tdiu Des Moines Varo

[deanbrt]

After a phone conversation I had with Linda Lucy this afternoon with Sen. Tom Harkin's office I am upset beyond words. First, Linda is a great person and Sen, Harkin is one of the best advocates for veterans and the disabled (his own brother being one) in the Senate. What I am upset with is what the Des Moines VARO told LInda today. As you can read, I had cardioversion last Thursday and am doing my best to stay calm...

Linda:

First, I had cardioversion done on my heart last Thursday and an trying as best I can to stay calm.

I am sick at heart at what you were told by the Des Moines VA Regional Office today. I will take their responses in order.

1. I was granted service connection by Bureau of Veterans Affairs Law Judge Joy McDonald April 4 of this year. It was not a remand but a complete grant. There was no remand. See attached.

The procedure from that point is that it goes back to the RO for rating and processing. In my case, the evidence is clear the rating for secondary should be 70% based on VA rating criteria. There is also a VA FAST

Letter 10-02 that dictates this is to be accomplished in an expedited manner and without delay for any other appeals or claims.

2. Individual Unemployability appeal. I was denied IU in January. Actually the decision was from Dec. 20, 2011. The Vas own C&P examiner in examining me in April of last year wrote

“Conditions considered for IU: bilateral knee conditions and varicose veins…After review of the Veteran’s pertinent records (C-file and STR) as well as most current medical examinations, diagnostics, and consults; with review and examination of the Veteran and in light of most pertinent and credible medical information and sources; IT IS AS LEAST AS LIKELY AS NOT THAT the Veteran meets the criteria to be considered solely and medically unable to seek and maintain gainful employment.”

Under the VAs own rule of the benefit of the doubt going to the veteran I should have been granted.

“When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA will give the “benefit of the doubt” to the claimant.”

Another question is why was the exam scheduled when I had been service connected for 8 years for my legs and was 63 years old.

c. When Not to Schedule Review Examinations

Do not request reexaminations in cases when

· the disability is static, without material improvement over five years, and not likely to improve

· the Veteran is over 55 years of age (except in unusual circumstances)

· the evaluation is the prescribed schedular minimum, or

· the combined evaluation would not change even if the reexamination resulted in a reduced evaluation for one or more disabilities.

Reference: For more information on when not to schedule reexaminations, see 38 CFR 3.327(b).

I filed a Notice of Disagreement in early February declining a DRO review at the VARO and requesting my appeal be forwarded to the Board Of Veterans Appeals in Washington for adjudication. I then received a note that they needed to do a “post decision “ review first. This was March 8 and it still sits in Des Moines. For Des Moines to say it would be two years for that appeal to be processed calls into question intent. And I have come to believe the intent is to keep it in Des Moines and away from BVA where it would possibly receive a favorable review.

3. I never filed claims for Peripheral Neuropathy or Carpal Tunnel after my diagnosis at VAMC in Iowa City after EMG and NCV testing in early April. Rather, I submitted them as additional evidence to my IU claim and waived my right to have the VARO review the evidence in order to speed the appeal to BVA. Instead, Des Moines unilaterally created new claims for each. It is my belief today that it was done as a further delay tactic to hold back transfer of my IU appeal to Des B. The record will show that last fall into December “claims” were created for FOIA requests that I repeatedly denied and requested cancel. It was my belief at the time that the intent was to delay transfer of my appeal for secondary to BVA. Once the appeal was transferred, it was decided in my favor by BVA within weeks.

With the statements you made to you by the Des Moines VARO today, I respectfully ask that you forward my concerns, especially with reference to my BVA grant for secondary being termed to you as a remand, to Veterans Administration Central Office and VA Office of Inspector General with confirmation of the statements made to you.

It seems evident to me now that the actions of the Des Moines VARO are malicious in nature when looking at the evidence. A simple observation. What is the BVA definition of a “grant” and “remand” and did Des Moines deliberately attempt to manipulate the word. On that basis alone, It is my belief the OIG should be involved.

[Berta]

“IT IS AS LEAST AS LIKELY AS NOT THAT the Veteran meets the criteria to be considered solely and medically unable to seek and maintain gainful employment.”

Under the VAs own rule of the benefit of the doubt going to the veteran I should have been granted. “

That is correct if the C & P regarded solely established service connected conditions.

“I never filed claims for Peripheral Neuropathy or Carpal Tunnel after my diagnosis at VAMC in Iowa City after EMG and NCV testing in early April. Rather, I submitted them as additional evidence to my IU claim and waived my right to have the VARO review the evidence in order to speed the appeal to BVA. “

This could be the problem, additional evidence for TDIU claims usually does not involve more claims as part of the TDIU.

You are correct on the Fast letter,in part:

“It has come to the attention of the Board of Veterans’ Appeals (BVA) and the

Compensation and Pension Service that there is inconsistent processing of

claims involving implementation of BVA decisions with partial favorable findings.

It was determined that some regional offices (ROs) were delaying implementation

of these BVA partial grants until expiration of the 120-day period within which a

veteran may appeal to the United States Court of Appeals for Veterans Claims

(CAVC). Delayed implementation of favorable BVA decisions is inconsistent with

the Department’s long standing pro-veteran position and unnecessarily delays

payment of benefits to the claimant.”

“Conditions considered for IU: bilateral knee conditions and varicose veins “

If these are already service connected -I know the knees are but I don't now about the varicose veins” , then regardless of the newer claims to bolster TDIU-

This doesn't happen often when a claim is set for BVA transfer:

:

“I then received a note that they needed to do a “post decision “ review first.”

While that could indicate they realized they committed a SNAFU,

you need a vet rep with offices in or near this RO to get in there and see if,in fact, he should ask them to CUE the “decision' they made, yet now, after the decision was rendered, they want to do a 'post review'.

In essense I had what you might call a Post decision review in December as the VA snafued big time and I got on them right away.

“For Des Moines to say it would be two years for that appeal to be processed calls into question intent. And I have come to believe the intent is to keep it in Des Moines and away from BVA where it would possibly receive a favorable review.”

It is BS. If you accept that statement. I used a tactical warfare maneuver I made up (TTOOA)

'take thumbs out of a…..s,' and

got VA to CUE themselves in three weeks for my Nehmer claim a few months ago.

We dont know all the circumstances here but to me “post review” AFTER a decision means – we cant send this to the BVA as it stands ,because we buggered it up already real bad at the RO level.”

Your vet rep has got to see what is on the I-8 they filled out . There could be potential on the I-8 for him/her to ask VA to CUE themselves.

Maybe the VA did already.-the cause of the “post decision review”

Did any rep prepare a 646 for this transfer? Maybe they did and caught the error themselves in the 646 and VA must act on it.

I get angry over this stuff because I expected the right decision from the Nehmer people as soon as they got to my claim.

When I read the initial decision ,I was absolutely stunned at their new level of incompetence in the decision.

I had dealt with that for years with my RO but this was a different RO specfically trained for Nehmer claims.

They had to throw it out and prepare a new decision so I got a 'post decision' review too and also they got a VA med opinion right away to award the claim three weeks after I got on them.

No wonder we have a backlog.It is not entirely due to IEF OIF influx of claims. Nor due to the Nehmer situation.It is due to RO level errors that even our well paid and well trained vet reps out there, don't always have the ability to notice right away, and/or dont have the goonyats to take VA to task on them.

We have to do it if our reps wont.

You could consider filing a Writ Extraordinaire ( Mandamus Writ.)

If I were you I would send it to the US CAVC, the RO AND the BVA.

A Writ like this sometimes is a TTOOA maneuver too and it seemed to work for me many years ago.

The court denied it, which expected, but the RO got closer to my proper decision after I sent them a copy of it.

I do feel however that a vet rep needs to look into this real good for you.

Edited May 17, 2012 by Berta

[Berta]

This past post shows what I mean-

the vet challenged the I-8.

We also have more info Here on the!-8 :

This critical form, the I-8, is where the VA can make a final statement as to what they did or didnt do regarding a claim and it's evidence and one of the few reasons to have a vet rep unless you can get a copy of it yourself.

They sure lied on my last !-8..

and I made sure the BVA knew it.

[deanbrt]

t

The one that really got me was telling LInda that my BVA Grant for Secondary was a remand. It seemed too obviously a deliberate falsehood designed to delay implementation of the grant. I have attached the front and last page of my grant award from April 4. I did not sleep much last night

[deanbrt]

I think your are right, Berta. I don;t think they want the IU appeal to go to BVA. You might remember my complaining last fall about how a request of mine for copies of my c -file from April of last year to August was converted into a claim. It became apparent to me, by doing that, Des Moines could hold up forwarding my remanded appeal for Secondary that gone all the way to BVA, to CAVC and back to The RO where it sat since August of 2010, even though a remanded appeal is supposed to get priority. When it became apparent the claim was being used to hold up my appeal for Secondary, I repeatedly for 3 months asked to have the information request withdrawn and the claim cancelled. Finally, in November it was cancelled. Then in early December it somehow magically appeared again on Ebenefits. At that point I started to wonder about malicious intent because I knew they could use the claim to hold onto my appeal for secondary. I again stated I had never made a new request and asked that the claim be cancelled. My appeal for Secondary was forwarded to BVA early this year and a favorable grant was awarded by the law judge within 5 weeks, I believe.

So it is with the IU appeal. Even though I submitted my diagnosis of peripheral neuropathy and carpal tunnel as additional evidence to my IU claim, Des Moines entered them as NEW claims. My belief is that they have done that to avoid sending my IU claim to BVA for adjudicaton.

It just all smells. You would like to think you are dealing with honorable people.