One thing you need to know when doing claims, is to keep them on the ropes. Just because your appeals are up at the CAVC, this doesn’t preclude a filing for some error you’ve spotted or a secondary illness that has finally reared its ugly head. As you are filing at the Regional Office level, you will recall that expensive-ass law dog you hired is persona non grata at the old RO for anything the BVA hasn’t touched yet. He has his hands full anyway. Best to let him stick to that while you go on about sweeping up the broken glass from the earlier accidents.
Filing claims at the RO is only permitted to self-represented Veterans or those who choose to use the VSOs’ version of Leaglezoom.com ©. Thus the vA has you at a strategic disadvantage at the most crucial stage of the game. The initial stages of your claim set the tenor and the pace for what ensues. If you are working it using a VSO, they have their own pace and tempo. It leaves you in a defensive posture versus an offensive one.
Never file harassing, frivolous claims to tie up the system. Each one should be focused to accomplish something. vA has denied me Special Monthly Compensation “S”. It amounts to $325.00 a month. I am entitled to it by being substantially confined to my home and the immediate environs. It must be attained by either a debilitating illness or one 100% rated disease/injury plus an additional 60% computed in vAmath. I am currently rated 100%+ 40% +10%. vA computes that to 146% or 150% rounded up. I will need an additional 20% to attain my 60% so I am filing for restoration of my other original 10% from scarring which was unceremoniously horse-traded away after the award of my 40%. Yes observant math person. That will only net me 151% which rounds down to 150%. Nevertheless it was awarded lawfully. That means if they removed it unlawfully, it is CUE. Do you remember how hard it is to prove CUE? Now just imagine how the vA can prove that it was awarded a) fraudulently
b) without enough signatures
c) because I don’t have any scars now that they all vanished.
The same arcane, immutable laws that prevent the majority of us from ever prevailing on a CUE claim are now focused in their full force on the same ones who promulgated the decision. The olde English used to call this being hoist on your own petard (from the French Palan par votre propre piège). vA has made a “finding”. This is a legal holding good for $200 and passing Go! vA now has to defend why they awarded it in the first place. They have to prove it wasn’t outcome-determinative to take it away, that the decision to reduce the rating ( in force for 17 months) “did not manifestly change the outcome” of the eventual rating percentage; that all the laws were obeyed and all the evidence on file at the time indicated that a reduction was called for without discussing the proposed reduction with the claimant prior to reducing said rating. OOOOhhhhh! I like these arguments.
Some of you know this but if vA decides to tamper with your rating, no matter how many chips you have, they have to have a C&P exam that says ” Mr. NOD’s scars have miraculously disappeared on both the dorsal and anterior aspects of his hands and scarring due to mechanical trauma/photosensitivity has similarly undergone Heavenly Expungement. The Pope has been called and he is currently being considered for Canonization. News and film at Eleven”. In fact, the way the LAW is written, vA cannot reduce that rating until sixty days after they first notify you that they have done it. Being a “finding” that I am entitled to this, the only way to effect a reduction by the M-21 would require them to order me to a QTC Quality Treatment Center posthaste for one of those canned C&Ps mentioned above.
I filed in November of 2008 for Cryoglobulinemia and Fibromyalgia but withdrew those claims upon completion of the PCT for 10%. That was before I even knew about SMC S. I will be reinstating them soon. I am also contemplating filing CUE on the original denial of my SMC-S denial in June of 2008. That can be sustained because on the rare three days here and there when they discharged me home from the Seattle VAMC , I was lying on my back with a colostomy bag and a 1000ml IV of saline every day in my (by now) permanent PICC line. That’s conducive to watching a lot of Drew Carey and Alex Trebek. The picture looked like this
vA felt I was faking it and out playing golf in my brand new, vA -issued wheelchair.
The camera date is wrong but that’s me in the NASA recliner.
vA looked at all the evidence and the benefit of the doubt came down like this:
Them vA rater guys. Aren’t they a hoot? Why, you gotta get up purty early in the morning to get the jump on them. They don’t get taken in by some hoodwinking Veteran faking it in a wheelchair. No Sirreee. 85% of us are fakers and malingerers and vA can’t be hornswoggled by the likes of a rank amateur like me. What was I thinking?
Never sit and do nothing in these instances. Small, perceived wrongs can be righted while you wait your turn in line at Indiana Ave. NW. The only codicil is that they be brand spanking new claims or CUE motions for revision of vARO decisions. This is not harassment nor is it being anal and vindictive. By fighting for what is legitimately yours, you show vA that you are not to be trifled with. Just make sure you don’t have any skeletons in your closet or fraudulence in the files. Call it “CUE for fun and profit”. I prefer to call it “Not getting mad but rather, getting even” Always remember Shakespeare’s immortal line ” Revenge is a dish best served chilled”. This requires preparation and a refrigerator properly set to 34 degrees Fahrenheit.
38 CFR § 3.105(e)
(e) Reduction in evaluation—compensation. Where the reduction in evaluation of a service-connected disability or employability status is considered warranted and the lower evaluation would result in a reduction or discontinuance of compensation payments currently being made, a rating proposing the reduction or discontinuance will be prepared setting forth all material facts and reasons. The beneficiary will be notified at his or her latest address of record of the contemplated action and furnished detailed reasons therefor, and will be given 60 days for the presentation of additional evidence to show that compensation payments should be continued at their present level. Unless otherwise provided in paragraph (i) of this section, if additional evidence is not received within that period, final rating action will be taken and the award will be reduced or discontinued effective the last day of the month in which a 60-day period from the date of notice to the beneficiary of the final rating action expires.
The obvious answer to this is:
Dept. of Veterans Affairs
Regional Office
Re:
CSS
Moving Party
Dear Sirs,
I write because the Seattle Regional Office has failed to contact me concerning my filing of October 10th, 2011. I contacted the IRIS system (IRIS Inquiry # xxxxxx-xxxxx) and posted the particulars of my filing there and asked for an update. Apparently the documents have been lost or misfiled. Fortunately I do have proof of mailing to help you find them and copies of the correspondence to resurrect the matter.
Very simply, the Veterans Administration has reduced a rating for scarring under Diagnostic Code 7815 from 10% to 0%. Substituting the Diagnostic Code for Phlebotomies under Polycythemia Vera (DC 7704) in lieu of DC 7815 is impermissible as it is not duplicative nor pyramiding under 38 CFR §4.14.
Most importantly, please find a copy of my Certificate of Mailing via US Post Office Form 3817 showing my mailing of the document requesting a Motion for Revision. If you feel this is not sufficient to overcome the Presumption of Regularity as far as the Common Law Mailbox ruling documenting mailing, I can supply a letter from my postmaster/mistress attesting to the mailing in question. Suzanne has known me for 18 years. It’s a small town. Post Office Form 3817, while not generally used, still certifies that the article in question, addressed to the VA, was mailed on the date stamped on the form by the sender (me). It satisfies the requirements of the Rios vs. Mansfield precedent that shows documented proof of mailing. Furthermore, I only sent the Seattle Regional Office one document during the month of October, 2011.
Please begin adjudicating this Motion for Revision as soon as you can. I feel it is long overdue after ten months of waiting. I am actively prosecuting this. I realize the Veterans Administration is experiencing a large number of filings but I feel the inordinate time delay is inexcusable. A simple acknowledgement of the receipt of the correspondence would be appropriate. Thank you for your attention to this matter.
Noodledude
1234 Yellow Brick Road
Oz, Kansas 60609
P.S. Suzanne says to say Hi. She wants her fifteen minutes of Warhol fame, too.
asknod
Bethanie Spangenberg
kcraveiro
robinhoodesqvetsatty
Wesley McCauley
