Transcript 0:00 [upbeat music] Hello, and welcome to another podcast from Hill & Ponton. 0:20 I'm Carol Ponton, and today I'm lucky to have Kerry Baker with me today. How are you, Kerry? I'm good, Carol. How are you doing? Good. I got, uh, a really wonderful time this week, last week. 0:32 Uh, I don't get to see Kerry very much, but we had the Nova seminar, so we were all in Washington, and we got to have dinner with you. It was just wonderful as always to see you, Kerry. 0:40 I mean, we all work together, but we all work all over the place, so. Well, it was, it was good to see you guys. The, it was, the pleasure was all mine. All right. Are we ready with the questions? 0:54 Okay, this is one of five. "I filed a higher level review for earlier effective date. 0:59 The VA denied effective date, but increased migraines from thirty to fifty percent and admitted a duty to, um, assist for neck, which is currently at twenty percent. 1:11 VA states the issue of degenerative arthritis, degenerative disc disease, intervertebral disc syndrome, and spinal stenosis, cervical spine, was returned for correction of a duty to assist error in the prior decision. 1:25 We failed to get private medical records we will develop for treatment records from Franciscan Medical Clinic. I submitted those records with my original claim, but I think they didn't give them to the examiner?" 1:37 Question mark. "The VA scheduled me for a new compensation and pension exam, and I'm worried. Will the new examiner have a different medical opinion and make it not service connected? 1:48 The original C&P exam was conducted on January twenty-five, and my range of motion hasn't changed. I believe twenty percent is a prop- proper rating. What am I missing? Thank you." Kerry? 2:00 Uh, I mean, usually you're not in danger of them saying it's not service connected. 2:06 Uh, not that that can't happen, but generally, what they're examining you for an increased rating, um, since it's already service connected, they generally would not be asking for a medical opinion. 2:18 So I don't think you have anything to worry about there. 2:21 Uh, if they tried to do that, you would, you would have an exceptionally solid appeal, uh, 'cause they can't just willy- willy-nilly, you know, uh, take service connection away because one opinion is different than another, uh, at least not legally. 2:36 So I, I wouldn't worry about them taking it away. Um, you know, it, it sounds like it's par for the course. We see this all the time, uh, whether they had all the records or not. 2:47 They may have thought they didn't have them all. Uh, they may have wanted to do the request themselves, uh, and just to make sure they got all the private records. 2:56 Uh, you know, odds are if your condition hasn't changed, the exam results won't change. Um, and you, you know, you got a good shot at just keeping that twenty percent. Um, 3:08 you know, uh, that's probably about the, the, about the best I could do, uh, with what you're... I don't, I don't think you're missing anything. They just, uh, we see duty to assist errors all the time. All right. 3:20 And I, and this is, like Kerry said, this is, they do this all the time. They're constantly getting additional C&P exams. You never know what it's for. 3:29 Um, but I think a lot of you veterans worry too much about losing things without... 3:35 You should be confident in your case and realize if they don't give you what you're entitled, if they try to take something away, you keep going, because they can't do certain things. 3:43 And even though they try to do them, if you keep going, if you keep showing them the evidence, you're gonna win your case. 3:49 Stop worrying about what you could lose, and I really think you need to concentrate on what you could win. For instance, did you ask for an earlier effective date for that fifty percent grant for your migraines? 3:58 If not, you should do that. And with, with your neck, do you have radiculopathy going down either arm? If you do, you should have been granted that as well. Mm-hmm. 4:07 So don't worry about what you have to lose, as much as worry about how you prove what you're entitled to. Yeah. That's what I tell you. And, and I, I wanna add something to that, 4:17 especially with the twenty percent rating, you know, or a ten percent rating. Uh, and if you had a forty percent rating- Yes... for a spine, I wouldn't file for an increase there, uh, 4:31 you know, because you're not gonna get a sixty. Uh, you know, a- and there's only one place for that to go is down. Yeah. So I would stay... 4:39 So there are times I'd stay away from it, uh, but when, when you're rated already at the, at the middle to lower end of the spectrum, uh, it's, you know, it's harder for them to, to, to reduce your benefits at that point. 4:52 Right. Yeah. Nathan Jar, "Hello, I just received a hundred percent permanent and total, and I just wanted to say thanks for all these live streams and videos. They helped a lot. Don't give up and get properly rated." 5:08 Amen to that. "And also thanks VFW and Combat Craig, rest in peace." Amen to that. We miss you, Combat Craig. Zoe, "I have an intent to file in place, but wondering what my effective date should be. 5:23 I did a supplemental claim, but I was out of work two years before the intent to file. The intent to file is dated, as you know, one year out. Can I go back to the two years? 5:36 To help explain it further, I filed seventy to a hundred percent. I filed a seventy to a hundred percent permanent and total increased claim and filed TDU, TDIU at the same time. 5:48 The a hundred percent permanent total was approved. It says entitlement to, uh, individual unemployability is deferred on the approval of it. What does that mean? 5:57 Will they just close the TDIU claim due to accepting a hundred percent, or can that show proof of being unemployed for back pay?"Should I file for Social Security, and how will that affect my VA benefits? 6:10 I, I did that for years. Let me tell you, Social Security has nothing to do with VA. If it's, if you worked and paid into the system, file for Social Security. That's totally unrelated. 6:18 Now, remember, the problem with Social Security is you're only insured, you're only covered for disability for five years after you stop working on a regular basis. So you just need to file those right away. 6:29 Don't wait on the VA. Um, my doctor wanted me to file for aid and attendance too, but should I do that now just being awarded? Yeah, we need to go back and, I guess, try to go through all these questions, right, Kerry? 6:43 Yeah, I think so. Um- Would you go back, Nate? I have an intent to file, but wondering what my effective date should be. I did a supplemental claim, but I was out of work two years before the intent. Next one. 6:56 The intent to file is dated, as you know, one year out. Can I go back two years? Next one. Okay, so she filed from 70 to 100, and the 100% was approved. You don't tell us what date that was. Yeah. 7:12 I, I have a theory. Uh- Go ahead. [laughs] Um, eh, I mean, typically, you might have gotten off lucky here, uh, 'cause what we normally see, uh, is if somebody gets granted 100%, they say TDIU is moot. 7:29 You know, because if you're 100% scheduler, then, you know, there's no benefit to be had, uh, for TDIU. 7:36 That's usually wrong because if, unless they take the 100% back to the earliest date, the TDIU could go further back, and there could be some back pay there. 7:46 Uh, I would, just what you're telling me, I would read into this indicating that they did not take the 100% all the way back, and they're actually considering whether they can grant the TDIU further back. 8:01 Now, I don't think we're gonna get the two years. The, the s- the intent to file is usually your effective date if there wasn't anything pending prior to that. 8:11 Uh, so if they didn't take that 100% back to the intent to file date, meaning there's a window there when you're not 100%, the TDIU could come into play for that time period. 8:24 And if they deferred it for that reason, they actually did it right. Right. 'Cause normally not- Or not... yeah, normally they just go, "Oh, we, we granted 100%. 8:34 You know, the man, the, never mind that it was effective yesterday." [laughs] You know, rather than two years ago, TDIU is moot, which it clearly is not because TDIU could go further back. 8:45 So that, that's generally what we see, so they may have actually, uh, done this correctly. 8:50 So in this case, if, if you do have an earlier claim for an increased rating from 70% or higher, then I think you could argue that you're enti- and you weren't working during that period- Right... 9:01 you could be entitled for the TDIU because you have a pending claim. If you had just, say you had nothing pending for several years, and then you file the TDIU, then I don't think you necessarily could go back. 9:12 But it sounds like you have another claim that was pending that, remember, you're always filing for the highest benefit possible, and if you are not working, then you are also, and you have a high rating, you're also filing for TDIU. 9:26 So I think you should push on for that, uh, TDIU claim because remember, just like Kerry said, the 100% is probably granted recently, and if you get 100%, say, for one of the conditions, then maybe you can use the others for that SMCS, the extra 60% combined rate. 9:43 So I think they may have done it right. Yeah, we, we see them grant that 100% from the date of the exam on these things all the time lately. That's not accurate. It, it should be to the date of claim. Um, 9:55 y- you know, but if, if the TDIU covers that earlier period, then all is well, you know? Yeah. 10:01 Remember that I used to talk to the DROs when they used to talk to us, and they'd say, "Well, I don't have any proof that you were 100% or that you had a 70% rating until the day that you went to the doctor," as if all of a sudden it just appeared on that date. 10:16 The BVA takes a different approach in most cases. So if the regional office doesn't grant that, you go to the BVA for that. Mm-hmm. Nate? JRH, "Hello. 10:29 How long are BVA direct appeals taking for correcting SMC half-step errors?" 10:34 First of all, remember when you go for a direct, if you have not waived that one year to file something different, that case is gonna sit there. So please make sure that you have waived 10:47 to the VA, "I am waiving my year to appeal." Otherwise, it's gonna sit there for a year. Other than that, I'm seeing them come back months. They are not taking a long time. How about you, Kerry? 11:00 Uh, usually a little less than a year. You know, at eight months to 12 months. That's, you know, I, I, I'm sure you see the same thing, Carol. I, that's been kinda recent. Mm-hmm. 11:14 Um, you know, a, a, a year or two years ago, it was taking, like, three years to get a- Yeah... a, you know- They were just sitting there. So they have g- at least those have seemed to have gotten faster. 11:25 Does severe depression, including multiple medications and various other treatment, qualify for AOD, advance on the docket? Not unless you're suicidal. Is that what you think, Kerry? Uh, yeah. 11:39 I, I mean, for the most part, it, I don't know that suicidal alone would, would get you there, uh, unless- I've had them move it, uh, if it, if the vet- Have you? Okay. 11:48 Yeah, but not just, there's so many people with depressions. They're not doing that. Y- yeah. I mean, if you, there's a financial hardship going on, you could ask them to do- Right... 11:57 and they're not gonna do it on their own anyway unless you ask them to, unless you're over 75 years old. 12:05 Uh, so if, if you're younger than that, you have to ask them to advance it on the docket, and you have to give them cause to advance it, and that would be financial hardship, terminal illness, you know, s- uh-Something like that, yeah And I always, I know they're supposed to automatically advance it on the docket if the veteran is 75 or older, but I have seen cases sit there, so I always file a motion to advance on the docket and note the age. 12:30 So if that's something you have going for you, make sure that you do that as well. Motion to advance on the docket. Nate? Remy86, hello. I recognize you. You're back. 12:43 "Number one, I was recently granted 10% for GERD June of this year. The rater says they used the old and a new criteria, but the older criteria would have had me granted 30%. Being that the C&P examiner added all 12:57 the 30% criteria in my DBQ, even highlighted them in bold in opinion section, I've had continuity of pursuit from October 2020 up until now. I submitted an HLR for a DTA due to assist stating this. 13:13 Now I have a C&P ACE exam that'll be held on the 29th. Does it sound like this may be favorable for me, 30%, or that maybe the VA is developing to lowball me and keep me at 10? 13:25 Keep in mind, next month, October 2nd, would make my five-year mark for rating." Kerry, what do you think? I think, well, I'd say they're already lowballing you at 10, so you- I think too [laughs]... 13:34 don't worry about that. Wow. So, uh, yeah, I mean, yeah, they may have said they considered both rating criteria, and if your claim's been pending since 2020, they should have. 13:49 Doesn't mean they did, or doesn't mean they- Yes... did accurately. Uh, if the examiner did mark all of the criteria there for GERD, uh, you know, I would probably take it to an HLR. 14:01 Uh, that'd be the easiest, um, shot to get another bite at the apple. Um, and see if, you know, and go over the, uh, the exam with the, uh, with the DRO and see if they'll bump it up to 30. Also, sounds like, uh, 14:17 they didn't give you the right effective date on your- Right... on your increase. If it's from 2025 and you've been fighting it for, uh, you know, since 2020, I would, I would ask for an earlier effective date as well. 14:31 See, the VA is aware that you are afraid of poking the bear, and so they do this all the time. You'll have a claim pending for five years, and they'll give you an effective date of yesterday- Mm-hmm... 14:41 because you may be afraid to poke the bear. Don't play their game. You're entitled to benefits. You have continuously appealed. 14:48 CAR, HLR, they'll usually go right back to where you filed the appeal, because then you have, sometimes, often, you will have a rater who knows what they're doing. The other thing is, go to the board. 14:59 Uh, it used to be that everything in the board that wasn't a legacy, one of the old claims, was sitting there. But last year, around December, November, all of a sudden they started moving. 15:09 So if you don't get it at the, at the regional office, the board is there for you now on these direct appeals. They are coming out within a year, as Kerry said. We're seeing them within months as opposed to years. Yes. 15:19 Of course, I, I think they stopped doing legacy appeals. [laughs] I think now they're not legacy. I don't know what's going on with those. So always, always something, isn't it? Yep. Next. 15:36 Jim Hoover, "Helping coal worker file for aid and attendance and caregiver. The husband is 100% permanent total, and he also has TBI." Uh, yes. Should he be worried about losing his guns? 15:49 That could happen if they find him incompetent. But remember, the only way they don't... they take away your guns is if you're incompetent, which only means you don't know what your income and bills are. 16:01 You're not competent to pay them. That's what they're looking at. They're not looking at what they probably should be looking at, but they're not, so don't worry about it. 16:07 But he might be entitled to SMCT, which is over $11,000 a month, because if he has, uh, TBI that's significant and gets aid and attendance under the new law, he should be entitled to SMCT, which is that $11,000 a month tax-free benefit. 16:26 So this is a very good case, um, and, and he shouldn't be worried about losing his guns. What do you think, Kerry? Yeah, if they haven't proposed incompetency, uh, well, then certainly don't bring it up. [laughs] Right. 16:41 No. A- and as long as they haven't done that, he's gonna keep his guns. Um, if they have done that, he can fight the incompetency, uh, unless he's truly incompetent. Right. 16:56 Uh, as a gun owner, I can say if you're truly incompetent- [laughs]... you probably shouldn't have the guns. Uh, y- you know, I mean, let's face it, there are, there are times when you probably shouldn't. Uh, 17:08 y- you know, and- Kerry does own a few guns. I have to say that. And he works on them, makes them, right? So Kerry's not against guns, he's just- No... pointing out the obvious. 17:19 I'm not against guns, but I, you know, at the same time, uh, there are people that shouldn't have them. And children. 17:25 Um, and if, like Carol said, look, i- if, if there's a chance of you getting SMCT, uh, I'd take $11,000 a month over having a few guns. Right. Uh, yeah, I mean, if it came down to it. 17:38 Uh, hell, I'd use the incompetency to my, to my, to my benefit at that point. [laughs] Um, you know, but- And, and what we do when, you know, often my... 17:49 If, if the examiner checks can't handle his funds, we have to go through incompetency with a lot of our veterans who are truly competent. They don't have any problems. 17:57 And all you do is you get a letter, usually from their spouse, a letter from them saying, "I've always handled my bills. I know what they are. Uh, I, I have... my credit is good," or whatever. 18:07 And then if you get a, a letter from a doctor, "I have treated this client since whenever, and I feel he's competent to handle his funds." That's all you do, and you get it reversed right away. 18:15 So it's not a big deal if you truly are competent. So I would never let that stand in my way. Yeah.Dan Armstrong, one of four. "I've been watching you guys for over a year. 18:28 Based on the information you provided and what I found during research, I was granted 100% for prostate cancer and 60% for ischemic heart disease, Vietnam Agent Orange presumptive on August 15th. 18:42 I also received SMCS, all correct based on how they rated my claim. They didn't make cancer permanent and total, even though I submitted medical notes stating I would be getting hormone treatment indefinitely. 18:54 Also, I submitted evidence that I had a defib implanted since my triple bypass." Yes, th- you're gonna say the CFR says you get separate ratings for coronary artery plus the other. Is that the next one, four? 19:07 "Dictate a defib is rated 100% as long as the implant is in place. Also, about 60% of my back pay and first monthly payment has been withheld. Is the normal... Is, is this normal?" Okay, let's go back, 19:24 Nate, if we could, to number one. Uh, okay, so you got 100% for prostate. The, the VA with cancer always, it's always not permanent and total with them, because they always think you're gonna be cured. 19:38 I've, I don't think I've seen one permanent and total. Have you, Kerry? I- Not unless it's the, like the- They're on hospice or-... terminal or something. But it, you know, it, it, that, at least initially. 19:51 Uh, it, it, it can become permanent and total if they've gone through the hoops of examining you and they see that it's, it's not gonna go into- Right... remission. 20:00 Uh, but yeah, I, typically on the first rating out, they, they don't make it, uh, they don't make it permanent. And 60% for ischemic, ischemic, that's different from the defib. 20:12 So you should be entitled to ratings for both, 100% for the defib and 60% for the ischemic. So you've got a lot more going there, and they should be permanent and total I would think, don't you, Kerry? Uh, I'm not... 20:25 I'd have to look at the regs to see if you get a separate rating for those. Um- Think it's what I, Brenda found it years ago. Okay. But I, but the, but the defibrillator, uh, you got the, you got two devices. 20:38 You got the, uh, defibrillator and, and, and the pacemaker. Right. They... 20:44 Y- yeah, it, if they're, at least on the old rating schedule, um, I don't know that they've changed that with the new one, but the defibrillator, uh, was 100%, whereas a pacemaker is not. Right. 20:57 Um, and, and so there, yeah, there was a difference. But yeah, it sounds like you've done your homework, uh, on the defibrillator. Um, I would 21:06 just wanna check, 'cause I don't know off the top of my head, uh, if they carried that 100% over to the new, uh, rating criteria. I, I should know that off the top of my head, but I don't. 21:18 Um, uh, so I, you know, that, if they didn't, that could be a reason, uh, that they rated on the new rating schedule. The, the next one, can you show us what the other one was too? SMCS, next one. 21:37 Okay, the next one. Oh, boy. Um, what... Okay, so they, when they grant you benefits, they grant, "I'm not sure about my back pay first month payment withheld." 21:49 I, I know, remember, whatever month you file for, your benefits start the next month. 21:55 And sometimes when people are paid, I'm not sure what happened with you, but sometimes when people are paid right near the end of the month, they split up that past due payment. 22:04 So I'm really not sure what held, what held him there. You, Kerry? If, if he's saying they withheld the back pay, then I would assume that he's a retiree. Um- They said, yeah, 60%... Yeah, then that must be. 22:18 And so they're gonna contact DFAS to make sure there's not any overpayment. Yeah. 22:24 Whether you're either a longevity retired veteran getting retirement pay or retirement from the reserves if you're, if you're over the age to get that, which if you're a Vietnam vet, you probably are. 22:34 Um, yeah, they're gonna withhold that for DFAS. You're gonna get all that back. Right. Um, so you're gonna get... A- and it's, it's an exercise in futility these days. Uh, there was a class on it at Nova. 22:46 I'm in tr- every time I get a chance to talk to somebody in VA, I try to get them to, to, at least that's in a position of authority, I try to get them to, to eliminate that practice. Because if you're 100%, um, 23:00 it, it, and they withhold for DFAS, it pro- it... Let me back up. 23:05 A, a few years ago, when there was some offset, they had to withhold to make sure, 'cause DFAS would tell them later, "This is exactly what he received in retirement pay," and they had to verify that so you wouldn't accidentally get overpaid, uh, if there was an offset of some of your concurrent receipt payments. 23:24 But nowadays, especially with 100%, there's no offset at all. All right? So everything VA withholds, you're gonna get back every penny of it. All right? So in effect, there's no reason to withhold. 23:37 You know, if VA could save a tremendous amount of resources if they would eliminate that practice altogether, uh, 'cause it's just an act of futility these days. 23:46 Um, so I, you know, I don't know why they haven't done that. It's, it's low-hanging fruit that, that could make their lives a lot easier and stop people from having to wait on their back pay. Yeah. You know? 23:56 Well, they don't seem to care about that. Who am I? [laughs] How about, how about saving money- Yeah... you know, for, for things the VA people really need? 24:04 Um, if, and the worst thing about this, if you're Army, Air Force, Navy, this is not a long process, maybe a month- Right... two, three. But if you're Coast Guard, you're looking at six months, a year. 24:15 I've got one that was back in January, December. Yeah. She still hasn't been paid. So- Or if you're a widow. Pardon? 24:21 Um, if you're a widow of a retiree, uh-I've seen them two years down the road not pay the widow, and I don't think they ever were going to if we didn't get involved. Yeah. Uh, they, they rake widows over the coals. Yeah. 24:36 Yeah. They're awful. Yeah. Okay, next. Step by step. Welcome back. One of five. 24:44 We have denied entitlement to higher level special monthly compensations, SMCT, based on aid and attendance for residuals of TBI because the evidence shows the need for aid and attendance for 24:59 multiple service-connected conditions, and you are not, hospitals are not confirmed. That's the typical thing we see. Three, favorable findings identified, you require aid and attendance. 25:11 You required aid and attendance due to multiple service-connected dis- conditions, lumbar strain, 25:17 fibromyalgia, radiculopathy of the right and left lower extremity, and post-traumatic stress disorder, major depressive disorder, and traumatic brain injury. Should I... Yes, you should do a higher level. You... 25:29 I'd try the CAR because the CAR, I've... The CARs are coming back for me within sometimes weeks, sometimes days, but very quickly, as opposed to the BVA direct, you are gonna be waiting months. What would you do, Kerry? 25:43 I would certainly do an HLR. Um, I don't do that many CARs, only, uh, maybe I should, uh, in listening to you, Carol. Uh, but I, I just, I kind of wanna get the DRO on the phone- Mm-hmm... 25:59 and, and point them to what they're missing. Uh, and with the CAR, I don't get to do that. So I do a lot more HLR conferences than a lot of people- Mm-hmm... simply because I, I want, I want that one-on-one with the DRO. 26:13 That, and that's the only reason I do the conferences. Uh, but yeah, I would do an HLR on this. Just, Kerry, so you know with the CARs, I've, we, we write out exactly what we think is wrong, like- Yeah... 26:25 whether it's annuity, whatever we think it is. And with CARs, sometimes I've gotten them back the next day. It's, it's amazing. Really? Wow. These CARs are... 26:33 You know, you're gonna get people that you're gonna get a denial, but you- Yeah... the right people, we've been getting really fortunate. 26:39 A lot of times they won't do everything I want, and then we do the direct appeal to the BVA. Yeah. We have really, it's really been working for me. I'll, I'll try some of those, yeah. 26:50 Um- I mean, we tell them exactly what we're talking about. Yeah. Like you do on the phone. But if, once it's written, we, we've really had a lot of luck. So I push the- Yeah, yeah. 26:58 I wouldn't trust them to, to, to know themselves [laughs] without, you know... I mean, you might get the horse to drink, but you still have to lead it to water. Um- And they have a lot. 27:08 And if we can point out exactly how it works, I think a lot of times they go, "Oh, great, I can do this. I know what it is." Yeah. But, you know. I'll, I'll try some of those. There are some really good people there. 27:17 There are some not really good people, but there are some people who really are there for the veterans, and I feel like those people have really been on board with this CAR HLR. Yeah. Yeah, the DRO's 27:28 so, so much better than... I mean, clearly this, this one was bad because, one, it, it, I don't think we, I don't think we said this. You, you, you don't have to be in the hospital- [laughs]... uh, to get SMCT. 27:43 Uh, and it doesn't matter that other things in addition to the brain injury causes the need for T. It doesn't have... In other words, it doesn't have to be only the TBI that causes the need for T. 27:58 Now, it does, they all have to be service-connected. Right. It can't be a non-service-connected condition. But as long as the, the tr- traumatic brain injury is part of that, uh, that's all that's required. So 28:13 I, you know, I, I don't know what they were... But- This- Here's the thing, they made a favorable finding that you need aid and attendance. [laughs] But you need it, right. [laughs] And that's binding on VA, uh, [laughs] 28:27 to- And the BVA. And the BVA. And only in this world do they acknowledge, "We're gonna make a binding factual finding while we're denying your case." Um. [laughs] Only here. Yeah. But you have a good case. 28:41 Appeal it, uh, and don't stop. Um, wait. It's wait, it's time for Carol's Corner. Every, every time we talk, I really like to tell you what, what I have found that's going on that I think will help you. 28:59 Uh, we went, Kerry and I, and the rest of us went to the NOVA seminar, and it was really disappointing because normally somebody from the VA shows up and tells us what's going on. 29:09 For whatever reason, no one showed up from the VA, no one, no one from the Board of Veterans Appeals, so we had no idea really what's going on with the VA. 29:18 So I wanna use this time, um, to ask Kerry, when he gets a VA case, what is he looking for? When he gets a new client, what is he looking s- for so that you can, 29:28 uh, profit through his way of thinking through a case and what you should be doing with your own? Kerry? Okay. So what I do, uh, a lot depends on the case I'm looking at. Um, if it's, is it a service connection case? 29:46 Is it an increased rating case? Uh, is it a DIC case for a widow? Um, you know, is it an SMC case? So a, a lot of it from what I initially do, uh, depends on that, but there are some things I always do. 30:02 Uh, I'm always gonna look at the whole file. Uh, now, I might not do that initially, okay? Uh, for example, a, a lot of what we get for new cases are somebody trying to get service connection for something. 30:17 So in that, you know, I wanna know some 800-foot or 1,000-foot stuff. I- Is, is the, is the case, is the decision that the veteran brought us the only decision of record?Are there multiple decisions of record? 30:36 Uh, when did the veteran serve? Uh, how long did he serve? Where did he serve? If I know those things before I ever start reviewing the file, 30:51 and I usually can, can, can get an idea of those things, uh, without going through every page of the file, then I know what to pay more attention to w-when I go through the file. 31:02 I'm gonna go through it all and pay attention to all of it, but certain things are, are gonna stand out as more important than other things. 31:12 Uh, for example, if the, if the, the case that was brought to us is the only rating decision that's ever been made in the case, well, then I don't have to worry about there being any prior mistakes in prior rating decisions because there are no prior rating decisions. 31:31 Uh, then I can cut a lot of that out and just go, "All right, what did they-- what did the veteran file for? What-- why did they deny him or her?" 31:41 Uh, and then I can go start with the service medical records, the service records, look at VA's opinions, uh, and, and look at the end result rating decision. 31:53 Now, there's obviously gonna be sometimes treatment records in there, that type of thing, but a lot of times those treatment records are just gonna kinda confirm what the veteran's already claiming. 32:05 Uh, that might not, uh, always be the linchpin in the case unless those treatment records began right after the service. 32:14 So, you know, it, it-- is the-- is what the veteran bringing us, you know, say it's one of those cases that's just got the one decision. Is it a chronic disease? 32:25 Um, meaning there's a list of chronic diseases in VA's, uh, um, regulations that if denied within a year, uh, or if diagnosed within a year is automatically grantable. So am I dealing with one of those? 32:40 Uh, am I dealing with a case that's thirty years after service or three years after service? Uh, you know, all of those are roadmaps to me. Um, 32:54 a-and, and once I know the answer to all those things, when I start going through that file, if there are mistakes in it, I'm gonna find them. Um, i-if however, the, you know, the case that was brought to us, 33:08 you know, is one of twenty different rating decisions the vet's filed, uh, filed for in the last twenty years, 33:15 that's a different kind of review for me, uh, because every one of those rating decisions could have a mistake in it. 33:22 I'm gonna take those same kind of thousand-foot, uh, level, uh, road signs and apply it to all of those prior decisions, right? Because [computer dings] a lot of times, uh... 33:37 Sorry, something's popping up on my computer here. A lot of times, 33:42 I, you know, the vet will bring us one case, but I'll see a case that was denied, you know, ten, twenty years ago that's-- that I think is a clear and unmistakable error. 33:53 And maybe the case that was brought to us might be worth ten or twenty or thirty percent, but this error back here might be worth, you know, three hundred grand in back pay. Uh, so I'm gonna go after that. 34:08 Um, you know, all of that depends on obviously the facts of each case, what happened in the service, uh, when did the veteran file the claim in relation to service? What did VA do? Uh, a-and you know, 34:22 that is so important, uh, what did VA do? Because usually what they did most of the time is the, is the-- is where they went wrong. [laughs] You know? 34:34 The VA exams are, are just huge road signs into, you know, uh, tons of mistakes that can happen. 34:43 Uh, they got, they got an opinion, and the opinion said, you know, uh, take your pick, a list of a hundred different things that could be a, a legally insufficient medical opinion. Uh, and I know 34:58 pretty quickly that that's exactly why the case was denied, and that's what I have to attack, uh, if there are no other things to do in the record, like file for previous mistakes or file for other conditions. 35:11 You know, it, it... For example, I know Carol looks at this a lot. Other conditions. Am I dealing with a Vietnam veteran, uh, or an Iraq or Afghanistan veteran or some otherwise a veteran exposed to some toxins 35:28 where he may be filing for one condition, but because of those exposures, he's got three other things that could get service-connected. 35:37 Um, a-and so I'm gonna file for those three other things and, and get him all the benefits that I can get him. Um, you know, if it's a Vietnam veteran, and there are twenty different claims in the record, 35:51 well, then again, that changes what I'm looking for because now there could be other things at play, like Nehmer implication. Um, you know- What do you mean by Nehmer implication? 36:04 Uh, Nehmer is a court case on, uh, V- for strictly for Vietnam veterans who were exposed to herbicides, where in certain circumstances and certain fact patterns, if a v- if a vet was denied previously, um, for something that's now presumptive, 36:25 then they should have went back and re-adjudicated that original claim for that condition and potentially paid a-Back pay for that time where they are going back to as far as September of nineteen eighty-six 36:39 if the claim was filed, you know, after that point and prior to the regulation. There's a lot of things that come into play. 36:44 You have to make sure that Nehmer qualifies, uh, but when it qualifies, it can ensure that that veteran gets retroactive benefits, sometimes for a long time. Um, 36:56 at the same time, say that that same Vietnam veteran was a Blue Water veteran- Yes... okay, ra-rather than an in-country veteran. Now, Nehmer still applies, right? 37:08 But the Blue Water rules also apply, and they apply in a way that they cover, um, uh, um, an area that Nehmer misses, and most people don't look at that. Um, meaning that 37:25 under Nehmer, if you filed for heart disease after the regulation came into play, you, you were not-- you don't have a Nehmer claim because under Nehmer, the claim has to have been prior to the regulation. 37:40 The- Prior to them approving it, give-- making it presumptive. Right. Right. Uh, so let's say that veteran was a Blue Water veteran instead of an in-country veteran. 37:52 All Vietnam veterans at this point, okay, that's why Nehmer applies. But if they filed in, say, two thousand eleven, the, the heart disease reg came about in two thousand ten. Let's say they filed in two thousand eleven 38:06 prior to the Blue Water Act, but after that regulation coming into play, they were in Blue Water, they weren't in, in country. VA's gonna deny that case. And purely under Nehmer, 38:21 it's not a Nehmer claim because it was filed after the regulation. The Blue Water Act, however, uh, covers the period after the regulation and says, "VA will pay retroactive benefits for that period." 38:35 Nehmer doesn't pick that up, but the Blue Water Act does, okay? So I'm gonna look for that because just in heart disease alone, you're talking fifteen years- Right... almost between the two. 38:50 So there are all kinds of, uh, or I don't... Loopholes is not the right word, rules and regulations that come into play there. 38:59 Am I dealing with an Iraq or Afghanistan veteran or Gulf War veteran, anybody that's been overseas in, in, in the Global War on Terror since nineteen ninety forward, uh, are they a widow? 39:12 Okay, because the PACT Act says if they deny this widow, they may have to go back and pay that widow back to that original claim. So I'm looking for that. Um, you know, so I, I look for all of that stuff. 39:25 When I go through the file... Now, I have a little bit rudimentary way [chuckles] of going through the file. 39:31 Once I sit down with a PDF of the claims file, sometimes I, you know, my, my, my staff may have already gone through it and, and mapped it out, but sometimes I'll beat them to that punch. 39:45 [chuckles] But when I do that, all I have is a PDF. I don't have a what, what, a case map or something in CaseScribe, which is a whole new program I won't get into, but, you know, 39:57 we, we map out our cases, as, as Carol could tell you. Um, but if I'm in that file prior to that happening, I just have a PDF file that's got two thousand pages, uh, that I have to go through. 40:11 Uh, I'll usually put sticky notes in, PDF sticky notes all the way through there, uh, 'cause I've been doing this a long time. I can review that whole file with a set of sticky notes. They know that's my case map. 40:23 But when my staff goes to map it out, they can see my sticky notes, and they know what I think is important just by looking at that. Uh, they map out a bunch of other stuff, but I may not put sticky notes on there. 40:34 So I'll start with the, uh, knowing what the issues are sorta globally, and then I'll start from day one in the file. Uh, look at the service records. 40:45 Was he treated for those conditions if, you know, if that's the issue? 40:48 If all-- everything is an increased rating, uh, type of claim, it doesn't really matter what happened in service because we're dealing with an increased rating, uh, unless there are issues that were denied. 41:00 So I'm gonna start with the, the claims file, uh, the service records. I'm gonna look very much at what happened immediately after service, okay, because you've got a one-year period there for any chronic disease. 41:15 Uh, and then I'm gonna just go down the list chronologically, uh, and look at every rating decision, uh, look at the reason every one was denied. 41:23 I've already got the background, so when I see those decisions as I go through that file, knowing those other things, if there are mistakes, I'm gonna find them. Uh, a-and they may not all be the kind of mistakes that, 41:38 that's gonna get somebody back pay, uh, but it may be the kind of mistakes that's still gonna help me win the case that's in front of me. Uh, and so that's-- I don't know if I'm 41:48 all over the place in answering that question. I'm trying to give you, uh, sort of a global, uh- No, that's good. 41:56 And that's-- that, that just shows you there are certain things we always do, but it is so hard because there is so much there. I mean, it's like you say, when you look at the case, you go, "Blue Water. 42:07 Okay, I know what goes with Blue Water. Let's get this out." There-- There's just so much, and you've gotta, you've gotta keep up with what's going on. Um, I, I think you're right. 42:16 A lot of people look at Nehmer, and when they look at Blue Water, they don't think of Blue Water. They just apply the same rules. So a lot of people are leaving a lot of money on the table because they're not going back. 42:26 But, uh, we're trying to give you folks how, how we try to go through these cases. It's really hard because there's so many variables. Is it service connection? Is it increased rating? Is it all the way back? 42:38 But it's not just-Continuing with what the one claim that we have in front of us. It's looking at the whole case and seeing what more we can get there for the veteran. Thanks, Kerry. 42:49 I think we're close to the end, though. We'll take that one more left, please. J Monk. "Hi. Wanted to thank you, Carol, Matt, Kerry, and others with your invaluable information support. 43:04 After three long years of preps appeal, I am now a hundred percent permanent and total." Congratulations. I'm so happy for you, and I'm happy for all of y'all. The one thing, s- start poking the bear. 43:15 That's gonna be my new thing, Kerry. I'm so tired of people saying, "Don't poke the bear." Poke that bear. You're entitled to a lot of benefits. Don't leave them on the table. 43:24 So, so Carol, can I add something before I got- Absolutely, you can... a call from my conference? Speaking of poking the bear, uh, so I was doing some research, uh, over the weekend, which I sometimes do when I'm bored. 43:38 Uh. [laughs] So we've all... I know you've heard of, uh, claims based on herbicide exposure in Panama. Uh-huh. 43:49 Uh, those have been very tough claims because there's historically not been any evidence of the kind of herbicides we need in Panama. Uh, think of the Panama Canal Zone, the mil- military bases down there. 44:03 Uh, there's a lot of rumors that herbicide agents were used in that whole area. 44:07 There, I've seen reports where there's a little bit of dioxin res- residue in the soil, uh, but I haven't found the, the hard records that show how it got there. Mm-hmm. Uh, I do have some of those records now. Oh, wow. 44:24 Uh, we'll be discussing this at a later date. [laughs] Uh, but, but yeah, I did find some records, the, showing, uh, thousands upon thousands- Wow... of pounds of herbicide, the two types that went into Agent Orange, 44:40 shipped to both Panama and the Canal Zone in Panama- Wow... uh, over the course of a number of years. Uh, so we might be reaching out to some of you Panama veterans. Uh, so- That is great. I love it... 44:58 those are some bears I'd poke. You heard it here. Y'all have a good week. Bye, Kerry. All right. See you later. Bye. 45:06 [outro jingle]
