Today we are going to make radio history. I’ve kept my identity anonymous for six long years in an attempt to protect my claims from “shrinkage.” I won on November 21 officially as most know. There is no more need for secrecy. Some of you already know me from Veterans Today .
Here, below are part of what we’re going to discuss today. Four sheets of paper in my c-file that will rock the VA eventually. The third one resulted in a win all the way back to 1994 but VA refused to agree until five minutes before Attorney Robert Walsh’s oral briefing at the CAVC. They are what we call CUE- Clear and Unmistakable Error. This is the hardest thing you will ever do but it is actually far easier than you think. The Court of Veterans Appeals gave us an out years ago that allows us to “cheat” at this CUE game. You will learn how to do this today. Click on any of these to magnify them. This first is what VA used as a worksheet before they typed up an official ratings sheet. Down there in column #9 is item D. Notice it says “PMRs not considered evidence to establish SC for left hip complaints in 1971.” That is CUE. When have any of our medical records- either before service, during service or after service- been subject to being thrown out as “not considered evidence”?
This next one is the “PMR” or private medical record in question. I know that there are not many of you who will have civilian medical records in a combat zone. This is probably why VA considered it a forgery. My title was Mr. instead of Sargent. That’s because in some of the places I was working we did not have rank, per se. Uniforms were optional or even forbidden. I actually worked with a Pilot in Charge (PIC) Benjamin Franklin. I crashed in a PC-6 C with PIC Jack (Jesus)F. Smith. I even had the pleasure of meeting PIC Tom Jefferson and breaking bread (and Tanqueray) with him. The problem here is twofold. In 2007, VA suddenly chose to accept these records as being legitimate and based their grant of Hepatitis C on them. That means they are legitimate. If they are legit. in 2008, then they have to be legit. in 1991. There cannot be two correct interpretations to this conundrum. Either the records and the date on them are to be credible in 1991… or they are not.
The third item is page 9 from my January 5th, 1995 SOC saying VA has received my new evidence and will soon be preparing a new decision. They never did proceed to a new decision but maintained right up to the CAVC that I didn’t submit anything more than a NOD until March 3rd, 2013. Then…suddenly, they agreed with all we claimed.
This last one I found several weeks ago and is the focal point of why we’re doing this show. On March 29th, 2010, based on my request in a DRO review, VA finally granted me 40% for having a phlebotomy every month. When I finally won in 2008, they gave me 10%. I objected because 40% was the correct analogous rating. But they took my 10% away. Bad, bad VA. This set in motion a CUE to get the 10% back. It might sound like small potatoes when you already are over 100% schedular but I’m trying to attain SMC- S or the Housebound rating and I’m almost there. By taking back the 10%, I now needed 20% more to accomplish it. Look closely at the circled words below. On July 18th, 2008, the QTC C&P doctor stated I was 100% totally disabled by just my Porphyria Cutanea Tarda alone– above and beyond my 100% for my Hepatitis. That’s right. Two 100% schedular ratings. The only problem is they ignored it and gave me first, a 10% doggy bone and then be grudgingly, a 40% bone. All the while I was owed a 100% rating. That, ladies and gentlemen, is MEGA CUE.
The big news is if you file your own claims pro se or even if you use a VSO, you are not represented by competent legal counsel. When you file CUE yourself, you are not held to the same legal standard of having to be excruciatingly correct. If you forget a few “i”s and “t” crossings, VA cannot toss it out and say you didn’t do it right. The CAVC is going to give it a deferential reading when you do arrive with your law dog in tow. He will patiently explain that you have the IQ of a Christmas tree ornament and cannot be held to the same legal standard as you would be if you had an attorney file this from scratch.
I filed a CUE on the 10% takeaway based on VA not observing due process. That means they should have called me and said “Yo. Alex. We gave you 10% for the blood letting (phlebotomies) and you are right. We should have given you 40%. Sorry. But you do understand we can’t give you both for the same thing. That’s pyramiding. Therefore, we’re taking back the 10%. You have a year to pitch a bitch if you disagree.”
VA doesn’t do it that way. You read about it in the Decision later. That’s ex parte justice. You report. We deny. However, when you stumble across the above after they deny your CUE, they’ll say it ‘s too late to argue a new theory. This is a lie and simply not so. Because you do not have a Juris Doctor degree after your name, and your friends do not address you as Doctor (as in doctor of Law), you are accorded that wonderful idiot status that permits you to hire an attorney and present the proper reason for the CUE. Let’s call it the Presumption of Stupidity. In my case, it is going to be interesting. If I am 100% disabled from the Porphyria now in 2008, what was I in 1994 when I filed for it? 2008 is no longer my claim date. VA is forced to go back to 1994 and begin the rating. The exact same set of circumstances existed in 1994 as they do now. I was getting phlebotomies once a month making me anemic and dizzy. I had to avoid Sun and stay indoors. I had to avoid heavy work that might injure my skin. Most importantly, I had 0$ income all of 1994 according to my Social Security earnings records. And 1995. And 1996.
Here’s the legal rationale for the Presumption of Stupidity. You’ll just love this one. It’s like Baskin and Robins- something for all pro se or VSO-represented claimants (which pretty much covers the majority of us). Call it the Miranda bypass or “they didn’t read me my rights!”
This show today is going to be about looking for these errors. It is going to be a message of hope. It is aimed at making each and every one of you realize VA raters and Examiners are so stupid and inept as to actually give you the ammo to shoot them with. Many times, the win is right there in front of you and you go by it like an umbrella at the front door in summer. Witness how many times I looked at that C&P letter from Dr. Morgan before I read that one seminal phrase declaring me totally disabled by PCT alone. You could have knocked me over with a feather.
Always remember—ALWAYS– if you do not appeal it, they are right. When you come back and attack with CUE, it is far more difficult than it is while the claim is still in contention. When you fight all the way up to the CAVC, 65% of you will discover that VA suddenly becomes your huckleberry and wants to do a Joint Motion for Remand (JMR) because you’re right. Put your wallet in your front pocket and sit in a corner. They’re (VA) just looking for an opportunity to fashion a better hangman’s noose. The trick is to get yourself a good lawyer and pay him that 20% you were hoping to buy a new Mustang with. Make the JMR bulletproof with an “understanding” negotiated ahead of time that agrees to a prearranged offer. Never head back to the Board of Vet Appeals with an open-ended agreement that you’re okay with being strung up and hung by the neck until dead twice.
The VA claims jungle is an interesting place. It is full of errors as you must know if you have ventured in before. If you have a good service rep. you will win. Unfortunately, there are a finite number of these and all the good ones are buried in requests. Pretty soon, even the best one cannot perform if he/she is drowning in claims. This is why I advocate that you do it your self at the lower level because it is just the prelude to the main attraction-The Court of Veterans Appeals.
So, pilgrims. I step out of the closet and greet you. My name is Alex Graham and I approved this blog. I want each and every one of you to know that there is a reason why you win or lose. One word. Evidence. If you are lucky enough to have it or have saved it like I did, you’ll prevail. For those of you from newer conflicts like Iraqistan, you do not face this hurtle. But then, most of the guys I help are from the Vietnam era and a lot of their stuff has been lost or misplaced. It is for those of you that I try to find every regulation or law to gain the traction for your claim. Winning a Hepatitis C claim is the hardest when you consider what is required. The disease did not exist on paper in 1968. It’s pretty hard to find that one in your STRs yet VA uses that absence of evidence as proof you didn’t have it!
On with the show.
If any of you are well-versed at looking up CAVC cases, you’ll find me at 12-1980. It’s an interesting read. Pull down the whole docket. Here’s the one that made the VA decide they wanted to make nice with me suddenly as near as we can tell.
Which was followed shortly (in VA’s mind) by:
Hi Mr. Walsh,
The Secretary can agree to remand the issue of the Board’s denial of entitlement to an effective date earlier than February 23, 2007, for the grant of service connection for Hepatitis C. The remand would direct the Board to provide adequate reasons or bases for how the January 1995 SOC clearly conveyed to Appellant that the decision on that claim was final. In order to enter into a JMR, however, we would need Appellant to abandon thetinnitus claim and arguments pertaining to CUE. Please let me know at your earliest convenience whether this is something that Appellant is interested in pursuing.
Thanks,
Emily
As I said, it’s been a wild ride. I’ll have a twenty-year protected rating here in about ten weeks. Twenty years ago, my kid was playing soccer in a pee-wee league for six-year olds. My daughter was picking out a gown for Homecoming. Sugar Bear’s almost thirty seven and has two boys. President Clinton was starting his second year in office. Dial-up was how you accessed the internet. And I filed a claim for hep and PCT.
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