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FirstOldOne

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About FirstOldOne

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    E-3 Seaman

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  • Service Connected Disability
    50%
  • Branch of Service
    Air Force

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  1. I am asking if M21-1MR is law? If not then how can it be used to trump what is stated in a CFR?
  2. For those of you who are using the Military Order of the Purple Heart as your VSO, I am asking, have you recently received a letter from your MOPH VSO stating that the"MOPH will not submit any notices of disagreement without New and MATERIAL MEDICAL EVIDENCE." If so, what are your thoughts on this?
  3. Hello If a veteran files a 21-4138 stating he is filing for PTSD and provides no other information, what is the process the VA must follow in processing the veterans claim ( be specific ).
  4. Berta I just received a Email from my VSO informing me that the date referenced in this decision as 07-19-2014 was the date of the provisional decision which can not be correct because the provisional decision date was 08-12-2013. I was under the impression that a decision letter MUST list all of the evidence that a decision was made on but this decision letter only reference's a letter dated 07-19-2014. I will have a meeting with my VSO next week and I'm going to call the RO tomorrow to request a review of my VA file and ask for a copy of my "C" file also. I will upload scans of this decision and for you to view these scans: Click on https://drive.google.com/folderview?id=0B5HqHaDBIbN-fm9wY0doZkJLaDFDLWw0ckUteF8tWEZ2VmJwUFplTllSdmFabXB4ODRJakE&usp=sharing Then click on a document you want to view and it will be a little larger To view the document in a larger format, just place your courser over it and use the scroll whell on mouse or click on the magnifying glass at the top right corner
  5. Berta I wanted to let you know that I received a BBE today. It is a "decision that finalizes the previous provisional evaluation completed on your claim under the special initiative discussed in our letter dated August 9, 2013." and "We determined that the following condition was not related to your military service, so service connection couldn't be granted.". Bear in mind that I have filed (2) two PTSD claims and I have not been evaluated to date. I have not been contacted by the VA for any reason having to do with PTSD. There is no mention of original 08-20-2010 claims. The BBE reference to a VA letter, dated July 19, 2014, "It represents all claims we understood to be specifically made, implied, or inferred in that claim." of which I do not have in my records. I have just sent an Email to my MOPH VSO requesting a meeting to discuss the BBE.
  6. Berta I thank you for your interest and assistance you have provided. I'm asking for your advise and any legal eagle out there, on the following which I intend to forward to NVLSP. WHAT I BELIEVE TO BE THE FACTS RELATING TO MY 2010 ISCHEMIC HEART DISEASE AND POST TRAUMATIC STRESS DISORDER CLAIMS. Three claims were filled out on 08-18-2010. Two were on the same 21-4138. Diabetes, a NEHMER claim, on one 21-4138. Ischemic Heart Disease, a NEHMER claim, and Post Traumatic Stress Disorder both on one 21-4138. The question at hand is whether or not evidence exist that a IHD & PTSD claim was processed. I have asked repeatedly for copies of the claim that was stated as “EP code 681 established and canceled without explanation”. I have not received any. Prior to the provisional decision, I was informed, on multiple occasions, that these claims were not in the system but after the provisional decision I have been informed, on multiple occasions, that these claims ARE in the system with an established date of 08-20-2010 and I have asked repeatedly for copies. I have not received any. Diabetes Was without any diagnosis or C&P examination at the time the claim was filed. Evidence of possible diabetes was discovered at VA CBOC by testing and observations. Treatment began right away. Claim was processed by having, notifications, further testing, C&P examinations and a confirmed diagnosis. Claim was decided (11) eleven months later at a rating of 20% service-connected disability. Ischemic Heart Disease Was without any diagnosis or C&P examination at the time the claim was filed. Evidence of possible IHD was discovered at VA CBOC by testing and observations a few day's after the indication of diabetes. (2) two abnormal EKG's on the same day resulting in my being sent to a VAMC ER by the CBOC for a stress test which was not done due to VAMC ER doctor. Treatment began right away by heart dosage aspirin and nitro pills. It was presumed, by me, that the claim was being processed because some testing was being done at the direction of my VA CBOC primary care giver. No notifications or C&P examinations due to the claim. Almost (2) two years later another abnormal EKG resulting in me being sent to a VAMC by my CBOC. The ER NP on duty at the VAMC, requested a Heart Cather be done and was refused by someone she called that night. The NP on duty ordered a Aorta MRI to be done the following day, which it was. My CBOC primary care giver called me, as I was returning from the Aorta MRI, to inform me that she had scheduled a Heart Cather to be done a few day's from then. Which it was. The Heart Cather was done at the VAMC and the result was the discovery of blocked arteries requiring a CABG. Because I had not received any communication from the VA on the IHD claim, I contacted my VSO to inform him of the results of the Heart Cather and asked him to check on the status of the claim because I had heard nothing on it. He checked and informed me that there was no claim for IHD or PTSD in the system. I contacted a VARO employee and asked him to check on the IHD and PTSD claims. He checked the electronic records, in my presents, and informed me that there was an electronic file stating “EP code 681 established and canceled without explanation”. He later provided me with a form 21-0820 stating this. I then went to the VARO to check my “C” file for these claims and did not find them in my “C” file. The Public Contact Representative (PCR), who was helping me, did not resolve the missing claims but instead told me to refile them and I did. I then had the bypass surgery at the Houston VAMC and was provided a IHD DBQ at the time I was released from the VAMC. This IHD DBQ was rejected, as my VA records will reflect, on the grounds that it was by a private physician and did not have the physicians license number on it. The IHD DBQ was by the heart surgeon at the Houston VAMC. I contacted the Houston VAMC requesting a IHD DBQ with the corrections and submitted it. I had submitted, through my VSO, documents on the above issues, as well as the 21-0820 and the VA's own records of contact. All of this was before the decision for IHD dated 09-10-2012 and the VARO was aware these issues. I then filed for an EED. At the advise of my VSO I filed for RECONSIDERATION. One of my documents was considered to be a NOD by the VARO but then was retracted by the VARO and deemed as a EED. I received a Provisional decision on 08-14-2013. I have submitted multiple documents afterwards as well as having multiple trips to VARO for conversations on this matter. It should be noted that my only contribution to this was my having filed a claim for IHD. The VA has caused all of the rest, in my opinion. My 08-18-2010 PTSD claim and my 06-21-2012 PTSD claim have not been addressed at all.
  7. Berta "06-20-2012 VA CC" was an error I made when researching this, there was no VACC on this date. I do not have copies of all of the EKG's but I will ask for them when I go to Jackson next week. I do have VA medical records copies of NP & Doctors making reference to the findings of the EKG's and the dates. I am constantly being advised to keep it short but to do so will leave out crucial information that would otherwise keep those who are reading it from getting the wrong opinion. Example, when I have spoken with others on this, in a brief accounting, as soon as I say that I did receive a decision on the second IHD claim, there interest wanes and the discussion is over with.
  8. Sorry, I was doing such much in putting together my post that I forgot this: C&P, 07-20-2013, ? C&P, 07-22-2013, ? Two on this day C&P, 07-25-2013, ? Four on this day C&P, 07-30-2013, ? The eight (8) C&P examinations above were scheduled after the surgery and just prior to the provisional decision dated 08-12-2013.
  9. Berta If I have read this correctly as to "deemed denied", does this mean that my original 2010 IHD claim is pending due to it not having been adjudicated? Page 6 of http://www.cafc.usco...age-21-5/p.html A claim for benefits, whether formal or informal, remains pending until it is finally adjudicated. 38 C.F.R. § 3.160©; see Richardson v. Nicholson, 20 Vet. App. 64, 72 n.8 (2006). A claim will also be considered to be pending if the DVA has failed to notify the claimant of the denial of his claim or of his right to appeal an adverse decision. Cook v. Principi, 318 F.3d 1334, 1340 (Fed. Cir. 2002) (en banc). If a claim is left pending, it can be addressed when a subsequent claim for the same disability is adjudicated by the DVA, in which case the effective date for any award of benefits will be the effective date applicable to the original claim. See Myers v. Principi, 16 Vet. App. 228, 236 (2002). In addition, I have tried to clarify my evidence and contentions in the following: I ask for you to analyze the comparisons of the processing of my Diabetes claim to the processing of my Ischemic Heart Disease claim. DIABETES I believe it was in July 2010 when I first met with a NP at the Hattiesburg VA CBOC and blood was drawn for testing. This was my first contact with the VA in almost 40 years. A few day's after this first contact I was informed, by a NP at the CBOC, that the blood test results indicated that I had a high blood glucose and a fatty liver. The NP then scheduled to have blood drawn for a A1c blood test to be done. This was done a few day's later confirming that I had a high A1c and I was started on medications. Due to the results of the A1c blood test, I was advised to file a NEHMER claim for DIABETES and I did on 08-18-2010. 07-2010 Blood testing indicating Diabetes. 08-18-2010 Diabetes, polyneuropathy X 4, shoulder and leg injury claim filed. 08-20-2010, VA received Statement of Support of Claim. 09-10-2010, VA received Statement of Support of Claim. 10-05-2010, VCAA letter 10-05-2010, C&P, Neurological 10-05-2010, C&P, Diabetes 10-13-2010, VCAA Notice Response 10-14-2010, VA received Statement of Support of Claim. 10-21-2010, C&P, General medical 11-05-2010, C&P, Neurological 03-22-2011, VA received Statement of Support of Claim. IU CLAIM. 03-22-2011, VA received Financial Status Report 04-21-2011, VA received Statement of Support of Claim. 08-10-2011, C&P, Audio 08-18-2011, C&P, Neurological 08-24-2011, C&P, Neurological EMG 09-08-2011, C&P, Neurological 07-18-2011, decision letter granting service-connection for Diabetes. This was finished in (11) ELEVEN MONTHS! Ischemic Heart Disease Prior to the scheduled appointment the morning of the same day the NP scheduled me to have blood drawn for a A1c blood test to be done, I had an episode around 4:00AM indicating a heart problem. I was given (2) two EKG's, that same morning of which both were abnormal resulting in a trip to the JAXVAMC ER to have a stress test done that afternoon or the following day. I was advised to file a NEHMER claim for IHD and I did on 08-18-2010. 07-2010 Abnormal EKG's 08-18-2010 IHD claim filed and PTSD claim filed. NO C&P's NO communications from VA involving IHD claim or development. 01-31-2012 Statement from Veteran. BACK INJURY CLAIM. 05-07-2012 VA received Statement in Support of Claim. 05-17-2012 Abnormal EKG was detected at the Hattiesburg CBOC but was not due to a processing of an IHD claim. NO adjudication of 2010 IHD claim. 06-05-2012 HEART CAUTERIZATION verifying IHD but was not due to a processing of an IHD claim. 06-08-2012 VSO VERIFIED “ no IHD or PTSD claim, dating 08-2010, in my VA records”. 06-14-2012 VA received Veterans Supplemental Claim. “FILED for IHD AGAIN”. 06-20-2012 VA received Statement in Support of Claim. 06-20-2012 VCAA Letter 06-21-2012 VARO PUBLIC CONTACT REPRESENTATIVE VERIFIED “no IHD or PTSD claim, dating 08-2010, in my VA records”. 06-21-2012 VARO PUBLIC CONTACT REPRESENTATIVE instructed me, without resolving the original claims, to refile the IHD and PTSD claims which I did. 06-27-2012 VA received Statement in Support of Claim. 08-21-2012 VA received IHD DBQ. 07-19-2012 I WAS PROVIDED A FORM 21-0820 STATING “ It should be noted that an EP 681 was originally established on 08-20-2010 and canceled with no explanation. The veteran submitted two VA Form 21-4138's on that day. We only have 1 4238 received on 08-20-2010 that does not mention IHD; however, it had to be there or an EP 681 would not have been established. Earlier effective date may be warranted.”. On this form it also notes “PTSD – new” and Ischemic heart disease due to Agent Orange exposure*** - (new)” THIS WAS AN ACTION TAKEN ON A CLAIM IN DEVELOPMENT AND IF IT WAS NOT THE IHD CLAIM THEN MY VA RECORDS SHALL VALADATE THIS. THERE WERE ONLY (2) TWO 21-4138 FORMS SUBMITTED PRIOR TO 08- 20-2010, WITH CLAIMS ON THEM, AND THE CLAIMS ON ONE FORM HAVE BEEN ADJUDCATED. 07-20-2012 VCAA letter. 08-09-2012 I had bypass surgery at the Houston VAMC. 08-21-2012 VA received IHD DBQ. 08-21-2012 VA received Veterans Supplemental Claim. 09-10-2012 Received a decision letter on IHD which states “We made a decision on your claim for service connected compensation received on August 3, 2011.”. I have no copy of a claim with that date. The decision does not reference the original 08- 18-2010 IHD claim. In this same decision letter it states under the heading “What We Decided”, “ Service connection for ischemic heart disease associated with herbicide exposure is granted with a 10 percent evaluation effective June 20, 2012. An evaluation of 100 percent is assigned from August 9, 2012. An evaluation of 10 percent is assigned from December 1, 2012. We have granted service-connection for ischemic heart condition effective June 20, 2012, the date we received your claim.” This date is in contradiction with the previous “We made a decision on your claim for service connected compensation received on August 3, 2011.”. 10-31-2012 I filed for an Earlier Effective Date. 11-08-2012 VA received Statement in Support of Claim. 01-03-2013 I filed, through my VSO, a document requesting him to file for RECONDERATION on all of the issues I disagreed with in the 09-10-2012 decision. 01-07-2013 My document requesting him to file for RECONDERATION on all of the issues that I disagreed with in the 09-10-2012 decision, is listed under EVIDENCE in the provisional decision as being received on 01-07-2013 as a STATEMENT from VETERAN WITH ATTACHED DOCUMENTS. 02-27-2013 VA received STATEMENT from VETERAN WITH ATTACHED DOCUMENTS. 04-08-2013 I received a letter, from the Jackson VARO dated March 8th, 2013, stating "We are working on your notice of Disagreement" 04-10-2013 VA received Statement of Support of Claim. 04-13-2013 My VSO Emailed me, on March 13th, 2013, and advised me not to respond to this letter because it was in error. 04-27-2013 I then received a letter which states "This is an amendment to the previous letter sent to you date March 8, 2013. The letter was incorrect and we are working on your request for an earlier effective date " and "We are writing in response to the letter you submitted to our office that was received on January 7, 2013." and also states under "What We Decided" that "We have determined that we cannot accept your letter as a Notice of Disagreement". 06-13-2013 VA received Statement of Support of Claim. Requesting info on claims for EED. 08-14-2013 Received a provisional decision letter for the issues I disagreed with in the 09-10-2012 decision. My document is listed as being received on 01-31- 2013. 12-17-2014 I had a conversation, by telephone, with JAXVARO PCR and I asked for a DRO MEETING. I was informed that the IHD & PTSD claims DO EXIST and are in my VA RECORDS as BEING ACTED UPON IN 2010 and I was informed that a DRO MEETING was not qualified because a decision was not made on the two 2010 CLAIMS. As shown, there were no notifications given by the VA for a IHD claim that was filed. There is evidence of an EP code 681 which represented IHD, which was one of three presumptive disease's at the time. My VA records have NO reference to the other presumptive disease's. If the EP code 681 was not for IHD, then why was it established? I am now told, by VA personnel, that there is a VA record of IHD and PTSD claims dated 08-20-2010. I am going to request a review of my VA records at the RO and an updated copy of my “C” file. I ask if these apply to my situation? The Veterans Claims Assistance Act of 2000, 38 U.S.C.A. §§ 5100, 5102-5103A, 5106, 5107, 5126 (West 2002 & Supp. 2009), 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2009), requires VA to assist a claimant at the time that he or she files a claim for benefits. As part of this assistance, VA is required to notify claimants of what they must do to substantiate their claims. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1). The Veteran has not been provided notice pursuant to Dingess v. Nicholson, 19 Vet. App. 473 (2006), that a disability rating and an effective date for the award of benefits will be assigned if benefits are granted In relevant part, 38 U.S.C.A. 1154(a) (West 2002) requires that VA give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim for disability or death benefits. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). "Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional." Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) ("[T]he Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence"). Sanders v. Nicholson, 487 F.3d 881 (Fed. Cir. 2007), and Simmons v. Nicholson, 487 F.3d 892 (Fed. Cir. 2007): Both of these decisions addressed the issue of application of the prejudicial error rule in the context of the VCAA, including who has the burden of proving before the CAVC that any error committed by VA in providing notice of the information and evidence necessary to substantiate a claim for benefits under 38 U.S.C. 5103(a) was prejudicial. In Sanders, the United States Court of Appeals for the Federal Circuit held that any error by VA in providing the notice required by 38 U.S.C. 5103(a) and 38 C.F.R. 3.159(b)(1) is presumed prejudicial, and that once an error is identified by the CAVC as to any of the four notice elements the burden shifts to VA to demonstrate that the error was not prejudicial to the appellant. The Federal Circuit stated that requiring an appellant to demonstrate prejudice as a result of any notice error is inconsistent with the purposes of both the VCAA and VA's uniquely pro-claimant benefits system. ᅠ Instead, the Federal Circuit held in Sanders that all VCAA notice errors are presumed prejudicial and require reversal unless VA can show that the error did not affect the essential fairness of the adjudication. To do this, VA must show that the purpose of the notice was not frustrated, such as by demonstrating that any defect was cured by actual knowledge on the part of the claimant, or that a reasonable person could be expected to understand from the notice what was needed, or that benefits could not have been awarded as a matter of law. In Simmons, the Federal Circuit, in applying the holdings in the concurrently issued decision in Sanders, affirmed the CAVC holding that an error by VA in providing notice of the information and evidence necessary to substantiate a claim under 38 U.S.C. 5103(a) is presumptively prejudicial, and that in such a case the burden shifts to VA to demonstrate that the error was not prejudicial to the appellant.
  10. To view the files: Click on the link I provided. Click on a folder. Choose an image that you want to look at and click on it. The image should open up into a larger window and in my system I only have to place the courser on the image and use the scroll wheel on my mouse to enlarge the image. My contention on the 08-20-2010 claims is, if the VA had followed the rules I would have received notifications, the required examinations and that the examinations would have discovered the IHD at an earlier date allowing me an earlier treatment and also granting me earlier effective date from the earlier diagnosis. None of this was done indicating to me that the VA can just sit on a claim until a diagnosis has been determined and then wait until a second claim has been filed to grant a SC rating with an effective date based on the date of the diagnosis. As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2008); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2008). Proper notice from VA must inform the claimant of any information and medical or lay evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; (3) that the claimant is expected to provide; and (4) must ask the claimant to provide any evidence in her or his possession that pertains to the claim in accordance with 38 C.F.R. § 3.159(b)(1). Quartuccio v. Principi, 16 Vet. App. 183 (2002).
  11. Berta You asked: “Did it formally state it was a Notice of Disagreement with the IHD decision?” I'm not sure but I am asking for a review of my VSO files, request an updated copy of “C” file and schedule a review of my VA file. You asked: “Prior to that did a NSC rating for IHD ever appear in any past rating sheet you received? That would be a Footnote One Nehmer claim.” I have not received ANY communication from the VA on the 08-20-2010 IHD claim, other than the form 21-0820 that I noted in a previous post here, until the decision after the CABG and none whatsoever on the 08-20-2010 PTSD claim until the provisional decision. You stated: “I suggest you read this email from Rick Spataro,Head Nehmer Lawyer NVLSP on Footnote One (Nehmer)” He is referencing a decision, I have not had a decision on these 2010 claims. You stated: ”But I dont know how soon IHD appeared coded in your case, probably for the first time in the provision decision.” I'm not sure what you are referring to when you say “coded”. If you are referring to an EP code, then yes it was assigned an EP code 681, “established and cancelled, without explanation”. I provided this link to my decision letters >>> https://drive.google...V2M&usp=sharing It is my understanding that the 08-20-2010 IHD and PTSD claims are now "deemed denial" claims because they were not adjudicated. Having said this, I reviewed the 09-28-2010 fast letter & training letter 10-04 which is a training guide for readjudication of claims for IHD, PD,HCL, chronic B-cell leukemias and other diseases under NEHMER. Under the heading of “Accountability”, on page #1, it states “Resource Centers and Regional Offices, who are responsible for the adjudication/ re-adjudication of NEHMER claims, must strictly comply with the instructions set forth in this letter and the attached Training Guide. It is critical that NEHMER claims be handled expeditiously and correctly. The processing of NEHMER claims requires VA to operate under court-imposed deadlines. Failure to comply with instructions could result in court-ordered sanctions against VA nad VA/or VA officials.”. Also under the heading of “End Product Control”, on page 22, it states in part “For the purpose of tracking, separate EP's have been assigned to the NEHMER claims: EP 687 for readjudication of previously denied claims and EP 681 for new NEHMER claims received between the Secretary's original announcement and 08-31-2010”. My IHD claim was dated 08-18-2010 and the Diabetes claim of the same date has a stamp of being received on 08-20-2010 and it is stamped “Cest/Int EP 681/20, Date 08-23-2010, Init RG” and both were sent the same day. And continues by stating “The date of claim and end product will be established in the NEHMER database.” and I have the form 21-0820 which has a contact date of 07-19-2012, which also has a note stating “It should be noted that an EP 681 was originally established on 08-20-2010 and canceled with no explanation. The veteran submitted two VA Form 21-4138's on that day. We only have 1 4238 received on 08-20-2010 that does not mention IHD; however, it had to be there or an EP 681 would not have been established. Earlier effective date may be warranted.”. The VA administrative process is non-adversarial and pro-claimant. The decision to apply constitutional due process protections in the administrative process from the moment a veteran applies for benefits underscores a very real question about the true nature of the actions or lack thereof of my 2010 IHD and PTSD claims by the VA. “In 2009, the Federal Circuit held in Cushman v. Shinseki that applicants for veterans‘ benefits have a constitutionally protected property interest in their application for benefits. Accordingly, such applicants are entitled to constitutionally prescribed procedures in connection with their claims for benefits under the terms of the Fifth Amendment to the United States Constitution.“ 38 U.S.C. 5103(a) was not applied to my 08-20-2010 IHD and PTSD claims.
  12. Berta You asked: “Do you mean your time ran out to file a NOD on the IHD claim with the provisional decision? “ No, I called my VSO some months before my time ran out on the 09-10-2012 decision and asked that he file a NOD, C&UE or whatever was appropriate to address the issues about the 08-20-2010 IHD and PTSD claims and I provided him a document I prepared covering all of the issues. This document of mine is listed under EVIDENCE in the 09-10-2012 decision as “Statement from Veteran received January 31, 2012” which apparently generated the provisional decision which also has it listed under EVIDENCE. I also called my VSO some months before my time ran out on the 08-12-2013 provisional decision but I was the one who went to the VARO a few day's prior to the time running out on the provisional decision and personally handed them my issues with this whole thing. You asked: “Who said that and what regulations did they quote???? “ The last time I went to the VARO and asked for a DRO meeting I was informed, by a Public Contact Representative (PCR) at the JAXVARO, that I could not do anything until a decision was made on the original 08-20-2010 IHD and PTSD claims and then I could appeal. I have done some research after my last post and discovered that this is correct because those claims are, as broncovet stated, a "deemed denial". It is my understanding that the 08-20-2010 IHD and PTSD claims are now "deemed denial" claims because they were not adjudicated and to pour salt into the wound, I read that the subsequent decisions are denied. This just drags me farther out into an ocean of crap that I didn't jump into but was thrown into. Here I am nearly 5 years later, nearly 68 years old with no decision, because the 08-20-2010 IHD and PTSD claims were not processed due to the fault of the VA and apparently no way to challenge the VA for failing me by having denied me all of the rights afforded to every veteran, as stated in the CFR's, by not processing the 08-20-2010 IHD and PTSD claims for almost 2 years. As I have read, I can not file a C&UE because a C&UE only applies when there has been a previous decision except under special consideration. The “Clear and Unmistakable Error” should read “ Clear and Unmistakable Error of a Decision” to be accurate from what I have read. Someone in the VA made a DETERMINATION when the 08-20-2010 IHD claim was assigned “an EP 681 was originally established on 08-20-2010 and canceled with no explanation”, as stated on the form 21-0820 which has a contact date of 07-19-2012 and for all intents and purpose it was “final and binding“ until I discovered it. In my opinion, the most adversity you can place on a veteran filing a claim, is to ignore his claim. The CFR states in part “Title 38 CFR 3.105 Revision of Decisions. (a) Error Previous determinations which are final and binding, including decisions of service connection, degree of disability, age, marriage, relationship, service, dependency, line of duty, and other issues, will be accepted as correct in the absence of clear and unmistakable error.”. This does not state “Error Previous decisions which are final and binding” or “Error Previous board determinations ”. It does list 9 more qualifiers, the last of which “ other issues leaves it open ended as to being anything. The only use of “DECISION” is “ including decisions of” and as I understand it, this is stating that Previous determinations as well as decisions of. The remainder of this CFR doesn't address Previous determinations which are final and binding. §20.1403 Rule 1403. What constitutes clear and unmistakable error; what does not. (a) General. Clear and unmistakable error is a very specific and rare kind of error. It is the kind of error, of fact or of law, that when called to the attention of later reviewers compels the conclusion, to which reasonable minds could not differ, that the result would have been manifestly different but for the error. Generally, either the correct facts, as they were known at the time, were not before the Board, or the statutory and regulatory provisions extant at the time were incorrectly applied. (b) Does not apply for there was no decision. © Does not apply for there was no decision. (d) Examples of situations that are not clear and unmistakable error—(1) Changed diagnosis. A new medical diagnosis that “corrects” an earlier diagnosis considered in a Board decision. (2) Duty to assist. The Secretary's failure to fulfill the duty to assist. (3) Evaluation of evidence. A disagreement as to how the facts were weighed or evaluated. This opens the question as to whether or not if the “ facts, or the laws” were applied, would it have resulted in a manifestly different result but for the error and the correct facts were not known at the time nor was the statutory and regulatory provisions correctly applied if the claim was dormant in my opinion. I can not file a NOD because there is no decision. I can not file for a RECONSIDERATION because there is no decision. I can not file an APPEAL because there is no decision. Why didn't my VSO catch this when I gave him all of my information? Nothing that I have submitted means squat because there is no decision. Because I submitted information and challenges based on decisions that are now denied. Where is all this help for the Veteran the VA is quick to claim? I did not cause any of this. As I read, the VA will not be accountable for my loss of benefits or risk to health and life for that 2 year period that I was left in limbo. Let me make a comparison. Veteran “A” files a IHD claim. Veteran “B” files a IHD claim at the same time as “A”. Veteran “A” has his IHD claim inter into the claims process. He is given a C&P examination and a comprehensive medical examination to determine if his medical issues he has claimed are valid and true and all of this is done expeditiously as required for NEHMER claims as I understand. Because it is a NEHMER claim and he has been given a medical diagnoses of IHD, his claim is afforded a decision and he is awarded a rating for benefits. Veteran “B” has his claim lost, misplaced or improperly processed and no communication of this is provided to Veteran “B” and no one is working his claim. His claim doesn't exist anymore. Veteran “B” discovers the status of his IHD claim after he initiates the diagnoses that confirms he has IHD and now he falls under different rules that prevent him from receiving the same effective date and benefits as Veteran “A”. Explain to me how this can be because Veteran “B” has been punished for the errors made by the VA.
  13. I know that I posted a lot of information but I did so as to allow for a better understanding of the whole situation. Berta I have a link to the scanned documents https://drive.google.com/folderview?id=0B5HqHaDBIbN-flg0Y1ZiR2FrSFp2QVRBbExnNzdpSF9RbEVtNWhzdEJXV3k0X2NmNmp2V2M&usp=sharing AS to: "What is the status of the DMII claim?" "As my VA records indicate, it seemed to be a priority in the development process with my Diabetes claim that I filed on 08-20-2010 of which I was awarded service-connection for this NEHMER claim on 07-18-2011, which is less than a year from the time that I filed the claim." "I think that is your main problem....the VSO." "He hasn't communicated with me after I had ask him for help just prior to the my time running out on challenging the provisional decision and I have no intention of contacting him at this time. He is with the Military Order of the Purple Heart and his office is in the VARO. He should have copies because he has POA with my claims." "If the claim was awarded great, if it was denied, so be it," A decision was made on the second IHD claim (not the 08-20-2010 IHD claim), just after my heart surgery, but I challenged it through my VSO and then I received the provisional decision afterwards of which I have now hand delivered multiple document to the RO challenging both decisions. The VARO or has not provided ink on paper admitting that there was ever a IHD or PTSD claim filed on 08-20-2010." "Have you attempted to look at your POA file?" "I haven't looked at my VSO file or the file the VA has on me.....not the "C" file." ​My situation seems to be unique in that none of this was due to any mistake, failure or error on my part unlike what I have read in citations. I did everything by the book. By my claims not being processed, per CFR's, I was unaware of the status and with no notification I was denied all of the CFR's that's afforded a veteran filing a claim. I was denied the right to submit anything pertaining to IHD or PTSD. The VARO was made aware of all of these facts in a document I submitted, through my VSO in January, 2012, and this document of mine is listed in the EVIDENCE section of the provisional decision dated 08-08-2013 but no action was taken in the provisional decision as to the issues I raised in the January, 2012 document I submitted. EVIDENCE Statement from Veteran received January 31, 2012 VCC Letter dated May 7, 2012 VA Form 21-526b, Veteran's Supplemental Claim, received June 14, 2012 VA Form 21-4138, Statement in Support of Claim, received June 20, 2012 VA Form 21-4138, Statement in Support of Claim, received June 27, 2012 I am leaning more to contacting NVLSP.
  14. Jbasser Thank you for responding. I have provided a copy of a fast letter that seems to support what you have said but I have not located, in the MR21-1MR or elsewhere, where it address a NEHMER claim that has not been adjudicate to include [NO COMMUNICATIONS, NO EXAMINATIONS or WHERE “for all intents and purposes a claim was trashed, sh!t canned or swept under the rug” and was given a EP code #681 that was established and canceled and was not developed], is when an "undebatable" error has occurred in my opinion. Does it become a “Claims for Retroactive Benefits Where There Was a Deemed Denied Claim”? So, I ask you if this is what I should do again, file a NOD but worded as follows in #1? #1 I disagree with all issues resolved or ignored by the decision dated 09-10-2012 and the provisional decision dated 06-20-2012 and wish appellate review. Recent Federal Circuit decisions hold that if a veteran files more than one claim with the RO at the same time, and the RO’s decision acts (favorably or unfavorably) on one of the claims but fails to specifically address the other claim, the second claim is deemed denied, and the appeal begins to run. Therefore, I file this notice of disagreement to protect my rights against the failure of the VA to adjudicate all my claims and the failure of the VA to notify me under 38 U.S.C. § 5104. Or, file the following in #2? #2 In Richardson v. Nicholson, 20 Vet. App. 64 (2006), the CAVC held that appellants can argue that the failure to adjudicate a claim constitutes CUE. The Court held that the VA is required to determine whether the claim was or was not adjudicated. If the claim was adjudicated then the VA is required to consider the current CUE claim. If a claim should have been adjudicated but was not then the VA is required to now adjudicate that claim. This is a notice of disagreement because an earlier effective date should have been established because the rating decision dated 09-10-2012 and the provisional decision dated 06-20-2012 should have adjudicated this issue. If you determine that the above cited rating did consider this issue, the appellant contends that the failure of the rating to adjudicate this claim constitutes clear and unmistakable error. Please note that the appellant was never provided specific notice of this decision. See 38 U.S.C. § 5104. In the alternative, the appellant argues that the claim was still pending from the original date of claim when benefits were eventually granted. The veteran seeks appellate review. CUE, Richardson v. Nicholson, No. 03-2100, sympathetic reading to veteran’s earlier filings. “The Federal Circuit held that, upon receipt of a request for revision on the basis of CUE, “VA must give a sympathetic reading to the veteran’s filings in that earlier proceeding to determine the scope of the claims.” Id.; see also Moody v. Principi, 360 F.3d 1306, 1310 (Fed. Cir. 2004).” First, the CUE aspect of Andrews is inapplicable to cases in which an RO decision or certain subsequent procedural rights were never provided with regard to a claim for VA benefits or the pleadings of a claimant for VA benefits. In such cases, the entire claim for benefits and all aspects of that claim remain open – in an unadjudicated status – and the claim can be pursued in a non-CUE context. See Tablazon v. Brown, 8 Vet.App. 359, 361 (1995) (allowing claimant pursuing claim to reopen to assert that his original claim was never final because no Statement of the Case (SOC) had been provided); Hauck v. Brown, 6 Vet.App. 518, 519 (1994) (allowing claimant pursuing an increased rating claim to assert that his claim was never final because the Secretary failed to mail him a copy of the Board decision pursuant to 38 U.S.C. 7104(e)); Kuo v. Derwinski, 2 Vet.App. 662, 666 (1992) (allowing claimant pursuing an increased rating claim to assert that he was entitled to an earlier effective date because no SOC had been provided); Ashley v. Derwinski, 2 Vet.App. 307, 311 (1992) (finding claim in non-final status when the Secretary failed to mail a claimant a copy of the Board decision pursuant to 38 U.S.C. 7104(e)(3)); see also Cook v. Principi, 318 F.3d 1334, 1340 (2002) (citing favorably Tablazon, Hauck, Kuo, and Ashley, all supra, and finding a non-final claim occurs when “the time for appealing either an RO or a Board decision did not run where the [secretary] failed to provide the veteran with information or material critical to the appellate process”); Woznick v. Nicholson, 19 Vet.App. 198, 201-02 (2005) (directing the Secretary to issue an SOC as to the appellant’s claim). Because I was not given an opportunity to respond, as allowed by the CFR's, because I was not provide with any information about this 08-20-2010 IHD claim until I discovered that it was missing from my VA records, where does the law provide the recourse for the veteran in this instance? File some other document and go through the same obstacle course again. The veteran that has a claim issue with the VA, where the VA failed to follow the law, should have priority in the decision process and the VA should pull out all of the stops to correct it's mistake. I find volumes upon volumes where the veteran has to comply and rule upon rule that seems to protect the people that are suppose to apply the law but when the law wasn't followed and the veteran is the only one to suffer, where does the veteran turn? My ONLY CONTRUBITION, to all of this, was the filing of claims and all of the confusion, failures and mistakes afterwards, were and are by the VA. It is now upon me to prove that the VA failed me when they have been made aware, multiply times, of these failures in not processing my claims as they have processed those where they did not fail the veteran by having correctly processed a veterans claim/claims. NOTE: The EP code #681, at the time that I filed my IHD and PTSD claims, represented one of three NEHMER covered disease's of which IHD was one of them. By the sole fact that it is a NEHMER claim, it brings into play several CFR's that must be applied to the claim with priority and immediately in my opinion. Other than the one VA document that has a contact date of 07-19-2012, which has a note stating “It should be noted that an EP 681 was originally established on 08-20-2010 and canceled with no explanation. The veteran submitted two VA Form 21-4138's on that day. We only have 1 4238 received on 08-20-2010 that does not mention IHD; however, it had to be there or an EP 681 would not have been established. Earlier effective date may be warranted.”, I have had no admission, from the VA, that the IHD & PTSD dated 08-20-2010 exist other than verbally. TL 09-04 is rescinded due to issuance of this FL May 20, 2013 Director (00/21) In Reply Refer To: 212A All VBA Regional Offices and Centers Fast Letter 13-10 SUBJ:Guidance on Date of Claim Issues Purpose This fast letter provides guidance for establishing dates of claim including guidance for previously unadjudicated claims that are found or “discovered” in the claims folder. Date of Claim Establishment VA regional office staff should document claim receipt dates in claim folders and in the electronic systems in accordance with M21-1MR. III.ii.1.B.5 and M21-1MR.III.ii.1.C.10. The date of claim for claims establishment purposes is as follows:  For first or third party information, the earliest date the information is received in any Department of Veterans Affairs facility. This date should be identified from the earliest VA date stamp. Date stamps can be from any VA entity, including but not limited to, Regional Office (RO), Pension Management Center (PMC), Veterans Affairs Medical Center (VAMC) or Records Management Center (RMC). (M21-1MR III.i.1.2.b). Exception: Use the date a previously unadjudicated claim is discovered as the date of claim for system control purposes. The earliest date stamp shown on the discovered document shall not be used as the date of claim for purposes of establishing the EP, but it must be considered when determining the effective date if benefits are granted. This will ensure that the claimant is paid properly. Important: A contention-level special issue has been created in MAP-D titled “Unadjudicated Claims Discovered” that should be used when establishing EPs for these claims. Page 2. Director (00/21)  For messages generated as a result of matching programs and BDN write-outs, the date shown on the message, or if no date is shown, the date of the review. (M21-1 V.III., 19.10).  Exception: BDN write-outs and 800 Series Work Items with the legend "Processing Date - Cycle XX, Month/Year" will use the Hines cycle schedule for date of claim purposes. Please see the Hines Cycle Schedule for more information.  For due process, the date the notice of proposed adverse action is sent. (M21- 1MR.I.2.B.7.b)  For EP 930 that is established to (a) correct a case worked erroneously or (b) to control an EP that was cleared prematurely, use the same date of claim of the underlying EP prematurely cleared or incorrectly processed. (M21-4, Appendix C, Section II, and M21-1MR III.i.1.2.b) Previously Unadjudicated Claims Discovered in Claims Folder Authorization to establish a date of claim for a previously unadjudicated claim or “discovered” claim will be approved by the RO Director, or his/her designee, which will be no lower than an Assistant Director. The claim’s establishment must be notated on the document by the Director, or his/her designee. This applies to either a paper notation in the claims folder or an electronic notation in the electronic record. After the claim is adjudicated, the Director must send an email to Compensation Service at VAVBAWAS/CO/212A with “Unadjudicated Claim Discovered” in the subject line and the following information concerning the claim:  SSN or claim number  Claimant name  End product  Date of claim (reflecting the date of discovery of the unadjudicated claimed issues)  Effective date (reflecting the effective date for payment purposes, if applicable) CUE and Effective Date The instructions provided in this fast letter do not govern assignment of effective dates for claim decision purposes or claims for clear and unmistakable error (CUE). In order for a CUE to occur, a decision has to have been made on a claim. Any newly “discovered” claims discussed above have never been decided; therefore, CUE is not applicable in these cases. See 38 CFR 3.105(a) for more information on CUEs. Page 3. Director (00/21) Effective date guidance is covered in 38 U.S.C. § 5110, 38 CFR 3.400 and 38 CFR §3.157. Please refer to this guidance when deciding the correct effective date to be assigned. Berta Thank you for your response. Your 1st question. No I have not contacted NVLSP, but I'm beginning to think that I should. As to it being a C&UE or not due to the original IHD and PTSD claims not being adjudicated but a subsequent claim for IHD was decided with a decision date of 06-20-2012 and then a provisional decision dated 09-10-2012 based on my challenging of the 06-20-2012 IHD decision. From what little I have read in citations, it seems to be a yes & no depending on specific determinations of what did or did not occur and when. I did not find a citation with the specific failure's by the VA that I have noted. Your 2nd question. My IHD & PTSD claims were filed on the same form 21-4138 and there is no proof of mailing. At the time that all of this started, I had no clue about any of this VA stuff. When my CBOC discovered I was a Diabetic in late 2010, my PCG, at the CBOC, suggested that I seek the advise of a Veteran who had been helping Veterans with the filing of claims because Diabetes was one of the presumed diseases from Agent Orange of which I knew nothing about these matters at that time. The 2nd day, after my first contact with the VA in almost 40 years, I was instructed to do a fasting for a A1c by my PCG in order to determine what treatment was needed. I was told that day to report anything unusual with my health and they would take it from there. The following morning, when I was to have the A1c blood test, I woke up with chest pains, sweating, breathing fast, weak and it felt like I had a child sitting on my chest. When I arrived, I reported this to my PCG and in a flash I had 6 people working on me. I was given 2 EKG's about 4 hours apart and both were abnormal. Because the PCG had been consulting with a cardiologist at the JAXVAMC during this time, I was then sent to the JAXVAMC ER by my PCG, to have a stress test done that afternoon or stay over and have it done the following day. The JAXVAMC ER doctor sent me home with 2 bottles of Mylanta. I reported this, in person, to my PCG the next morning at 8:00AM. That afternoon I received a telephone call from the ER doctor, 1:30PM, informing me of a stress test being scheduled for few days later. A few days after all of this I met with the Veteran and he helped me fill out a 21-4138 for Diabetes. When he finished I remembered that I hadn't told him about the heart stuff and he filled out another 21-4138 for IHD and he began asking me question and then said that I needed to file for PTSD also and placed that on the same form. Now to answer your question, no I do not have a copy of my IHD & PTSD claims because he had no means to provide copies at the time. I do have a copy of my Diabetes claim that I got from my “C” file. I do have this document, [Mr. Talley, with the VA, provided me with a form 21-0820 which has a contact date of 07-19-2012, which also has a note stating “It should be noted that an EP 681 was originally established on 08-20-2010 and canceled with no explanation. The veteran submitted two VA Form 21-4138's on that day. We only have 1 4238 received on 08-20-2010 that does not mention IHD; however, it had to be there or an EP 681 would not have been established. Earlier effective date may be warranted.” ]. Your 3rd question. First IHD decision dated 06-20-2012 I tried to post the scans but can not, don't know how here. Provisional decision Your 4th question. I demand evidence that they DO have it on file although it is not in my “C” file as I will explain later. Your 5th question. No, this was done in person at the RO, but I have a copy of the claim she typed out. The person ( Public Contact Representative) did not sign the document but they are doing so now. Your6th question. I have never had a PTSD examination or C&P for PTSD to my knowledge or a copy of such in my records unless the 12 week CPT counts. I was sent to the 12 week CPT by my PCG at the CBOC and as I understand things now, this was under the heading of treatment. Your7th question. I have filed, through my VSO, a lot of documents asking for this to be resolved. I asked him to file a NOD, C&UE and a Request for Reconsideration and this is where I am at. BTW: He was aware of all of this and when I received the provisional decision, part of his advise was “not to rock the boat”. I called him and asked for him to help me before the time ran out on the provisional decision and he had his secretary inform me that he could not help me and for me to refer to my decision letter. I wanted his help on resolving the PTSD claim and at that time was not going to challenge the IHD provisional decision, now I don't care if they take it all back or what it cost me because no Veteran should be dealt with in this manner and how many others have been or will be? Again, my only contribution to this was my filing claims, I have met every appointment (215 to date and I asked for only one, all of the rest were scheduled by the VA), responded to every letter and continued with every treatment the VA has given me. Broncovet Thank you for responding. Your advise will be taken into account shortly. As I understand the citations I have read, a “deemed denial” is applied to a claim that received a decision but wasn't an original claim that hadn't been adjudicate as with my circumstances, by which I was denied all of the CFR's afforded to a veteran filing a claim, that are a fact of VA records. **************************************************************************************************************************************************************************************************************** It is my understanding that NEHMER claims has/had priority in the development and processing of claims. The following is why I believe my IHD effective date should be 08-20-2010. As my VA records indicate, it seemed to be a priority in the development process with my Diabetes claim that I filed on 08-20-2010 of which I was awarded service-connection for this NEHMER claim on 07-18-2011, which is less than a year from the time that I filed the claim. During this time I was scheduled for C&P, 10-05-2010, Neurological; C&P, 10-05-2010, Diabetes; C&P, 10-21-2010, General medical; C&P, 11-05-2010, Neurological; and then awarded service- connection for Diabetes on 07-18-2011. During this time, I was being given treatment, by the VA, for the results from the examinations, by the VA, which had confirmed that I was a Diabetic. The VA records will indicate that the VA care givers placed an urgency on the proper care and treatment of my Diabetes. However, my records, and “C” file, do not indicate that I was scheduled a C&P for my 08-20-2010 IHD claim or my 08-20-2010 PTSD claim, therefore I did not have examinations or receive treatment for IHD, as I did after a C&P examination for Diabetes. Apparently, no priority was assigned to the IHD claim and NO evaluation for PTSD to date. See CFR 3.159 ©(4)(i). My records do not indicate that I was notified, for any reason, having to do with an IHD claim until after the heart surgery on 08-09-2012 or for a PTSD claim as of the date of this document. See #20, last paragraph. For 22 months the only treatment I received for IHD, was heart dosage aspirin and nitrogen pills that was ordered by my CBOC primary care giver just after the two abnormal EKG's that were done in JULY of 2010. Because I was in-trusting the VA with my health care by filing claims and was under the impression that the VA was processing the IHD & PTSD claims per CFR's, I was at risk of health and life for almost a two year period of time for IHD. It is also reasonable to assume that if I had been scheduled for an examination for a heart problem per Title 38 CFR 3.159, I may not have had to have a CABG but some other less invasive and risky procedure or just medications only. It is also reasonable to assume that the blockages were present in 2010 and that they would have been discovered allowing for an earlier treatment and effective date on the IHD claim. This may invoke CFR 3.154 Injury due to hospital treatment, etc. 1. On 06-06-2012, I contacted my VSO and asked him to check on my 08-20-2010 IHD claim after the heart cauterization was done at the JAXVAMC on 06-05-2012, and he informed me that I didn't have a IHD or PTSD claim in my VA records. This was the beginning of all of the following. [10 days later] 2. On 06-16-2012, I met with Mr. Nathan Talley, MSC from the JAXVARO, who discovered that the VA has an electronic file on me that has a entry of "EP 681 claim ESTABLISHED and CANCELLED with no explanation" dated as 08-20-2010. [5 days later] 3. On 06-21-2012, I met with a Public Contact Representative (PCR) at the JAXVARO and I asked her to help me locate my 2010 IHD claim. She retrieved my “C” file and we went through it but we didn't locate my 2010 IHD or PTSD claim in my “C” file. She then checked the VA computer system and didn't locate it there either. I asked her what I should do and she instructed me to file for everything I thought was a medical issue and to refile for IHD and PTSD, I agreed and she hand wrote the PTSD on the form 21-4138 that she had typed the other issues on that we had discussed. I also requested a copy of my “C” file. [ 28 days later] 4. Mr. Talley provided me with a form 21-0820 which has a contact date of 07-19-2012, which also has a note stating “It should be noted that an EP 681 was originally established on 08-20-2010 and canceled with no explanation. The veteran submitted two VA Form 21-4138's on that day. We only have 1 4238 received on 08-20-2010 that does not mention IHD; however, it had to be there or an EP 681 would not have been established. Earlier effective date may be warranted.” 5. Did this canceling of the EP 681 stop the development of the IHD claim? 6. I must point out that it was almost two years (over 22 months) from the first indication of a heart problem, which was detected by abnormal EKG's on 07-21-2010 at the Hattiesburg CBOC, until a heart cauterization was done at the JAXVAMC on 06-05-2012. 7. The 06-05-2012 heart cauterization was due to me going to the JAXVAMC ER five day's after another abnormal EKG was detected at the Hattiesburg CBOC on 05-17-2012. I believe it was the cardiologist on duty at the JAXVAMC ER that night (around 1:00 AM) at the JAXVAMC ER, who refused to schedule a heart cauterization, but one was scheduled by my CBOC primary care giver afterwards and the JAXVAMC scheduled for it to be done on 06-05-2012. [ 65 days later] 8. On 08-09-2012, I had bypass surgery at the Houston VAMC. 9. I believe this document from Mr. Talley constitutes an informal claim dating 08-20-2010, as I understand CFR 3.155 Informal claims ((a) Any communication or action, indicating an intent to apply for one or more benefits under the laws administered by the Department of Veterans Affairs, from a claimant, his or her duly authorized representative, a Member of Congress, or some person acting as next friend of a claimant who is not sui juris may be considered an informal claim.) , should my original IHD and PTSD claims be missing that were submitted on a Form 21-4138I on 08-20-2010. 10. I ask, what were and when were any actions taken, by the VA, on the 2010 IHD and PTSD claims that I had submitted in August of 2010 from 08-20-2010 until 08-09-2012? I am also requesting copies of any actions taken, by the VA, on the 2010 IHD and PTSD claims that I had submitted in August of 2010 from 08-20-2010 until 08-09-2012? 11. I will also add that the form 21-0820, with a contact date of 07-19-2012, notes “PTSD – new” and Ischemic heart disease due to Agent Orange exposure*** - (new)”, although I have now been informed, by several different JAXVARO PCR's on several different occasions, that my VA records do indeed indicate that both the IHD and PTSD claims, dated 08-20-2010, were received with no record of any communications with me afterwards. I have filed a request with the JAXVARO for copies of the 2010 IHD & PTSD claims as well as the claim of mine that had been assigned an “EP code 681 and was "ESTABLISHED & CANCELLED WITHOUT EXPLANATION". 12. In the decision letter dated 09-10-2012, it states “We made a decision on your claim for service connected compensation received on August 3, 2011.”. I have no copy of a claim with that date. 13. No reference is made to the original 08-20-2010 IHD claim in the 09-10-2012 decision letter. In this same decision letter it states under the heading “What We Decided”, “ Service connection for ischemic heart disease associated with herbicide exposure is granted with a 10 percent evaluation effective June 20, 2012. An evaluation of 100 percent is assigned from August 9, 2012. An evaluation of 10 percent is assigned from December 1, 2012. We have granted service-connection for ischemic heart condition effective June 20, 2012, the date we received your claim.” This date is in contradiction with the previous “We made a decision on your claim for service connected compensation received on August 3, 2011.”. I need clarification of these dates. I have read and it has been explained to me that the federal statute clearly states: When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of the matter, the Secretary shall give the benefit of the doubt to the claimant. Per 38 U.S.C. 5107(b). and As the United States Court of Appeals for veterans Claims explained in Gilbert v. Derwinski, 1 Vet. App. 49, 53-55 (1990): Citation Nr: 0814816, Decision Date: 05/05/08, Archive Date: 05/12/08, DOCKET NO. 07-06 244A General Legal Criteria Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. § 1131; 38 C.F.R. § 3.303. (see also) 38 U.S.C.A. § 5107 (West 2002) (also) To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. I have read and it has been explained to me that the federal statute clearly states: The VA does not have the discretion to ignore the substantive obligations owed to veteran, as provided by law. See Schafrath v. Derwinski, 1 Vet. App. 589, 592-3 (199) (The VA must strictly perform duties imposed by statute or regulation. It has no discretion to act or not to act.); See also Bradford v. Nicholson, 20 Vet. App. 200 (2006) (Failure to follow regulations warrants remand if unable to ascertain such failure to be non-prejudicial to the veteran). (A.) I have now been informed that the “EP code 681, ESTABLISHED and CANCELED WITHOUT EXPLAINATION ” WAS A REVIEW AND NOT A CLAIM that was CANCELLED. I was also informed that the EP code 681, at that time, was only applicable to NEHMER claims. (B). I was informed that the IHD claims, at the time that I filed my IHD claim, were being sent to the Muskogee office and the Muskogee office was under a court ordered to process all agent orange claims by September 30th, 2010. I submitted a claim for service connection for IHD & for PTSD on 08-20-2010 on a single form 21-41-38. I am of the opinion that this is when my problem with the 2010 IHD and PTSD claim began. (C.) Did this canceling stop the development of the IHD claim? [ NOTE-I HAD A CONVERSATION, BY TELEPHONE, WITH JAXVARO PCR ON 12-17-14 AND I ASKED FOR A DRO MEETING. I WAS INFORMED THAT THE IHD & PTSD CLAIMS DO EXIST AND ARE IN MY VA RECORDS AS BEING ACTED UPON IN 2010 AND I WAS INFORMED THAT A DRO MEETING WAS NOT QUAILIFIED BECAUSE A DECISION WAS NOT MADE ON THE TWO 2010 CLAIMS.] (D.) Because a PROVISIONAL DECISION WAS MADE ON BOTH THE IHD & PTSD CLAIMS after the decision letter dated 09-10-2012 for the 06-20-2012 IHD claim, I have been informed that I can not request a NOD, CUE, DRO or APPEAL this provisional decision or the original IHD and PTSD claims of 2010. The decision letter dated 09-10-2012, for the 06-20-2012 IHD claim, did grant a 10% rating for IHD effective December 1, 2012. It is my understanding that the Provisional Decision is for the 09-10-2012 decision, therefore a NOD, CUE, DRO or APPEAL should be available to me based on the 09-10-2012 decision. (15) I believe I was denied the assistance, per CFR 3.103 Procedural due process and appellate rights, CFR 3.104 Finality of decisions. and CFR 3.159 Department of Veterans Affairs assistance in developing claims , in having these 2010 claims adjudicated when I brought it to the attention of a veterans service officer on 07-19-2012 and a PCR at the JAXVARO on June 20, 2012 at 9:11 AM and was instructed to refile my IHD and PTSD claims? Decisions have been made on IHD and PTSD claims without adjudicating the original 08-20-2010 IHD and PTSD claims. (E.) I have no record of any heart EXAMINATIONS, a C&P being scheduled for IHD or any notification of any kind, from 08-20-2010 until 05-30-2012, due to an IHD claim being processed, which would have occurred if Title 38 CFR 3.159 had been applied specifically 38 CFR 3.159 ©(4)(i). Title 38 CFR 3.159 Department of Veterans Affairs assistance in developing claims. (b) VA's duty to notify claimants of necessary information or evidence. (1) When VA receives a complete or substantially complete application for benefits, it will notify the claimant of any information and medical or lay evidence that is necessary to substantiate the claim (hereafter in this paragraph referred to as the ‘‘notice’’) (2) If VA receives an incomplete application for benefits, it will notify the claimant of the information necessary to complete the application and will defer assistance until the claimant submits this information. (Authority: 38 U.S.C. 5102(b), 5103A(3)) © VA's duty to assist claimants in obtaining evidence. (4) Providing medical examinations or obtaining medical opinions. (i) In a claim for disability compensation, VA will provide a medical examination or obtain a medical opinion based upon a review of the evidence of record if VA determines it is necessary to decide the VerDate Mar<15>2010 08:43 Sep 01, 2011 Jkt 223141 PO 00000 Frm 00203 Fmt 8010 Sfmt 8010 Y:\SGML\223141.XXX 223141 erowe on DSK5CLS3C1PROD with CFR194 claim. (the IHD claim was a NEHMER claim) A medical examination or medical opinion is necessary if the information and evidence of record does not contain sufficient competent medical evidence to decided the claim, but: Contains competent lay or medical evidence of a current diagnosed disability or (B) Establishes that the veteran suffered an event, injury or disease in service, or has a disease or symptoms of a disease listed in §3.309, §3.313, §3.316, and §3.317 manifesting during an applicable presumptive period provided the claimant has the required service or triggering event to qualify for that presumption; and © Indicates that the claimed disability or symptoms may be associated with the established event, injury, or disease in service or with another service-connected disability. (F.) My records indicate the following C&P appointments: C&P, 10-05-2010, Neurological C&P, 10-05-2010, Diabetes C&P, 10-21-2010, General medical C&P, 11-05-2010, Neurological C&P, 08-10-2011, Audio C&P, 08-18-2011, Neurological C&P, 08-24-2011, Neurological EMG C&P, 09-08-2011, Neurological (G.) As indicated in (F), the VA was quickly scheduling C&P examinations for the Diabetes, Neurological and Audio claims but none for a heart problem. This indicates to me that the 08-20-2010 IHD claim was not being processed. C&P, 07-20-2013, ? C&P, 07-22-2013, ? Two on this day C&P, 07-25-2013, ? Four on this day C&P, 07-30-2013, ? (H.) The eight (8) C&P examinations above were scheduled after the surgery and just prior to the provisional decision dated 08-12-2013. (I.) 08-06-2013, I received a telephone call (six days before the date of the provisional decision) from a lady at the JAXVARO explaining that if I kept my request for a DRO meeting that it would delay the decision and I instructed her to canceled the request for a DRO meeting. (J.) 08-14-2013, I received the provisional decision. (14) I assert that the Jackson Veterans Administration Regional Office failed to develop the 08-20-2010 IHD & PTSD claims, as I understand the CFR's. "The Agency of original jurisdiction must provide, along with the mailing of the decision, a notification of the appellant of his or her procedural due process and appellate rights." See Mendenhall v Brown, 7 Vet.App. 271, 274 (1994); U.S.C. 7105(d)(1); 38CFR 3.103, 19.25(1999). "Where VA has failed to procedurally comply with statutorily mandated requirements, a claim does not become final for purposes of appeal to the Court." See Lanao v Brown, 8 Vet.App. 361, 365(1995)”. THIS WAS NOT DONE for the 2010 IHD & PTSD claims because I believe they were not processed per the CFR's. Fulfillment of the VA statutory duty to assist the veteran includes the procurement and consideration of any relevant VA or other medical records. Murphy v. Derwinski, 1 Vet. App. 78 (1990); Ferraro v. Derwinski, 1 Vet. App. 326 (1991); Littke v. Derwinski, 1 Vet. App. 90 (1990). Was MR21-1MR not applied? (16) As I understand the CFR's, a clear and unmistakable error was made by not properly adjudicating the original 08-20-2010 IHD and PTSD claims as I have explained in #20. This is why I have asked that I be granted an effective date of September 2010 for my IHD claim and PTSD claim per CFR 3.105 Revision of Decisions based on a CLEAR and UNMISTAKABLE ERROR. (multiple) (1.) Explain the following; Was I denied the required notification, written or otherwise per CFR 3.103 Procedural due process and appellate rights, of an action or inaction on my original 08-20-2010 IHD and PTSD claims , by the JAXVARO, if these claims were not processed per the CFR's by the JAXVARO, especially when the IHD claim is a NEHMER claim? Was I denied the required CFR 3.102 Reasonable doubt. Was I denied the required CFR 3.151 Claims for disability benefits. Was I denied the required CFR 3.155 Informal claims ((a) Any communication or action, indicating an intent to apply for one or more benefits under the laws administered by the Department of Veterans Affairs, from a claimant, his or her duly authorized representative, a Member of Congress, or some person acting as next friend of a claimant who is not sui juris may be considered an informal claim.), Was I denied the required CFR 3.156 New and material evidence when I reported what I believed to be an error in the processing of my 2010 IHD and PTSD claims on 06-21-2012. Was I denied the required CFR 3.157 Report of examination or hospitalization as claim for increase or reopen (a) A report of examination or hospitalization which meets the requirements of this section will be accepted as an informal claim for benefits under an existing law or for benefits under a liberalizing law or Department of Veterans Affairs issue, if the report relates to a disability which may establish entitlement. (b),(1) Report of examination or hospitalization by Department of Veterans Affairs or uniformed services. The date of outpatient or hospital examination or date of admission to a VA or uniformed services hospital will be accepted as the date of receipt of a claim., Would this be an informal claim for meeting the VA scheduled appointment for a stress test which was canceled by the ER doctor at the JAXVAMC on 07-21-2010 but was done a few day's later (17) I believe that by not properly processing my 2010 IHD & PTSD claims without complying with Title 38 CFR 1.03, that I was denied the: §3.156 New and material evidence. (b) Pending claim. New and material evidence received prior to the expiration of the appeal period, or prior to the appellate decision if a timely appeal has been filed (including evidence received prior to an appellate decision and referred to the agency of original jurisdiction by the Board of Veterans Appeals without consideration in that decision in accordance with the provisions of §20.1304(b)(1) of this chapter), will be considered as having been filed in connection with the claim which was pending at the beginning of the appeal period. (Authority: 38 U.S.C. 501) Title 38 CFR 3.159 Department of Veterans Affairs assistance in developing claims. (b) VA's duty to notify claimants of necessary information or evidence. © VA's duty to assist claimants in obtaining evidence. (4) Providing medical examinations or obtaining medical opinions. (i) In a claim for disability compensation, VA will provide a medical examination or obtain a medical opinion based upon a review of the evidence of record if VA determines it is necessary to decide the claim. (the IHD claim is a NEHMER claim) A medical examination or medical opinion is necessary if the information and evidence of record does not contain sufficient competent medical evidence to decided the claim. I believe these decisions address the issue of application of the prejudicial error rule in the context of the VCAA and apply to my 08-20-2010 IHD and PTSD claims: Sanders v. Nicholoson, 467 F.3d 881 (Fed. Cir. 2007), and Sanders v. Nicholoson, 467 F.3d 892 (Fed. Cir. 2007). Sanders v. Nicholson, 487 F. 3d 881, 889 (2007). Was I denied the required CFR 3.154 Injury due to hospital treatment, etc. (No examination was given for either claim per CFR's which may have resulted in a less invasive and risky procedure other than a CABG for the IHD claim and no examination/evaluation for PTSD as of the date of this document), because the IHD claim is a NEHMER CLAIM? Fulfillment of the VA statutory duty to assist the veteran includes the procurement and consideration of any relevant VA or other medical records. Murphy v. Derwinski, 1 Vet. App. 78 (1990); Ferraro v. Derwinski, 1 Vet. App. 326 (1991); Littke v. Derwinski, 1 Vet. App. 90 (1990). Moreover, the United States Court of Appeals for Veterans Claims (Court) has stated that the duty to assist claimants in developing the facts pertinent to their claims may, under appropriate circumstances, include a duty to conduct a thorough and contemporaneous medical examination. Proscelle v. Derwinski, 2 Vet. App. 629, 632 (1992); Green v. Derwinski, 1 Vet. App. 121, 124 (1991). My 2010 claims were done on a form 21-4138 and I read in the MR21-1MR " Consider a claim not filed on the prescribed form an informal claim ", and " any communication or action that shows an intent to apply for benefits under laws administered by the Department of Veterans Affairs (VA)", that they would be an informal claim. I believe this would apply even if I had not filed the 2010 IHD & PTSD claims because I was sent to the JAXVAMC ER for a heart problem, by the CBOC at the direction of a JAXVAMC cardiologist, for a stress test to be done that afternoon or the following day but instead, I was sent home by the ER doctor and the stress test was scheduled and done a few days later at the direction of the JAXVAMC after my PCG at the CBOC had contacted the JAXVAMC the day after the ER visit. (18) I assert that there was no final decision on the 2010 IHD & PTSD claims per Title 38 CFR 3.104 because there was no written notice in accordance with 38 U. S. C. 5104. Title 38 CFR 3.104 Finality of Decisions. (a) A decision of a duly constituted rating agency or other agency of original jurisdiction shall be final and binding on all field offices of the Department of Veterans Affairs as to conclusions based on the evidence on file at the time VA issues written notification in accordance with 38 U. S. C. 5104. The action taken by not processing these claims, per the CFR's, was for all intents and purpose a FINALY DECISION because I was denied any further action or knowledge as required by the CFR's due to no notification or scheduled examination for a NEHMER CLAIM having been filed. (19) As I understand these CFR's, the action that I believe was taken by the JAXVARO in not properly processing a claim for IHD & PTSD, without complying with Title 38 CFR 3.103, was a decision but not a final decision per Title 38 CFR 3.104, which indicates to me that the original 2010 IHD & PTSD claims remain open and undecided. (20) I assert that the failure of the VARO to comply with Title 38 CFR 3.103 is a clear and unmistakable error as stated in: Title 38 CFR 3.105 Revision of Decisions. (a) Error Previous determinations which are final and binding, including decisions of service connection, degree of disability, age, marriage, relationship, service, dependency, line of duty, and other issues, will be accepted as correct in the absence of clear and unmistakable error. (There was no decision on the 2010 IHD & PTSD claims which falls under the heading of "Previous determinations" because a provisional decision was made on the 2012 IHD claim without processing the 08-20-2010 IHD claim. Although the required written notification was not given which would meet the requirements of Title 38 CFR 3.104 as a final decision but it was a final decision and binding for all intents and purpose because I was not aware of this action as required by Title 38 CFR 3.103 and therefore I could not respond as allowed by the CFR's). Where evidence establishes such error, the prior decision will be reversed or amended. For the purpose of authorizing benefits, the rating or other adjudicative decision which constitutes a reversal of a prior decision on the grounds of clear and unmistakable error has the same effect as if the corrected decision had been made on the date of the reversed decision. ************************************************************************************************ (I ask that this be applied to award an earlier effective date for IHD and also whenever I have an evaluation for my PTSD claims and a final decision on PTSD is made.) ************************************************************************************************ (21) I assert that by not properly processing my 2010 IHD & PTSD claims without complying with Title 38 CFR 1.03, that I was denied the Title 38 CFR 3.157 Report of examination or hospitalization as claim for increase or reopen. (b) Claim. (2) Evidence from a private physician or layman. As was done by the (CBOC). (22) I was denied my the right to provide any evidence to substantiate my 08-20-2010 claim for IHD for over 22 months or to date for PTSD. (23) I had provided the JAXVARO the information about the 2010 IHD & PTSD claims and that a claim of mine had been assigned an EP code 681 and was "ESTABLISHED & CANCELLED WITHOUT EXPLANATION", and I had no other claim dated 08-20-2010 but the IHD & PTSD claim of which there has not been a decision made. (24) Until the provisional decision, each time I questioned someone in the VA about my original IHD & PTSD claims, I was told that there were no 08-20-2010 IHD & PTSD claims in the VA system. When I ask now, I am told that they are in the VA system and each time that I ask I also ask for copies but none to date have been provided. (25) This was prior to the Provisional Decision in which I was granted a 60% rating on my heart condition and also granting me 100% PT-IU on my overall service connected disabilities with an effective date of 07-21-2012. This effective date was based on the second claim dated 1-31-2012 when I was instructed, by a JAXVARO PCR person, to file again for IHD & PTSD but the person, after informing her, would not and did not attempt to resolve the issue of the earlier IHD & PTSD claims of 2010 to my knowledge.
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