Student Loans Discharged!

[Berta]

That is Great News broncovet, on the student loan discharge.

When the VA awarded my CUE on SMC last year (an accrued benefit due my deceased husband in his lifetime)they tried to say in the decision that he was not 100% P & T for the 1151 stroke they caused him to have ( that was listed as # 2 on his death certificate as contributing to his death).

 

I had considerable evidence that he had been 100% P & T for both PTSD SC (granted long ago) as well as the stroke( the director even called me up to say he was 100% total but not permanently disabled because of the stroke  until I pointed out to her that this was a posthumous issue and Death makes every 100% SC ( or 'as if SC' 1151)condition . The director was holding to a SOC whereby VA regs involve a 6 month 100% rating for stroke and then ratings on the residuals.Since the VA offered my husband no proper treatment for the stroke (FTCA/1151) he was unable to work or continue Voc Rehab. His residuals all were 100% disabling, for the next 2 years until he died.VA conveniently ignored also a letter I had from a former VA Secretary, stating he was P & T from the stroke.

VA caved in,after a few weeks , on their BS over the permanent status..

My long point here is that his Student Loan Medical statement that waived his balance was adequate proof on it's own ,even without the other evidence I had, of 100% P & T due to the stroke, holding the date of the stroke as the EED. That is good evidence for Permanent and total disability.A VA doctor even signed the loan discharge waiver.

Every vet who has a continuous 100% Total rating, and dies,should have  a Permanent and total rating of that disability as it was  Permanent in their lifetime-unless of course the VA finds a complete cure for the disability right before their demise

The director of my RO could provide no evidence or regulation to me to support their ridiculous notion that my husband was not permanently disabled by this stroke until he died.

Part of my argument, by phone and email CUEs,  to the director on that, is that I could not find a single case at CAVC or BVA that

would not grant a posthumous "Permanent" finding on an accrued award for a 100% veteran as that would even defy basic common sense.

I am so glad this waiver helped you.

 

[broncovet]

Thanks Berta.  I would not even have thought about (the student loan discharge) as evidence until you brought it up.  My student loan discharge exam is 7 pages long, but the RBA has only 2 pages.  The first two have my name and the doc signature, but the last 5 are doctors statements as to the precise reasons for student loan discharge (disability).  Unemployability is a big part of that, its hard to justify cancelling that student loan if you are working and earning money.  

I just got my BVA denial, and am figuring out what is the best method of appeal. 

As I just explained, the full student loan discharge was not considered, as they did not have it , so a 3.156 N and M evidence is possible.  So is a MFR before the board because of the new evidence, in addition to appealing at the CAVC level.  

The Board decision did not cite the student loan discharge as evidence for denial but did cite some other favorable evidence, saying it was not probative as it conflicted with the rest of the evidence.  They cited a statement I made in 2003, where I was trying to become employed through Voc Rehab.  While I was never able to become employed, I was optimistic at that time (probably in denial).  Now, if I submit more favorable evidnece that may tip the scales in my favor.  

Another Vet suggested Hill and Pontoon who apparently paid for (basically an IMO) as they felt he should get it with an IMO/IME, Im not sure which.  

I am speaking with Hill and Pontoon now, but my experience is that it is not always that easy to get attorneys to take your case.  The reasons are clear:

They often have to wait 5 years for their money, and their is no assurance they will get it.  In the interim, the attorney has expenses, such as labor postage, office expenses etc.  Vets are not the only ones who have a tough time "holding on" without a paycheck for 5 years.  If the law firm is big enough and has hundreds or thousands of cases, then they can generate a source of "delayed" income, sort of like planting christmas trees, and harvesting 5 years later.  

I think it helps if the Veteran knows enough to lead the attorney in the right direction.  I pretty much know my cfile inside and out, and have read all 1400 ++ pages multiple times.  

I also think you are right about the VA "not reading" our evidence, and there is a reason for that.  To a hammer, everything looks like a nail, so at the Board level or below, they are looking for an excuse to deny.  I simply think the bosses dont authorize at that paygrade to award six figure retros..they tell em to think of an excuse to deny.  The CAVC will do that, but the CAVC is not a trier of facts, as many Vets mistakenly think.  

You get a bad RO decision and appeal it to the BOard, and the board often just agrees with the bad decision and locates some "out of context" statement for a denial, when it conflates with the majority of the evidence.  

The CAVC wont change factual determinations made by the board in most cases (unless they think its egregarious CUE) and only consider legal errors by the board.  Fortunately, many of the board decisions are so low quality that a great attorney can challenge on a legal bases, and remand forcing the BOard or Ro to alter erroneous factual staments.  

Ive said before that the Supreme Court justice, Roberts is reported to be "startled" that the VA takes a position against Veterans that is "substantially unjustified" about 60% of the time.  

IN other words, the VA attorney's are advancing bogus arguements against the Vet often knowing they wont win, but hoping the Vet will make a mistake, quit, or die.   This ugly part of VA is most frustrating. 

Edited February 9, 2016 by broncovet

[Berta]

"I just got my BVA denial, and am figuring out what is the best method of appeal. "

Sorry to hear that Broncovet....

"The Board decision did not cite the student loan discharge as evidence for denial but did cite some other favorable evidence, saying it was not probative as it conflicted with the rest of the evidence"   If the loan discharge was solely due to SCs, they cannot ignore that ,as it would be violation of 38 CFR 4.6 ....they might reject it, but if they had it as evidence,they cant ignore it so,yet

since the loan discharge just came through, and BVA didnt have it, 

as I think is the case here, then

that would be N & M evidence for a Motion for the BVA to reconsider their denial.

[broncovet]

I love it, when you respond, Berta, your answers always reflect many years of experience and solid case law knowledge.  

Of course, you are right, and IM looking at my student loan discharge stmt to see, for certain, if those are all sc.  Of course we know social security decisions are that way..if social security awards on sc conditions only, then its a done deal.  

The board specifically limited consideration of TDIU to prior to March 2006, and I say that is a failure to consider all the evidence.  They posit that I cant get TDIU and 100% simultaneously.  While that may be true, its also true that doctors statements AFTER 2006 can/do apply to conditions prior to 2006.  In other words a doc can opine retroactively that a condition occurred before then, so I think this limitiation is a post hoc rationalization for a denial...that they would have to consider evidence also after 2006 that applies eariler.   There is no good reason for the board to "decide" to limit my benefits to prior to 2006, without at least explaining why they did so for appealate review.  

This limitiation conflicts with the Boards duty to consider ALL the evidence, when they specifilly rejected anything after 2006.  

If the board would have stated something like there was no evidence after 2006 that demonstrates entitlement to Tdiu before 2006, they could have gotten away with it, but not giving a reasons and bases almost always effects a remand.   Im not looking for (another) remand, of course, I am looking for a reversal.  I need to argue why a reversal is indicated, because still another remand is just a round trip ticket to the hamster roller coaster.   

Edited February 9, 2016 by broncovet