Local Hearing?

[Jesse Witthoft]

Issue #1.

I've been filling claims since 2009. Steadily getting increases. 

I filed a bunch of new claims and got denied. I felt that these claim should be SC and did not want to wait the year+ to get a SOC with another denial (been there done that). So I decided to get an IMO related to these claims.

I filled a new claim/reopen after I entered my IMO and additional new evidence related to my claims.

I recently received a decision on from this claimed most of which was denied.

When I looked at the list of evidence used to decided my claim my IMO was not used as evidence and was no mention of it anywhere in my decision packet (as if the VA never received it). There were documents entered as evidence that I summited at the same time that were listed as evidence used in my decision.

So, still not wanting the long wait and repeat decision I have requested a local hearing to add evidence to my claim.

Issue #2.

Also one of the things that I claimed is not mentioned is the decision at all? 

Questions:

Am I taking the right course of action?

What should I expect at a local hearing?

How long have others waited for a local hearing?

Have others had good results with similar circumstances?  

Is it likely that my IMO was overlooked/ignored? If you go by the CFR with my IMO I was sure my claims would be granted. Pending that my IMO was not discredited in some way. I was surprised that it was not mentioned at all.

With Issue #2. 

Has anyone had this happen before?

Is this a CUE?

Am I taking the right course of action with issue?

Thanks for the feedback.

 

[Berta]

"With Issue #2. 

Has anyone had this happen before?" You bet. 

"Is this a CUE?"

If  you have proof  they received the IMO , and it fully supported your claim and followed the IMO /IME criteria here at hadit, and they did not acknowledge the IMO in any way at all....that is a CUE.

This is the regulation they broke.

" 4.6 Evaluation of evidence.

The element of the weight to be accorded the character of the veteran's service is but one factor entering into the considerations of the rating boards in arriving at determinations of the evaluation of disability. Every element in any way affecting the probative value to be assigned to the evidence in each individual claim must be thoroughly and conscientiously studied by each member of the rating board in the light of the established policies of the Department of Veterans Affairs to the end that decisions will be equitable and just as contemplated by the requirements of the law."

If you recently got this decision....it appears you did, you can request them to call a CUE on their decision due to violation of 38 CFR 4.6, and send them another copy of the IMO and tell them they received the IMO ( whatever date) and you want it properly considered for your claim.

Direct the letter as Attention to: and put the alphabetic initials that appear in the Re: alphanumeric code to the top right of the first page of the decision.

 

 

[vetquest]

Yes, I have had the VA ignore evidence that supported my claim.  When my claim reached the BVA the local VA was chastised for missing this evidence. 

How long to wait for a local hearing depends on the local VA.  My wait was about six months.  At the hearing I was asked questions by my VSO and the VA review officer, it was in question and answer format with a chance at the end to make a statement.  I cannot say if requesting a local hearing was a good idea, for me it just delayed the BVA submission.  Let me say though that every case is different and your results might be much better than mine.

[Berta]

To add to my reply yesterday-I have had denials overturned into awards by filing CUE against them as soon as I got the decision and saw the evidence list...that ----of course either  didnt reveal either my IMOs or -in the last claim- an IMO from VA Central office. The worse denial many many  years ago was the fact that they ignored a 6 page autopsy.

In a letter to the Secretary I sent last year I ,emtioned  that the fact that we can file CUE against them within the appeal period-within one year after the deision, and prior to even needing to file a timely NOD-in some cases- should be new regulation....whether a regulation or not, dont let anyone tell you this cant be done.

File it under auspices of the established CUE regulatio, 38 USC 5109 and then tell them the regulation they broke, to your detriment.

In the one decision I had at the BVA, I had sent the BVA all of my probative evidence as soon as I got a Docket and the BVA award noted that the VARO did have all of this information but never ackowledged it.

It is either  a scam to get claims off the RO stats or done by lazy assed raters ,to properly consider evidence, because that makes it easier for them to deny.

I asked for a Fast Letter if not an actual regulation that all vet reps and VSOS would get-

they should be looking for CUE in every new decision they see, but they dont.

A fast way (I have done this myself within days after a denial) is to prepare the CUE- it should be brief, and then file it as a complaint with IRIS, if they have ignored probative evidence, and cite the above regulation they broke.Make sure you give them the date of the decision and given them the alpha part of the alphanumeric to the right hand side of the decision.That is the initials of the last person who handled your claim and made the error.

 

 

[broncovet]

You have gotten advice from Berta, and she is the best of the best.  

There are 2 possibities, and your action is different with each:

1.  The VA lost, or did not recieve your IMO/IME.  You need to resubmit this as new and material evidence under 38 cfr 3.156.  If you do this within a year of your decision, 3.156 B says that you should get the date your first applied as your effective date.  Yes, you can file a cue, but whether you do, or do not, I suggest you submit new evidence within a year, or preferably ASAp.  

2. The VA had your evidence but did not read it.  It happens a lot.  Again, you can file the Cue Berta suggested, but in all cases (unless you get the benefit sought within a year of your decision) you should file a NOD to preserve your appeal rights.  

Its true that sometimes you may get a faster result by filing a cue, but you need to remember filing a cue is not the same as filing a NOD, and dont forget to timely file your nod.  Its possible, or even likely, that there was a VA error, but this error may or may not stand up to the CUE standard of review.  Not all VA errors are CUE.   

To find out whether yours is case one or 2, you need to order a copy of your cfile.  This may or may not be completed in a year.  

Edited March 27, 2018 by broncovet

[Jesse Witthoft]

Update...

First off thanks for the feed back and I really mean this. I have been reading post and studying this site and the tangents it has lead my down for years and it has taken me from 20% to 90%, life changing. Thank you all.

Today I went to my regional office in Oakland.

I played it mellow first asking about the lack of my IME listed in the "Evidence Reviewed" section in my decision. The guy helping me found it in one of the other two groups of document that I submitted on at the same time back in December. It was at the end of a ten plus page ER record that was from when I was injured on leave with a private hospital during active duty. I'll bet the farm that my IME was never read.

He then was trying to move me along saying that I could fill out a statement but it might not mater.

Then I brought up the fact that on of the things I claimed was not addressed what so ever in the decision packet. After some looking around he saw that I was correct and filed it as a CUE right there on the spot.

I submitted a statement stating the facts and I resubmitted my IME.

He gave me copies with info on the top as proof of the transaction and said to watch my eBenefits for the claim to go live again.

Round 2 fight...

No lets all pray that my IME hold weight and I will get the decisions I've been working toward all these years.

Thank Again

Jesse

P.S. He also mentioned there was a presidential mandate that goes into effect Feb. 2019 that all appeals be handled within 120 days and that groups of appeals are already going down this pipeline in test batches.

 

Edited March 28, 2018 by Jesse Witthoft

[Berta]

"After some looking around he saw that I was correct and filed it as a CUE right there on the spot.

I submitted a statement stating the facts and I resubmitted my IME."

That is great!  Very few reps can recognize a CUE and then be willing to do something about it.

He is right about what Presdient Trump signed.

https://benefits.va.gov/benefits/docs/90-Day-Plan-CMR-PL-115-55.pdf

From: The VA Modernization Act 2017:

https://benefits.va.gov/benefits/appeals.asp

https://www.congress.gov/bill/115th-congress/house-bill/2288

The Secretary's office called me last year after they got a letter from me, and told me I had some input into this....If so I believe it is this part:

• "A reviewer can overturn previous decisions based on a difference of opinion, or based on clear and unmistakable error.
• A reviewer who identifies or learns of a duty to assist error, can return the claim for correction of the error.
• You or your representative (such as your VSO) can request a telephonic informal conference to identify specific issues or errors with your case."  ( as in the link to the va.gov/benefits/appeals.asp link above
• ------------------------------------------------------------------------------------------------------------
• But I  wanted them to add a regulation as to CUE being filed in the appellate period (the NOD deadline timeframe) and also to send a Fast Letter to all ROs, and vet rep orgs to seek if any CUE appeared in new decisions, as well as to make sure the VCAA was followed.We have had 2 or 3 cues here, recently that VA seemed to call on themselves,per the vets who posted that info.....but we really dont need to have a specific regulation or even the Fast Letter if this Modernization Act is fully implemented by the VA..and all reps get up to speed on it.
• All advocates have to get up to speed on this Act, signed by the President , too. It can begin to reduce the backlog considerably,if VA errors and VCAA violations are caught right off the bat....as soon as the deision is made.

 

•  

Edited March 28, 2018 by Berta
cant delete some of the bulletin marks.