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First Class Petty Officer
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OldJoe last won the day on June 11 2016

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About OldJoe

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    E-5 Petty Officer 2nd Class

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    puttering around tinkering

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  1. Wrote letter to Chairman Spickler as suggested by Senator's veterans' advocate. Though probably not the best example of how it should read hopefully somebody will be able to use this in the future for ideas on writing such a letter. Any constructive criticism is appreciated so future individuals can learn from the suggestions. This will be part of an 14 page fax. (After printing 3 times I realized I misspelled his name and had to reprint it yet again) 12 November 2018 Chairman of The Board of Veterans Appeals PO Box 27063 Washington, DC 20038 Mr. Spickler, I am writing to bring to your attention to an issue regarding the quality of the “accuracy rate measurement system” as outlined in the “Annual Report for Fiscal Year 2017”. In particular a rating dealing with a Clear Unmistakable Error (CUE) I recently claimed. The error was in my initial claim made back in 1996. They had all pertinent service medical records in their possession at the time that demonstrated a direct service connection to my back condition. This evidence met the criteria to rate me for scoliosis at the time which was and still is 20%. I filed my original CUE 19 October 2018 explicitly outlining the nature of the error and how it fulfilled the requirements of title 38 CFR 3.156 and also how CFR 4.6 may have been violated. On 29 October I received the “unofficial notification” from the DAV stating that they had denied my CUE for an earlier effective date for my service connection for degenerative arthritis. I followed up with the DAV who, having more access to the VA system than I, read to me that the VA’s reasoning for the denial; that they had made the correct decision based on all the medical evidence available at the time. If so, then this is a violation of CFR 4.6 regardless of intent as framed by the argument in the previous paragraph. I have since submitted a new CUE (02 November 2018), this time on the initial decision with an effective date of 1996. What should have been a textbook example for how a textbook CUE should have been dealt with has become a textbook example of how the VA routinely incorrectly rates veterans. The only item that may have needed to go before the board is my reference to having a letter stating that the VA had received my claim for benefits in September 1995 and were working the backlog as quickly as possible. I left the service June 1995. This would change my effective date of my original claim due to being within the presumptive period for service connection. Please look into this matter expeditiously so that my claim doesn’t waste anymore valuable resources than it already has. I have included for your examination: · my declaration of CUE (used for both CUE claims) · cover letters for each CUE prepared for me by the DAV (1st and 2nd) · page from DAV’s “unofficial notification” · evidence supporting service connection o record of having no prior back issues o record stating scoliosis · letter stating that the VA was in possession of my claim for benefits Respectfully,
  2. Um, are there any examples on how to compose something like this so I don't sound like a complete blithering idiot?
  3. Thank God for people who above and beyond for vets. Just got a response from the senator's office. There maybe a course of action I can take... What she wrote: " OK, you may want to file a complaint with the Chairman of the Board of Veterans Appeals, David C. Spickler, JD., Executive in Charge/Acting Vice Chairman Board of Veterans Appeals. https://www.bva.va.gov/docs/Chairmans_Annual_Rpts/BVA2017AR.pdf This is a link on the internet for the BVA Annual Report for FY 2017. Go to page 15 and read about “Quality” on that page. It speaks to accuracy rate. This would be the address for the Board: By Mail:Board of Veterans’ Appeals P.O. Box 27063 Washington, DC 20038 By Fax:(202) 495-6803 I would suggest you write to him and outline your issue." I will be posting rough drafts of letter To Mr. Spickler. Any help will be greatly appreciated. I know his office probably get thousands of these every day so I have to make this count and not waste his time.
  4. Well, called the number OIG gave me, was pointless. As soon as I heard the prerecorded message state my options I knew the only one I would get was "Peggy", who would't have been able to do anything but parrot what she saw on the computer screen. Granted some Peggies (sp?) are better than others but in this case of legal questions I do not think there is anything she would be able to do. (Correct me if I am wrong.)
  5. Yes, Hadit has the permission to turn this, and related threads, into a made for TV soap opera. Might be worth a couple of chuckles. You think they could get Tim Allen to portray the vet?
  6. Just got a reply from senator's office, she said: " The issue could be that your claim goes before the Administrative Law Judge for approval or denial and they should know the law. I will do some research. " Not knowing anything legal, she is probably right. But, I tried, who knows, maybe something will pan out.
  7. OK, maybe I did mis-state the wrong reg, at least in part... 38 CFR: 4.3 (reasonable doubt) 4.6 (deals with evaluating evidence properly) 4.13 (effect change of diagnosis, wasn't arguing the current diagnosis but calling CUE on original 20 year old claim) 4.21 (application of rating schedule) 4.22 (aggravating preexisting issues) Others that are interesting to read (but totally unrelated to my claim as I see it): 4.17a 4.23 (maybe hard to prove without witnesses) Thoughts; as this goes forward?
  8. OIG's response: They don't get involved with the veterans' claim process. I need to call 844-698-2311 and/or talk the the regional office itself and complain about it. (Um, like that last part really will help. I can just see it now, operator answers phone and as soon as they identify the topic being described forward the caller to an automated line with programmed periodic responses of hmm, uh-ha, i understand, ...; and after a predesignated lapse of silence by the caller responds with "thank you, we will look into it as quickly as we can"...) I did send an email to senator's office telling them what happened and if there was something different I needed to do. I don't expect much in response, unfortunately it seems as though the only real benefit a sentor's office can give is act as an sympathetic ear to the vet, and make a few more squeaky noises that the VA may try to silence quicker. Bottom line, what did it hurt to try? What was the worst they could do and or say? But at least everyone here can know what happened and learn from my silly antics. OK, maybe not so silly, but maybe I will hit the right combination of things and end this merry go round without wasting another 3 to 6 years in the process. Will post update, but not expecting much.
  9. Just trying to cut the VA off at the pass before they come down again and deny it by talking to the Senator's office (who suggested I should talk to the OIG). Next comment will discuss response from OIG. The error was with reviewing all the available records at the time of the original decision. (Doesn't that seem like that is always the case?) Maybe I quoted the wrong reg? But it does relate to the evaluation of all the evidence, so at least partially right? They missed missed the one obvious record that would have granted me 20% by the rules in effect at the time (and still is in effect). Their response was that they made the correct decision based on the medical evidence at the time of the original decision. If they had used all available records they would have made the correct decision (yes that obvious, DAV rep was surprised at their response). In stating that they used all available medical at the time and came to the proper decision they basically are stating they even looked at the record in question and even though the criteria is quite clear about the rating of scoliosis. They denied me the rating of 20%. Thus fulfilling the base requirements of 38 CFR 3.156 (1), (3), and (4). If I am not mistaken, you cannot say you evaluated everything based on the medical evidence at the time and came to the correct conclusion if it is clearly stated what the conclusion should have been by the criteria at the time was something different. Even if they use the old argument of a genetic issue and natural progression, I can easily show them an entry from my SMCs stating that there was no prior back issues before. Granted this doesn't mean it isn't genetic (my opinion is it isn't), but it firmly raises the qualifier that it was aggravated by the military. Even a very conservative application of "benefit of doubt" blows that away when considering that I was Security Police with a sub-classification for Air Base Ground Defense (basically Air Force equivalent infantry and the practice/drills that went with it).
  10. In the end, even if I never make another post on this forum, I hope that someone can find something of use from this long string of posts. From humor, to support that even though it may be a long row to hoe there is hope, what mistakes NOT to make, examples of stupid things one shouldn't try unless they are really willing to trust their luck (yes, I was really lucky the way some things have worked out), and that in the end, the one that is really in charge is the guy upstairs... But until the end of this ordeal I will keep on making posts as things change... Now to cal the blasted OIG... (ARGH!!!)
  11. When this is over (at least this part of the saga), how many boxes of paperwork am I going to wind up with for my own records? What is the best way to organize it (I don't even know where to begin)? by claim by medical condition by date by name of idiot who conducted last C&P exam?
  12. BERTA, Followup on my denial for my CUE. Friday (2 November 2018) went back to DAV and showed them the "unofficial" notification. Needless to say, they were a bit surprised because everything about the CUE was plain as day. Short story, submitted another CUE, this time on the original claim submitted in 1996 for vocational rehabilitation. DAV rep, wrote a new cover sheet basically stating that if I had understood the error back in 1996 I would have filed a CUE back in 1996. The took my NOD claiming CUE, whited the date out and entered the current date and we resubmitted. DAV said, this may just be one of those claims that has to go before the board in order to be decided. I hope not...
  13. The ironic thing is, now that there is a light at the end of the tunnel beyond the headlights of the train screaming straight at me (why the VA tries a last minute curve ball is beyond me). The whole way everything is working out in the end may all be to my advantage. There recent denial of my CUE technically is a violation of 38 section 4.6, I just have to report it to the right place (senator's office said I had to report it to the OIG to be able to get any traction). Then if they fudge it up again, I got them over a barrel. That said, I am not going to hold my breath. This is the VA over-watching the VA here, even though they are supposed to be "oversight" to watch for this type of stuff, I expect it basically to be a rubber stamp of approval on the VA's part. The kicker is that now after all of this headache, I finally come into possession of all the letters I needed 3 years ago... But it is, what it is... Cannot change any of it now.
  14. SgtStelmo, yes, the knees were a secondary claim. I was using the knees to prep my claim (CUE) for my back. Just the way everything unfolded. Everything went sideways in a hurry, when my VSO, at the start of this claim submitted everything before I could get the nexus letter for my knees. Unfortunately, as I have found out the hard way, you are very much correct in stating that you have to get everything connected. Also, the fact that even in obvious cases, one clueless C&P Examiner and you get a whole other set of headaches. But luckily, I got a letter after the fact connecting knees to military (the connection stems from my original claim/C&P examination back in 1996, who would have thunk it).
  15. Thanks Hamslice, Luckily I am a pack-rat, just had to find all of the old documentation. And I did, the last L.E.S. from May 1995 (got out in June couldn't find that one if I ever even received it), the S.S.B. paperwork with the amount they withheld for taxes, and the letter stating that they had conducted a review of my records and when my first payment would start. Just have to scan it all and submit it...

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