My Claim, Appeals, Etc, Being Remanded Back To The Va From The Appeals Board

[retiredat44]

Ok,

My long story, Petroleum chemicals made me sick on active duty, USAF, etc.. had pancreas surgeries at VA. Failed, now pancreas is necrotizing and dying, many other problems, currently at 60% rating. (been on VA disability for 20 years, and SSDI for 20 years.) Claims in for many problems connected to service. Going through many years of appeals. Now I get a letter form the appeals board saying it is being remanded back to the VA, because they said I filed a timely appeals for a video hearing, for 1151 claim (I filed an 1151 because the pancreatic surgeries failed leaving me with an inoperable dying pancreas and many more disease , spent 6 months in the VA hospital a while back fighting for my life) Of course they denied my 1151, but never answered my request for the NOD and appeal for the 1151. I received no hearing.

(just go this remand letter in the mail today! ) So, the appeals board remanded it back to the VA. meanwhile 2 years ago I moved form the crazy (lovely?) state of California to the crazy state of Oregon. I was represented by the American Legion in San Diego, long story! There is no American Legion here so I had my representative changed to the Salem VA office. They treated me like I had never field a claim and told me they would not help. I have chance to hire another lawyer, but have to sell a car, but car got messed up with a bad headgasket, so I haven't sold it yet, to buy another lawyer. (I know, I have sidetracked, but I feel I have no representation, but also feel if the Salem VA get's involved they will continue to treat me badly. Time is ticking, I need to get moving if I want more IMO's for my case!

I will post a copy in the coming hours or days of the letter. Not sure if that is even needed. But if it would help with more ideas from all of the wonderful people here!

Most of the info I posted is already buried deep in old threads.

Thanx!

Though I have no posted lately, I am ok here in Oregon, love living out in the country, much higher quality of life, at least for me and family!

btw, if someone calls me a transplant, I remind them I lived here as a child in the 1950's and visited family every year. I just returned like the Salmon do!

Edited January 14, 2015 by retiredat44

[Berta]

The Section 1151 template is here:

(The same claim I wrote for you and posted at hadit.)

"This is a claim filed under auspices of Section 1151,38 USC.

I believe my VA medical records will reveal that I did not receive a standard of VA medical care comparable with that of the standard medical community, regarding the fact that I have necrotizing pancreatitis, and it's severe residuals, as the result of a Endoscopic retrograde cholangiopancreatography performed by the VA on (date of this procedure)

As a result of the VA's medical errors during that procedure , I have incurred not only this potentially fatal additional disability and it's totally disabling affects but I also suffer from anxiety and depression ,knowing the negligent ERCP procedure has caused me to have a potentially fatal, severely debilitating, and and irreversible
documented additional permanent and total disability.

I have enclosed the following documents to support this claim:

1. Statement of the Case dated
( I dont know the SOC date but you had posted this excerpt here from the SOC) maybe September 2010?
stating:

"The VA examination shows a diagnosis of status post necrotizing pancreatitis secondary
to endoscopic retrograde cholangiopancreatography with residual chronic pancreatitis.”

2. Article referencing “Endoscopic retrograde cholangiopancreatography (ERCP) remains the most common cause of iatrogenic pancreatitis [1]

Source: http://americanmedic...ctice-case.html

(I would print this article off and enclose it.)

My VA medical records will fully support this claim filed under Section 1151,38 USC.

Respectfully,

(Sign, Copy, and mail; with proof of mailing)

_________________________

This is a generic template I wrote:

There is a generic DIC 1151 template near the end of this thread:

____________________________________

Most of the major vet orgs should also have their own Section 1151 template....I hope....

Your vet rep probably used his POA org's template.

ec 1151. Quiote the reg you are filing under ( Section 1151, 38 USC)

State the charges as within the above claim.

State specific evidence you have that reveals malpractice ( an IMO is almost ALWAYS needed)

State the additional documented disability you have that you claim is solely due to the VA malpractice. (an IMO will define that as well)

Make sure you list all of the enclosures you send and mail it with USPS proof of mailing.

No time limits for 1151 claims.

One of the fastest awards I ever saw was for a claim I wrote for a Vietnam vet friend of mine.

It was very short , I just referred them to his VAMC ___ NY medical records, and that they will reveal that VA did not provide him with appropriate treatment for his hemorrhoids, by misdiagnosing the hemorrhoids ,yet the ____ NY VAMC recently discovered ,as their discharge certificate will reveal, he didnt have hemorrhoids at all , he had stage four colon cancer. They operated on him and he now has to use a colostomy bag for the rest of his life.

He got 100% P & T under 1151 in a mere few months..

[retiredat44]

can't I just take any more copies of documents to the video hearing? (instead of mailing stuff) plus, I don't have any rep, well they said they won't help, the new rep said they won't her in Oregon.. even though when I moved here and explained that I needed a new rep because there is no American Legion near me. I signed the new agreement for them to rep me, but they still said they won't so I have no clue what they are doing... They do not communicate with me... on am on my own.... anyways, why not just take any more new documents with me... btw, since precedent was already set by previous vets winning these cases, it doesn't make sense for me printing what they have in their books...

yes? no? I have no clue how long it will be before I get a date set for the hearing... so, I probably have a while..

[retiredat44]

again.... I know I am asking only a few hours after the great help in this thread... but can't I just bring additional documents with met the video hearing? of do I need to send them asking for receipt of delivery?

also, I think I remember being told a few times that if the va already has in file there is no need to print it out and bring it, so all of the prior cases are in their files, yes?

This legal stuff is way above my paygrade... and well there I nothing here I can say that you guys don't know. I hate mailing stuff... I hate not knowing if it is read, if it matters...??? but at least if I present it in person they can at least shake their head yes or no!

so, mail these cases and copies of previous precedents, or just bring copies to hearing?

thanx..

again, I have no date, and no representation...

should my wife go with me to the hearing?

thanx..

Edited January 15, 2015 by retiredat44

[retiredat44]

ok, the VA regional here in Portland, sent me an SOC for the 1151. They sent me a Form 9. Normally, I would go to the local VA representative office, but Salem told me they would not help. So, I am on my own. I admit, I cannot think clearly, my mind and body is giving up. Too sick, too tired... I have to do this Form 9 on my own. I just got it, so I will look at more information to see how and what to write. What a mess.

It looks like I have to go through these forms, go back and forth a while long before the hearing. I guess they are not lumping all claims together, or maybe they will wait for this to get the final local deny, deny. Don't know. My heads is swimming in malaise.

[Buck52]

Great information from Ms Berta

as for as sending in information that pertains to your claim as creditable evidence sure send it in and make copies and take them with you to your hearing VA loses things and you will have back-up to support your claim.

retiredat44.

you might want to check in on the hadit.com blog talk radio podcast tomorrow morning Wed 2-4 -15 it starts at 10:00am eastern time, Bob Walsh will be on and you can ask him questions this is free and its great information you can just listen in on the computer or you can call in and ask questions ...Bob will be glad to answer any questions the number to call in 347-237-4819

if your on pacific time its 7:00am for you its a bit earily but well worth your time.

Jbasser & Jerrel are the host they are great guys.

Edited February 3, 2015 by Buck52

[Buck52]

The file is reviewed and decisions are rendered. If all of the issues within an NOD can be granted in full, a rating is prepared to grant the issues. Otherwise, we must issue a Statement of the Case (SOC) to the Veteran, which provides the applicable VA regulations and explains the reasons for the decision(s).

Once an SOC is issued, the DRO process is complete. If the appeal continues, it is now under the Traditional appeals process. DRO authority does not extend beyond the issuance of the SOC.

In order for a Veteran to continue the appeal, the VA must receive a Substantive (Formal) appeal, which is a VA Form 9, Appeal to Board of Veterans’ Appeals, or an equivalent statement of intent to continue the appeal. There is no legal requirement that a specific VA Form must be received in order to continue an appeal, but VA must receive some form of communication in writing from the Veteran or his Representative indicating an intent to continue the appeal.

A Veteran has EITHER the remainder of one year from the initial decision notification letter, OR 60 days from the date the SOC was mailed, to file his Substantive appeal. Otherwise, his appeal rights for those issues expire, and the NOD is closed.

If the Veteran has filed a timely Substantive appeal, the next step in the appeals process is to certify the appeal to the Board of Veterans’ Appeals (BVA), which is to transfer jurisdiction of the appeal to BVA.

However, the Regional Office cannot physically send the claims file to BVA until all pending NODs and all pending claims have been decided. There can be no appeal issues pending before the Regional Office at the time the claims file is sent to BVA; otherwise, BVA will issue a Remand instructing the Regional Office to issue an SOC on any pending appeals.

Additionally, if the veteran has requested a BVA travel board hearing or BVA Video conference hearing, the claims file remains physically at the Regional Office until the BVA hearing can be scheduled.

In the past, if any additional evidence was submitted which related to the issues under appeal, then the Regional Office had to review the additional evidence, and if the appeal continued, it had to issue a Supplemental Statement of the Case (SSOC) explaining why the additional evidence did not change the prior decision and give the Veteran 30 days to reply. If yet more evidence was received, another SSOC was issued with another 30 day reply period. There was no limit to the number of SSOCs which could be issued. The appeal could not be certified to BVA until all of evidence in the claims file had been considered at the Regional Office level.

If an appeal was certified to BVA and additional evidence was subsequently received, the Regional Office had to either obtain a waiver of jurisdiction from the Veteran or his Representative, or the appeal had to be removed from certified status and another SSOC issued. Following the 30 day reply period, if no additional evidence was added to the claims file, the appeal could be re-certified to BVA.

This is the stage where many delays occurred because many Veterans have multiple appeals pending in various stages of the appeals process. Additionally, they will also have new claims pending in various stages of initial development. Therefore, every time additional evidence was added to the claims file, the Regional Office Appeals Team had to review all of the appeals to determine if an SSOC was necessary. If so, then any appeals already certified to BVA had to be removed from certified status, and the process continued to repeat itself until such time that all evidence in the claims file had been considered in a decision at the Regional Office level. It was only then that we could physically transfer the file to BVA jurisdiction.

Effective February 2, 2013, Section 501 (Automatic waiver of agency of original jurisdiction review of new evidence) of Public Law 112-154 took effect.