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      How to get your questions answered. A few observations, and requests of all members. All folks who come here are volunteers who do this on their own time and their own dime.To avoid burning out our best contributors please follow these guidelinesf you are reading a post and it reminds you of a question you want to ask, start a new topic, if you place your question in someone thread it will be difficult to distinguish your question from the original poster, you will get better results posting a new topic with your question. 1. Before Posting please do a search and see if your question has already been answered. If you find the answer print it out and put it in a file to use as a reference file, I find this helpful myself. 2. If you can not find the answer and you do post a question, please print out those answers and refer to them to avoid duplicate questions. 3. Refer to the Frequently Asked Questions4. Duplicate questions will come up from time to time but the keeping them to the minimum will lighten the load on the regular volunteers.5. Respect folks privacy do not request their personal phone numbers for claims help, it is inappropriate and not why they are here.6. Keep the topics focused on veterans issues, in closing Search first Search ... Ask second.it may save a lot of time or at the very least enlighten you.
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    • A bit about Tbird and HadIt.com for those who've asked...

      The following is on my About page, but some have been asking how this all happened. So here is my little story. Tbird US Navy 1983 – 1990 E-6 HadIt.com the website domain registered Jan 20, 1997 the domain is registered and paid for through Jan 21, 2023 at which time I plan to register it for another 15 years Lord willing and the creek don't rise. I guess the best place to start is Jan 1991; I had gotten out of the navy Dec 1990. At my separation seminar, there was a DAV rep Jim Milton he told us to bring our medical records in and he would look through them for us and let us know if we should file a claim with the VA. Well, bless his heart, he opened my medical file, reads the first insert, looks me straight in the eye, and says you will be 50% for the rest of your life and he would file the claim for me. 50% was for surgery I had in the service. True to his word he met with me and talked with me for a long time filled out my paper work and urged me to file for PTSD. I would not file the PTSD claim, nor even discuss it. By Feb 1991 I had moved to the San Francisco bay area and was staying at a friends apartment and pretty much I was just a puddle. In desperation one night I called suicide hot line, I had no job, no idea about going to the VA. They talked with me for a long time and explained to me that I could go to the local VA hospital even if I did not have insurance. Now, I know what you are thinking if I was 50% why didn't I just go to the VA in the first place, two reasons 1, this was Feb 1991 and the 50% didn't come till May and 2, even if it had come through it is unlikely that I would have had the mental acuity at the time to put the two together. I relate this here because it is where so many of our brothers and sisters are coming from, perhaps where you started. Fuzzy and unsure, in pain and sometimes homeless they come to the VA hospital for help. And that is where I ended up. Up to the pysch ward I went, blah, blah, blah, a few days later I was released with a promise of a call from the out patient program, which I would soon be entering. Blah, blah, blah, after many missed communications, and no call backs I was at the Day Hospital everyday M-F. And this brothers and sisters is where I began to learn and formulate my plan for HadIt.com. Veterans, veterans everywhere…I spent a year in the day hospital and about another year at a sheltered workshop before I got back on my feet. So I just talked to veterans everyday waiting for appointments, waiting for prescriptions, waiting for a vet rep and I started to learn the system. While in the navy I was data analyst and had to learn a 5 volume manual and just about anything you were suppose to do was in that manual. So I figured there must be a manual on how to do a VA claim or at the very least regulations. So I found out about the Code of Federal Regulations, United States Code, Veterans Affairs Manuals and so on and so forth. Of course this was 1991/1992 I was living in a tiny studio apartment in a particularly bad neighborhood, working in a sheltered workshop making a nickel per envelope I stuffed throw in PTSD and you will see that it was a difficult task for me to get somewhere where they had copies of these, let alone that they would let me look at. And there was so much knowledge around me, it was like the gold rush in those days, I could just sit on a bench a veteran would sit down next to me a little conversation later I had another nugget, I made copious notes. Phone numbers to call, ask for this guy or that guy he'll give you the straight scoop and they'd slip me a piece of paper with a number on it. You want to read this regulation or that one and another slip of paper into my hand. I spent a lot of time on those benches watching the squirrels they gathered their nuts and I gathered mine :) So I'm thinking I could put a little handbook together print it out and hand it out at the VA. Or perhaps fliers. Still formulating, time goes by, 1994/1995 I am being treated for PTSD regularly and doing and feeling much better and I go to work for a company as a marketing systems analyst and I discover the internet. Well let me tell you that was perhaps one of the most significant life changing events I have ever experienced. And I might add finally a positive one :) It seemed only natural to me that surely there must be a website that contained all the knowledge I wanted, well as it turned out not so much, lots of stuff but I wanted to get straight to the claims information and there was a lot of stuff to wade through to get to it. So taking my lesson from the squirrels earlier I started to gather, gather, gather…and learn HTML and work as a marketing systems analyst and work my claim. 1996/1997 major PTSD cork blows and unemployed. Working my claim, working the website. 20 Jan 1997 register HadIt.com domain name right after getting off the phone with the VA and saying I've had it with this. As fate would have it the old DAV board goes down just as mine opens up and folks start to wander in. So HadIt.com has two main components the website which supports the discussion board with links, articles, research resources etc. The website starts to grow, I can't tell you how many times I had to switch servers for space and features. I continue on a downward trend and in 1998 ended up back home in St Louis living in my sisters basement in therapy and working it, I swear I would have swung a dead chicken around my head at midnight naked if I thought it would have helped. The website continued to do great during this time, I just stayed in the basement bought new software, new books, and learned how to make things work and I continued to use this knowledge to make HadIt.com better. My 100% finally came through from the VA and I had a friend who is an advocate who helped me thru my SSDI claim, he was literally at my side thru the entire process and that came through for me. My therapist and sister continued to try and get me to leave the basement, but to no avail. At some point in 1998 or 1999 I put a counter on the website and was shocked to discover how many visitors we were getting. Time goes by my sister gets married and I move from the basement to the upstairs, there is much celebration that Aunt T is living in the light again. More time goes by and I settle into my life in St Louis and spend more time on the site trying new things, finding more information. 2003 I buy my own home VA loan. For years now I have just considered HadIt.com my job and I get up every morning go to the office and work for several hours, take an afternoon break and see where the rest of day takes me. I have a place in the office to use the computer and a comfortable to place to read journals and articles and take notes. Blah, blah, blah so that is my story and HadIt.com's intertwined.
    • HadIt.com Pass It On Cards

      Hi I've updated our HadIt.com Pass It On Cards. They are in a PDF format you can print them out cut them there are 12 to a page. If you have found HadIt.com helpful and would like to pass it on to other veterans this is an easy way to do it.I hope you find them helpful, feel free to leave a few anywhere veterans gather, veterans centers, veterans hospitals, public libraries, be creative. Please make sure though, that if you want to leave some at any business you ask permission first.Here you go http://www.hadit.com...it_on_cards.pdf
    • VA Training and Fast Letter Forum Index

      VA Training and Fast Letter Forum Index The following is the index with links to the various Training and Fast Letters plus a few miscellaneous. These letters are not necessarily in the original formatting. I have tried to present them in an easy-to-read form instead of some forms as originally presented. Some of the paragraphs were WAAAAYYY too long. lol - HadIt.com Member fanaticbooks Something to be aware.... Some of these letters may be rescinded, outdated, or otherwise no longer viable. I have still included them because sometimes they provide additional insight or just plain more information than the newest version. Use them wisely. The oldest letters will display at the bottom with the latest letters displayed at the top, all in sequential numbers. Coding of the letters... FL = Fast Letter TL = Training Letter First two numbers = last two digits of year of origin Training Letter http://www.hadit.com/forums/index.php?/topic/40694-va-tl-00-07/ http://www.hadit.com/forums/index.php?/topic/40693-va-tl-00-06/ Fast Letter Number Title http://www.hadit.com/forums/index.php?/topic/44262-va-fl-11-15/ http://www.hadit.com/forums/index.php?/topic/44260-va-fl-11-13/ http://www.hadit.com/forums/index.php?/topic/44261-va-fl-11-11/ http://www.hadit.com/forums/index.php?/topic/44310-va-fl-11-09/ http://www.hadit.com/forums/index.php?/topic/42151-va-fl-11-03/ http://www.hadit.com/forums/index.php?/topic/40957-va-fl-10-49/ http://www.hadit.com/forums/index.php?/topic/40958-va-fl-10-46/ http://www.hadit.com/forums/index.php?/topic/40959-va-fl-10-45/ http://www.hadit.com/forums/index.php?/topic/40960-va-fl-10-42/ http://www.hadit.com/forums/index.php?/topic/40961-va-fl-10-39/ http://www.hadit.com/forums/index.php?/topic/40962-va-fl-10-35/ 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http://www.hadit.com/forums/index.php?/topic/40804-va-fl-09-33/ http://www.hadit.com/forums/index.php?/topic/40972-va-fl-09-28/ http://www.hadit.com/forums/index.php?/topic/40671-va-fl-09-27/ http://www.hadit.com/forums/index.php?/topic/40973-va-fl-09-26/ http://www.hadit.com/forums/index.php?/topic/40803-va-fl-09-25/ http://www.hadit.com/forums/index.php?/topic/40802-va-fl-09-21e2/ http://www.hadit.com/forums/index.php?/topic/40801-va-fl-09-21/ http://www.hadit.com/forums/index.php?/topic/40799-va-fl-09-20/ http://www.hadit.com/forums/index.php?/topic/40798-va-fl-09-17/ http://www.hadit.com/forums/index.php?/topic/40974-va-fl-09-15/ http://www.hadit.com/forums/index.php?/topic/40975-va-fl-09-13/ http://www.hadit.com/forums/index.php?/topic/40797-va-fl-09-10e1/ http://www.hadit.com/forums/index.php?/topic/40796-va-fl-09-10/ http://www.hadit.com/forums/index.php?/topic/40795-va-fl-09-09/ http://www.hadit.com/forums/index.php?/topic/40976-va-fl-09-08/ 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  • 0

Cavc Remand

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Posted · Report post

Just wondering if any one knows whats happens after CAVC remands my case?

What are the odds the VA will pay up?

Will it take another 5 years before i hear something back?

If someone could review my case and give me an idea what to expect next.

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14 answers to this question

Posted · Report post

Just wondering if any one knows whats happens after CAVC remands my case?

What are the odds the VA will pay up?

Will it take another 5 years before i hear something back?

If someone could review my case and give me an idea what to expect next.

Alexx,

Did they remand with instructions?

Mike

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Posted · Report post

It goes back to your VARO or sometimes the AMC if it came from there. Rermands are supposed to have some kind of priority.

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Posted · Report post

If someone could review my case and give me an idea what to expect next.

alexx,

You can post your case minus the personal info such as name, SSA number, etc...

and probably get some responses on it.

I am moving this topic to the Claims/Benefits Research Forum.

carlie

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Posted · Report post

I am echoing what Mike asked-is there anything they asked the VA to do that you could do yourself?

Often a CAVC remand can open the door for more evidence- a CAVC remand is far better then a final CAVC denial.

Odd thing about CAVC-I had a case there many years ago and immediately got phone calls and letters from lawyers.I asked one of them how he learned of my case. As soon as a case goes on the CAVC docket it becomes public info with name, address, etc of the claimant.

All cases are listed there at the CAVC web site with this information.

It would be great if we could read the case-you can cover or edit the personal info to scan and post here as Carlie suggested-or if we have your last name and/or the CAVC docket number we can read it off the CAVC web site.

The CAVC site has no C file or SSA numbers at all- just our name and address.I think if you advise the CAVC prior to their preparing the Docket that you want to remain anonymous, they will still post the case but maybe just under an initial or something.

Did you have legal representation at the CAVC?

I helped a lawyer with his first CAVC case.He got a remand for the vet and was thrilled with that.

The claim was not a good one at all and I found errors that the BVA made that caused the remand.Legal errors by the BVA that had to be resolved.

With the remand however- if the vet could send more evidence - then there was a slight possibility of success.This case was not remanded on merit but on error.

Still a remand at this level is not easy and I commend you for getting one from the CAVC.

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Posted · Report post

sorry it has taken so long to get back but this is my Case Number:09-636 at the cavc.

Any help would be greatfull.

A lil side note: I opened a new claim (same conditions) at the same time i appealed to the cavc. The RO did give me another 10% for the left ankle(not sure if that helps or hurts)

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Posted · Report post

The CAVC docket numbers usually have 4 digits after the hyphen-I could not find this case at the CAVC.

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Posted · Report post

my remand, any opinions

JOINT MOTION FOR VACATUR AND REMAND

Under U.S. Vet. App. Rule 27, Appellant, Deric Kulbiski, and Appellee, Eric K. Shinseki, Secretary of Veterans Affairs, through their undersigned representatives, respectfully move the Court to vacate and remand the February 3, 2009, decision of the Board of Veterans’ Appeals ("Board"), which denied entitlement to (1) a disability rating in excess of 20 percent for Appellant’s service-connected residuals, posterior process talus fracture, left heel, with left ankle flexor hallucis longus ("FHL") tendonitis, degenerative joint disease and mild instability, and (2) an initial rating in excess of 10 percent for service-connected left knee patella chondromalacia. See Record Before the Agency ("R.") at 3-16.

The parties agree that vacatur and remand is warranted for both claims because of problems with the Board’s stated reasons or bases for its determinations. For the purposes of this remand only, the parties accept the statement of facts in the Board decision, except as otherwise noted below.

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BASES FOR REMAND

  1. A. Left Knee Evaluation
The parties agree that the Board failed to adequately explain in light of all favorable evidence of record whether a separate rating was warranted for instability of the left knee. See Daves v. Nicholson, 21 Vet. App. 46, 51 (2007) (noting that Board "cannot reject evidence favorable to the claimant without discussing that evidence"). In April of 2008, Appellant complained that his left leg "gave out". R. at 78. In May 2008, Appellant complained to his primary care physician that his left leg intermittently "gives out" and felt "odd" all the time. R. at 75. He stated that intermittently his leg felt like it was going to sleep. Id. A June 2008 physical examination revealed a medial meniscus tear with moderate laxity of the anterior cruciate ligament (ACL) in the left knee. R. at 30. The examiner ordered a left knee brace and estimated that three to four sessions would be necessary to "make sure his knees are stabilized." Id. At a September 2008 Board hearing, Appellant testified that his left leg would give out on him "at least twice a week." R. at 38.

In the decision on appeal, the Board found that there was no evidence of "instability of the knee," R. at 13, but did not discuss the evidence described above regarding Appellant’s lay statements regarding his complaints of apparently worsening of his condition following the March 2008 VA examination. The Board erred where it did not provide adequate reasons or bases for its denial

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of an increased rating for the left knee disability where it did not discuss this favorable evidence. See Daves v. Nicholson, 21 Vet.App. at 51; see, e.g., Caluza v. Brown, 7 Vet. App. 498, 505 (1995) (noting that new examination may be required "where the record does not adequately reveal the current state of the claimant’s disability").

  1. B. Left Ankle and Foot Evaluation
The parties agree that the Board failed to adequately explain how it applied the rating schedule to reach a single award with a 20-percent evaluation for Appellant’s disabilities of the left leg, ankle, and foot. The Board is required to provide reasons or bases for its findings, on all material issues of fact and law presented by the record, adequate to enable the claimant to understand the basis of the Board’s decision and to allow for meaningful judicial review. See Gilbert v. Derwinski, 1 Vet. App. 49, 56-57 (1990).

The parties agree that the Board did not adequately explain how Diagnostic Code 5284, for "Foot injuries, other," see 38 C.F.R. § 4.71a, could be used to account for Appellant’s left leg and ankle dysfunction, and erred in failing to consider whether a separate rating could be assigned for his disability affecting the musculature of the left lower extremity. At a February 2006 VA examination, the examiner noted "tenderness throughout the posterior tibial musculature" which he appeared to relate to Appellant’s service-connected condition. R. at 215. The examiner opined, "the veteran has experienced calf muscle tendonitis ever since the 1991 surgery." R. at 217. However the Board

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did not discuss whether Appellant’s symptoms warrant a separate rating under 38 C.F.R. § 4.73, DC 5311 ("The Foot and Leg," Muscle Group XI). Thus, vacatur and remand is warranted. On remand, Appellant is entitled to submit additional evidence and argument, Kutscherousky v. West, 12 Vet. App. 369, 372 (1999) (per curiam order), and VA is obligated to conduct a critical examination of the justification for its previous decision. Fletcher v. Derwinski, 1 Vet. App. 394, 397 (1991). The Board is further directed to obtain copies of the Court’s order, Appellant’s brief, and this motion to incorporate them into Appellant’s claims file for appropriate consideration in subsequent decisions on this claim. The parties request that the Court explicitly incorporate the terms of this motion into any resulting order, such that Appellant will have an enforceable right to compliance with those terms. See Breeden v. Principi, 17 Vet. App. 475, 479 (2004). WHEREFORE, the parties respectfully move the Court to set aside the Board decision of February 3, 2009, and to remand this claim for readjudication. Respectfully submitted, FOR APPELLANT: /s/ Glenn R. Bergmann GLENN R. BERGMANN March 16, 2010 /s/ Thomas Polseno Date THOMAS POLSENO

Bergmann & Moore LLC

7920 Norfolk Ave., Suite 700

Bethesda, MD 20814 (301) 290-3106

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FOR APPELLEE: WILL A. GUNN General Counsel R. RANDALL CAMPBELL Assistant General Counsel /s/ David L. Quinn DAVID L. QUINN Deputy Assistant General Counsel March 16, 2010 /s/ Monique A. S. Allen Date MONIQUE A. S. ALLEN Appellate Attorney Office of the General Counsel (027G) U.S. Dept. of Veterans Affairs 810 Vermont Avenue, N.W. Washington, DC 20420 (202) 639-4787 / 4800

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Posted · Report post

I had 4 issues awarded joint remand at the CAVC in December 2009. My VARO recieved my case file 3 months ago. The VARO and American Legion can only tell me it's there. They think no one has opened it yet to see what they were ordered to do. I'm so sick of this crap. These 4 issues are from a 2000 appeal............I hope you have better luck.

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Posted · Report post

This really sucks!! 2000, who else in government would wait 10+ years for justice?

See you are 100% rated, are you looking for SM's?

I had 4 issues awarded joint remand at the CAVC in December 2009. My VARO recieved my case file 3 months ago. The VARO and American Legion can only tell me it's there. They think no one has opened it yet to see what they were ordered to do. I'm so sick of this crap. These 4 issues are from a 2000 appeal............I hope you have better luck.

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I was 50% from 2000-2002, 70% from 2002-2007 and 80% in 2008. I recieved TDIU in 2009. The four issues from 2000 if rated higher from 2000-2009 will yield back pay. The clock has stopped in 2009 because they finally gave me 100%.

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Hi folks --

I just won another BVA remand from the CAVC, representing myself. This is an effective date appeal, submitted in 2002. This is my second time at the CAVC, so I have a good idea what to expect. I'm happy to share what I know; if anyone's interested, feel free to email me.

I wanted to share a couple of lines from the Court's decision, that I thought might be of interest:

"Not only is the Board's analysis incomplete, it appears to be factually incorrect and internally inconsistent with earlier descriptions of the available evidence"

"Notwithstanding the clarity of the pro se appellant's arguments, the Board, in the decision on appeal, has again failed to adequately adjudicate the scope of the appellant's 1971 claim"

I expect that these reflect a common problem with the BVA that others may find familiar -- the inadequacy of the "reasons and bases" section.

Good luck to all with your appeals!

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GOOD for you!!!!!

A CAVC remand also can open the door for additional evidence.

One thing we cannot stress enough here is the fact that the CAVC looks for legal errors in BVA decisions.

Period. They do not weigh the evidence or consider anything at all not in the BVA record.

If a BVA deision is detrimental to a veteran because it contains legal errors the CAVC must remand the claim for correction of these errors.

I hold to this- and have had difficulty in explaining this to some BVA, CAVC claimants over the years-

When the BVA remands a claim via CAVC or BVA direct remand- the claimant themselves should follow the remand-

in other words if the BVA orders the RO to get this and that-

the claimant should attempt to get those records too.

When the BVA ordered another C & P on my AO claim to be done by a cardiologist-I got a cardiologist.That is I contacted one, paid him, and began to copy the medical records etc again for his IMO.

As it happened the C & P was done fast by a PA ,not a cardio doc, and I knocked it down as soon as I got copy of it- the cardiologist had not prepared my additional IMO yet- but I had sent to the BVA the very same evidence (my RO historically removes my stuff from my C file)I had sent to the cardio doctor and used the same medical argument I assumed this IMO doctor would use.

The BVA award came in the mail very soon after they received the PA C & P and my additional evidence.I had to call the cardiologist and tell him to hold off.Luckily I even got back some of my IMO money.

This is what I mean by following the remand yourself. In my responses to the BVA (I gave up on sending anything to the RO at that point)I consistently referenced the fact that my VCAA letter was illegal and that the C file contained (I supplied them again because they were probably gone by time file went to the BVA) 3 additional IMOs that clearly awarded my claim yet the VARO had consistently igorned this probative evidence.

You did very well to obtain another CAVC remand.

It goes to show we MUST be proactive and I too ,as Pro se in many situations, did better than I would have done with a lawyer.

I advise getting a lawyer when at the CAVC in most cases however.

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Thanks Berta.

There's one other point of which you reminded me, that hit home only with this most recent CAVC decision. Besides additional evidence, with remand to the BVA it's also possible to submit additional argument. After so many appeals, I have gotten into the habit of reiterating all my arguments anyway. But as noted in Best v. Principi, 15 Vet.App. 18 (2001), the Court renders its decisions on the "narrowest possible grounds," which means that they are not required to address every issue raised in the appellants' briefs. As the Court observes in that case, "A narrow decision preserves for the appellant an opportunity to argue those claimed errors before the Board at the readjudication." In other words, the appellant needs to present those issues to the BVA upon remand, thus triggering the Board's obligation to address them, as well as to preserve those issues for appeal to the CAVC if the claim remains denied after remand.

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