August 28, 2025 • 62 mins
We break down how VA’s push for speed is eroding quality and costing veterans years of backpay through wrong effective dates, misapplied TDIU rules, and missed SMC. Jim Radogna shares practical ways to spot errors early and the fastest paths to fix them.
• rising denials and poor-quality grants driven by quotas
• missed Intent to File dates and easy HLR/CUE fixes
• exam date errors used as improper effective dates
• appealing low initial ratings without losing the original date
• scope of claim: diabetes complications and radiculopathy
• TDIU dates tied to evidence, not the 8940 form
• 100% scheduler does not moot earlier IU entitlement
• increased rating one-year lookback and proof strategies
• DIC month-of-death dating and survivor backpay
• Blue Water and Nehmer effective dates reaching original claims
• SMC as an inferred benefit with earlier dates
• PACT Act liberalizing law limits vs direct service connection
• Thailand/Guam claims and continuous pursuit to earlier dates
• using the M21 to win HLRs; case law at the Board
• practical appeal paths: HLR, supplemental, Board timing
• why to question every grant and verify every date
“Find an accredited VSO or agent to handle your appeal. If not, you're gonna have a long wait.”
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Transcript
Episode Transcript
Available transcripts are automatically generated. Complete accuracy is not guaranteed.
J Basser (00:03):
Welcome folks to another episode of Jay Bassard's
Exposed Vet Productions.
My name is John Stacy.
They call me Jay Bassard.
Jay Basser's official name thatI've always had for the past 40
years.
Today is Thursday.
It's August 28th, 2025.
And we got a special showtoday.
We got one and only Mr.
Barry Fraley.
(00:23):
He's riding side saddle today.
How are you doing, Barry?
I'm good.
Top side of the grass.
And our guest today is uh Idon't need an introduction.
Uh this is Mr.
Jim Radonia.
Uh Jim Radonia is an accreditedVA appeals agent based out of
the beautiful city of San Diego.
He's part of the uh EagleVeterans Law with Katrina Eagle.
(00:44):
Uh that's pretty cool.
Today we're going to discuss uheffective dates.
And uh this is a veryinteresting topic, so we haven't
done this in a while.
Jim, how are you doing?
Jim Radogna (00:56):
I'm doing really well, John.
It's good to see you.
It's been a while.
It's been a while since I'vebeen.
But but VA has been keeping mebusy every moment since last
time I saw you.
J Basser (01:09):
You know, that's good, man.
You know, it's uh if you don'tlike the way the VA does, just
turn around and uh you mightstart to like it.
Next thing you know, they'llgive you something else to crap
about.
So it's like a revolving door.
Jim Radogna (01:24):
Yeah, yeah, it really is.
And lately it's it it's reallybeen a challenge because they're
you know, they've been braggingabout getting their numbers up
and they're they're knockingdown the backlog and they're you
know processing more claimsthan ever.
But the you know that's that'sgreat.
That's that's a great headline,but in in the real world, the
(01:47):
quality has just gotten it'scrazy.
I I've never in all my years,I've never seen poorer quality
decisions.
I mean, they are just blowingthrough and denying, you know,
and and even if it's a grant,they're they're messing up the
rating, they're messing up theeffective dates.
It's you know, it's it's toobad because they're you know,
(02:07):
they're just pushing people toohard.
They got among these raidersand VSRs on quotas, and you
know, they're putting up thesegreat frontline numbers, but you
know, I mean, that's not whatveterans want.
Veterans want good decisions,they don't want to have to
appeal and appeal and appeal,but unfortunately that's not uh
(02:28):
that's that's not what theheadlines say, but that's what
we're seeing here in our officeand what all our colleagues are.
But you know, it it goes inwaves, and hopefully it'll
settle back down uh and and getmoving.
J Basser (02:42):
Yes.
Jim Radogna (02:49):
Yeah, yeah.
I mean it's it's something thatum you know Nova members talk
about.
Um and you know, there'll bepeople from VA there, and we'll
tell them about it.
And you know, it's the kind ofI I was at the NAC VSO
conference um in July inLouisville, and um I'll just say
(03:14):
uh um a high-level, very, veryhigh-level VA uh uh leadership
was there and he's presenting,and you know, he does the QA,
and pretty much most of the VSOswere like, hey, what's with the
quality, man?
You know, it's like this iscrazy.
You're denying everybody.
(03:34):
And he just, you know, he justdidn't answer the question, you
know, like politicians do, andit was it was a shame.
And I'm I'm glad, you know, I'mI'm glad they brought it up.
It's like, hey, you know, bragall you want about how fast
you're moving and and knockingdown the backlog, but let's
(03:55):
let's let's focus on quality.
You know, let's focus on takingcare of veterans.
And what you take care ofveterans is you get it right.
And you give them what theydeserve, and you don't make them
wait, and you don't make themappeal over and over and over
again.
And you know, it's just it'sit's very, very frustrating.
But anyway, that segues into uhwhat I want to talk about
(04:17):
today, which is effective dates.
Effective dates have been areal issue with VA.
This is this isn't recent.
This is going back years.
Uh I'm gonna say probably agood four or five years, it's
it's gotten bad.
Um got really bad, particularlyin the beginning of the PACT
(04:37):
Act.
Kind of understandable.
They, you know, they gotoverloaded with all these new
claims.
And the PACT Act as aliberalizing law, it's got a lot
of moving parts when it comesto effective dates.
So I kind of got that.
I'm like, okay, they got tolearn this, you know, they had
quick training and so on.
So they'll get, and they theyhave gotten a little bit better
(04:59):
on that.
But um, you know, now, like Iwas just talking about, the
quality of decisions on everylevel is really bad, and
effective dates have actuallygotten worse again.
Um, what I want to do today isI want to go through uh just
some examples of what we see aseffective date errors.
(05:21):
Some of them are reallyridiculous, and some are a
little deeper in the weeds, butit's really important that
veterans and advocatesunderstand this because the, you
know, I I'm not gonna speculateas to why they're making all of
these errors on effectivedates.
(05:44):
But the big picture is thatwhen they do, if they have an
advocate, you know, like myselfor an attorney, we're gonna
catch it and we're gonna fix it,right?
But how about all of theseveterans that are on their own,
right?
And and their effective dateswrong, and they don't know what
(06:05):
to do about it.
They don't, they don'tunderstand.
They're like, boy, I thought Iwas gonna get benefits, you
know, I thought I was gettingmore back pay than that, and
they don't know what to do withit, right?
So then VA gets to keep themoney.
Or situations where maybe it'sa VSO that doesn't understand.
We we do, as you know, Katrinaand I, we we we train um VSOs
(06:25):
around the country, have beenfor years.
We focus a lot on effectivedates with them, we we drill it
into them, we give them as muchtraining as we can on this
because we need them tounderstand all the different
intricacies of this so they canspot it and they can fix it.
Because every time there's awrong effective date and it
doesn't get fixed, it's not fairto the veteran, it's not fair
(06:48):
to the surviving spouse.
And guess what?
You know, VA is keeping theirmoney, and and and and I'm I'm
not okay with that, I'll beperfectly honest with you.
So, anyway, so let's let's gothrough some you know common
effects.
It's not gonna be it's not allof them, and I'm not gonna get
too deep in the weeds with someof the you know clear and
unmistakable errors and 3.156cand the you know things that
(07:13):
you're familiar with, but that'sa little deep in the weeds and
it'll take too much time.
But I'm gonna talk about someof the common ones and how how
we attack them, how we get themfixed.
Some of them are really easy,some a little bit more
difficult.
So the first one, and this onejust boggles the mind.
This happens a lot, and that'swhere they just veteran will
(07:34):
file an intent to file, andwithin a year they'll file a
claim.
All right, claim gets granted,and the effective date is the
date of the claim.
They just completely miss theintent to file.
It was like it didn't exist.
The good news about that isthose are those are pretty easy
to fix.
You you know, you can just do ahigh-level review and just let
(07:57):
them know, hey, you know, theITF was filed on this date,
please fix it.
They'll usually fix it prettyquickly.
And with with something aboutthat, is that that's something
where it's actually, and youalmost never hear these two
words out of my mouth at thesame time.
It's an easy, clear andunmistakable error.
(08:18):
Clear and unmistakable errorsare in in most instances are
pretty darn near impossible.
They're extremely difficult towin a clear and unmistakable
error.
But in a situation like thiswhere they they miss the ITF,
even if it was five years ago,you can file a clear and
unmistakable error, and you willprobably win.
You should win with that withno because there's there's no
(08:41):
excuse for that.
Missing an ITF that's filedwithin a year is indeed a clear
and unmistakable error.
So now I don't know how VA didthis.
So about um a couple of yearsago, back actually 2021, there
(09:02):
was a case.
It was called Military VeteransAdvocacy versus the Secretary.
And what they decided, it was aFederal Circuit case, and they
they said, because when the whenthe AMA Peels Modernization Act
first came out, they said thatyou can uh an intent to file
attaches to a new claim.
(09:22):
All right, but it doesn'tattach to a supplemental claim.
Even though supplementalclaims, as you know, can reopen
a claim.
You can file a supplementalclaim.
Let's say you had a claimdenied 20 years ago.
You can now file a supplementalclaim and reopen that.
So uh Military VeteransAdvocacy, NOVA, bunch of law
(09:44):
firms all got together.
Military Veterans Advocacy,which is um that's the
organization that's pretty muchum created Blue Water Navy.
They they won the copiodecision.
They're you know the greatorganization, but they got top
billing.
Um and you know, these firmswere fighting and saying, hey,
(10:05):
VA, why isn't why can't we do anintent to file on a
supplemental claim rather than anew claim?
So Federal Circuit said, youknow what, you're right.
Absolutely, VA, you have toallow a supplemental claim.
I'm sorry, an intent to file ifa supplemental claim is filed
(10:26):
to reopen a claim, right?
So not a supplemental claim foran appeal, but the other
supplemental claim where you'rereopening an old claim that's
been denied more than a yearago.
Great.
So VA, that was in 2021.
In 2023, they finally put thisinto the M21 manual.
(10:47):
All right, it takes them acouple of years, and they
interpreted the court decisionentirely wrong.
And they said, okay, the ITFattaches to a supplemental claim
that's used as an appeal.
Doesn't really make sensebecause you have a year to
(11:08):
appeal, file a supplementalclaim, you don't really need an
ITF.
So the upside to that is in acase where you file a
supplemental claim as an appeal,you can actually now get two
years.
Like if you file an ITF, youget a whole nother year to file
the supplemental claim.
So that's the upside.
But the downside is the way VAhas interpreted this is that if
(11:30):
you have a supplemental claim,if you file a supplemental claim
in the middle.
So let me give you an example.
Okay, so you file a claim umfor hypertension, whatever, like
in January.
Um and then the veteran filessix months later, files an
(11:53):
intent to file because they wantto claim some other stuff,
right?
And they're gathering themedical evidence and every year
to do it.
Then the hypertension claimultimately gets granted, VA will
assign an effective date of thedate of the supplemental claim.
(12:13):
Because in their reasoning,you're saying, well, the
supplemental claim attached tothat ITF, that intent to file
it.
So instead of giving you theproper effective date of
January, because that's when youfiled it, they're saying, no,
no, it's it's June.
It's bizarre and it's at thecourts now, and it's probably
(12:36):
going to get overturned.
But here's the problem withthis this is in the M21, which
means that no one at theregional office level can
correct that, right?
So if you go to a higher levelreview, a decision review
officer, they might say, Hey,Jim, you're right.
This doesn't make any sense atall.
But I can't do anything aboutit.
(12:57):
I am bound by the M21.
The M21 tells me I have to doit this way.
I can't do anything about it.
So the only way for a veteranto get that fixed today is they
have to go to the board.
And you go to the board, andthe board's like, and the board
doesn't, you know that the boarddoesn't care about the M21.
(13:17):
The board's like, forget aboutit.
And they'll fix that effectivedate.
But the problem is for somepeople, if you're not AOD, that
might take years to get thatdecision from the board.
So anyway, that's that's kindof a downside.
But it is at the courts now,and you know, once the courts
finally rule on it, they'regonna overturn it because VA got
(13:39):
it entirely wrong.
Umother common problem we see.
I'm sorry.
J Basser (13:46):
Won't be the first time.
Jim Radogna (13:48):
Yeah.
Another one, this is reallyfrustrating.
So VA gives into the effectivedate the date of your latest C
and P exam.
So you put in a claim or youput in a claim for an increase
or whatever, right?
A year ago, two years ago.
And then you do a C and P examand they grant.
(14:12):
So VA will then give as theeffective date, not the original
date of claim or the intent offile, but the date of the latest
exam.
And they particularly do thiswhen it's an increased rating
claim, because they'll say, oh,you know what?
There's no proof.
I mean, that's the only proofthat we have that the condition
(14:34):
actually got worse.
I oh, that's ridiculous becauseuh, you know, I claimed it a
long time ago.
So, how we handle those um twodifferent ways.
If if there's evidence in therecord that the um condition
worsened before, then we just doa high-level review and you
(14:55):
know we we just point to theevidence.
The evidence right here, thishas been bad for you know this
amount of time.
And in a situation wherethere's not clear evidence in
the record, then we'll do asupplemental claim and we'll add
some some new medical records,right?
So it's uh it's it's a painbecause you know, at the end of
(15:15):
the day, the there's I can'timagine there's ever been a
situation where the date of theexam is the proper effective
date.
You know, you didn't personjust didn't get sick or get
worse the day they showed up forthe exam, right?
I mean, it was long beforethat, but but they do this
pretty regularly.
(15:36):
Um here's another one.
All right, so you have aveteran that gets granted and
they get a low ball rating.
Let's say they get a 30%rating, but clearly the evidence
shows they're entitled to a 70%rating, right?
So within a year, they'll filefor an appeal, be it a higher
(15:59):
level review or a supplementalclaim, and they'll appeal the
original rating.
So this original rating iswrong.
I disagree with this.
So it'd be able to do if theygrant the increase rating, they
will assign the date of thehigher level review or the
supplemental claim, and they'llsay, Well, you're asking for an
(16:21):
increased rating.
Yeah, and but you're not askingfor an increased rating.
I'm appealing the lowballrating you engage me.
Right?
So in that case, we do an HLR.
And it's in the M21, the M21specifically addresses that
situation.
So we'll point to you knowtheir own M21 provision and say,
(16:42):
oh no, no, it m21 tells youdon't do it this way.
But that is that is one of themost common.
We see that very, veryfrequently where they'll they'll
do that.
And it could be you know yearsof of back pay that they're
taking away.
J Basser (16:57):
Is it the same person doing all this?
Or is it because I know theyuse the uh you know which we
that regional office don't get areclaim, you know, it rotates
again.
I guess they pull it off of theas the at the end of the year.
Jim Radogna (17:14):
Yeah, national work you.
Yeah, we see it, we see iteverywhere.
We see it, you know.
J Basser (17:17):
I haven't identified any particular not just one
regional office that happens ina lot of different ones.
Jim Radogna (17:24):
Yeah, yeah.
A lot of these things that I'mtalking about, we're seeing
pretty much everywhere.
So if you know, if I were aconspiracy theorist, I'd say
maybe there's somethingnefarious going on here.
Why is it that they're allmaking the same dumb mistakes
and you know, or and I don'tknow.
I'm I'm I'm just saying, butare they throwing it against the
wall and seeing what sticks?
(17:45):
And because again, I mean,think about it.
Like I say, if this happens andand they're represented, we're
gonna fix it, right?
But how many veterans aren'trepresented?
And they just give up.
So I don't know.
Um, another one, reasonablyraised claims, or or they call
scope of the claim.
(18:06):
So the um let's say the umperson gets granted for
diabetes, right?
And in the, you know, as youknow, in the initial, when they
do the DBQ, they're gonna belooking for um uh diabetic
peripheral neuropathy,retinopathy, all all the you
(18:27):
know, the common complications.
So the um you know, VA willmiss that and they'll just
they'll grant the diabetes, butthey won't grant the
complications.
So then the veteran, you know,a year or two years later, will
put in a claim, say, you know,I've got neuropathy, I've got
(18:49):
retinopathy, I've got kidneyissues, whatever the case may
be, they'll put in a claim.
VA will then assign the date ofthe new claim as the effective
date.
But that's not what the lawsays.
Is if they had thatcomplication at the effective
date of the grant of diabetes,they are entitled to the same
(19:12):
effective date.
And there's no requirement toput in a claim.
Okay, so same thing with likeuh if you have back issues and
you have ridiculous, those areall within the the scope of the
claim.
So the proper effective date isback to when the the date of
(19:33):
the original claim for diabetes.
Right.
Or now let's say, for example,um let's say you didn't get
neuropathy till a year later,right?
Then that would be the propereffective date for the
neuropathy, is would be a yearlater, right?
Because it's the dateentitlement arose.
(19:54):
But but typically by the timethese claims get granted, you
know, and they have diabetes,they they've already they
already had the neuropathy orthe retinopathy or whatever the
complications were.
So that's um in that case, wefile a higher level review and
you know, sites of the law andsites of the M21 and just kind
of argue and say, no, this iswrong.
(20:17):
Um this one's my favorite.
Individual unemployability.
VA seems to think that theeffective date for individual
employee IU claim is always thedate that you file the VA Form
21-8940, which is theapplication for individual
(20:40):
unemployability.
They'll they'll automaticallyassign that date.
But uh legally, the propereffective date for individual
unemployability is as long as aclaim's open, right?
So you have a claim streamopen, could be for a year, could
(21:01):
be for 20 years, and there'sevidence in the record of
unemployability, the effectivedate goes back to when there's
that first evidence, as long asas long as the claim's still
open.
It's almost never the effectivedate is should almost never be
the date you file the 8940.
(21:21):
Because you know, you'vealready stopped working, you've
you you've got all these issues.
You know, by the time you getyour paperwork together and and
file your 8940, you you'vealready probably been
unemployable for for quite sometime.
Um probably getting hungry too.
So that you know, we'll do anHLR, and sometimes sometimes on
(21:42):
that we've got to go to theboard.
Uh because VA will dig theirheels in.
But um they do that prettycommonly.
And that and that could be, youknow, it could be months or it
could be many years.
There's, you know, we've woncases where you know 10, 15
years earlier effective datebased on IU, because they've
they've kept the claim alive allthat time.
(22:04):
Um more TDIU.
This one, I really love thisone.
So you put in a claim for IU,right?
And you know, the effectivedate should be let's say a year
ago, two years ago.
And you're you know, you workin this, you're fighting this.
So, you know, as you know, whenyou put in a claim for IU, VA
(22:28):
is going to do an an exam onevery condition you have
currently that you're sayingcause the IU, and they're gonna
they're gonna do a new exam,right?
So what will happen sometimesis VA will do they'll do all
these exams, right?
And they'll come back and say,okay, you we're gonna give you
(22:52):
that 70% you had for PTSD, we'regonna raise that up to 100%,
right?
Um so that's gonna be theeffective date is going to be
the date of the exam, right?
And they'll say IU is mootbecause you're already 100%, and
(23:16):
with IU you get paid at 100%,so it's moot.
So we're not gonna adjudicatethe IU.
But it's not moot because theeffective date for the IU might
be three years ago.
And you're trying to, you know,so you're giving me uh, you
know, a hundred percent schedulerating, you know, as of a week
(23:37):
ago Thursday when I went to theexam, but IU is not moot.
So, you know, in that case wefile an HR, and then that is
specifically in the M21, theydiscuss that, and actually says
in the M21 that IU is not mootif there's a possibility of an
earlier effective date.
(23:58):
And what we see a lot of timesin the rating decision, they'll
say, you know, you're 100%scheduler, IU is moot because
there's no possibility of anearlier effective date.
They they write that right inthere and say, Oh, hold on a
second, of course there is.
So that's what they do.
Okay, increased rating claims,they get these wrong a lot too.
(24:21):
Um if you put in an increasedrating claim, you can get up to
an additional year of effectivedate.
So if you put in an increasedrating claim today, your
effective date can actually goback a year earlier.
(24:42):
This is one of the rareinstances where you can actually
get an effective date earlierthan the date of claim.
So the way it works is that isif there's evidence of an
increase, evidence of worseningwithin the file within a year of
(25:03):
the the claim for an increase,you can get that.
It can't be more than a year,and this is kind of where it
gets a little bit tricky.
If there's evidence the filethe year and a half ago, then
you don't get the additionaleffective date.
It's gotta be it's gotta bewithin a year.
And I, you know, they gottaCongress or the court's gotta
fix that.
(25:23):
But but anyway, I digress.
Um so oftentimes what VA willdo, they'll almost always assign
the effective date is the datethat you filed for the increase.
And they'll never look back tosee if you actually worsened two
months ago, three months ago, ayear ago.
So in those instances, whatwe'll do, if there's um evidence
(25:45):
in the record that it worsened,we'll just do an HLR and point
to that.
Um if there's not evidence,we'll get evidence and we'll do
a supplemental claim and say,hey, it actually, you know, we
have some medical records.
And that can even be, it caneven be lay evidence, it can
even be testimony.
It doesn't, it's a little toughfor them, but it doesn't have
to be medical evidence.
(26:07):
As long as there's someevidence in the file that, you
know, that's credible evidencethat the condition worsened
prior to the date of claimwithin a year, that should be
the proper effective date.
Um okay, DIC, they they and Idon't know how they do this, but
they mess up DI DIC dates.
(26:27):
So as we know, the if uhsurviving spouse files or
surviving child, whatever, DICrecipient files within a year of
the veteran's death, the propereffective date is the first day
of the month of the veteran'sdeath.
Right.
Goes back automatically.
VA messes that up, not all thetime, but once in a while,
(26:52):
they'll just they'll they'lljust give the effective days the
date of the claim, and theywon't go back to the date of
death.
All right.
So that's usually pretty apretty easy HLR.
Um and again, this is kind oflike an ITF.
They get this wrong and theydiscover it three years from
now.
Pretty clear-cut Q claim, clearand unmistakable error.
(27:15):
Um so next is NEMAR or BlueWater um Navy claims.
So we know there's earliereffective date provisions for
NEMAR and Blue Water, and it cango back decades, right?
Goes back to typically goesback to the original claim.
Believe it or not, VA will willmess that up.
(27:37):
More so with Blue Water Navythan NEMER.
Um, because they have likethey're a little better at
NEMER, they've got like theseNEMER teams and special ROs
handle it, but sometimes withBlue Water Navy, it'll be a Blue
Water Navy grant.
Um and this would beparticularly an instance where
let's say you get a you get agrant from the board, right?
(28:01):
VA is it's a Blue Water Navycase, and VA's been denying it
saying, yeah, we can't locatethe ship within the 12 nautical
miles.
So you go to the board and youkeep fighting it.
And we've won a lot of caseslike with, you know, get like
professional dead reckoning andthings like that.
And the board will then grant.
(28:23):
And specifically in the boarddecision, they'll say, yes, it's
conceded that the veteran waswithin the 12 nautical miles,
you know, it's at least aslikely as I, you know, that
they're in the 12 miles.
So after the board decision, itgoes back to the regional
office, and the regional officesets the effective dates and the
(28:44):
and the ratings and so on.
The regional office will givean effective date of the latest
claim.
They won't go back to the firstclaim like they're supposed to.
So even though you won theboard decision, you've got to
then fight with them again andsay, um, you know, hey, so in
(29:04):
those will do an HLR and site tothe specific law and M21
provisions and so on.
But it's frustrating becauseyou know it might have taken
years for the board to get thisright, and then it goes back to
the regional office, and theregional office says, okay,
we're just gonna screw you outof some effective date here.
Maybe 15 years, maybe 20 years.
(29:26):
Um SMC, one of your favoritesubjects, right?
Effective dates on they willlike let's say you you know it's
for aid in attendance or lossof use.
Very often they will go to, asthe effective date, they'll go
(29:50):
to the date of the exam.
Right?
They'll say, oh yeah, okay, sodate, you know, date of exam
last week, yeah, you need aid inattendance, and here's the
date.
But That's not the righteffective date.
SMC is an inferred claim,right?
It's like a reasonably raisedclaim, just like diabetes
complications.
If there is evidence of yourneed for aid in attendance or
(30:15):
your loss of use, or whateverthe case may be for SMC, that is
the date is when when there'sevidence, and there's always
evidence.
I mean, by the time a veterangoes out and gets with their
doctor and gets a 2680 form andgets all this, they've needed
aid in attendance or they've hada loss of use for months or
(30:39):
years.
But VA will will screw that up.
And they'll sometimes they'llthey'll even mess up like SMCK
cases where your loss of use andthey'll just miss it.
But they will fail to grantthat.
(31:02):
Or SMCS, right?
Where you have 100% plus 60,that's automatic.
And sometimes they'll just missit.
They'll just they won't pay it.
So this is another situation.
Yeah, this is another situationwhere this would be a cue, you
know, even if you appealed ityears later.
(31:24):
Because it's you know, it'sright in the law, it is an
inferred claim, you know.
And as far as especially SMCS,I mean, when you hit that 100%
for a single disability and acombined 60%, you're entitled to
it no matter what.
Um PACT Act.
(31:47):
They're still doing this,they're not as bad.
So PACT Act is a liberalizinglaw, right?
And what that means is you canget um, you know, typically the
earliest date you can get isAugust, effective date is August
10th, 2022, because that's thedate that it was signed into
law.
And they don't have, forveterans, they don't have any
(32:10):
provisions for an earliereffective date, like Blue Water
Navy did or NEMA.
Congress said, yeah, we're forveterans, we are limiting the
date to the date of the law.
Right.
For survivors, DIC recipients,they actually allow for an
(32:31):
earlier effective date.
Okay, because there's a lotless survivors than there is
veterans.
So how the liberalizing lawworks is that you can go back as
early as August 10, 2022, or ifyou file it now and you meet
all the right criteria, checkthe right boxes, your effective
(32:54):
date can be a year.
It's kind of like an increase,right?
Um, it can be a year earlier.
If you file it today, let's sayyou file an ITF today, get it
granted um, you know, six monthsfrom now.
The effective date, there'sthere's a couple of little um,
(33:16):
you gotta meet all the criteria.
I'm not gonna get too deep inthe weeds.
But for the most part, theeffective date should be a year
ago today.
All right, because that'sthat's part of liberalizing law.
So they'll they'll mess thatup.
Um that's usually we can fixthat with an HLR.
Um here's another one with withPACT Act is that the there's a
(33:43):
lot of raiders since the PACTAct that just got locked into
that August 10, 2022 is theeffective date.
They just like they justdecided, you know what, no
matter what, we're just gonnagive the PAC Act effective date.
Okay, and this is a situationwhere you see like Thailand
veterans, Guam veterans, um,Gulf War veterans, where the the
(34:08):
PACT Act added these newlocations, right?
There's a lot of circumstanceswhere Thailand veterans have
been fighting this for 10 years,or Guam veterans, so on.
So all of a sudden um PACT Actcomes into effect and they're
presumptively granted now.
So VA will grant them andthey'll say, you know, your
(34:29):
effective date is say, you know,August 10, 2022.
Or it could be later, dependingon when you claim, because
we're almost three years agothat the PACT Act went into
effect.
But what they're not takinginto account is that you've been
fighting this and continuouslypursuing it for 10 years, like
you first put in your Thailandclaim.
(34:50):
So that becomes a fight becauseeven though they grant the PACT
Act allows for presumptiveservice connection, okay, you're
in Thailand, PACT Act changedthe law.
If you were in Thailand and youhave one of the agent orange
diseases, you get you get thepresumption right.
So but what they have to dolegally is they also have to
(35:14):
consider direct serviceconnection.
So they have to go back andlook at your original claim,
which was before the PACT Act,it wasn't for presumptive
because there was no presumptionin Thailand.
So it was direct serviceconnection.
You're trying to prove you'reat or near the perimeter of the
base, whatever the case mightbe, you were directly exposed.
So these are cases, these casesare a little bit tougher.
(35:40):
Um the burden of proof is onthe veteran.
They've got to kind of go backand just keep hammering away at
that claim that they started inthe beginning.
And the burden of proof is onthem to show that, yeah, I was
directly exposed.
I was near the perimeter, youknow, whatever the case may be.
Um I have not seen the regionaloffice get these right, so they
(36:04):
they have pretty much have togo to the board.
I mean, anything's possible,but um these are significant
because, you know, again, thesecan be 10, 15-year-old claims
that they've been fighting himand keeping him alive.
You know, VA automaticallydefaults to that no earlier than
August 10, 2022.
So and you know, I'm I'm I'mnot gonna say VA gets these
(36:30):
wrong as much as they just don'tthey don't care.
Like they they they should theyshould look and say, hey,
they've continuously pursuedthis and they should look and
see if they can grant.
But these are situations whereyou know they're in a hurry and
they're they're just gonna giveyou the later effective date,
(36:51):
and you've got to uh you've gotto fight those.
But we've won, we've won anumber of those.
Um most of them are a fight.
Some of them have taken acouple of years, but um, and and
all at the board.
Um, the PAC back issue is thatas I just mentioned, for
surviving spouses, for the mostpart, because there's always
(37:14):
exceptions, but for the mostpart, they're entitled to in a
really effective aid.
And it's it's very muchstructured.
Congress structured it forsurviving spouses, DIC
recipients, pretty much the sameway as Blue Water Navy.
So they could go back to, let'ssay surviving uh um veteran
(37:37):
died in 2009, and the survivingspouse filed the DIC claim and
they denied it.
They're Thailand veteran,right?
And now, fast forward to after2022, with the PACT Act, the
once they're granted, theeffective date for the survivor
(37:59):
would go back to 2009.
Even if they didn'tcontinuously pursue it, they
could have dropped the claimafter the first denial, which is
the same as Blue Water.
That was the beauty of BlueWater.
Whenever you file that firstclaim, doesn't matter if you
appealed it properly orwhatever, could have died on the
volume for 20 years, you getthe earlier effective date.
(38:20):
So that's what Congress, it'skind of a compromise because
they're looking to save money.
Unfortunately, they didn't dothat for veterans, but they did
for spouses.
But very oftentimes, what we'llfind is in the situation of a
survivor, they don't give themthe proper effective pay.
They just give them theeffective date of the of the new
(38:40):
claim.
So um usually fix that withwith a higher level review.
J Basser (38:46):
Um, that goes good.
You must have some goodhigh-level review guys out in
the area, I'm telling you.
Jim Radogna (38:58):
You know what?
We're really good at what wedo.
We give them an offer theycan't refuse.
You know, it's we have the lawbehind us.
We we we you know put them in asituation where the law is the
law.
We use their rules.
Very important.
I know a lot of advocates outthere are, oh, the M21 is
(39:18):
garbage.
Don't use let me tell yousomething.
The M21 is golden if you knowhow to use it, because the M21
is their Bible at the regionaloffice, and that includes
higher-level reviewers, theyhave to use it.
So we use that against them.
We find provision in the M21says your raider did it this
(39:40):
way, but the M21 right here saysthey had to do it this way.
You have to overturn.
And they do.
Because, and I've talked toDROs about that, and they're
like, hey, I got cover.
Because if it's in the M21 andquality control comes after me,
they can't ding me.
Because I just point to it andsay, hey, it's right there.
(40:01):
That's what the M21 said to do.
So the M21 is is is magical ifyou use it properly at the
regional office level.
Once you get to the board, thenthen you cite the case law and
the law and you know things theyunderstand.
But um, yeah, we win, we winthe vast majority of our uh
RHLRs.
Um so the next thing is terror,right?
(40:28):
So it's part of the PAC Act,toxic exposure risk activity,
right?
Where um which is directservice connection, you're
saying if you were um exposed toany toxins anywhere, anytime,
jet fuel, whatever, no matterwhere you were, you know, then
they have to do a medicalopinion.
(40:49):
You know, once they concede theexposure, they have to do a
medical opinion, a CMP medicalopinion.
And if the doc, you know, orthe nurses, yeah, you know, it's
at least as likely as not thatthis cancer was caused by this
jet fuel or asbestos or whateverthe case may be, you're in it.
Didn't happen too frequently.
(41:10):
Most of the CMP examiners getit wrong, but we get medical
opinions and ultimately win.
But they use terror.
Like these raiders kind ofthink everything's a terror,
right?
Because if it's a terror, thenit's limited.
The effective date's limited bythe PAC Act, right?
(41:33):
So just this morning we get aboard decision.
This gentleman was at FortGordon, which we all know well
that James was the first one toopen up that one.
Um, he was in Fort Gordon likeJames, first filed the claim in
2010, and continuously pursuedit.
(41:53):
We finally get them to concedeherbicide exposure at Fort
Gordon.
We all know it was there, butwe know how tough it is in
CONUS.
So we win we win that battle.
So, yep, he was exposed.
So, what effective date do theygive?
(42:15):
August 10, 2022.
Because they said, well, that'sa Terra.
And you know, if it weren't forTerra, we never could have
claimed that.
So I didn't even bother.
I would write, he's he's AOD.
He advanced undocted at theboard, went right to the board
and just you know, wrote anargument and said, Your Honor,
(42:37):
you can surely see how absurdthat is.
There was no such thing asterror when he first filed this
claim, you know, 12 years ago.
And they won, you know, thatwas uh that's what I was telling
you about.
We actually got a decision intwo weeks from the board, which
was what's fabulous.
But yeah.
(42:57):
So he got boards.
He gets um his uh effectivedate for his cancer all the way
back to 2010 at 100% plus SMC.
So it's a substantialsix-figure uh back pay for this
guy who absolutely deserves it.
(43:19):
Um but yeah, they they like touse that, you know, terror.
The effective date is terror,you know.
It's you know, terror is a goodthing.
Terror is a good thing.
I I I like terror in that itreally opens up the world for
toxic exposures, right?
It's if you get them to concedeterror, now they have to look
(43:40):
at if they're exposed toasbestos, if they're exposed to
ejecule, if they're exposed touh solvents, all those things.
They, you know, and again, theythey most of the time get it
wrong.
The CMP examiner will get itwrong.
But you know, once we get thatconcession that they're exposed
to something, then we get ourmedical experts and we get our
(44:02):
independent medical opinions andwe win the case.
But it's it's really open, it'sopened up the world for
veterans.
It's a it's it's a good thing.
But you know, not when they useit to limit an effective day.
So um we'll file an HLR withthat.
There's also some guidance,it's not in the M21 yet.
(44:23):
They haven't put the PACT Act,most of it in the M21, but
there's some internal guidance.
It's um uh they publish, and Ican get it off of VBMS, the um
PACT Act uh SOP is a standardoperator procedure.
So I have all those documentsand um I I use that to uh to get
that.
Occasionally that has to go tothe board, um, like in in this
(44:48):
instance with a guy at FortGordon.
Um but those those aredefinitely winnable.
Um incorrect dates ofsupplemental claims, and again,
this is it's mind-boggling.
Oftentimes you'll continuouslypursue a claim, and they'll give
the effective date of the last.
So let's say you know you didan HLR and then you did a
supplemental claim, you've beenfighting this for a couple
(45:10):
years.
They'll give the effective dateof the supplemental claim
instead of the original date ofclaim that's been continuously
pursued.
And you know, and theirrationale is well, all you you
know the supplemental claim isto re- so you wanted to reopen
the claim by using thesupplement.
(45:31):
No, he didn't.
It's just it's beencontinuously pursued, using the
supplemental claim to appeal it.
So, you know, that usually canget that fixed with an HLR, but
you know, they try that on.
Um and those are the mostcommon.
They're you know, again,there's there's more, there's
(45:51):
probably double that, but theseare the most common, pretty
straightforward ones um thatthey're just they they just
miss.
And um it's really honestly,guys, it it's to the point where
when we get a grant, Katrinaand I are are are shocked
(46:14):
nowadays if the effective date'sright.
It's like we're you know, I'lllook at it, I'll you know, get
it get off email, say, okay, wegot a grant, and I'll look at
the effective date, and I'lllook in our database, and I'll
say, I mean, you gotta look atthis.
I I it it looks like they gotit right.
She's like, no way.
So she'll go over it too.
It's like we're like, I mean,it's it's gotten to that point.
(46:36):
It's it's unfortunate, is thatthey almost, at least in our
practice, they almost never getthe effective date right the
first time.
So it's crazy.
And it, you know, this isimportant.
It's important because youknow, they're not gonna they're
not gonna get that past us.
They're not gonna get it past,you know, most attorneys.
(46:59):
Um definitely slip it past theveteran or or survivor.
Um you know, and they mightpass you know get it past a VSO
that's you know it's kind of newat the game and and doesn't
hasn't been trained by usbecause we don't train them all.
J Basser (47:15):
Um that affects your bottom line, Gim.
Jim Radogna (47:25):
It really does, you know, and sometimes
sometimes it's a couple ofmonths, but sometimes a couple
of years, sometimes it's acouple decades.
But at the end of the day, youknow, even if it's a month,
that's the veteran's money.
That's their survivor's money.
VA doesn't have the right tokeep it from them.
You know, and again, I don't,you know, they're maybe they're
(47:48):
rushing.
Um and they talk about trainingissues.
Well, you know, sometimes thoseare training issues, but you
know, it's something as simpleas missing an ITF.
You know, you can train amonkey to do that.
That's that's easy.
You know, some of this stuff islike this Packet stuff, it's
it's deep in the weeds, and andthey've got to learn.
(48:08):
I I get that.
But a lot of these are justreally, they're really silly.
You know, it's they don't makeany sense.
But uh we keep fighting a goodfight.
Get them, get them all themoney they deserve.
J Basser (48:25):
Let me make a little announcement real quick.
This announcement goes out toall you do-it-yourselfers.
Some stuff I've been readinglately online, and some stuff
that people are doing they dotheir own claims and their own
appeals.
I would highly recommend youguys find an accredited VSO or
(48:46):
an agent to handle your appeal.
If not, you're gonna have along wait.
unknown (48:55):
Yeah.
Jim Radogna (48:56):
I agree.
And and you know, and andquestion everything.
If you feel like if you get agrant, or you know, your VSO
gives you a grant, and you feellike, you know what?
I I I thought, I thought I wasentitled to earlier than that, I
thought I was entitled to moreback pay, question it.
You know, absolutely,absolutely question it.
(49:18):
Maybe, maybe yes, maybe no, butyou know, don't take VA's word
for it.
You know, same thing withratings.
If you get what you feel likeis a low ball rating, question
it.
You know, maybe appeal it.
It's um and that's where VSOsand accredited reps can help.
It's um, you know, it is asmuch as we talk about these
(49:42):
effective data errors, we seeyou know almost as many rating
errors where they just they'regiving you less of a rating than
than you're you you youdeserve.
And it's uh you know, nothingwrong, nothing wrong with doing
it yourself.
There is there's a lot ofreally good information out
there.
(50:02):
Um some of the YouTubechannels, some are really bad,
but some are really good.
There's you know, some ofthere's some law firms out
there, um colleagues of oursthat that put out great content.
You know, they they do regularQ ⁇ A's and they do, you know,
there's you get on there and andyou know have professional
(50:24):
attorneys explain to you how todo this yourself, and there's
nothing wrong with that.
But the um, you know, questioneverything.
It's there's there's so manynuances, there's so many ins and
outs.
And for whatever reason, VA ismaking a lot of errors, and and
(50:44):
and these errors can be costly.
You know, a lot of times peoplethink, well, you know what?
I've been fighting this for awhile, I finally got a grant.
I'm I'm not gonna rock theboat.
I I wish I got more, but I'mnot, you know.
Listen.
J Basser (50:59):
That's the most popular uh that's the most
popular three-letter acronymright now you ever see is DTA,
DTA, DTA.
I'm seeing four and five a day.
Jim Radogna (51:11):
Yeah, yeah.
It's it it it's it's absolutelycrazy.
But um yeah, I'm hoping, youknow, as I said, after the it it
really the issue reallyaccelerated during the PACT Act,
especially in the beginning,and and I get that again,
there's there's some ins andouts, and you know, they're
(51:32):
under pressure, and they're wellover a million claims, and
they're working really hard.
So I understand.
Um it got a little bit better,but in these last you know,
probably I don't know, three,four months when they really
started putting their foot onthe gas about the backlog and
(51:54):
you know processing more claimsthan ever.
They reinstituted mandatoryovertime.
Um and then you know thesituation is also there's been a
lot of attrition at VA.
Um a lot of there's a lot ofyou know really good people have
left.
They've they've taken the earlyretirement.
(52:16):
Um the yeah, and a lot of youknow, I from what I understand,
not surprisingly, there'sthere's some morale issues going
on within the agency, um, thewhole Doge and thing.
So a lot of them have left, andand a lot of um, you know, law
firms, veterans' law firms andstuff like that are you know, I
(52:38):
I know of personally are arescooping up.
They are hiring, they're in ahiring chair.
You work for VA, come work forme.
You know, not us, we're yourtitle office, but these big law
firms are come work for mebecause I'm gonna pay you more,
I'm gonna treat you right, andyou are you know your stuff
(53:00):
because think about it.
If a if a law firm has got tohire, like let's say we're gonna
hire a case manager orsomething like that, all right?
Think about what the trainingit would take to get somebody up
to speed, as complicated asVeterans Law is, you know, it
would just take a long time.
(53:22):
And it's very expensive too totrain people.
So you you know, you hiresomebody, and it might take you
six months before you can getthem to manage your cases,
right?
Not if they're a former raideror a former VSR or a former
drown the system.
Now, you you know, you you youmight have to re-educate them on
(53:46):
their thought process.
So, you know, some VA employeesare um, you know, don't have
the best.
Yeah, yeah, exactly.
You know, yeah, you've got tolook at it from a different
perspective.
But that's not hard to do.
But but the thing is they theyknow, and um, and it there's a
(54:07):
lot of you know, there's a lotof really good VA employees.
And I think, you know, many ofthem are veterans.
I honestly think there's a farmore really good VA employees
than not.
But what I've been learningover the years is that they are,
(54:28):
the system is really difficultat the regional office level
because they have this, youknow, quality control teams are
up their tail, right?
And they're and they're saying,nope, you got that wrong, you
shouldn't have granted, yougranted too much.
They live in abject fear ofgetting a ding, getting a
quality ding.
So they they becomehyper-conservative.
(54:51):
And they're like, yeah, I'dlike to grant this.
You know, I think the veterandeserves this, but I'm not gonna
do it because I'm gonna get ading from quality.
Because I I just got you know,I got my butt handed to me last
week by QRT, and I don't wantanother one this month.
I'm hearing that in discussionswith these, and it's it's
(55:14):
something in the system theyneed to fix, you know.
And that's why the it's one ofthe many reasons why, you know,
the board is so much better.
You know, not only it's it'sattorneys, judges, they
understand the law, but theydon't they don't have that.
They don't have they get tomake independent decisions,
right?
They don't have the pressure.
(55:35):
They make decisions and andthere's no one second guessing
them.
Um and I get it, it's a youknow, it's a huge organization.
They got you know 470 or maybeless than that now, but you
know, almost a half a millionemployees, and they have to have
controls and they have to havequality, and and and I get all
(55:58):
that, but it's it really doescreate problems.
Um, and then and the rushing,too.
I mean, these these mistakes.
Because you know, sometimesthere'll be like a really dumb
mistake.
I'll get on Teams and I'llreach out to the rater that made
the decision and nicely say,hey, I think you missed this.
(56:18):
Can you fix this so we don'thave to do an appeal?
And they're usually they'revery they're very how hey, sorry
about that.
I was in a rush, thank you somuch.
I'll fix it right away.
I they'll do that for you forthe most part, because they, you
know, they want to get it righttoo.
They they they you know, a lotof them, most of them, they want
to they want to get it right.
(56:39):
And sometimes they're just theyrushed and they missed it, and
you know, just ask them nicelyto to if it's something really
simple, like an ITF.
You know, sometimes I'll reachout and say, hey, you know,
respectfully you missed the ITF.
Can you can you fix it?
Oh, sorry about that.
Yeah, it's and and they do itright away.
So um, you know, because theydon't want to, and I don't know,
(57:01):
I I've never heard that if youum if you grant uh or or if you
deny too much that quality teamgets on you.
I know if you grant too muchthey do.
So I I I don't I don't knowthat for sure though.
J Basser (57:17):
What what would be the difference to you?
Let's say you get gig forquality, right?
Which is my background.
Or you lose to BBH.
Jim Radogna (57:24):
Do you get gig for that?
No, and that's and that's theshame of it.
When they started the AMA, partof the AMA, there's supposed to
be a feedback loop.
And this was between the boardand the regional office.
And the board is supposed to dothis feedback loop and say,
listen, you know, because theboard for years is saying we are
seeing so many ridiculous casesthat we shouldn't waste our
(57:47):
time.
We're backlogged because you'reyou're getting wrong.
At the regional office, you'regetting wrong really simple
things that you shouldn't be.
You should know better.
These aren't complicated legalissues.
So there's supposed to be afeedback loop where they would
constantly feedback and show theregional office so their
leadership could get in and say,hey, we need more training on
(58:08):
these issues.
We're consistently making dumbmistakes here, right?
That never happened forwhatever reason.
Um so there is no feedback thatway.
Now, at the at the BVA, they,you know, we know the court, the
Court of Appeals for VeteransClaims.
There, you know, that the courtwill constantly, you know, you
(58:32):
deny at the board and it goes tothe court, you know, over 80%
of the time it goes back to BVAand they say, try again.
That is professionallyembarrassing if you're an
attorney and a judge, whereanother judge says, hey, you got
this wrong.
So that keeps them honest, too.
They're like, okay, we're gonnaget this right, because they
(58:52):
do, they do have thataccountability.
Unfortunately, at the uh at theregional office level, they
they really don't.
I mean, it's like, okay, youdeny, we don't like it, appeal
it.
Go on.
I'm not seeing them get in anykind of trouble from their
leadership because they deny toomuch, or they or they mess up
(59:14):
effective dates, or they mess upratings.
I I may be wrong, you know, butit but I'm not seeing it.
I I know if they if if theygive too much, they get in
trouble.
Unquestionably.
J Basser (59:29):
You guys know what happens when you're having fun?
Time absolutely flies.
It does.
We're really out of time.
We still got some importantleft.
Jim, as usual, man, thanks forcoming on.
I'm pretty sure a whole lot ofpeople have learned something
tonight.
But I'm pretty sure agents havelearned stuff too.
Beri (59:52):
Yeah, I just want to expand on you know what's going
on.
You're exactly right with thosequotas of their personnel.
The people that took the earlyout, they're still getting paid
until the end of September.
So they can't pay back there.
(01:00:12):
So in October, you're gonnahave all these, they're gonna
start the hiring process, but wemay be in this situation with
the missing stuff and having tomeet those quotas for how long
is it gonna take to train thesenew people?
Jim Radogna (01:00:30):
Yeah.
Well, what I'm hoping is thatyou know everything comes home
to roost.
At some point, it's gonna comeout that this whole kill the
backlog, move faster isbackfires.
Year from now, two years fromnow.
(01:00:52):
We're gonna have the same VAsecretary for next three and a
half years, right?
So at some point, I'm hopingthat it's like, you know, it
becomes public knowledge that,oh my God, VA is a train wreck.
They are wrongfully denyingthey're doing all of these extra
claims and they're screwingthem up.
(01:01:13):
You know, and at some point,maybe there'll be some pressure
on VA to say, okay, now we needto slow down and we need to
train our people better, and weneed to get this right, because
it's a really bad look if youknow veterans, the veteran
community out there are sayingVA is a mess because they're
rushing and they're screwingveterans.
(01:01:35):
Yep.
Yeah, I I believe in SantaClaus.
I'm hoping I'm hoping thathappens.
But we'll we'll see.
J Basser (01:01:44):
Man, thanks for coming on.
We'll do this again soon.
Uh absolutely.
Always always a pleasure.
Thank you.
Tell the Mrs.
Hello from everybody.
Jim Radogna (01:01:53):
I certainly will.
J Basser (01:01:55):
Now that she's down under the clouds.
Well, better better keep herkeep her busy for a while, man.
She gets too she's moving toomany times hiking and climbing
mountains and stuff.
Jim Radogna (01:02:07):
Yeah, yeah, she's uh she's something.
That's awesome.
J Basser (01:02:13):
I'm glad you guys stay in shape that way.
Well, listen, guys, we doappreciate you watching.
Uh, we'll be back again nextweek.
We'll have another guest on.
And uh, I think next week'sguest is another attorney out of
DC.
Um advertiser appear at the endof the week.
But this is John.
We'll be happy to gym Bardonia,and very clearly we'll be
(01:02:34):
shutting it down for now.
Thanks, everybody.
Jim Radogna (01:02:36):
Thanks, guys.
Great seeing you.
Welcome folks to another episode of Jay Bassard's
Exposed Vet Productions.
My name is John Stacy.
They call me Jay Bassard.
Jay Basser's official name thatI've always had for the past 40
years.
Today is Thursday.
It's August 28th, 2025.
And we got a special showtoday.
We got one and only Mr.
Barry Fraley.
(00:23):
He's riding side saddle today.
How are you doing, Barry?
I'm good.
Top side of the grass.
And our guest today is uh Idon't need an introduction.
Uh this is Mr.
Jim Radonia.
Uh Jim Radonia is an accreditedVA appeals agent based out of
the beautiful city of San Diego.
He's part of the uh EagleVeterans Law with Katrina Eagle.
(00:44):
Uh that's pretty cool.
Today we're going to discuss uheffective dates.
And uh this is a veryinteresting topic, so we haven't
done this in a while.
Jim, how are you doing?
Jim Radogna (00:56):
I'm doing really well, John.
It's good to see you.
It's been a while.
It's been a while since I'vebeen.
But but VA has been keeping mebusy every moment since last
time I saw you.
J Basser (01:09):
You know, that's good, man.
You know, it's uh if you don'tlike the way the VA does, just
turn around and uh you mightstart to like it.
Next thing you know, they'llgive you something else to crap
about.
So it's like a revolving door.
Jim Radogna (01:24):
Yeah, yeah, it really is.
And lately it's it it's reallybeen a challenge because they're
you know, they've been braggingabout getting their numbers up
and they're they're knockingdown the backlog and they're you
know processing more claimsthan ever.
But the you know that's that'sgreat.
That's that's a great headline,but in in the real world, the
(01:47):
quality has just gotten it'scrazy.
I I've never in all my years,I've never seen poorer quality
decisions.
I mean, they are just blowingthrough and denying, you know,
and and even if it's a grant,they're they're messing up the
rating, they're messing up theeffective dates.
It's you know, it's it's toobad because they're you know,
(02:07):
they're just pushing people toohard.
They got among these raidersand VSRs on quotas, and you
know, they're putting up thesegreat frontline numbers, but you
know, I mean, that's not whatveterans want.
Veterans want good decisions,they don't want to have to
appeal and appeal and appeal,but unfortunately that's not uh
(02:28):
that's that's not what theheadlines say, but that's what
we're seeing here in our officeand what all our colleagues are.
But you know, it it goes inwaves, and hopefully it'll
settle back down uh and and getmoving.
J Basser (02:42):
Yes.
Jim Radogna (02:49):
Yeah, yeah.
I mean it's it's something thatum you know Nova members talk
about.
Um and you know, there'll bepeople from VA there, and we'll
tell them about it.
And you know, it's the kind ofI I was at the NAC VSO
conference um in July inLouisville, and um I'll just say
(03:14):
uh um a high-level, very, veryhigh-level VA uh uh leadership
was there and he's presenting,and you know, he does the QA,
and pretty much most of the VSOswere like, hey, what's with the
quality, man?
You know, it's like this iscrazy.
You're denying everybody.
(03:34):
And he just, you know, he justdidn't answer the question, you
know, like politicians do, andit was it was a shame.
And I'm I'm glad, you know, I'mI'm glad they brought it up.
It's like, hey, you know, bragall you want about how fast
you're moving and and knockingdown the backlog, but let's
(03:55):
let's let's focus on quality.
You know, let's focus on takingcare of veterans.
And what you take care ofveterans is you get it right.
And you give them what theydeserve, and you don't make them
wait, and you don't make themappeal over and over and over
again.
And you know, it's just it'sit's very, very frustrating.
But anyway, that segues into uhwhat I want to talk about
(04:17):
today, which is effective dates.
Effective dates have been areal issue with VA.
This is this isn't recent.
This is going back years.
Uh I'm gonna say probably agood four or five years, it's
it's gotten bad.
Um got really bad, particularlyin the beginning of the PACT
(04:37):
Act.
Kind of understandable.
They, you know, they gotoverloaded with all these new
claims.
And the PACT Act as aliberalizing law, it's got a lot
of moving parts when it comesto effective dates.
So I kind of got that.
I'm like, okay, they got tolearn this, you know, they had
quick training and so on.
So they'll get, and they theyhave gotten a little bit better
(04:59):
on that.
But um, you know, now, like Iwas just talking about, the
quality of decisions on everylevel is really bad, and
effective dates have actuallygotten worse again.
Um, what I want to do today isI want to go through uh just
some examples of what we see aseffective date errors.
(05:21):
Some of them are reallyridiculous, and some are a
little deeper in the weeds, butit's really important that
veterans and advocatesunderstand this because the, you
know, I I'm not gonna speculateas to why they're making all of
these errors on effectivedates.
(05:44):
But the big picture is thatwhen they do, if they have an
advocate, you know, like myselfor an attorney, we're gonna
catch it and we're gonna fix it,right?
But how about all of theseveterans that are on their own,
right?
And and their effective dateswrong, and they don't know what
(06:05):
to do about it.
They don't, they don'tunderstand.
They're like, boy, I thought Iwas gonna get benefits, you
know, I thought I was gettingmore back pay than that, and
they don't know what to do withit, right?
So then VA gets to keep themoney.
Or situations where maybe it'sa VSO that doesn't understand.
We we do, as you know, Katrinaand I, we we we train um VSOs
(06:25):
around the country, have beenfor years.
We focus a lot on effectivedates with them, we we drill it
into them, we give them as muchtraining as we can on this
because we need them tounderstand all the different
intricacies of this so they canspot it and they can fix it.
Because every time there's awrong effective date and it
doesn't get fixed, it's not fairto the veteran, it's not fair
(06:48):
to the surviving spouse.
And guess what?
You know, VA is keeping theirmoney, and and and and I'm I'm
not okay with that, I'll beperfectly honest with you.
So, anyway, so let's let's gothrough some you know common
effects.
It's not gonna be it's not allof them, and I'm not gonna get
too deep in the weeds with someof the you know clear and
unmistakable errors and 3.156cand the you know things that
(07:13):
you're familiar with, but that'sa little deep in the weeds and
it'll take too much time.
But I'm gonna talk about someof the common ones and how how
we attack them, how we get themfixed.
Some of them are really easy,some a little bit more
difficult.
So the first one, and this onejust boggles the mind.
This happens a lot, and that'swhere they just veteran will
(07:34):
file an intent to file, andwithin a year they'll file a
claim.
All right, claim gets granted,and the effective date is the
date of the claim.
They just completely miss theintent to file.
It was like it didn't exist.
The good news about that isthose are those are pretty easy
to fix.
You you know, you can just do ahigh-level review and just let
(07:57):
them know, hey, you know, theITF was filed on this date,
please fix it.
They'll usually fix it prettyquickly.
And with with something aboutthat, is that that's something
where it's actually, and youalmost never hear these two
words out of my mouth at thesame time.
It's an easy, clear andunmistakable error.
(08:18):
Clear and unmistakable errorsare in in most instances are
pretty darn near impossible.
They're extremely difficult towin a clear and unmistakable
error.
But in a situation like thiswhere they they miss the ITF,
even if it was five years ago,you can file a clear and
unmistakable error, and you willprobably win.
You should win with that withno because there's there's no
(08:41):
excuse for that.
Missing an ITF that's filedwithin a year is indeed a clear
and unmistakable error.
So now I don't know how VA didthis.
So about um a couple of yearsago, back actually 2021, there
(09:02):
was a case.
It was called Military VeteransAdvocacy versus the Secretary.
And what they decided, it was aFederal Circuit case, and they
they said, because when the whenthe AMA Peels Modernization Act
first came out, they said thatyou can uh an intent to file
attaches to a new claim.
(09:22):
All right, but it doesn'tattach to a supplemental claim.
Even though supplementalclaims, as you know, can reopen
a claim.
You can file a supplementalclaim.
Let's say you had a claimdenied 20 years ago.
You can now file a supplementalclaim and reopen that.
So uh Military VeteransAdvocacy, NOVA, bunch of law
(09:44):
firms all got together.
Military Veterans Advocacy,which is um that's the
organization that's pretty muchum created Blue Water Navy.
They they won the copiodecision.
They're you know the greatorganization, but they got top
billing.
Um and you know, these firmswere fighting and saying, hey,
(10:05):
VA, why isn't why can't we do anintent to file on a
supplemental claim rather than anew claim?
So Federal Circuit said, youknow what, you're right.
Absolutely, VA, you have toallow a supplemental claim.
I'm sorry, an intent to file ifa supplemental claim is filed
(10:26):
to reopen a claim, right?
So not a supplemental claim foran appeal, but the other
supplemental claim where you'rereopening an old claim that's
been denied more than a yearago.
Great.
So VA, that was in 2021.
In 2023, they finally put thisinto the M21 manual.
(10:47):
All right, it takes them acouple of years, and they
interpreted the court decisionentirely wrong.
And they said, okay, the ITFattaches to a supplemental claim
that's used as an appeal.
Doesn't really make sensebecause you have a year to
(11:08):
appeal, file a supplementalclaim, you don't really need an
ITF.
So the upside to that is in acase where you file a
supplemental claim as an appeal,you can actually now get two
years.
Like if you file an ITF, youget a whole nother year to file
the supplemental claim.
So that's the upside.
But the downside is the way VAhas interpreted this is that if
(11:30):
you have a supplemental claim,if you file a supplemental claim
in the middle.
So let me give you an example.
Okay, so you file a claim umfor hypertension, whatever, like
in January.
Um and then the veteran filessix months later, files an
(11:53):
intent to file because they wantto claim some other stuff,
right?
And they're gathering themedical evidence and every year
to do it.
Then the hypertension claimultimately gets granted, VA will
assign an effective date of thedate of the supplemental claim.
(12:13):
Because in their reasoning,you're saying, well, the
supplemental claim attached tothat ITF, that intent to file
it.
So instead of giving you theproper effective date of
January, because that's when youfiled it, they're saying, no,
no, it's it's June.
It's bizarre and it's at thecourts now, and it's probably
(12:36):
going to get overturned.
But here's the problem withthis this is in the M21, which
means that no one at theregional office level can
correct that, right?
So if you go to a higher levelreview, a decision review
officer, they might say, Hey,Jim, you're right.
This doesn't make any sense atall.
But I can't do anything aboutit.
(12:57):
I am bound by the M21.
The M21 tells me I have to doit this way.
I can't do anything about it.
So the only way for a veteranto get that fixed today is they
have to go to the board.
And you go to the board, andthe board's like, and the board
doesn't, you know that the boarddoesn't care about the M21.
(13:17):
The board's like, forget aboutit.
And they'll fix that effectivedate.
But the problem is for somepeople, if you're not AOD, that
might take years to get thatdecision from the board.
So anyway, that's that's kindof a downside.
But it is at the courts now,and you know, once the courts
finally rule on it, they'regonna overturn it because VA got
(13:39):
it entirely wrong.
Umother common problem we see.
I'm sorry.
J Basser (13:46):
Won't be the first time.
Jim Radogna (13:48):
Yeah.
Another one, this is reallyfrustrating.
So VA gives into the effectivedate the date of your latest C
and P exam.
So you put in a claim or youput in a claim for an increase
or whatever, right?
A year ago, two years ago.
And then you do a C and P examand they grant.
(14:12):
So VA will then give as theeffective date, not the original
date of claim or the intent offile, but the date of the latest
exam.
And they particularly do thiswhen it's an increased rating
claim, because they'll say, oh,you know what?
There's no proof.
I mean, that's the only proofthat we have that the condition
(14:34):
actually got worse.
I oh, that's ridiculous becauseuh, you know, I claimed it a
long time ago.
So, how we handle those um twodifferent ways.
If if there's evidence in therecord that the um condition
worsened before, then we just doa high-level review and you
(14:55):
know we we just point to theevidence.
The evidence right here, thishas been bad for you know this
amount of time.
And in a situation wherethere's not clear evidence in
the record, then we'll do asupplemental claim and we'll add
some some new medical records,right?
So it's uh it's it's a painbecause you know, at the end of
(15:15):
the day, the there's I can'timagine there's ever been a
situation where the date of theexam is the proper effective
date.
You know, you didn't personjust didn't get sick or get
worse the day they showed up forthe exam, right?
I mean, it was long beforethat, but but they do this
pretty regularly.
(15:36):
Um here's another one.
All right, so you have aveteran that gets granted and
they get a low ball rating.
Let's say they get a 30%rating, but clearly the evidence
shows they're entitled to a 70%rating, right?
So within a year, they'll filefor an appeal, be it a higher
(15:59):
level review or a supplementalclaim, and they'll appeal the
original rating.
So this original rating iswrong.
I disagree with this.
So it'd be able to do if theygrant the increase rating, they
will assign the date of thehigher level review or the
supplemental claim, and they'llsay, Well, you're asking for an
(16:21):
increased rating.
Yeah, and but you're not askingfor an increased rating.
I'm appealing the lowballrating you engage me.
Right?
So in that case, we do an HLR.
And it's in the M21, the M21specifically addresses that
situation.
So we'll point to you knowtheir own M21 provision and say,
(16:42):
oh no, no, it m21 tells youdon't do it this way.
But that is that is one of themost common.
We see that very, veryfrequently where they'll they'll
do that.
And it could be you know yearsof of back pay that they're
taking away.
J Basser (16:57):
Is it the same person doing all this?
Or is it because I know theyuse the uh you know which we
that regional office don't get areclaim, you know, it rotates
again.
I guess they pull it off of theas the at the end of the year.
Jim Radogna (17:14):
Yeah, national work you.
Yeah, we see it, we see iteverywhere.
We see it, you know.
J Basser (17:17):
I haven't identified any particular not just one
regional office that happens ina lot of different ones.
Jim Radogna (17:24):
Yeah, yeah.
A lot of these things that I'mtalking about, we're seeing
pretty much everywhere.
So if you know, if I were aconspiracy theorist, I'd say
maybe there's somethingnefarious going on here.
Why is it that they're allmaking the same dumb mistakes
and you know, or and I don'tknow.
I'm I'm I'm just saying, butare they throwing it against the
wall and seeing what sticks?
(17:45):
And because again, I mean,think about it.
Like I say, if this happens andand they're represented, we're
gonna fix it, right?
But how many veterans aren'trepresented?
And they just give up.
So I don't know.
Um, another one, reasonablyraised claims, or or they call
scope of the claim.
(18:06):
So the um let's say the umperson gets granted for
diabetes, right?
And in the, you know, as youknow, in the initial, when they
do the DBQ, they're gonna belooking for um uh diabetic
peripheral neuropathy,retinopathy, all all the you
(18:27):
know, the common complications.
So the um you know, VA willmiss that and they'll just
they'll grant the diabetes, butthey won't grant the
complications.
So then the veteran, you know,a year or two years later, will
put in a claim, say, you know,I've got neuropathy, I've got
(18:49):
retinopathy, I've got kidneyissues, whatever the case may
be, they'll put in a claim.
VA will then assign the date ofthe new claim as the effective
date.
But that's not what the lawsays.
Is if they had thatcomplication at the effective
date of the grant of diabetes,they are entitled to the same
(19:12):
effective date.
And there's no requirement toput in a claim.
Okay, so same thing with likeuh if you have back issues and
you have ridiculous, those areall within the the scope of the
claim.
So the proper effective date isback to when the the date of
(19:33):
the original claim for diabetes.
Right.
Or now let's say, for example,um let's say you didn't get
neuropathy till a year later,right?
Then that would be the propereffective date for the
neuropathy, is would be a yearlater, right?
Because it's the dateentitlement arose.
(19:54):
But but typically by the timethese claims get granted, you
know, and they have diabetes,they they've already they
already had the neuropathy orthe retinopathy or whatever the
complications were.
So that's um in that case, wefile a higher level review and
you know, sites of the law andsites of the M21 and just kind
of argue and say, no, this iswrong.
(20:17):
Um this one's my favorite.
Individual unemployability.
VA seems to think that theeffective date for individual
employee IU claim is always thedate that you file the VA Form
21-8940, which is theapplication for individual
(20:40):
unemployability.
They'll they'll automaticallyassign that date.
But uh legally, the propereffective date for individual
unemployability is as long as aclaim's open, right?
So you have a claim streamopen, could be for a year, could
(21:01):
be for 20 years, and there'sevidence in the record of
unemployability, the effectivedate goes back to when there's
that first evidence, as long asas long as the claim's still
open.
It's almost never the effectivedate is should almost never be
the date you file the 8940.
(21:21):
Because you know, you'vealready stopped working, you've
you you've got all these issues.
You know, by the time you getyour paperwork together and and
file your 8940, you you'vealready probably been
unemployable for for quite sometime.
Um probably getting hungry too.
So that you know, we'll do anHLR, and sometimes sometimes on
(21:42):
that we've got to go to theboard.
Uh because VA will dig theirheels in.
But um they do that prettycommonly.
And that and that could be, youknow, it could be months or it
could be many years.
There's, you know, we've woncases where you know 10, 15
years earlier effective datebased on IU, because they've
they've kept the claim alive allthat time.
(22:04):
Um more TDIU.
This one, I really love thisone.
So you put in a claim for IU,right?
And you know, the effectivedate should be let's say a year
ago, two years ago.
And you're you know, you workin this, you're fighting this.
So, you know, as you know, whenyou put in a claim for IU, VA
(22:28):
is going to do an an exam onevery condition you have
currently that you're sayingcause the IU, and they're gonna
they're gonna do a new exam,right?
So what will happen sometimesis VA will do they'll do all
these exams, right?
And they'll come back and say,okay, you we're gonna give you
(22:52):
that 70% you had for PTSD, we'regonna raise that up to 100%,
right?
Um so that's gonna be theeffective date is going to be
the date of the exam, right?
And they'll say IU is mootbecause you're already 100%, and
(23:16):
with IU you get paid at 100%,so it's moot.
So we're not gonna adjudicatethe IU.
But it's not moot because theeffective date for the IU might
be three years ago.
And you're trying to, you know,so you're giving me uh, you
know, a hundred percent schedulerating, you know, as of a week
(23:37):
ago Thursday when I went to theexam, but IU is not moot.
So, you know, in that case wefile an HR, and then that is
specifically in the M21, theydiscuss that, and actually says
in the M21 that IU is not mootif there's a possibility of an
earlier effective date.
(23:58):
And what we see a lot of timesin the rating decision, they'll
say, you know, you're 100%scheduler, IU is moot because
there's no possibility of anearlier effective date.
They they write that right inthere and say, Oh, hold on a
second, of course there is.
So that's what they do.
Okay, increased rating claims,they get these wrong a lot too.
(24:21):
Um if you put in an increasedrating claim, you can get up to
an additional year of effectivedate.
So if you put in an increasedrating claim today, your
effective date can actually goback a year earlier.
(24:42):
This is one of the rareinstances where you can actually
get an effective date earlierthan the date of claim.
So the way it works is that isif there's evidence of an
increase, evidence of worseningwithin the file within a year of
(25:03):
the the claim for an increase,you can get that.
It can't be more than a year,and this is kind of where it
gets a little bit tricky.
If there's evidence the filethe year and a half ago, then
you don't get the additionaleffective date.
It's gotta be it's gotta bewithin a year.
And I, you know, they gottaCongress or the court's gotta
fix that.
(25:23):
But but anyway, I digress.
Um so oftentimes what VA willdo, they'll almost always assign
the effective date is the datethat you filed for the increase.
And they'll never look back tosee if you actually worsened two
months ago, three months ago, ayear ago.
So in those instances, whatwe'll do, if there's um evidence
(25:45):
in the record that it worsened,we'll just do an HLR and point
to that.
Um if there's not evidence,we'll get evidence and we'll do
a supplemental claim and say,hey, it actually, you know, we
have some medical records.
And that can even be, it caneven be lay evidence, it can
even be testimony.
It doesn't, it's a little toughfor them, but it doesn't have
to be medical evidence.
(26:07):
As long as there's someevidence in the file that, you
know, that's credible evidencethat the condition worsened
prior to the date of claimwithin a year, that should be
the proper effective date.
Um okay, DIC, they they and Idon't know how they do this, but
they mess up DI DIC dates.
(26:27):
So as we know, the if uhsurviving spouse files or
surviving child, whatever, DICrecipient files within a year of
the veteran's death, the propereffective date is the first day
of the month of the veteran'sdeath.
Right.
Goes back automatically.
VA messes that up, not all thetime, but once in a while,
(26:52):
they'll just they'll they'lljust give the effective days the
date of the claim, and theywon't go back to the date of
death.
All right.
So that's usually pretty apretty easy HLR.
Um and again, this is kind oflike an ITF.
They get this wrong and theydiscover it three years from
now.
Pretty clear-cut Q claim, clearand unmistakable error.
(27:15):
Um so next is NEMAR or BlueWater um Navy claims.
So we know there's earliereffective date provisions for
NEMAR and Blue Water, and it cango back decades, right?
Goes back to typically goesback to the original claim.
Believe it or not, VA will willmess that up.
(27:37):
More so with Blue Water Navythan NEMER.
Um, because they have likethey're a little better at
NEMER, they've got like theseNEMER teams and special ROs
handle it, but sometimes withBlue Water Navy, it'll be a Blue
Water Navy grant.
Um and this would beparticularly an instance where
let's say you get a you get agrant from the board, right?
(28:01):
VA is it's a Blue Water Navycase, and VA's been denying it
saying, yeah, we can't locatethe ship within the 12 nautical
miles.
So you go to the board and youkeep fighting it.
And we've won a lot of caseslike with, you know, get like
professional dead reckoning andthings like that.
And the board will then grant.
(28:23):
And specifically in the boarddecision, they'll say, yes, it's
conceded that the veteran waswithin the 12 nautical miles,
you know, it's at least aslikely as I, you know, that
they're in the 12 miles.
So after the board decision, itgoes back to the regional
office, and the regional officesets the effective dates and the
(28:44):
and the ratings and so on.
The regional office will givean effective date of the latest
claim.
They won't go back to the firstclaim like they're supposed to.
So even though you won theboard decision, you've got to
then fight with them again andsay, um, you know, hey, so in
(29:04):
those will do an HLR and site tothe specific law and M21
provisions and so on.
But it's frustrating becauseyou know it might have taken
years for the board to get thisright, and then it goes back to
the regional office, and theregional office says, okay,
we're just gonna screw you outof some effective date here.
Maybe 15 years, maybe 20 years.
(29:26):
Um SMC, one of your favoritesubjects, right?
Effective dates on they willlike let's say you you know it's
for aid in attendance or lossof use.
Very often they will go to, asthe effective date, they'll go
(29:50):
to the date of the exam.
Right?
They'll say, oh yeah, okay, sodate, you know, date of exam
last week, yeah, you need aid inattendance, and here's the
date.
But That's not the righteffective date.
SMC is an inferred claim,right?
It's like a reasonably raisedclaim, just like diabetes
complications.
If there is evidence of yourneed for aid in attendance or
(30:15):
your loss of use, or whateverthe case may be for SMC, that is
the date is when when there'sevidence, and there's always
evidence.
I mean, by the time a veterangoes out and gets with their
doctor and gets a 2680 form andgets all this, they've needed
aid in attendance or they've hada loss of use for months or
(30:39):
years.
But VA will will screw that up.
And they'll sometimes they'llthey'll even mess up like SMCK
cases where your loss of use andthey'll just miss it.
But they will fail to grantthat.
(31:02):
Or SMCS, right?
Where you have 100% plus 60,that's automatic.
And sometimes they'll just missit.
They'll just they won't pay it.
So this is another situation.
Yeah, this is another situationwhere this would be a cue, you
know, even if you appealed ityears later.
(31:24):
Because it's you know, it'sright in the law, it is an
inferred claim, you know.
And as far as especially SMCS,I mean, when you hit that 100%
for a single disability and acombined 60%, you're entitled to
it no matter what.
Um PACT Act.
(31:47):
They're still doing this,they're not as bad.
So PACT Act is a liberalizinglaw, right?
And what that means is you canget um, you know, typically the
earliest date you can get isAugust, effective date is August
10th, 2022, because that's thedate that it was signed into
law.
And they don't have, forveterans, they don't have any
(32:10):
provisions for an earliereffective date, like Blue Water
Navy did or NEMA.
Congress said, yeah, we're forveterans, we are limiting the
date to the date of the law.
Right.
For survivors, DIC recipients,they actually allow for an
(32:31):
earlier effective date.
Okay, because there's a lotless survivors than there is
veterans.
So how the liberalizing lawworks is that you can go back as
early as August 10, 2022, or ifyou file it now and you meet
all the right criteria, checkthe right boxes, your effective
(32:54):
date can be a year.
It's kind of like an increase,right?
Um, it can be a year earlier.
If you file it today, let's sayyou file an ITF today, get it
granted um, you know, six monthsfrom now.
The effective date, there'sthere's a couple of little um,
(33:16):
you gotta meet all the criteria.
I'm not gonna get too deep inthe weeds.
But for the most part, theeffective date should be a year
ago today.
All right, because that'sthat's part of liberalizing law.
So they'll they'll mess thatup.
Um that's usually we can fixthat with an HLR.
Um here's another one with withPACT Act is that the there's a
(33:43):
lot of raiders since the PACTAct that just got locked into
that August 10, 2022 is theeffective date.
They just like they justdecided, you know what, no
matter what, we're just gonnagive the PAC Act effective date.
Okay, and this is a situationwhere you see like Thailand
veterans, Guam veterans, um,Gulf War veterans, where the the
(34:08):
PACT Act added these newlocations, right?
There's a lot of circumstanceswhere Thailand veterans have
been fighting this for 10 years,or Guam veterans, so on.
So all of a sudden um PACT Actcomes into effect and they're
presumptively granted now.
So VA will grant them andthey'll say, you know, your
(34:29):
effective date is say, you know,August 10, 2022.
Or it could be later, dependingon when you claim, because
we're almost three years agothat the PACT Act went into
effect.
But what they're not takinginto account is that you've been
fighting this and continuouslypursuing it for 10 years, like
you first put in your Thailandclaim.
(34:50):
So that becomes a fight becauseeven though they grant the PACT
Act allows for presumptiveservice connection, okay, you're
in Thailand, PACT Act changedthe law.
If you were in Thailand and youhave one of the agent orange
diseases, you get you get thepresumption right.
So but what they have to dolegally is they also have to
(35:14):
consider direct serviceconnection.
So they have to go back andlook at your original claim,
which was before the PACT Act,it wasn't for presumptive
because there was no presumptionin Thailand.
So it was direct serviceconnection.
You're trying to prove you'reat or near the perimeter of the
base, whatever the case mightbe, you were directly exposed.
So these are cases, these casesare a little bit tougher.
(35:40):
Um the burden of proof is onthe veteran.
They've got to kind of go backand just keep hammering away at
that claim that they started inthe beginning.
And the burden of proof is onthem to show that, yeah, I was
directly exposed.
I was near the perimeter, youknow, whatever the case may be.
Um I have not seen the regionaloffice get these right, so they
(36:04):
they have pretty much have togo to the board.
I mean, anything's possible,but um these are significant
because, you know, again, thesecan be 10, 15-year-old claims
that they've been fighting himand keeping him alive.
You know, VA automaticallydefaults to that no earlier than
August 10, 2022.
So and you know, I'm I'm I'mnot gonna say VA gets these
(36:30):
wrong as much as they just don'tthey don't care.
Like they they they should theyshould look and say, hey,
they've continuously pursuedthis and they should look and
see if they can grant.
But these are situations whereyou know they're in a hurry and
they're they're just gonna giveyou the later effective date,
(36:51):
and you've got to uh you've gotto fight those.
But we've won, we've won anumber of those.
Um most of them are a fight.
Some of them have taken acouple of years, but um, and and
all at the board.
Um, the PAC back issue is thatas I just mentioned, for
surviving spouses, for the mostpart, because there's always
(37:14):
exceptions, but for the mostpart, they're entitled to in a
really effective aid.
And it's it's very muchstructured.
Congress structured it forsurviving spouses, DIC
recipients, pretty much the sameway as Blue Water Navy.
So they could go back to, let'ssay surviving uh um veteran
(37:37):
died in 2009, and the survivingspouse filed the DIC claim and
they denied it.
They're Thailand veteran,right?
And now, fast forward to after2022, with the PACT Act, the
once they're granted, theeffective date for the survivor
(37:59):
would go back to 2009.
Even if they didn'tcontinuously pursue it, they
could have dropped the claimafter the first denial, which is
the same as Blue Water.
That was the beauty of BlueWater.
Whenever you file that firstclaim, doesn't matter if you
appealed it properly orwhatever, could have died on the
volume for 20 years, you getthe earlier effective date.
(38:20):
So that's what Congress, it'skind of a compromise because
they're looking to save money.
Unfortunately, they didn't dothat for veterans, but they did
for spouses.
But very oftentimes, what we'llfind is in the situation of a
survivor, they don't give themthe proper effective pay.
They just give them theeffective date of the of the new
(38:40):
claim.
So um usually fix that withwith a higher level review.
J Basser (38:46):
Um, that goes good.
You must have some goodhigh-level review guys out in
the area, I'm telling you.
Jim Radogna (38:58):
You know what?
We're really good at what wedo.
We give them an offer theycan't refuse.
You know, it's we have the lawbehind us.
We we we you know put them in asituation where the law is the
law.
We use their rules.
Very important.
I know a lot of advocates outthere are, oh, the M21 is
(39:18):
garbage.
Don't use let me tell yousomething.
The M21 is golden if you knowhow to use it, because the M21
is their Bible at the regionaloffice, and that includes
higher-level reviewers, theyhave to use it.
So we use that against them.
We find provision in the M21says your raider did it this
(39:40):
way, but the M21 right here saysthey had to do it this way.
You have to overturn.
And they do.
Because, and I've talked toDROs about that, and they're
like, hey, I got cover.
Because if it's in the M21 andquality control comes after me,
they can't ding me.
Because I just point to it andsay, hey, it's right there.
(40:01):
That's what the M21 said to do.
So the M21 is is is magical ifyou use it properly at the
regional office level.
Once you get to the board, thenthen you cite the case law and
the law and you know things theyunderstand.
But um, yeah, we win, we winthe vast majority of our uh
RHLRs.
Um so the next thing is terror,right?
(40:28):
So it's part of the PAC Act,toxic exposure risk activity,
right?
Where um which is directservice connection, you're
saying if you were um exposed toany toxins anywhere, anytime,
jet fuel, whatever, no matterwhere you were, you know, then
they have to do a medicalopinion.
(40:49):
You know, once they concede theexposure, they have to do a
medical opinion, a CMP medicalopinion.
And if the doc, you know, orthe nurses, yeah, you know, it's
at least as likely as not thatthis cancer was caused by this
jet fuel or asbestos or whateverthe case may be, you're in it.
Didn't happen too frequently.
(41:10):
Most of the CMP examiners getit wrong, but we get medical
opinions and ultimately win.
But they use terror.
Like these raiders kind ofthink everything's a terror,
right?
Because if it's a terror, thenit's limited.
The effective date's limited bythe PAC Act, right?
(41:33):
So just this morning we get aboard decision.
This gentleman was at FortGordon, which we all know well
that James was the first one toopen up that one.
Um, he was in Fort Gordon likeJames, first filed the claim in
2010, and continuously pursuedit.
(41:53):
We finally get them to concedeherbicide exposure at Fort
Gordon.
We all know it was there, butwe know how tough it is in
CONUS.
So we win we win that battle.
So, yep, he was exposed.
So, what effective date do theygive?
(42:15):
August 10, 2022.
Because they said, well, that'sa Terra.
And you know, if it weren't forTerra, we never could have
claimed that.
So I didn't even bother.
I would write, he's he's AOD.
He advanced undocted at theboard, went right to the board
and just you know, wrote anargument and said, Your Honor,
(42:37):
you can surely see how absurdthat is.
There was no such thing asterror when he first filed this
claim, you know, 12 years ago.
And they won, you know, thatwas uh that's what I was telling
you about.
We actually got a decision intwo weeks from the board, which
was what's fabulous.
But yeah.
(42:57):
So he got boards.
He gets um his uh effectivedate for his cancer all the way
back to 2010 at 100% plus SMC.
So it's a substantialsix-figure uh back pay for this
guy who absolutely deserves it.
(43:19):
Um but yeah, they they like touse that, you know, terror.
The effective date is terror,you know.
It's you know, terror is a goodthing.
Terror is a good thing.
I I I like terror in that itreally opens up the world for
toxic exposures, right?
It's if you get them to concedeterror, now they have to look
(43:40):
at if they're exposed toasbestos, if they're exposed to
ejecule, if they're exposed touh solvents, all those things.
They, you know, and again, theythey most of the time get it
wrong.
The CMP examiner will get itwrong.
But you know, once we get thatconcession that they're exposed
to something, then we get ourmedical experts and we get our
(44:02):
independent medical opinions andwe win the case.
But it's it's really open, it'sopened up the world for
veterans.
It's a it's it's a good thing.
But you know, not when they useit to limit an effective day.
So um we'll file an HLR withthat.
There's also some guidance,it's not in the M21 yet.
(44:23):
They haven't put the PACT Act,most of it in the M21, but
there's some internal guidance.
It's um uh they publish, and Ican get it off of VBMS, the um
PACT Act uh SOP is a standardoperator procedure.
So I have all those documentsand um I I use that to uh to get
that.
Occasionally that has to go tothe board, um, like in in this
(44:48):
instance with a guy at FortGordon.
Um but those those aredefinitely winnable.
Um incorrect dates ofsupplemental claims, and again,
this is it's mind-boggling.
Oftentimes you'll continuouslypursue a claim, and they'll give
the effective date of the last.
So let's say you know you didan HLR and then you did a
supplemental claim, you've beenfighting this for a couple
(45:10):
years.
They'll give the effective dateof the supplemental claim
instead of the original date ofclaim that's been continuously
pursued.
And you know, and theirrationale is well, all you you
know the supplemental claim isto re- so you wanted to reopen
the claim by using thesupplement.
(45:31):
No, he didn't.
It's just it's beencontinuously pursued, using the
supplemental claim to appeal it.
So, you know, that usually canget that fixed with an HLR, but
you know, they try that on.
Um and those are the mostcommon.
They're you know, again,there's there's more, there's
(45:51):
probably double that, but theseare the most common, pretty
straightforward ones um thatthey're just they they just
miss.
And um it's really honestly,guys, it it's to the point where
when we get a grant, Katrinaand I are are are shocked
(46:14):
nowadays if the effective date'sright.
It's like we're you know, I'lllook at it, I'll you know, get
it get off email, say, okay, wegot a grant, and I'll look at
the effective date, and I'lllook in our database, and I'll
say, I mean, you gotta look atthis.
I I it it looks like they gotit right.
She's like, no way.
So she'll go over it too.
It's like we're like, I mean,it's it's gotten to that point.
(46:36):
It's it's unfortunate, is thatthey almost, at least in our
practice, they almost never getthe effective date right the
first time.
So it's crazy.
And it, you know, this isimportant.
It's important because youknow, they're not gonna they're
not gonna get that past us.
They're not gonna get it past,you know, most attorneys.
(46:59):
Um definitely slip it past theveteran or or survivor.
Um you know, and they mightpass you know get it past a VSO
that's you know it's kind of newat the game and and doesn't
hasn't been trained by usbecause we don't train them all.
J Basser (47:15):
Um that affects your bottom line, Gim.
Jim Radogna (47:25):
It really does, you know, and sometimes
sometimes it's a couple ofmonths, but sometimes a couple
of years, sometimes it's acouple decades.
But at the end of the day, youknow, even if it's a month,
that's the veteran's money.
That's their survivor's money.
VA doesn't have the right tokeep it from them.
You know, and again, I don't,you know, they're maybe they're
(47:48):
rushing.
Um and they talk about trainingissues.
Well, you know, sometimes thoseare training issues, but you
know, it's something as simpleas missing an ITF.
You know, you can train amonkey to do that.
That's that's easy.
You know, some of this stuff islike this Packet stuff, it's
it's deep in the weeds, and andthey've got to learn.
(48:08):
I I get that.
But a lot of these are justreally, they're really silly.
You know, it's they don't makeany sense.
But uh we keep fighting a goodfight.
Get them, get them all themoney they deserve.
J Basser (48:25):
Let me make a little announcement real quick.
This announcement goes out toall you do-it-yourselfers.
Some stuff I've been readinglately online, and some stuff
that people are doing they dotheir own claims and their own
appeals.
I would highly recommend youguys find an accredited VSO or
(48:46):
an agent to handle your appeal.
If not, you're gonna have along wait.
unknown (48:55):
Yeah.
Jim Radogna (48:56):
I agree.
And and you know, and andquestion everything.
If you feel like if you get agrant, or you know, your VSO
gives you a grant, and you feellike, you know what?
I I I thought, I thought I wasentitled to earlier than that, I
thought I was entitled to moreback pay, question it.
You know, absolutely,absolutely question it.
(49:18):
Maybe, maybe yes, maybe no, butyou know, don't take VA's word
for it.
You know, same thing withratings.
If you get what you feel likeis a low ball rating, question
it.
You know, maybe appeal it.
It's um and that's where VSOsand accredited reps can help.
It's um, you know, it is asmuch as we talk about these
(49:42):
effective data errors, we seeyou know almost as many rating
errors where they just they'regiving you less of a rating than
than you're you you youdeserve.
And it's uh you know, nothingwrong, nothing wrong with doing
it yourself.
There is there's a lot ofreally good information out
there.
(50:02):
Um some of the YouTubechannels, some are really bad,
but some are really good.
There's you know, some ofthere's some law firms out
there, um colleagues of oursthat that put out great content.
You know, they they do regularQ ⁇ A's and they do, you know,
there's you get on there and andyou know have professional
(50:24):
attorneys explain to you how todo this yourself, and there's
nothing wrong with that.
But the um, you know, questioneverything.
It's there's there's so manynuances, there's so many ins and
outs.
And for whatever reason, VA ismaking a lot of errors, and and
(50:44):
and these errors can be costly.
You know, a lot of times peoplethink, well, you know what?
I've been fighting this for awhile, I finally got a grant.
I'm I'm not gonna rock theboat.
I I wish I got more, but I'mnot, you know.
Listen.
J Basser (50:59):
That's the most popular uh that's the most
popular three-letter acronymright now you ever see is DTA,
DTA, DTA.
I'm seeing four and five a day.
Jim Radogna (51:11):
Yeah, yeah.
It's it it it's it's absolutelycrazy.
But um yeah, I'm hoping, youknow, as I said, after the it it
really the issue reallyaccelerated during the PACT Act,
especially in the beginning,and and I get that again,
there's there's some ins andouts, and you know, they're
(51:32):
under pressure, and they're wellover a million claims, and
they're working really hard.
So I understand.
Um it got a little bit better,but in these last you know,
probably I don't know, three,four months when they really
started putting their foot onthe gas about the backlog and
(51:54):
you know processing more claimsthan ever.
They reinstituted mandatoryovertime.
Um and then you know thesituation is also there's been a
lot of attrition at VA.
Um a lot of there's a lot ofyou know really good people have
left.
They've they've taken the earlyretirement.
(52:16):
Um the yeah, and a lot of youknow, I from what I understand,
not surprisingly, there'sthere's some morale issues going
on within the agency, um, thewhole Doge and thing.
So a lot of them have left, andand a lot of um, you know, law
firms, veterans' law firms andstuff like that are you know, I
(52:38):
I know of personally are arescooping up.
They are hiring, they're in ahiring chair.
You work for VA, come work forme.
You know, not us, we're yourtitle office, but these big law
firms are come work for mebecause I'm gonna pay you more,
I'm gonna treat you right, andyou are you know your stuff
(53:00):
because think about it.
If a if a law firm has got tohire, like let's say we're gonna
hire a case manager orsomething like that, all right?
Think about what the trainingit would take to get somebody up
to speed, as complicated asVeterans Law is, you know, it
would just take a long time.
(53:22):
And it's very expensive too totrain people.
So you you know, you hiresomebody, and it might take you
six months before you can getthem to manage your cases,
right?
Not if they're a former raideror a former VSR or a former
drown the system.
Now, you you know, you you youmight have to re-educate them on
(53:46):
their thought process.
So, you know, some VA employeesare um, you know, don't have
the best.
Yeah, yeah, exactly.
You know, yeah, you've got tolook at it from a different
perspective.
But that's not hard to do.
But but the thing is they theyknow, and um, and it there's a
(54:07):
lot of you know, there's a lotof really good VA employees.
And I think, you know, many ofthem are veterans.
I honestly think there's a farmore really good VA employees
than not.
But what I've been learningover the years is that they are,
(54:28):
the system is really difficultat the regional office level
because they have this, youknow, quality control teams are
up their tail, right?
And they're and they're saying,nope, you got that wrong, you
shouldn't have granted, yougranted too much.
They live in abject fear ofgetting a ding, getting a
quality ding.
So they they becomehyper-conservative.
(54:51):
And they're like, yeah, I'dlike to grant this.
You know, I think the veterandeserves this, but I'm not gonna
do it because I'm gonna get ading from quality.
Because I I just got you know,I got my butt handed to me last
week by QRT, and I don't wantanother one this month.
I'm hearing that in discussionswith these, and it's it's
(55:14):
something in the system theyneed to fix, you know.
And that's why the it's one ofthe many reasons why, you know,
the board is so much better.
You know, not only it's it'sattorneys, judges, they
understand the law, but theydon't they don't have that.
They don't have they get tomake independent decisions,
right?
They don't have the pressure.
(55:35):
They make decisions and andthere's no one second guessing
them.
Um and I get it, it's a youknow, it's a huge organization.
They got you know 470 or maybeless than that now, but you
know, almost a half a millionemployees, and they have to have
controls and they have to havequality, and and and I get all
(55:58):
that, but it's it really doescreate problems.
Um, and then and the rushing,too.
I mean, these these mistakes.
Because you know, sometimesthere'll be like a really dumb
mistake.
I'll get on Teams and I'llreach out to the rater that made
the decision and nicely say,hey, I think you missed this.
(56:18):
Can you fix this so we don'thave to do an appeal?
And they're usually they'revery they're very how hey, sorry
about that.
I was in a rush, thank you somuch.
I'll fix it right away.
I they'll do that for you forthe most part, because they, you
know, they want to get it righttoo.
They they they you know, a lotof them, most of them, they want
to they want to get it right.
(56:39):
And sometimes they're just theyrushed and they missed it, and
you know, just ask them nicelyto to if it's something really
simple, like an ITF.
You know, sometimes I'll reachout and say, hey, you know,
respectfully you missed the ITF.
Can you can you fix it?
Oh, sorry about that.
Yeah, it's and and they do itright away.
So um, you know, because theydon't want to, and I don't know,
(57:01):
I I've never heard that if youum if you grant uh or or if you
deny too much that quality teamgets on you.
I know if you grant too muchthey do.
So I I I don't I don't knowthat for sure though.
J Basser (57:17):
What what would be the difference to you?
Let's say you get gig forquality, right?
Which is my background.
Or you lose to BBH.
Jim Radogna (57:24):
Do you get gig for that?
No, and that's and that's theshame of it.
When they started the AMA, partof the AMA, there's supposed to
be a feedback loop.
And this was between the boardand the regional office.
And the board is supposed to dothis feedback loop and say,
listen, you know, because theboard for years is saying we are
seeing so many ridiculous casesthat we shouldn't waste our
(57:47):
time.
We're backlogged because you'reyou're getting wrong.
At the regional office, you'regetting wrong really simple
things that you shouldn't be.
You should know better.
These aren't complicated legalissues.
So there's supposed to be afeedback loop where they would
constantly feedback and show theregional office so their
leadership could get in and say,hey, we need more training on
(58:08):
these issues.
We're consistently making dumbmistakes here, right?
That never happened forwhatever reason.
Um so there is no feedback thatway.
Now, at the at the BVA, they,you know, we know the court, the
Court of Appeals for VeteransClaims.
There, you know, that the courtwill constantly, you know, you
(58:32):
deny at the board and it goes tothe court, you know, over 80%
of the time it goes back to BVAand they say, try again.
That is professionallyembarrassing if you're an
attorney and a judge, whereanother judge says, hey, you got
this wrong.
So that keeps them honest, too.
They're like, okay, we're gonnaget this right, because they
(58:52):
do, they do have thataccountability.
Unfortunately, at the uh at theregional office level, they
they really don't.
I mean, it's like, okay, youdeny, we don't like it, appeal
it.
Go on.
I'm not seeing them get in anykind of trouble from their
leadership because they deny toomuch, or they or they mess up
(59:14):
effective dates, or they mess upratings.
I I may be wrong, you know, butit but I'm not seeing it.
I I know if they if if theygive too much, they get in
trouble.
Unquestionably.
J Basser (59:29):
You guys know what happens when you're having fun?
Time absolutely flies.
It does.
We're really out of time.
We still got some importantleft.
Jim, as usual, man, thanks forcoming on.
I'm pretty sure a whole lot ofpeople have learned something
tonight.
But I'm pretty sure agents havelearned stuff too.
Beri (59:52):
Yeah, I just want to expand on you know what's going
on.
You're exactly right with thosequotas of their personnel.
The people that took the earlyout, they're still getting paid
until the end of September.
So they can't pay back there.
(01:00:12):
So in October, you're gonnahave all these, they're gonna
start the hiring process, but wemay be in this situation with
the missing stuff and having tomeet those quotas for how long
is it gonna take to train thesenew people?
Jim Radogna (01:00:30):
Yeah.
Well, what I'm hoping is thatyou know everything comes home
to roost.
At some point, it's gonna comeout that this whole kill the
backlog, move faster isbackfires.
Year from now, two years fromnow.
(01:00:52):
We're gonna have the same VAsecretary for next three and a
half years, right?
So at some point, I'm hopingthat it's like, you know, it
becomes public knowledge that,oh my God, VA is a train wreck.
They are wrongfully denyingthey're doing all of these extra
claims and they're screwingthem up.
(01:01:13):
You know, and at some point,maybe there'll be some pressure
on VA to say, okay, now we needto slow down and we need to
train our people better, and weneed to get this right, because
it's a really bad look if youknow veterans, the veteran
community out there are sayingVA is a mess because they're
rushing and they're screwingveterans.
(01:01:35):
Yep.
Yeah, I I believe in SantaClaus.
I'm hoping I'm hoping thathappens.
But we'll we'll see.
J Basser (01:01:44):
Man, thanks for coming on.
We'll do this again soon.
Uh absolutely.
Always always a pleasure.
Thank you.
Tell the Mrs.
Hello from everybody.
Jim Radogna (01:01:53):
I certainly will.
J Basser (01:01:55):
Now that she's down under the clouds.
Well, better better keep herkeep her busy for a while, man.
She gets too she's moving toomany times hiking and climbing
mountains and stuff.
Jim Radogna (01:02:07):
Yeah, yeah, she's uh she's something.
That's awesome.
J Basser (01:02:13):
I'm glad you guys stay in shape that way.
Well, listen, guys, we doappreciate you watching.
Uh, we'll be back again nextweek.
We'll have another guest on.
And uh, I think next week'sguest is another attorney out of
DC.
Um advertiser appear at the endof the week.
But this is John.
We'll be happy to gym Bardonia,and very clearly we'll be
(01:02:34):
shutting it down for now.
Thanks, everybody.
Jim Radogna (01:02:36):
Thanks, guys.
Great seeing you.
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