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allan
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April 5, 2004 M21-1, Part IV
Change 197
SUBCHAPTER II. REDUCTIONS
9.16 REDUCTIONS UNDER ADMINISTRATIVE ERROR (38 CFR 3.500(B)(2))
a. Administrative Decision Required. Prepare a proposed administrative decision to reduce or terminate benefits as a result of an erroneous award based solely on administrative error or error in judgment (38 CFR 3.500(b)(2)). Give the beneficiary 60 days to submit evidence to show why the reduction should not be made. Do not include language about minimizing an overpayment since an overpayment will not be created.
(1) A coach may approve the proposed decision if the amount of the erroneous payment is less than $2000. If greater than $2000, the VSCM must approve the decision. Use the amount of the erroneous payment as of DLP at the time of approval of the proposed decision to determine who must approve the proposal.
(2) If a coach approves the proposed decision, he/she can approve the final decision even though the amount of the erroneous payment may then be equal to or greater than $2000.
b. No Evidence Provided and No Hearing Requested. If new evidence is not received within the 60-day due process period and VA does not receive a request for a hearing from the beneficiary within 30 days of the date of notice of the proposed reduction, reduce benefits the last day of the month in which the 60-day period expires.
(1) Another administrative decision is not required. A memorandum for file stating that no evidence was submitted and that the proposed decision is final will suffice. It must be signed by either a coach or the VSCM.
(2) File the proposed decision and a copy of the memo in the VSCM's office per subparagraph 11.31(b)(1).
c. Evidence Provided or Hearing Requested. If the beneficiary provides new evidence or VA receives a request for a hearing from the beneficiary within 30 days of the date of notice of the proposed reduction, continue benefits at the same rate pending a final decision. Reduce or terminate benefits effective the last day of the month of the FINAL decision or the end of the 60-day period, whichever is later. If new evidence is submitted, another administrative decision is required. If a hearing is held, the Decision Review Officer will suffice for another administrative decision and coach approval. If VSCM approval is required, the Decision Review Officer will submit his/her decision to the VSCM for approval.
d. Overpayment. NEVER create an overpayment in cases involving erroneous awards based solely on administrative error or error in judgment.
9.17 Rescinded per M21-1MR, Part IV, Subpart ii dated December 13, 2005.
9.18 Rescinded per M21-1MR, Part IV, Subpart ii dated December 13, 2005.
NOTE: Page 9-II-2 has been removed per M21-1MR, Part IV, Subpart ii dated December 13, 2005.
http://www.benefits.va.gov/warms/docs/admin21/m21_1/part4/ch09.doc
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§3.156 New and material evidence.
(a) General. A claimant may reopen a finally adjudicated claim by submitting new and material evidence. New evidence means existing evidence not previously submitted to agency decisionmakers. Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. (Authority: 38 U.S.C. 501, 5103A(f), 5108)
(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(a))
© Service department records.
(1) Notwithstanding any other section in this part, at any time after VA issues a decision on a claim, if VA receives or associates with the claims file relevant official service department records that existed and had not been associated with the claims file when VA first decided the claim, VA will reconsider the claim, notwithstanding paragraph (a) of this section. Such records include, but are not limited to:
(i) Service records that are related to a claimed in-service event, injury, or disease, regardless of whether such records mention the veteran by name, as long as the other requirements of paragraph © of this section are met;
(ii) Additional service records forwarded by the Department of Defense or the service department to VA any time after VA’s original request for service records; and
(iii) Declassified records that could not have been obtained because the records were classified when VA decided the claim.
(2) Paragraph ©(1) of this section does not apply to records that VA could not have obtained when it decided the claim because the records did not exist when VA decided the claim, or because the claimant failed to provide sufficient information for VA to identify and obtain the records from the respective service department, the Joint Services Records Research Center, or from any other official source.
(3) An award made based all or in part on the records identified by paragraph ©(1) of this section is effective on the date entitlement arose or the date VA received the previously decided claim, whichever is later, or such other date as may be authorized by the provisions of this part applicable to the previously decided claim.
(4) A retroactive evaluation of disability resulting from disease or injury subsequently service connected on the basis of the new evidence from the service department must be supported adequately by medical evidence. Where such records clearly support the assignment of a specific rating over a part or the entire period of time involved, a retroactive evaluation will be assigned accordingly, except as it may be affected by the filing date of the original claim. (Authority: 38 U.S.C. 501(a))
[27 FR 11887, Dec. 1, 1962, as amended at 55 FR 20148, May 15, 1990; 55 FR 52275, Dec. 21, 1990; 58 FR 32443, June 10, 1993; 66 FR 45630, Aug. 29, 2001; 71 FR 52457, Sept. 6, 2006]
Cross references: Effective dates—general. See §3.400. Correction of military records. See §3.400(g).
Supplement Highlights references: 8(1), 47(1), 73(2).
http://www.benefits.va.gov/warms/docs/regs/38CFR/BOOKB/PART3/S3_156.DOC
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Bandido60,
If you get a rating before the evidence is considered in it, send in a NOD or Reconsideration request instead of filing a form 9 for the Appeal process.
Once you file for appeal it will get held up at the AMC for 5 yrs and they won't likely use your evidence anyway.
Loosing evidence or giving it 0 weight is AMC's common practice.
Your best shot is going to be at the VARO or the BVA.
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The appeal process could take a decade or more.
If you have primary evidence that will make a difference on your rating before the VARO now, get it in ASAP for this rating. So what if it delays it a few months.
Better now than spending 5 yrs at the AMC, 5 yrs at the BVA and 5 yrs at the CAVC on appeal.
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What is a cataract?
A cataract is an area of opaqueness (cloudiness) in the lens of the eye. This is inevitable, to some degree, as we get older. Everyone has some degree of cataract by the time they are 80 and 2 out of 3 people before they are 60. The other causes of cataract are inherited.
http://www.mydr.com.au/seniors-health/cataracts
I'm 62 and i've been taking the 5mg oxycodone for around 8 yrs with no cataracts.
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[on his honorable discharge papers it shows he has a 3/4" scare on his knee. It wasn't on his enlist physical paperwork.]
If it was also listed on his enlistment physical examination, they will likely deny saying it was happened before he enlisted. Expecially since there is no record of it being treated or happening during service.
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Paul,
[Can I waive the DRO decision and go on to the BVA]
If you have an attorney, shouldn't you seek this advice from him/her? Just to make sure theres no error?
I would fill out a form 9 and go on to the BVA if it was my claim, but you should really ask your attorney this question since you have legal councel representing you.
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I wasted 4 yrs with DRO review.
The DRO was also the rater I had. He got promoted to DRO and worked my claim.
He intially denied the claim when he was a rater.
Than rubber stamped denials for a SOC and SSOC almost word for word.
Once you recieve a final denial at the VARO and you've exhausted all your NOD's, get it to the BVA. If your claim goes to the AMC, it will be stuck there for likely 5 yrs.
I finally won one issue at the BVA, the rest are before the CAVC waiting for a yr or two for a judge to review the case.
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Golfnut,
I didn't see what the medical issue your being examined for in your post.
This web page will help you see what the examination should be.
Disability Examination Worksheets
http://www.vba.va.go...exams/index.htm
On the intro letter I recieved from QTC for all my C&P's it said not to bring anything with me, that the VA would supply all the records. Complete BS. I took all my service records and current records that were vital evidence to my claim. It helped a great deal as the examiner had none of these.
The claim was remanded to the VARO for rating from the BVA. They awarded 10% right off the bat, than ordered the C&P's to determine the extent of the injury and illness. It should have been the other way around it you ask me.
I recieved one C&P about a month after I sent in the NOD on the low ball rating. Another for another health issue a month after that. And another for another health issue a month after that. The last one was back in May of this yr. I'm still waiting for the VARO to take some kind of action on it. I will be lucky to get an SOC before next summer.
I've seen no change in claims processing since filing in 1994. Needless delays, denials and low ball ratings.
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highred,
checkout this web page.
The fastest and easiest way to apply for enrollment and health benefits is online.
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thanks Hoppy.
That was very helpful.
Allan
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Disability Evaluation Under Social Security
(Blue Book)
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here's three web sites worth adding to your favorites..
Search for VA Court cases.
USCAVC Document Search
Search Board of Veterans' Appeals Decisions:
http://www.index.va.gov/search/va/bva.html
Web Automated Reference Material System (WARMS)
http://www.benefits.va.gov/WARMS/Site_Map.asp
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Taken from:
Title 38, Part 4 Schedule for Rating Disabilities
6260 Tinnitus, recurrent.............................................................................................................. 10
Note (1): A separate evaluation for tinnitus may be combined with an evaluation under diagnostic codes 6100, 6200, 6204, or other diagnostic code, except when tinnitus supports an evaluation under one of those diagnostic codes.
Note (2): Assign only a single evaluation for recurrent tinnitus, whether the sound is perceived in one ear, both ears, or in the head.
Note (3): Do not evaluate objective tinnitus (in which the sound is audible to other people and has a definable cause that may or may not be pathologic) under this diagnostic code, but evaluate it as part of any underlying condition causing it.
(Authority: 38 U.S.C. 1155).
[29 FR 6718, May 22, 1964, as amended at 64 FR 25209, May 11, 1999; 68 FR 25823, May 14, 2003]
http://ecfr.gpoacces...0.1.1.5.2.99.38
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Diagnostic Code
Index 2 — Alphabetical
http://www.benefits.va.gov/warms/docs/regs/38CFR/BOOKC/c-index.DOC
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They awarded me 0% for hearing loss with hearing aides and 10% for constant bilateral tinnitis.
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Chapter 5. Evaluating Evidence and Making a Decision
1. Guidelines for Evaluating Evidence
http://www.benefits.va.gov/WARMS/docs/admin21/m21_1/mr/part3/subptiv/ch05/ch05.doc
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Section B. Evidence Requested From the Claimant
http://www.benefits.va.gov/WARMS/docs/admin21/m21_1/mr/part3/subptiii/ch01/ch01_secb.doc
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Once you've sold everything you own to pay the bills, the VA may decide your claim a year or so after that.
Don't depend on them to come through for anything. May as well write a letter to Santa Claus and expect him to solve your problems.
For TDIU, you should recieve retro back to the day you filed for it. If they don't drag their feet by completely ignoring your favorable medical evidence or just denying it in order to delay paying it, it can take a year or two before you actually see the money in your account.
It's also possible to have an answer in 90 to 120 days.
You just never know with the VA.
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<H1>FWD From: Colonel Dan
VETERANS EXPOSED TO CHEMICALS NEED TO KNOW
http://www.veteranstoday.com/2010/10/24/veterans-exposed-to-chemicals-need-to-know/#respond
Date: Mon, 25 Oct 2010 07:55:38 -0700
From: rdowd@live.com t
To: Distribution Semper Fi
Subject: [3rd Marine Aircraft Wing, MCAS El Toro] VETERANS EXPOSED TO CHEMICALS NEED TO KNOW
(WASHINGTON, DC) – For the life of me, I still don’t know why the Veteran Service Organizations (VSO’s) have not published the list of 130 military bases on the National Priority List (EPA Superfunds), the chemicals found by EPA and the health effects of exposure.
The EPA Superfund database is accessible from the internet and the health effects of exposure to many of the contaminants have been identified by the Agency for Toxic Substances Disease Registry (ATSDR).
Many vets have access to the internet from their own computers or from another family member. It’s not like this is classified information or any national security issues are in play.
What is at stake is the health of veterans. The health of veterans should be of paramount interest to all VSO’s. Veterans pay dues to their VSO’s to represent them and to protect their interests.
Not everyone who served on an EPA Superfund base was exposed to toxic chemicals. Publishing the EPA lists is not going to spread panic among veterans. We’re mature adults fully capable of making rational decisions about our health care needs.
DOD, the biggest owner of Superfund sites, has no interest in notifying veterans of their possible exposure to toxic chemicals nor is there a legal requirement for any government agency to notify veterans or Congressional interest in pursuing this.
I have personally sent emails or letters to the CEO’s of most of the major VSO’s, including the VFW, American Legion, Marine Corps League, Catholic War Vets, etc. Only the Catholic War Vets agreed to notify their membership.
Am I going to cancel my membership to the American Legion and the Marine Corps League? No. But, I’d like to think that the CEO’s of these organizations would demonstrate a personal interest in the health care of their memberships by publishing this information.
What’s the big deal? We pay dues to VSO’s to represent our interests. I’m betting that most vets have no idea that bases they served on are now EPA Superfund sites. A number may have been exposed to deadly contaminants, are now sick, and have never connected the dots to military service. Putting aside the VA disability claim issue, these men (mostly) need to know what chemicals they were exposed to so their doctors can provide an effective treatment plan. Keeping them in the dark is definitely not helpful. DOD is not going to tell them anything. If I didn’t know better, I’d think the VSO’s are working for DOD, not for their memberships.
EPA’s Unacceptable Risks to Human Health
For every military base on the National Priority List (Superfunds), EPA lists the chemicals found in the soil and groundwater that are an "unacceptable risk" to humans and the environment. This information is not classified. It’s not a secret. Every veteran who served on an EPA Superfund needs to know what chemcials he or she may have been exposed to and the health effects of exposure.
EPA’s Contaminants of Concern (COC’s) "are the chemical substances found at the site that the EPA has determined pose an unacceptable risk to human health or the environment. These are the substances that are addressed by cleanup actions at the site."
" Identifying COC’s is a process where the EPA identifies people and ecological resources that could be exposed to contamination found at the site, determines the amount and type of contaminants present, and identifies the possible negative human health or ecological effects that could result from contact with the contaminants."
A link to the list of COC’s is shown on the first page of each EPA Superfund website under the caption, "view contaminants of concern at this site."
DOD is the biggest owner of EPA Superfund sites. For a complete list of the military bases on the National Priority List (NPL), click here.
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Posted By Robert J. O'Dowd to 3rd Marine Aircraft Wing, MCAS El Toro at 10/25/2010 10:47:00 AM
"Keep on, Keepin' on"
Dan Cedusky, Champaign IL "Colonel Dan"
See my web site at:
http://www.angelfire.com/il2/VeteranIssues/
</H1>
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If they make an error in deciding your case, they must pay retro all the way back to when you filed. A decade in my case.
They should pay you back to when you filed, minus the one year waiting period.
You have to be 100% disabled one year in order to become eligible for SSA benefits.
But things may have changed since 1997 when I won SSI.
Call your local SSA to make sure.
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Verk,
it's been 6 months waiting for an answer since my last C&P examination.
It could take a year or a 1 1/2 yrs from my experience of waiting for decision from a VARO.
The AMC is just as slow.
Raters who barely have any training/know nothing about the codes or refuse to rate by them, refusal to give weight to favorable C&P's/medical opinions, and Dr shopping for unfavorable IMO's in order to deny, add needless delays to many claims.
Letting the waiting game get to you may make you very sick. Try not to think about it by looking over all your evidence they may use to shoot down your claim.
Make sure you use the waiting time to get copies of all your C&P examinations and look for errors. It can take 3 months just to get copies.
Allan
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2.07 Evaluation Of Evidence
in VA Disability Claims Research
Posted
M21-1-6 Rating Board Procedure
2.07 EVALUATION OF EVIDENCE
The rating specialist has responsibility to recognize the need for evidence in relation to a claim. The members have responsibility to determine admissibility of and the weight to be afforded evidence that is presented, the need for additional evidence, and the need for physical examination. If all the evidence is favorable, the claim must be granted. (See Beaty v. Brown, 6 Vet. App. 532 (1994).)
a. Probative Value. The rating specialist will determine the probative value of medical or lay testimony. Accept evidence at face value unless contradicted by other evidence or sound medical or legal principles. In the presence of questionable or conflicting evidence, further development may be needed to corroborate testimony to include, if in order, field examinations and/or social surveys to obtain transcripts of original or other appropriate records. Rating decisions must clearly explain why evidence is found to be persuasive or unpersuasive. Decisions must address all the evidence and all of the claimant's contentions.
b. Medical Opinions. Medical conclusions must be supported by evidence in the file. Rating specialists cannot refute with their own unsubstantiated medical conclusions medical evidence submitted by the claimant. Recognized medical treatises or an independent medical opinion may be cited to support a conclusion. Such evidence, when relied upon, must be identified in the decision.