hoot, too.

https://asknod.org/2017/08/05/malcolm-in-the-middle-part-iv-karmageddon/

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They need to do away with the 1 year bullsh*t.  

Most Veterans post service can't find the a$$, much less become medical legal expert witnesses in less than a year.

Maybe we could find a new Veteran willing to submit a claim for every ailment in the Merck manual.  2 or 3 thousand issues.  Then he would be covered for some thing that pops up three years later.

Just sayin,

Hamslice

Asknod, a good read, thanks..

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I agree with Hamslice.  The problem I have with the one year limitations on appeal are twofold:

1.  Why a deadline for Veterans, and no deadline for VA to process the claim?  Is this a claimant friendly, non adversarial system?  If it were claimant friendly non adversarial, then VA would have a deadline of processing claims of 1 year, and the Veteran could appeal at any time.  

2.  Again, I dont view as a claimant friendly non adversarial system where, if the VETERAN fails to appeal within the one year deadline he suffers the "penalty" of raising the standard of review to the obstenatcious "cue" standard of review.    In other words, since the Veteran was probably suffering from PTSD, and or other disorders, let's penalize him for doing precisely what this causes...putting off stuff you really need to do.  

     I see this right now with my son.  He should have gone to the VA within a year of discharge, gotten evaluated, and applied for benefits.  No, he wont do that, in no small part because of his military training ("suck it up, soldier, you are fine").  This happens even tho my son sees nothing wrong with living in his house without electricity or water.  "I did not have electricity or running water in Iraq, so I dont need it now."

      Its as if he is still in Iraq.  I cant help him, and by the time he eventually sees that he needs help, it may well be too late.  I dont know what he saw there, but I do know he needs help. 

      The so called "non adversarial claimant friendly" system is a farce, designed to lure Veterans into thinking VA or their VSO is their friend.  

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Not only is there no statute of limitations for apply for VA benefits, there is also no limit to the number of times you can apply for benefits. This means that if you are denied benefits at every level of appeal, you can start all over again with a brand new application.

 At this point I would recommend an experience VA Rep  or VA Disability Attorney as to see what course of actions you should take.

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To reopen a previously denied claim REQUIRES new and material evidence not previously considered (38 CFR 3.156) 

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Roger that, Big Poppa, but imagine how far we've come from "a well-grounded claim" in the pre-2001/pre-VCAA days. Nowadays, N&ME can be as vicarious as a statement from your wife, a new letter from your doctor re your ailments or finding old STRs from service which were not part of the record before the agency in the last adjudication process. Our rights as claimants continue to increase exponetially each and every day. I think the biggest one is allowing JSRRC records in as 3.156(c) evidence allowing for a much earlier effective date, assuming, of course, you had the wherewithal to have filed when you exited the service.

In some instances, when we appeal all the way to the CAVC or Fed. Circus, we create new case law for those who follow in our steps later. Think of Joe Fenderson, Norm Gilbert, Benito Layno and all the others who lost but made it possible for us to win at this poker game. Worry less about what the VA adjudication system isn't and focus on the miracle that even allows us to file a Motion to Revise or to keep reopening it until we prevail. No other comparable system exists in constitutional law. It is unique to the VA and no other.

The absolute best part is being allowed to practice law and fix these antique inequities for Vets. If VA ever decides to be honest and grant what is due without a fight, I'd be out of a job in short order. Which, incidentally, would suit me just fine. I'd rather spend my last days farting around in a VA-provided greenhouse!

Another thing many of us overlook is the value of what Theresa created here. How many of you would still be dead in the water without the knowledge of our combined experiences discussed here? Very few Veterans websites have such a valuable collection of wins and a careful explanation of how to repair prior errors. The only thing I observe is that some tend to offer advice based entirely on their personal experience and presume it is applicable in all instances. In all my years doing this (28), I see one constant-no two claims are remotely alike. Each one is a unique set of circumstances that requires legal insight-not experience. I stared at Malcolm's claim for six years and walked past a simple, basic error even a VLJ and a CAVC Judge and her acolytes missed. I was also itching to use my newly-coined word Karmageddon, too. Another NOVA atty. friend gives it a 6-1 odds of a win at Houston. My VLJ friend gives it a 2-1 based on who gets the docket in DC and a 5/9 of a reversal and win at the CAVC- all of which are better odds than emptying your wallet at a casino.

Win or Die

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  • Similar Content

    • By asknod
      Folks come to me with all manner of stuff they dig up. This one, FERGOOGLE, is a tool for VA raters but it is also a valuable tool for delving into the mysteries of the M 21. I find it useful insofar as you can find all the errors in how VA decyphers their very own regulations. Come on, 38 CFR §3.350(f)(3) and (f)(4) specifically state that they are both applicable in all situations. There simply is no "either/or but not both" argument. The M 21 says otherwise. I had that argument with a DRO in Fort Harrison Montana several months ago. She was powerless to grant both even though she agreed 38 CFR appeared to conflict with the Manual. 
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      https://asknod.org/2018/12/08/dva-fergoogle-for-fergetful-rvsrs/
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    • Enough has been said on this topic. This forum is not the proper forum for an attorney and former client to hash out their problems. Please take this offline
    • Peggy toll free 1000 last week, told me that, my claim or case BVA Granted is at the RO waiting on someone to sign off ,She said your in step 5 going into step 6 . That's good, right.?
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    • I took a look at your documents and am trying to interpret what happened. A summary of what happened would have helped, but I hope I am interpreting your intentions correctly:


      2003 asthma denied because they said you didn't have 'chronic' asthma diagnosis


      2018 Asthma/COPD granted 30% effective Feb 2015 based on FEV-1 of 60% and inhalational anti-inflamatory medication.

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      First, check the date of your 2018 award letter. If it is WITHIN one year, file a notice of disagreement about the effective date. 

      If it is AFTER one year, that means your claim has became final. If you would like to try to get an earlier effective date, then CUE or new and material evidence are possible avenues. 

       

      I assume your 2003 denial was due to not finding "chronic" or continued symptoms noted per 38 CFR 3.303(b). In 2013, the Federal Circuit court (Walker v. Shinseki) changed they way they use the term "chronic" and requires the VA to use 3.303(a) for anything not listed under 3.307 and 3.309. You probably had a nexus and benefit of the doubt on your side when you won SC.

      It might be possible for you to CUE the effective date back to 2003 or earlier. You'll need to familiarize yourself with the restrictions of CUE. It has to be based on the evidence in the record and laws in effect at the time the decision was made. Avoid trying to argue on how they weighed a decision, but instead focus on the evidence/laws to prove they were not followed or the evidence was never considered. It's an uphill fight. I would start by recommending you look carefully at your service treatment records and locate every instance where you reported breathing issues, asthma diagnosis, or respiratory treatment (albuterol, steroids, etc...). CUE is not easy and it helps to do your homework before you file.

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      Does this help?
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      The sounds of tinnitus may vary with the person experiencing it. Some will hear a ringing, while others will hear a buzzing. At times people may hear a chirping or whistling sound. These sounds may be constant or intermittent. They may also vary in volume and are generally more obtrusive when the sufferer is in a quiet environment. Many tinnitus sufferers find their symptoms are at their worst when they’re trying to fall asleep.

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