Ricky

rdawg - the stroke was SC'ed so there was no need to review the SMR's (the stroke happened post service and was SC'ed secondary to already SC'ed DMII and Hypertension). The problem here is they simply ingnored the medical evidence from treating doc's and C&P doc's concerning the date of the stroke and the body systems that were affected by the stroke (residuals). The one doc that issued one IMO has been my treating doc for over 10 years now both on active duty and during retirement so they SC'ed the stroke and residuals to my already SC'ed DMII and hypertension. This in itself indicates they had the evidence but only used part of it to award the claim. That is easy enough to appeal, however, my beef is since they did not discuss any of the evidence in the rating or SOC I do not know how they came to the conclusion that "there was no evidence of an active process or disease". After I received the rating with this in it, my neuro, treating doc, radiologist who interpeted the MRI, and hospital doctors issued IMO's outlining how they determined the time line for the stroke and the medical community's accepted theory of the occurance of strokes which confirmed their claims. The neuro and my regular doc also provided their medically accepted opinon (per dorland's and other accepted medical authorities) on the effect of the residuals on my face, hand, arm, leg and foot. However, the SOC simply stated "denial continued due to the lack of an active process or disease". The only assumption that could be made is that they wanted me to be having an active stroke during the C&P. CFR 38 states "rate disabilities under 1008 for six months - 100 percent. It does not state that the stroke had to happen within the last 24 hours or the last 6 years. Now being a common sense kind of guy I would understand the rating if my stroke had happened 6 years prior to my claim however, my stroke was in Jan 2005 and the claim was filed for me in Feb 05. I believe it was the intent of congress and CFR 30 to provide the 100 percent rating for an individual during the first six months after a stroke as the first 6 months is the most crucial time frame (no work, learning to walk, speak, think etc.... again). However, ratings such as mine simply make the regulation and law worthless. Not only did they fail to provide the proper compenstation the first 6 months after my stroke, here I am 2 years later still trying to get the authorized 6 months worth of compenstation along with a proper rating on the residuals of the stroke.

Berta, my question centers around a SOC that was issued to me. In the claim, the C&P supported the claim along with IMO's. There was no negative evidence available in the claims file. However, the claim was denied and when the SOC was issued they simply stated "there was no active process present during the recent exam." There was no discussion of any evidence what so ever. In effect the SOC provided no basis for my appeal. In other words the only viable attack for the appeal was the fact that I did not have any ideal why the claim was denied. The claim was on my Jan 2005 stroke (CFR 38 provides a 100 percent rating for six months following a stroke). The C&P was in July 2005 so yep there would be "no active process" in July 05 since most strokes last somewhere between a few mins to a couple of hours. The way the SOC was written the rater wanted to see evidence of the stroke still occurring which would have been impossible. Evidence submitted was the MRI with the reading, IMO's from my neurologist' and treating Doc. The C&P started out "a review of the medical evidence provides that in Jan 2005 the patient suffered a right sided stroke within the thalamus". They service connected the stroke secondary to my DMII and hypertension but only rated it as 10 percent and not the required 100 percent for six months. The 10 percent was based on my residuals. Even this was not rated appropriately as the residuals effect my left face, left upper and left lower extermities. The C&P provided that they existed but did not discuss their level or effect on me. I have two IMO's from treating and secondary Neurologist they have caused loss of taste, loss of use of foot and hand coupled with constant level ten type pain. So not only did they rate the residuals low, they did not even properly rate them as they should have rated the face, upper and lower seperately. Anyway the problem is that the rating nor the SOC contained any discussion of the positive evidence in the file and why it was not accepted, nor did it discuss any evidence held by the VA that was negative to the rating. Thanks

Vike - if your claim is denied what is wrong with taking the VA requirements to your doctor and discussing it with him? As we all know most civilian doctors do not write in VA talk. If your doctor is a professional and you approach him with the requirements you need met and explain to him that his opinion did not cut the mustard he will do one of two things - 1- he will agree with you and rewrite the opinion in VA talk or 2- he will tell you that he can not support your claim because in his opinion your disability picture is not at the level required. That is not fraud. You will find many VA docs that you have to do this with also. Now if you go to Doc Haji down the road and pay him 200 bucks to produce an opinion that meets the requirements and he does so based upon you willingness to pay him that is fraud. jmho.

"The Board has thoroughly reviewed all the evidence in the veteran's claim folders. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, all of the evidence submitted by the veteran or on her behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claims. The veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the veteran)." I have searched high and low for both the Timberlake case and where the law requires only that the board address its reasons for rejecting evidence favorable to the veteran. Does anyone have any ideas? Also when it says the "Board" does that mean the VARO also? I think I read on Hadit before that a reference to the board also means VARO. Thanks

Thanks Josephine. Do you have any experience with the board (local DRO or BVA)? If so were there any time constraints? Just trying to figure out how to present my arguments. The presentation of new evidence will be quick as it will be presented and the association to the claim will be discussed. However, my arguments will attack their previous ratings and SOC. I could point out many failures by the VA to apply the evidence in support of the claim and their failure to properly apply 38 CFR to the claim (based upon my interpertation of the regs), but I don't wont to "P" them off by taking too much time. Ricky

I have spoken with the local AL and PVA reps in my area both are dopes and can not spell CFR 38 let alone speak on it with authority. My state vet office who said he represents the AL, DVA, PVA and others tried to scold me and told me that I should be happy with the 50 percent that I already had. Therefore, my friends, obtaining a rep for the hearing is out of the question. Since my claim is pending formal appeal I emailed the obudsman at the BVA. They told me that all questions about my claim had to be directed to the VARO so they are out of the picture also. I will do fine by myself and the only way I would take one of these idiots in with me is if they kept their mouths shut. Please don't get me wrong, I am not a know it all but I do know more than they do and can present a much more structured and informed presentation. Trust me, I work for the govt and argue with idiots like those working for the VA on a daily basis. I have spent the last 6 months preparing for this hearing. I have each issue laid out in a logical manner and have all associated arguments and evidence in a single file folder. My only concern is the time limit at the hearing. I am preparing for that also in that I have a condensed version of each issue ready to go. I would hope that no time limit is placed upon the hearing. Oh well guess I will find out when it happens. I still have not received any official written notice of the hearing so the 1800 guys may just have been blowing smoke that day.

Kenny, VA has relaxed credit requirements. What that means is that even if you have a fico score of 580, which does not qualify for a prime loan at a bank, they look at what has happened in the last 12 months. If all of your bills have in order for the past 12 months you should be ok. Even if you have charge-offs you will be ok as long as a repayment plan is in place and you are complying with the repayment plan. If not they will require you to pay off the bad debt prior to approving your loan. bankruptcy is also ok as long as it occured at least 24 months ago and you have established some type of credit since then and managed it in a good way. The best way to re-establish your credit after BR is one of the limited credit limit credit cards such as capital one, premier bank etc...... they will take you to the cleaner on interest but they serve their purpose. As stated below find you a hard working broker who deals with VA loans. He will be the expert.

Just need a couple of suggestions. Prior to submitting my form 9 for my appeal I requested a hearing with the DRO (this was almost 15 months ago). However, as today the VARO has not provided such a hearing. I have inquired about the status of the hearing at least a dozen times. I have received written responses from the VARO ranging from "we are working on it" to "we do not offer such hearings at this VARO." Since the submission of my form 9, I have also provided new evidence in support of my claim on six occassions. However, as of this date no SSOC has been issued. Today I was informed that my case had been set for a BVA hearing and I should be getting the written notification soon. I will believe this when I see it. However, the claim has been sitting there for 15 months without any action. The reason that I know the file has not moved at all is that I also have two new claims that are now 13 months old that are still with the pre-determination team. Anyway, as we all know, if I attend the BVA hearing and the case is transfered to the BVA the first thing they will do is remand the case since the requested DRO hearing was not provided and no SSOC was issued. Based upon this can I and would it be appropriate to start the hearing by informing the BVA rep that I waive any and all due process rights owed me by the VARO up till the date of the BVA hearing based upon the VARO's apparent intentional denial of such rights? If so this will be my intended format for my arguments at the BVA hearing. I will be representing myself and my wife and daughter will testify for me. It would be nice if my grand kids could testify (one 8 and one 14) cause they would definitely tell them a mouth full about the ole man (me). -oral statement for the waiver of the previous requests for a DRO hearing. Waiver of the requirement to present me with a SSOC. -Statement on the receipt of an improperly perpared SOC (the orginal one) based upon M21R and CFR 38. -Introduction of all evidence omitted from the original SOC and the new evidence submitted after my form 9 was submitted. Since NONE, LET ME REPEAT THAT NONE of my medical evidence was discussed in the original rating or SOC, nor was a SSOC was prepared concerning the new evidence submitted I do not know and have no way in hell to determine if they have any of it. At least they only held the NOD for 5 months befor they did a complete denial. That helped a little bit with the waiting game, however, they have held my form 9 now for 15 months so I guess in my case the question of whether to NOD or go straight to the BVA is a mute point. I am still at the 20 month period even though it only took the 5 months with the NOD. Seems strange since the average NOD processing time for the Montgomery VARO is about 18 months. I guess they liked me hahahaha. -Verbal statement from me as to the effect of all of my disabilities on my every day activities. -Oral arguments as to the mistakes and improper application of US Code, CFR 38 and internal VA operating proceedures for each disability on appeal. These will include a brief discussion of how my evidence supports my claims, how VA failed to use such evidence, the items they violated in adjudicating the claim and the level of disability that I feel should be awarded for each item etc.... - Ask that they accept oral testimony from my wife and daughter. I know what I want to tell them and where they can go but maybe I can keep my depression and emotions under control. If I treated them like I treat my poor family as my pain soars off the pain scale they would run for cover.

c398x2 - please do not get the dates confused for in the game of the VA that will mean sudden death to you and your claim. You have one year (1) from the date you receive the original rating decision to file a Notice of Disagreement (NOD). When you do decided to file the NOD you can do one of two things: One is ask that your file and/or any new evidence and arguments be reviewed by a Decision Review Officer (DRO). The DRO is a senior person on the Appeals Management Team at your local Regional Office. If you choose this route your file will remain at the local office and NO SOC will be issued until this review is conducted and only then if the DRO continues a denial of your claim or only allows a partial grant of your claim. Once they have issued a SOC, based upon their review, they will issue the SOC. This process can take anywhere from 8 months to 18 months. The other option is that when you file your NOD is to tell them that you want your appeal (as Vike stated the NOD is the first step in the appeals process) handled the traditional way. By doing this you are telling them that you do not desire the local office to offer any further review or development and to prepare your claim to be sent to the Board of Veterans Appeals (BVA). Once this is done they will issue a SOC without any further review or development at the local office. ONCE THE SOC HAS BEEN ISSUED YOU HAVE ONLY 60 DAYS TO PREPARE AND SUBMIT THE VA 9 (not one year BUT ONLY 60 DAYS). I hate to beat a dead horse to death but these dates are very important to the veteran. The forms and information you receive from the VA are very confusing as they speak of the one year and 60 day time limit all together. So to sum it up: -Once the original decision is received you have ONE YEAR to start your appeal (submission of the NOD) -Once a SOC has been issued and received by you you have 60 DAYS from the date on the SOC to perfect your appeal (prepare and submit the VA 9 back to the VA). Failure to comply with either one of the above time frames will result in the loss of the effective date of your original claim and not being able to continue with the claim except by reopening the claim with new and material evidence (this will give you a new effective date of claim). The only recourse is to file and prove a CUE which is one hard tree to climb. Hope this helps. Although it is the same as Vike provided when I read you last post it appeared that you had the time frames confused. If not then I stand corrected and will move back to my little area of the world and be quite until something else that I think I know comes along hahahahaha.

Yes it is common. It would be a good thing if the VARO put some thought into the process. However, most of the time they simply reroute claims without any thought which could cause your claim to end up at a VARO that is worse off than yours.

In my experience, BVA language/rulings are binding maybe on little green men from mars as is that issued by the court of veterans appeals. As far as remands go, the BVA could threaten to travel to the RO and beat everyone there with a dirty stick and still no one cares. It is all a farce as not even the U.S. Code is binding on the Sec of VA or any other VA employee for that matter. Yes I know it is a sad state of affairs but that is simply the truth of it. Hang in there and maybe you will finally get a good one at the BVA and will prevail in your claim. Until such a time it is a pity, but you will just have to play the waiting game. jmho

As Vike said, if he is still within the one year period from the date of denial of his ORIGINAL CLAIM then a letter will work and keep his effective date in the process. However, if he is outside of that one year, and if it was my VARO, you would be able to hear them laughing 500 miles aways as they sat there and took no action. I am afraid at my VARO it would take new and material evidence to get it reopened and there would be no way to CUE, cry or beg for the EED.

Your service officer may be right in that it may delay you claim. However, simply waking up in the morning will also delay your claim hahahahaha. If you have a new disability I would file it asap as to get the most EED. It is a slow process no matter what your do. jmho

"who is qualified through education, training, or experience" Hmmmm, I wonder.......... where it says or experience I think that pertains to me. I have many years of researching medical issues because the VA has made me become and medical expert on my disabilities. So does that mean I can issue medical opinions cause I sure do have extensive experience in various medical fields. Ricky

Rick, after reading the article a couple of times I think it sets presedence for the VA to follow - in that if you have a heart problem and a cardio guy weighs in for you then the VA, by their own admission, would have to give that opinion more weight than the call by one of their fly by night C&P docs. Now I could be wrong but we vets throw this in their face day after day. That is why they tend to overlook IMO's provided by neuro, cardio etc..... kind of guys. They feel that if they close their eyes then maybe they can get away with it, but it always gets caught by the BVA or CVA. Just my take but like I said i could be wrong. It would not be the first time hahhahahaha.

If it is to be rated as a "claim for increase" why would the VA take action on this. As I read it the Vet was not SC'ed for these conditions so what would they increase. Would he not have had to had a claim pending or approved. I understand the combat/wound claim relationship, however, martial problems nor partial PTSD is a disability. Just asking cause I don't really know myself - not questioning your thought process just seeking personal knowledge. Ricky

Shawanny - please do not take my post wrong. It is based upon what you have posted. I know that there are many facts that you know and we do not know. If they notified you at your current address of the receipt of the nod and only one month later notified you of a denial at a different address (if you did not move during that month) then yes I do believe that you have a case. Keep on fighting. In my opinion I would fire my SO and file an official complaint while looking at a possible law suit against the organization for loss of monies due to being stupid. Once again I DID NOT intend for my post to discourage you. I hope it will prompt you to line all of your ducks up in a row and charge forward. Simply take a deep breath, clear your head and make sure your battle begins with a clear well thought out rebuttal to the VA's actions. Good luck and call upon the old elders of the site to help you for they are 1000 times better than any SO you will run into.

Shawnny - Looks like the date is correct. You did not file for IU untile Apr 2005. Looks like they denied your NOD for a higher rating on your claim in July 05. However, they still were processing your IU claim and awarded you 70 percent with 100 perent IU effective of Apr 2005. The 70 percent with IU looks correct ( Apr 2005). Looks like your only beef is the non-notification of the denial of your claim for and increased rating with an effective date of 2001. This may be a lost cause because they did issue a SOC on it. I understand you complaint that it went to the wrong address. However, the VA did issue it as evidenced by your SO providing you a copy of it. When did you move? Looks like from all of your posts the VA acted correctly. My opinion is that the only complaint that you have at this point is one with the SO. He is the one that did not act correctly by not notifying you of the denial of your original claim. If you had responded to the SOC with a VA9 and requested a higher rating and IU ON IT - then the BVA may have approved it with and effective date of 2001. However, since no VA 9 was submitted then they VA simply closed it and when you submitted your IU claim they accepted it as a New claim. GO AFTER YOUR SO HE IS THE ONE THAT CAUSED THE PROBLEM BY NOT NOTIFYING YOU OF THE SOC. Did he have the correct contact information for you when the SOC was issued? If not then you may not even have a complaint with him either. Remember in order to claim that the VA had your correct address takes a piece of paper telling them that you have moved and your new address is XXXXXXXXXXXX or a phone call providing the same info. Once this is done you MUST verify that they have the correct info by telephoning them and asking what contact info they have for you. Sorry but this may be a lost cause unless you can come up with some type of evidence (not the fact they sent it to the wrong address) and reopen the claim. I understand the mental anguish you are going through with this issue but this is one time I must say the VA is in the right. Sorry my brother. By the way did you get your back pay to Apr 2005?

Berta - yep the 60 days past a long time ago. The denial was December 2005. I sent the form 9 in within the 60 day period so I perfected the appeal according to the rules. Therefore, I am ok on the time requirements. It is the Montgomery RO. They are all a bunch of idiots (raters) can you believe a complete DRO review in 60 days. I think it happened because I stayed on their A-- for the outer space rating they gave it in the first place so they simply said lets get this guy out of our hair. Their normal turn around on a NOD is currently at about the 15 month level. So 60 days was a miricale. I have all of their unbelivable iris replies about the DRO hearing that I requested. We all know it is just a silly game. I guess since it is still in appeal I can not now claim CUE. The CUE would be based upon the failure to provide an adequate SOC therefore, not allowing me to properly appeal the denial and failure to apply 38 CFR and in the areas that the CFR was applied they used the wrong disability rating code (I think these are CUE issues). Anyway, I just sit here and wait cause I know that in the end I will win the claim. I posted my rant because I see so many posts about the way the VA is to handle claims. We all know what they are supposed to do but what they do is a different story. I have conducted a few years of research into the law and medical issuses (this all started in 2000) so I just chalk it all up as a learning experience that maybe can be used to help someone else with their claim. The rest of my story is that I also have two additional claims pending (outside of the appeal). They have been sitting there for 21 months now without any action. I received the VCAA on both and responded to that. The RO tells me that they can not work on the two seperate issues cause my C File is with the appeals team. I guess they will get to them someday.

I agree with Army. HANDOUTS!!!!! Just consider. A lot of people, to include some/most congress/politicians idiots think that vets should not be compensated for a disease like DMII, hypertension, CAD etc...... What they do not realize is that, while serving my 25 years I regularly had to consume rations that were loaded with calories, fat, sugar and God knows what else. I spent many a day worrying about if I was going to get shot, if I would ever see my kids again, fighting with the LT about operations etc....... All which took its toll on my old body and definitley lead to my SC conditons. Yep other people get them too, but as I it was their life style that caused their conditions. However, the difference between a vet and them is the vet did not have any control over his life style and they did. They were warm and safe at home and had the best medical care available. The poor vet had everthing dictated to them. They had to eat the fatty, greasy food just to keep going 20 hours a day for months on end. God bless the old medics who would give their life in order to provide the best medical care they could, but there is a definite difference in the old field doc referring to a military produced medical manual and the specialist down town that was available to these idiots. Yep I had my hand out for twenty five years but the only damn thing I was reaching for was a weapon to protect my punny butt while taking the fight to the enemy so they would not come on to our great shores and f---- up ole Jake the congressman or his family while they slept in a warm bed curled up next to their hunny bun (hunny bun = male or female). Next time someone tells you that a vet is just looking for a handout, reach out and smack the hell out of them and say, Yep, my hand is out.

Congrats Calnight. Take the advice of all and keep active. You said you were young and your biggest fear is what to do when your young rug rats get older and leave the nest. Just remember, they may leave but they will still be there for the old man. All you gotta do is ask them! Anyway, since you are young create a couple more rug rats will all of the free time you will have on your hands hahahahahahahah. Remember, don't forget about Hadit. The experience you gained in your personal claims process is worth a million bucks to others on this site.

Hey John, military justice is there. The military is the only job where you could actually be sent to jail for being late to work. Now if that ain't just I don't know what is. Now who the justice is for your guess is as good as mine. hahahahahaha Ricky

If only the system worked like it is supposed to. I received a rating in Jul 05. Filed NOD, Aug 05, asked for De Novo Review with a personal hearing. In Nov 05 received SOC (no hearing held). Wow, completed NOD review in only 4 months. SOC provided no real reasons and basis other than "during C&P exam no evidence of disease was present. Jez Louise I guess not since my stroke occured 7 months before the C&P was conducted (claim was filed in Jan 05-I guess they do not consider loss of use of foot and hand a chronic enough residual of stroke). In Dec 05 sent request asking for hearing that I did not receive. Followed up with 6 IRIS requests for status of hearing while watching clock run out on formal appeal process. RO responded to last request with "due to the number of claims this RO processes, we are too busy and do not offer DRO hearings." Filed Form 9 to keep process going while still raising hell about hearing. Here we are in Jan 07 still no hearing. Form 9 sitting at RO gathering dust since Jan 06. When I read 3.103 I do not see any reference to -DEPENDING ON THE WORK LOAD OF THE RO WE MAY OR MAY NOT AFFORD YOU YOUR DUE PROCESS RIGHTS. Any way- in Aug 06 condition got worse. Neuro doc provided new diagnosis and IMO. I provided that to RO in Aug 06 as of today no new decision or SSOC has been issued. Guess my RO works off of an international version of 38 CFR hahahahahahahahaha. Update: Since my RO will not release any info on my appeal (I only asked for a docket number) I sent a request to BVA asking for the same. Got an email last Friday from the BVA. "You will have to contact your RO for the information requested. They are the agency that is supposed to service any and all questions concerning your claim." Damn, how stupid am I? The RO is supposed to answer my questions about my claim that is pending with them!!! Holy Joe what a concept. I am not knocking the VA process for congress really laid it out in the US Code and some really smart guy at VA developed a very plain and simple explanation of the law and congressional intent, 38 CFR, that is easily understood by any idiot who can read. But I guess that is dependant on which side of the fence the idiot is on I guess. I am glad I am on the smart idiot's side of the fence hahahahahahahahaha. Thanks for letting me rant. Happy New Year - I love all of you guys. Ricky

Vike, I think 3.103 is clear. The purpose of a hearing is to allow a CLAIMANT, in person, to present argument etc............. VBA will not normally schedule a hearing for the sole purpose of receiving argument from a REPRESENATIVE. I think the intent of the law in this area, since it is concerning the claimants due process rights is that the VA will and must meet with the CLAIMANT for any purpose, however, if a howdy doody VSO just wants to argue some point, oh well.........................

John - I have no idea what an independant team is. The three phases of the claims process are: 1 - the development team - these guys receive your claim, review the claims folder for evidence, request additional evidence from you etc.... once they are done, usually 6-8 months the your claim is sent to the 2nd phase the rating team. Once the claim has been sent to the rating team you will normally get what is called a VCAA notice. This is a requirement imposed by congress and not the VA. The VCAA will tell you what they have as evidence in support of your claim and what else is needed. It will inform you that you have 60 days to submitt additional evidence and during this 60 days no action will be taken on your claim. This is done because the development team could have had your claim for 6-8 months during which time you could have received additional treatment for your disability or gathered more evidence to support your claim. The 3rd phase is the appeals team which will handle your appeal if you have to appeal your claim. Please do not be mislead by the 60 day thing as most are. Just because your claim has been sent to the rating team does not mean that a person is working your claim. It simply means that your claim has been designated as ready to rate by the development team. Bottom line is that your file has been put in order with the other thousands of claims being rated by your VARO. It could be anywhere from 3-12 months before you actually receive a rating on your claim. I know this is not what you wanted to hear but it is reality. Sorry.