Under Administrative Review

[Scout Swimmer]

I was denied recently on a depression claim. I noticed on the denial letter that they based the decision on direct service connection. I am 40% TBI with 50% mixed headaches as a secondary. I assumed it would be automatically rated as a secondary condition to my TBI as my submitted medical evidence clearly state in my progress reports.

I immediately submitted a letter of reconsideration to rate my claim as secondary to TBI, as my DAV rep advised. I am now under Administrative Review.

I'm still not clear on how long this process takes, or what it exactly is. I called Peggy and she informed me that it has nothing to do with my claim and it is closed. I didnt get much out of her as she was unwilling and a bit hostile. I am considering retaining an Attorney but should I wait and see where this goes? Is this a thing that could last a year forfit my right to appeal?

Any suggestions would help

Thanks

[FormerMember]

Welcome to Administrative Review. It must be a new Hell for us. I filed a CUE claim in late 2011. It disappeared. I refiled it August 12, 2012. Shortly thereafter (October 11) I filed two secondaries to my 100% schedular disability. VA rolled both of them up with the CUE claim. They denied the CUE and dropped the two others along with a SMC S request. I sent in a complaint via IRIS and suddenly the August 2012 claim is now in Admin. review. Calling Peggy Sue is a waste of time. They are currently looking at Ebennies instead of WARMS, VACOLS, BIRLS or AMIE as their magic 8 ball. The blind leading the deaf.

a

cp

[Scout Swimmer]

Yeah from what I can gather, it's like a "We are not sure WTH to do" phase kinda thingy.

[FormerMember]

You have to realize VA has great difficulty hiring folks who are willing to screw Vets. I expect it requires a rather low IQ to insure quality control. After mastering the art of rating, VA-style, I'm sure more than a few come to the belated realization that virtually all claims inserted into the M-21 result in a denial. VA artfully compartmentalized the process in 2004 and few witness a claim from its beginning to end.

Try to imagine an automobile insurance company that takes several years to process a fender bender and then decides it was your fault. As some who return here point out, it's a minor miracle we accomplish it in our own lifetime. Fifty three of us die every day with unadjudicated claims still pending. I fear that true Motions for Consideration and administrative reviews will soon go the way of dial telephones. In their place will be the new 21-0958 catch-all NOD form. Don't like our decision? Fine. Appeal it. We'll see you again in five years after you win your appeal. Next?

a

cp

[Scout Swimmer]

Unfortunately I think you are right. I asked my VA psychologist to write something up for me. Just to be more detailed in her already documented diagnosis. She said it would be a conflict of interest because ultimately, her boss is the VA. I am learning the awful truth as you suggest as I go along.

[FormerMember]

The VA has one job- to hold the financial line and prevent a rush to the cash trough. Read this from the CAVC site I love this:

In the appellant's January 2009 statement in support of claim, he stated, "[t]he rating decision

dated November 20, 2008 granted me ratings appropriate for my disabilities however the effective

[date] should have been the day after my discharge from military service." R. at 239. The Board

determined that "[t]his statement constituted a withdrawal of the increased initial evaluations issues for the spine . . .

and bilateral feet." R. at 15. However, as the Secretary concedes, the appellant's

statement does not contain the word "withdraw" or any express statement indicating a desire to

withdraw his appeals of the initial evaluation of his spinal and bilateral foot disabilities. R. at 238-

39; see 38 C.F.R. § 20.204(b); Secretary's Br. at 12. Moreover, the statement does not list which

issues, if any, he intended to withdraw. Id. The Board's decision lacks any analysis as to how the

appellant's statement constituted a withdrawal of his claims of entitlement to higher initial

evaluations for his service-connected spine and bilateral foot disabilities. Absent such an analysis,

the Court cannot understand the basis for the Board's decision and the Court's review is frustrated.

This happens 5,000 times a year at the CAVC. If you don't appeal, you agree they are right. They rarely are.

a

[Slowlane]

Duty to Assist............... HAAARRRR AHADF HARR AHAR HAR HAR