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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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kanewnut

CUE My latest VA denial for TDIU

Question

Posted (edited)

I think this is very similar to dawsonatl's Unwarranted TIDU Denial Letter Received. I find myself getting fairly confused trying to figure out if I just keep this to the latest decision or do I add in some of the prior decision because they refer to it in evidence. I have worked on this a little at a time for quite a few days. I didn't want to just copy dawsonatl's but his is a very good example. What I had in bold did stay when I copied my draft. Your thoughts are appreciated. I am pretty sure this will be the first of many CUE's I will be filling.
 


DEPARTMENT OF VETERANS AFFAIRS
CLAIMS INTAKE CENTER
PO BOX 4444
JANESVILLE, WI 53547-4444

Current Date 2019

Dear Sir/Madam:

This is a CUE claim on a decision on 12 July 2019 based on a CUE, clear and unmistakable error, based on 38 CFR 3.105(a).

From the 12 July 2019 decision -
Letter from Vocation Rehabilitation and Employment Division show that your primary physician stated you are unable to work and that your service connected conditions. Did the rater mean to say “ that your service connected conditions are permanent in nature.”
From the 12 July 2019 decision - 
We took this evidence into consideration, but other evidence shows your disabilities do not prevent you from all employment. 38 CFR 3.102 The rating examiner failed to apply this section of Federal law because two differing opinions exist in equipoise and by regulation and law are to be decided in favor of the Veteran. 38 CFR 4.3 The rating examiner failed to apply this section of Federal law because as stated above, two differing opinions exist in equipoise  and by regulation and law are to be decided in favor of the Veteran. 38 CFR 4.2 The rating examiner failed to apply this section of Federal law because they failed to consider the finding by my primary physician that confirms that I am incapable of maintaining employment due to my service connected disabilities. M21-1 The rating examiner applied their own medical conclusions when despite my primary physician stating that I am unable to work, the VA examiner decided that I am capable of working.

In the 12 July 2019 decision the rating examiner stated “the evidence of record does not show that you terminated your employment due to your service connected disabilities.” This is irrelevant. See M21-1, Part IV, Subpart ii, Chapter 2, Section F - Compensation Based on Individual Unemployability (IU) IV.ii.2.F.4.c. Determining the Effect of SC Disabilities on Employability
The following factors have no bearing on a determination of whether SC disability renders a Veteran unemployable:
voluntary withdrawal from the labor market.


In EVIDENCE you listed the Rating Decision, dated  May 9, 2019
In the May 9, 2019 rating decision the rating examiner stated “Your back condition shows that it may limit you from performing physical labor but does not sedentary employment.”  38 CFR 4.6 The rating examiner failed to apply this section of Federal law because they failed to consider the facts in the record from my VA Form 21-8940’s showing that   
I performed sedentary employment from September 1985, when I left the Army, until June 2000 when I became too disabled to perform sedentary employment. My VA Form 21-8940’s show employment as a computer programmer. This is sedentary employment. This is a fact of the record.

This decision would be manifestly different if 38 CFR had been followed correctly and the correct rating decision had been made.
These errors in application of 38 CFR have manifested a detrimental outcome to me by being denied individual unemployability that I am entitled to because of the symptoms that I suffer from daily due to my service connected disabilities that prevent me from any employment.
Please correct these errors that will subsequently approve me for individual unemployability and apply the earliest effective date possible.

I have included the relevant M21 sections that you have failed to follow.
I have included relevant U.S. Court of Appeals decisions.

Respectfully submitted,

My Name
My SSA

Attachment #1 12 July 2019 Decision
Attachment #2 9 May 2019 Decision
Attachment #3 VR&E decision letter
Attachment #4 SSDI Decision
Attachment #5 M21-1 III.iv.5.A.3.e
Attachment #6 M21-1 IV.ii.2.F.4.c
Attachment #7 VA Form 21-8940

38 CFR § 3.105 - Revision of decisions.
§ 3.105 Revision of decisions.
The provisions of this section apply except where an award was based on an act of commission or omission by the payee, or with his or her knowledge (§ 3.500(b)); there is a change in law or a Department of Veterans Affairs issue, or a change in interpretation of law or a Department of Veterans Affairs issue (§ 3.114); or the evidence establishes that service connection was clearly illegal. The provisions with respect to the date of discontinuance of benefits are applicable to running awards. Where the award has been suspended, and it is determined that no additional payments are in order, the award will be discontinued effective date of last payment.
(a)
(1) Error in final decisions. Decisions are final when the underlying claim is finally adjudicated as provided in § 3.160(d). Final decisions will be accepted by VA as correct with respect to the evidentiary record and the law that existed at the time of the decision, in the absence of clear and unmistakable error. At any time after a decision is final, the claimant may request, or VA may initiate, review of the decision to determine if there was a clear and unmistakable error in the decision. Where evidence establishes such error, the prior decision will be reversed or amended.
(i) Definition of clear and unmistakable error. A clear and unmistakable error is a very specific and rare kind of error. It is the kind of error, of fact or of law, that when called to the attention of later reviewers compels the conclusion, to which reasonable minds could not differ, that the result would have been manifestly different but for the error. If it is not absolutely clear that a different result would have ensued, the error complained of cannot be clear and unmistakable. Generally, either the correct facts, as they were known at the time, were not before VA, or the statutory and regulatory provisions extant at the time were incorrectly applied.
(ii) Effective date of reversed or revised decisions. For the purpose of authorizing benefits, the rating or other adjudicative decision which constitutes a reversal or revision of a prior decision on the grounds of clear and unmistakable error has the same effect as if the corrected decision had been made on the date of the reversed decision. Except as provided in paragraphs (d) and (e) of this section, where an award is reduced or discontinued because of administrative error or error in judgment, the provisions of § 3.500(b)(2) will apply.
(iii) Record to be reviewed. Review for clear and unmistakable error in a prior final decision of an agency of original jurisdiction must be based on the evidentiary record and the law that existed when that decision was made. The duty to assist in § 3.159 does not apply to requests for revision based on clear and unmistakable error.
(iv) Change in interpretation. Clear and unmistakable error does not include the otherwise correct application of a statute or regulation where, subsequent to the decision being challenged, there has been a change in the interpretation of the statute or regulation.
(v) Limitation on Applicability. Decisions of an agency of original jurisdiction on issues that have been decided on appeal by the Board or a court of competent jurisdiction are not subject to revision under this subsection.
(vi) Duty to assist not applicable. For examples of situations that are not clear and unmistakable error see 38 CFR 20.1403(d).
(vii) Filing Requirements - (A) General. A request for revision of a decision based on clear and unmistakable error must be in writing, and must be signed by the requesting party or that party's authorized representative. The request must include the name of the claimant; the name of the requesting party if other than the claimant; the applicable Department of Veterans Affairs file number; and the date of the decision to which the request relates. If the applicable decision involved more than one issue, the request must identify the specific issue, or issues, to which the request pertains.
(B) Specific allegations required. The request must set forth clearly and specifically the alleged clear and unmistakable error, or errors, of fact or law in the prior decision, the legal or factual basis for such allegations, and why the result would have been manifestly different but for the alleged error. Non-specific allegations of failure to follow regulations or failure to give due process, or any other general, non-specific allegations of error, are insufficient to satisfy the requirement of the previous sentence.

38 CFR § 3.102 Reasonable doubt.
It is the defined and consistently applied policy of the Department of Veterans Affairs to administer the law under a broad interpretation, consistent, however, with the facts shown in every case. When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding service origin, the degree of disability, or any other point, such doubt will be resolved in favor of the claimant. By reasonable doubt is meant one which exists because of an approximate balance of positive and negative evidence which does not satisfactorily prove or disprove the claim. It is a substantial doubt and one within the range of probability as distinguished from pure speculation or remote possibility. It is not a means of reconciling actual conflict or a contradiction in the evidence. Mere suspicion or doubt as to the truth of any statements submitted, as distinguished from impeachment or contradiction by evidence or known facts, is not justifiable basis for denying the application of the reasonable doubt doctrine if the entire, complete record otherwise warrants invoking this doctrine. The reasonable doubt doctrine is also applicable even in the absence of official records, particularly if the basic incident allegedly arose under combat, or similarly strenuous conditions, and is consistent with the probable results of such known hardships.

38 CFR § 4.2 - Interpretation of examination reports.
Different examiners, at different times, will not describe the same disability in the same language. Features of the disability which must have persisted unchanged may be overlooked or a change for the better or worse may not be accurately appreciated or described. It is the responsibility of the rating specialist to interpret reports of examination in the light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability present. Each disability must be considered from the point of view of the veteran working or seeking work. If a diagnosis is not supported by the findings on the examination report or if the report does not contain sufficient detail, it is incumbent upon the rating board to return the report as inadequate for evaluation purposes.

38 CFR § 4.3 - Resolution of reasonable doubt.
It is the defined and consistently applied policy of the Department of Veterans Affairs to administer the law under a broad interpretation, consistent, however, with the facts shown in every case. When after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability such doubt will be resolved in favor of the claimant. See § 3.102 of this chapter.

38 CFR § 4.6 - Evaluation of evidence.
The element of the weight to be accorded the character of the veteran's service is but one factor entering into the considerations of the rating boards in arriving at determinations of the evaluation of disability. Every element in any way affecting the probative value to be assigned to the evidence in each individual claim must be thoroughly and conscientiously studied by each member of the rating board in the light of the established policies of the Department of Veterans Affairs to the end that decisions will be equitable and just as contemplated by the requirements of the law.

38 CFR § 4.16 - Total disability ratings for compensation based on unemployability of the individual.
(a) Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities: Provided That, if there is only one such disability, this disability shall be ratable at 60 percent or more, and that, if there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. For the above purpose of one 60 percent disability, or one 40 percent disability in combination, the following will be considered as one disability: (1) Disabilities of one or both upper extremities, or of one or both lower extremities, including the bilateral factor, if applicable, (2) disabilities resulting from common etiology or a single accident, (3) disabilities affecting a single body system, e.g. orthopedic, digestive, respiratory, cardiovascular-renal, neuropsychiatric, (4) multiple injuries incurred in action, or (5) multiple disabilities incurred as a prisoner of war. It is provided further that the existence or degree of nonservice-connected disabilities or previous unemployability status will be disregarded where the percentages referred to in this paragraph for the service-connected disability or disabilities are met and in the judgment of the rating agency such service- connected disabilities render the veteran unemployable. Marginal employment shall not be considered substantially gainful employment. For purposes of this section, marginal employment generally shall be deemed to exist when a veteran's earned annual income does not exceed the amount established by the U.S. Department of Commerce, Bureau of the Census, as the poverty threshold for one person. Marginal employment may also be held to exist, on a facts found basis (includes but is not limited to employment in a protected environment such as a family business or sheltered workshop), when earned annual income exceeds the poverty threshold. Consideration shall be given in all claims to the nature of the employment and the reason for termination.

M21-1, Part III, Subpart iv, Chapter 5, Section A - Principles of Reviewing Evidence and Decision Making

Topic 3 Evaluating Medical Evidence

III.iv.5.A.3.e.  Basis for Rejecting Medical Evidence
     
The rating activity may not rely upon its own unsubstantiated medical conclusions to reject expert medical evidence provided by the claimant.
Reference:  For more information on the basis for rejecting medical evidence, see
Shipwash v. Brown, 8 Vet.App. 218 (1995), and
Colvin v. Derwinski, Vet.App. 175 (1991).

M21-1, Part IV, Subpart ii, Chapter 2, Section F - Compensation Based on Individual Unemployability (IU)
IV.ii.2.F.2.j.  When to Obtain VR&E Records in IU Claims
 

Obtain and evaluate any already-existing records of Vocational Rehabilitation and Employment Service (VR&E) consultation
when the evidence indicates that the Veteran underwent VR&E consultation sometime in the past related to a prior VR&E claim, such as (but not limited to)
a Veteran’s report of participation in VR&E
VR&E folder type shown in the Beneficiary Identification and Records Locator Subsystem (BIRLS)
VA Form 28-1900, Disabled Veterans Application for Vocational Rehabilitation, included in the claims folder, and/or
Chapter 31 payments shown in Share
when the evidence of record is insufficient to award IU, and
without regard to the period of time that has passed since the VR&E consultation occurred and records were created.
The VR&E records may document the Veteran’s participation in a training program, or
show that training was not feasible or was unsuccessful. 
Notes: 
The entire Counseling/Evaluation/Rehabilitation (CER) folder is not necessary to adjudicate IU claims that are processed at the RO.  If adjudicating a claim for IU, and the Veteran has an existing VR&E record, request that VR&E provide a completed VA Form 28-1902b, Counseling Record – Narrative Report, in lieu of the entire CER folder.  VA Form 28-1902b contains the necessary information concerning the impact of the Veteran’s SC and NSC conditions on employability.
If the CER folder has evidentiary value that pertains to the pending claim and there is a need to scan the contents of the folder, send a photocopy of the folder to the scanning vendor and retain the original CER folder and its contents at the RO.
Decision review operations centers (DROCs) must request that VR&E provide the entire CER folder when adjudicating Board of Veterans’ Appeals (BVA) remands, as BVA is able to contact the RO directly to request upload of the entire CER folder into the Veterans Benefits Management System (VBMS).
ROs are not required to request VR&E records when a Veteran fails to return the VA Form 21-8940.
References:  For more information on
the RO procedure for obtaining VR&E records, see M21-1, Part III, Subpart iii, 1.C.2.j
DROC procedures for obtaining VR&E records, see M21-1, Part III, Subpart iii, 1.C.2.k, and
shipping requirements, see M21-1, Part III, Subpart ii, 1.F.1.b.  

M21-1, Part IV, Subpart ii, Chapter 2, Section F - Compensation Based on Individual Unemployability (IU)
IV.ii.2.F.4.c. Determining the Effect of SC Disabilities on Employability
 

Determine whether the severity of the SC disabilities precludes the Veteran from securing or following substantially gainful employment. 
 
The following factors have no bearing on a determination of whether SC disability renders a Veteran unemployable:
age
NSC disabilities
injuries occurring after military service
availability of work, or
voluntary withdrawal from the labor market.
Reference:  For more information on the discussion to include in the rating decision, see M21-1, Part IV, Subpart ii, 2.F.4.p.


M21-1, Part IX, Subpart i, Chapter 1, Section B - Memorandum Vocational Rehabilitation Ratings
IX.i.1.B.3.e.  Reevaluation on the Basis of Medical Infeasibility
If the Vocational Rehabilitation Panel determines temporary or permanent medical infeasibility for rehabilitation of a Veteran rated less than 100-percent disabled, VR&E will refer the case with a statement of the facts to the rating activity for reevaluation. 
 

Murincsak v. Derwinski, Apr 24, 1992, 2 Vet.App. 277 (1992)
Article ID: 554400000063199
Decision Assessment Document
Murincsak v. Derwinski, Apr 24, 1992, 2 Vet.App. 277 (1992)
U.S. Court of Appeals for Veterans Claims (Court)

What the case is about:

The Court, noting that under 38 U.S.C. 5107(a) the VA's duty to assist specifically includes requesting information from other Federal departments or agencies and that the Social Security Administration (SSA), under 38 U.S.C. 5106, must "provide such information to the Secretary as the Secretary may request for purposes of determining eligibility for or amount of benefits, or verifying other information with respect thereto," held that VA violated its duty to assist the veteran by not acquiring the SSA decision and supporting medical records, as the VARO had actual notice that the veteran was receiving SSA disability benefits based upon his unemployability status.  

The Court noted that although the SSA's decision regarding appellant's unemployability is not controlling for VA determinations, it is certainly "pertinent" to the present claim, as the evidence was relevant to the determination of the veteran's ability to secure and follow a substantially gainful occupation under 38 C.F.R. 4.16(c). 

The Court also indicated that the Secretary's duty to assist includes obtaining this evidence from the SSA, and giving it appropriate consideration and weight in its determination to award or deny appellant a total disability rating based on unemployability.  At a minimum, the decision of the administrative law judge at the SSA "is evidence which cannot be ignored and to the extent its conclusions are not accepted, reasons or bases should be given therefor." 


Roberson v. Principi, May 29, 2001, 251 F. 3d 1378 (2001)
Article ID: 554400000081585
Decision Assessment Document
Roberson v. Principi, May 29, 2001, 251 F. 3d 1378 (2001)
U.S. Court of Appeals for the Federal Circuit 

What the case is about:

The Court held that once a veteran submits evidence of a medical disability, makes a claim for the highest rating possible, and submits evidence of unemployability, the requirement in 38 C.F.R. 3.155(a) that an informal claim “identify the benefit sought” has been satisfied and VA must consider whether the veteran is entitled to total disability based upon individual unemployability (TDIU). 

IV.ii.2.F.4.e.  Considering Occupational History in IU Claims
A Veteran’s occupational history is not determinative of the outcome of a claim for IU unless the Veteran is currently gainfully employed.  However, occupational history is a factor that must be weighed in decision making.  In weighing the relevance of occupational history in claims for IU, consider the factors below.
When a Veteran is currently working or the evidence shows the Veteran is capable of working but unemployed, determine whether the ability to sustain employment is marginal as discussed at M21-1, Part IV, Subpart ii, 2.F.1.d and e.
Consider the difference between unemployment and unemployability as discussed at M21-1, Part IV, Subpart ii, 2.F.1.b.
Voluntary retirement is not necessarily determinative of the outcome of an IU decision.  The underlying impact of the Veteran’s disabilities on the discontinuation of work is the relevant determination. 
As noted in M21-1, Part IV, Subpart ii, 2.F.2.i, SSA decisions are not determinative of the outcome of IU decisions.  However, a Veteran’s application for and/or receipt of SSA disability benefits is a factor to weigh in decision making. 
IU may be granted on a temporary basis as noted in M21-1, Part IV, Subpart ii, 2.F.4.g.
When a Veteran is self-employed, follow the procedures at M21-1, Part IV, Subpart ii, 2.F.3.
Reference:  For more information on weighing evidence in rating decisions, see M21-1, Part III, Subpart iv, 5.A.

A veteran is not required to submit proof that he or she is 100% unemployable in order to establish an inability to maintain a substantially gainful occupation, as required for a TDIU award pursuant to 38 C.F.R. 3.340(a). 


IV.ii.2.F.2.a.  General Evidence Requirements in IU Claims
 
A decision concerning entitlement to an IU evaluation in accordance with 38 CFR 3.340, 38 CFR 3.341(a), and 38 CFR 4.16 is based on a review of all available evidence, which should be sufficient to evaluate the
current severity of the SC disability(ies) that the Veteran states and/or the evidence indicates prevent(s) substantially gainful employment
the impact of SC disability(ies) upon employability, and
employment status. 
The rating activity must review all evidence and assign corresponding weight as directed at M21-1, Part III, Subpart iv, 5.A, including but not limited to evidence concerning the Veteran’s 
current employment status
past employment history, and
functional impairment arising from SC disabilities as shown by
examinations
Department of Veterans Affairs (VA) or private medical evidence, and
lay evidence.
Forward a VA Form 21-8940, Veteran’s Application for Increased Compensation based on Unemployability, to the Veteran if a request for IU is
expressly raised by the Veteran, or
reasonably raised by the evidence of record.

2003-04-09 VA FORM 21-8940 Redacted for Hadit.pdf 2007-12-19 VA FORM 21-8940 Redacted for Hadit.pdf 2009-07-09 VA FORM 21-8940 Redacted for Hadit.pdf

Edited by kanewnut
Remove Motion to Revise

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1 minute ago, asknod said:

Dawsonatl states: <<< I have to respectfully disagree, if I would have followed this advice verbatim I would not have filed my CUE and won it.>>> Sure you would have. You could have sent in a letter and said "You screwed up my rating decision. Please fix it-pronto." Calling the color red black doesn't make it black just as calling an error CUE doesn't make it -ipso facto-CUE. 

I read over your entire thread, sir. You mentioned that the award "correction" failed to mention the phrase 'CUE'. This is exactly what I am saying. It is not a true CUE until it is poured in concrete (unappealable). That is why there is no mention in your award letter of any admission of CUE. It is also why Kanewnut will never see any admission of CUE-if and when he prevails. VA makes errors all the time. We all know that. Are they CUE? Yes, in a colloquial sense but not a legal sense. 

As for the comment our esteemed contributor Geekysquid submitted in Dawsonatl's thread : <<<38 USC is built on 38CFR which is built on Public Laws.>>>>, you may want to go back to law school, sir. I, too, got a good belly laugh out of that chestnut. I also liked your comment about the "First Circuit" (We also know the BVA, CAVC, and First Circuit frequently take a dim view of that habit.). I'm going to assume you mean the Federal Circuit which is identified as "F.3d" on legal cites. Do tell. Where do you come up these legal revelations, sir?

I have said this repeatedly but it bears reiteration. Any here who essay to offer legal advice with no legal training can make matters worse. The legal axiom for doctors is  "First, do no harm." Berta (and many others of you) have learned quite a bit of VA law and some are even well-versed in CUE. I admire all of you for that. All of you are also free to disagree with me and I take no offense but I do ask that we compare apples to apples and not oranges to orangutans. I will repeat- Dawsonatl did not have a CUE. He had an adjudications error that was subsumed by a corrected ratings decision granting his TDIU. That, folks, is not a Motion to Revise. You cannot cite to §3.105a. The error was corrected before the appeal period expired. In VA law, as in any kind of law, proper semantics (i.e. legal terms) are the defining rule. One who files a Motion to Revise is not a Veteran, a claimant or an appellant. S/he is a "movant". Feel free to bandy about the term "CUE" as much as you want but simply realize that until your time to appeal a decision runs out, it's an "adjudication error" and nothing more. You can always resolve it just as Dawsonatl did-without resorting to a CUE filing under the auspices of §3.105(a).  And for the record, I strongly advise no one to use a HLR for anything-even an attempt to "fix" an incorrect rating. 

VA will accept a CUE filing but may not CEST it if it is not a true CUE. It depends on the rater and the VARO. Most will now, after the new AMA inception, refuse it and tell you to use a 996 HLR.  Best of luck and I mean that sincerely. If I could, I'd represent everyone on this forum before the VA. Unfortunately, I do not have the time. Besides, there are quite a few VA Agents in-the-making here who should apply for accreditation. Any one of the regulars here has 10 times the knowledge of a VSO service representative. 

capture-was-here-e1535647298505.jpg

we all know you are proud of yourself. you make that plain. you also spend an inordinate amount of energy trying to belittle others, be intentionally insulting, prove (apparently to yourself) that you think you are smarter or better than others, and of course extol the (self-believed) superiority of AskNod. 

It is unattractive and unhelpful. In fact many of your attacks on other posters are childish and down right harmful.

If you don't want to be helpful that is your business, but attacking others needs to stop.

As I understand it the focus of this site is to help and support other veterans. Your bile is the exact opposite.

Have a nice life living in your self aggrandizing echo chamber.

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Posted (edited)

I apologize if I came across as superior in any way. I have a sarcastic streak and it appears it offends some.  I have studied how to win claims for 30 years. I have been bringing that knowledge here free to all who ask for it now-both here at Hadit and my own site- for over 10 years. I am not proud of myself. I chose to help other Vets the best way I knew how. I chose to learn VA Law and become a litigator rather than just sit here offering advice. Don't confuse pride with commitment. The only thing I'm proud of is being admitted to practice at the CAVC without a Juris Doctorate. Only 46 have been accorded that honor. I'm proud of my three combat V's for Valour above and beyond the call of duty in less than 2 years. If anything, I'm proud I managed to survive two tours back-to-back in Laos and Vietnam. Many of my friends didn't. That's why I predominantly serve Vietnam Veterans before the VA.  If you (or anyone) offer bogus advice, why sure, I feel it needs to be challenged. Do you suggest I just let you keep on misleading Veterans by pretending to be knowledgeable about VA law?  In your own words sir- As I understand it the focus of this site is to help and support other veterans.   

Let's cut to the chase sir. If I offer poor legal advice to my client and act on it causing my client to lose, the OGC will revoke my accreditation-forever. If you offer poor legal advice and the Veteran uses it to his or her detriment, you are free to just enter a new claim thread and continue offering more of the same. In short, you suffer no censure or consequences. My attempt here was to clarify what is, and what is not, CUE.  I merely try to correct that error using real legal cites and precedence. I will continue to gladly suffer your insults if it helps even one more Veteran succeed. 

I helped over 750 Veterans attain a minimum of TDIU or 100% before I became accredited in 2016. Free. No charge. I did all the work and wrote the legal briefs-and not because I'm proud of myself. It's satisfaction in a job well done. And, might I add, correctly done. As we live in America, you have a right to your opinions but you do not have a right to recklessly interpret VA law incorrectly. That is the crux of your problem with me. This isn't about pride.  

It saddens me when someone runs out of legal or logical arguments and finally resorts to hurling insults. That generally indicates they have no more cogent rebuttal to offer. Accept my profound apologies if I upset you. Were you to familiarize yourself with VA law,  I wouldn't need to correct you nor apologize. I respect you as a Veteran and my motives are simple-to ensure you and others win. My advice was aimed solely at that metric. By my estimation, you are positive you are right. Had you been right, Dawsonatl's rating narrative would freely admit a clear and unmistakable error had been made in his decision. VA is not adverse to admitting CUE. See attached below as proof of my statement. 

When CUE exists, it is recognized-not glossed over or ignored in a VA ratings narrative. If you (or Dawsonatl) think the VA examiner just "forgot" to include the CUE discussion in Dawsonatl's decision, you are sadly mistaken. 

 

r1 redacted.PDF

Edited by asknod
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Asknod, Berta, Buck Tbird, and many other Hadit members have truly helped us with our VA issues. we could not have done it without your self-sacrificing help. 

we thank you all 

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2 minutes ago, asknod said:

It saddens me when someone runs out of legal or logical arguments and finally resorts to hurling insults.

yet you do it with regularity.

2 minutes ago, asknod said:

Don't confuse pride with commitment.

Don't confuse commitment with arrogance

 

3 minutes ago, asknod said:

I have a sarcastic streak and it appears it offends some.

it offends almost everyone, and you know it.

3 minutes ago, asknod said:

free to all who ask for it now

in this thread no one asked you. but you chose to start insulting the OP and then others in the thread.

 

4 minutes ago, asknod said:

I apologize if I came across as superior in any way

you come across as arrogant, angry, tiny, insecure and as a bully.

5 minutes ago, asknod said:

my own site- for over 10 years

i have tried to read your ramblings. The constant barrage of insults, snark, and down right arrogance make it difficult to get through more than a paragraph at a time.

5 minutes ago, asknod said:

become a litigator

litigator is a term typically reserved for attorneys, but your choice of that word fits into what is an apparent desire to have the title of Esquire without going to law school.

7 minutes ago, asknod said:

Do you suggest I just let you keep on misleading Veterans by pretending to be knowledgeable about VA law? 

I have mislead no one. you however keep trying to apply the rules of the BVA and CAVC to a claim at the RO. You like to throw around terms like RIPE yet it appears nowhere in the rules of the RO and how claims are adjudicated at that level.

You cannot produce a single RO level CUE that was rejected for not being Ripe.

9 minutes ago, asknod said:

f I offer poor legal advice to my client and act on it causing my client to lose, the OGC will revoke my accreditation-forever.

yet you are not allowed to offer legal advice to non-clients as you frequently post to dodge answering questions....so what you offer here could not be legal advice or you would be endangering your own credentials.

10 minutes ago, asknod said:

If you offer poor legal advice

I am not offering legal advice. I am offering an opinion on structure, format and content. If you had actually read and comprehended what I wrote...where your ego did not get in the way...you would have noticed that....but then that would not allow you to justify your attempts to bully and brow beat others as you crow about your own ego.

11 minutes ago, asknod said:

I helped over 750 Veterans attain a minimum of TDIU or 100% before I became accredited in 2016

Like one of Trumps claims, there is only your grandiose claim. I am sure you have had good suggestions for others who have been successful, and that is good. Your ego and your mouth however detract from any good you might once have done.

13 minutes ago, asknod said:

right to your opinions but you do not have a right to recklessly interpret VA law incorrectly. That is the crux of your problem with me. This isn't about pride.  

once again an incorrect pronouncement by King Alex. I have not interpreted any VA law. I have said I believe he has a CUE but I don't have time right now to review everything he posted. I also suggested to the OP that he file his appeal now, and work to perfect his CUE... note to your ego IT IS HIS CUE. not yours and he is not your client.

The crux of my problem with you is I don't like bullies.

15 minutes ago, asknod said:

That generally indicates they have no more cogent rebuttal to offer

yet as your wrote this you searched for more ways to insult people. You remind me of all those people who like to stir up drama and then claim their innocence. Beyond being a bully you are dishonest about your own intentions and actions.

17 minutes ago, asknod said:

Accept my profound apologies if I upset you.

Your apologies are as shallow as the way you present yourself in your postings. But be aware of a real fact. You don't have the power to "upset" me. All you are is an irritant, like a flea.

 

18 minutes ago, asknod said:

Were you to familiarize yourself with VA law,  I wouldn't need to correct you nor apologize.

You have no idea what I am familiar with and as for correcting me it is not your job, nor is it your right to insult people and expect they will not respond. All your complaints amount to your ego being bruised and like the beaten junk yard dog you want to bite something.

 

20 minutes ago, asknod said:

My advice was aimed solely at that metric.

your advice amounted to insulting the OP, others, and then me. You tried to use non-applicable terminology and standards not appropriate for a CUE at the RO. Under your claimed finality rule no veteran would ever be able to file CUE at the RO until they reached SCOTUS or let their claim go for a year so the decision became "final", which under AMA would mean they lose any chance at an EED for the claim under the normal Appeal Process.

23 minutes ago, asknod said:

By my estimation,

that is a fatal and flawed tool at the very best. You demonstrate your lack of skill in that arena every time you try and insult people and then cry about how you are only sarcastic.

 

24 minutes ago, asknod said:

Had you been right, Dawsonatl's rating narrative would freely admit a clear and unmistakable error had been made in his decision. VA is not adverse to admitting CUE.

Considering he got is claim, this line is a joke. VA is most assuredly adverse to CUE or it would not keep touting it as a "rare" event no matter what the CFR says.

26 minutes ago, asknod said:

If you think the VA examiner just "forgot " to include the CUE discussion in Dawsonatl's decision

I don't believe they forgot, I just questioned why it was not there. Your claim is the rankest speculation on your part. You don't know either.

----------------------

Let me be clear Alex, you might have something to offer, yet you bury in vitriol and childish bullying. Your attitude and ego are on full display. Your arrogance is abominable.

This post of your is just more proof you are not man enough, adult enough or reasonable enough to just get out of your own way.

If you don't agree with things I post, that is fine. Say you don't agree. Just don't have temper tantrums and insult people for your own self-amusement. it is unhelpful to other veterans and just demonstrates what a tiny, arrogant, bully you can be.

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As this conversation has devolved into things that no longer involve case, controversy or operation of law, I'll let this go. It's obvious some here do not understand 38 USC/CFR. Any discussion or argument is futile absent basic comprehension. Again my apologies if I came across as all I have been accused of. It was not intentional. Theresa and I have been friends for years and her site doesn't need be dragged through the mud. 

One last point of order which has nothing to do with pride, but rather fact. When you are admitted to the Federal Court (CAVC), you are sworn in as an Officer of the Court. This is required of both attorneys and VA Agents. After an oath is administered, your title changes from VA Agent to Nonattorney Practitioner and you are granted the powers of an attorney in everything but name only. The VA now also recognizes me as an Officer of the Court. I swear to tell the truth in all I do as a litigator.  The term 'litigator' is not synonymous with Esquire or JD at the CAVC , BVA and the DVA and I have never held myself out as such. It seems some have much to learn and I am not saying that sarcastically. I take my responsibilities very seriously.  

Shakespeare comes to mind here...Methinks the maiden complaineth too loudly.

You seem to have a lot of anger,sir. I hope you get help.

And that's all I'm gonna say about that.

G. Alexander Graham VA #39029 POA E1P                                                                                                                                                                                                                Admitted to the CAVC Bar 2/08/2018

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