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Atlcocky
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Posts posted by Atlcocky
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Good morning Vync,
My case was mainly based on a pending unadjudicated claim. Truthfully, all the information was in the file since 1996. I asked, in writing and in front of the BVA, for the claim to be adjudicated for all of these years. Once the case went to the CAVC, I hired a lawyer to finish the case. He was excellent! It still took back and forth from the BVA to CAVC twice before they finally ran out of reasons to say no.
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Tbird,
Good mornng and thank you.
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Hello all,
Thank you all for the input on the case. I was recently approved with the correct EED. Of course, they have made some errors with the calculation of backpay. I will research to see if I can get a better idea but, I believe they have made a 5 figure error. I post in a separate thread but I am looking for historical pay charts from 1995-1999. The VA's website only goes back to 1999. I have also seen TBird post a chart but it did not have the rates with dependents.
Thank you all again.
Keep pursuing what you are entitled to!
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Hello Hadit community,
I am looking for and have been unable to find the pay chart from 1995-1998. The VA's site goes back to 1999 but no further. I have seen the chart that TBird has posted but it doesn't show the dependent's rates. If anyone knows the links on the VA site or some other site with this info, it will help me calculate my backpay award better. I got a large award but as several people have indicated, the VA may still be 5 figures off.
I thank you all in advance.
Atlcocky
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This is the BVA's response to the remand.
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56 minutes ago, pacmanx1 said:
Based on your post, it is hard to say without seeing your most recent denial of your BVA decision. As Bronco stated even with posting your BVA denial we can only speculate why the BVA denied your appeal without viewing your records.
Also, even though this is a claim for an EED, the BVA/VA still has the authority to request a new C & P exam (Medical Opinion) of the onset date of your disability.
I recently filed a claim for two separate EEDs and the VA sent me to two separate C & P exams and both examiner's opinion stated that my onset dated were documented by my VAMC medical records, but the VA refused to review my records and consider the examiner's opinion and denied both my claims. I already won one of my EEDs by a BVA decision, but I still have one pending waiting for the judge to review it.
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Because this is for an EED, exams won't come into play. It was remanded because they failed to apply or acknowledge a law. There response was, even if the law applied or even if he had an informal claim, the claim is denied because of some reason that they never used before.
Does this seem right? Again, it seems like they were told by the CAVC to look at the law concerning informal claims and they went beyond just looking at that.
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Ok. Thank you all for your help.
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So Bronco,
There was nothing new added. It was the same file they had before the remand. Their response to the remand was a denial for some completely different reason.
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3 hours ago, broncovet said:
Well, yes.
Remember, the board has to give an "adequate reasons and bases" for denial.
So, your attorney appeals to the cavc, and "wins" a remand.
The cavc is not ordering the bva to award benefits with a remand. They are ordering the board to "fix the problems" the CAVC decision noted, readjuticate the claim.
If its denied again, the Veteran can appeal again. And, the board can "craft new reasons" to deny, that they had not mentioned in the past.
However, "if" you had specifically raised the issue, and it was not addressed, you might have a complaint.
But, the board does not have to individually cite every piece of evidence except in the evidence section.
Remember, the board is given a "presumption of regularity". As an example, if the board cites as evidence, "your medical file from 1 June 1985 through 1 July 2021", this assumes the board read your file and considered any evidence in that file through those dates.
Now, its up to you, upon appeal to say things like. "In the medical exam dated 16 Sept, 2014, the examiner stated, 'the veteran is unable to use his left hand', but the board did not give a reasons and bases as to why this favorable evidence was not considered".
Now, the board, upon remand from the cavc, can readjuticate and say something like, "while the Sept 16, 2014 exam was favorable to the Veteran, an exam dated July 8, 2015 was more probative because that exam involved xrays and MRI's so it was more thorough that the 2014 exam."
And, the regulations permit the board to favor one exam over another, "provided that" they give an adequate reasons and bases for doing so.".
In this example, above, the board is justified in favoring the 2014 negative exam, and, to overcome this, the easy way is to get a thorough exam (probably an IMO), where the doc demonstrates that the xray reading was inaccurate, that, indeed, this x ray showed evidence of arthritis.
This is why they call it a hamster wheel..where the Veteran is put on a roller coaster of denials, reasons and bases, and more denials and more reasons and bases. I have been through it.
2 hours ago, Mr cue said:Well here is my opinion on it.
Mariano v. Principi, 17 Vet.App. 305, 312 (2003) (Court noted that it would not be permissible for VA to undertake further development if purpose was to obtain evidence against appellant’s case)
Might also look at:
Adams v. Principi, 256 F.3d 1318 (Fed. Cir. 2001), (in which the court stated that it would be improper for the Veterans Court to remand a case to the Board to give the DVA another opportunity to develop evidence needed to satisfy an evidentiary burden it had failed to satisfy the first time, i.e., to “attempt to introduce new evidence sufficient to make up the shortfall” in the agency’s proof. Id. at 1322.”
So it would seem the bva VA isn't following the law with your cavc remand.
Just my opinion on what these cavc precedent say
5 hours ago, Chuck Haven said:The language in the remand to the BVA is critical. If the Court sends the case back to the BVA for "further development" this opens the door for the VA to introduce other reasons / bases to deny the claim. There is some decent detail on how the VA is supposed to handle Court remands in VA Manual 21-5 Chapter 7.
Good luck.
Chuck
Thank you all for answering. Here is the wording from the CAVC remand. Selfishly, I like Mr CUE's answer better because that what I want to believe. However, I know the hamster wheel very well.
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Hello all,
My claim for EFD was denied at the BVA level and then appeal to the CAVC. The CAVC, under a joint motion, remanded it back to the BVA. The BVA then denied again for a reason that was not in the file and something that we have not seen before. (I will upload the BVA denial letter tomorrow.)
So, the question is can the BVA deny, deny, deny and then when the file comes back on remand, deny for a completely different reason than what they were ask to look at on the remand? By the way, the reason for the latest denial ahs NEVER been mentioned before.
Thank you.
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Ok Bronco. I understand. I believe that I can write it up in a consise, detail manner that will explain why I believe the date to be incorrectly decided. I will use what you gave me as a road map and then maybe find a nova attorney to look over what I have already completed.
Do we have a good resource on hadit to find attorneys in the Atlanta area?
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Hey Bronco,
Thanks as always. Initially, I believe the section discussing I formal/I referred claims will be the correct route for me (more research to follow). It does concern me how this decision:
[But see Deshotel v. Nicholson, 457 F.3d 1258But see Deshotel v. Nicholson, 457 F.3d 1258(Fed. Cir. (Fed. Cir. 2006) (Where vet files more than 1 claim with the RO at 2006) (Where vet files more than 1 claim with the RO at the same time, and the ROthe same time, and the RO’’s decision acts favorably or s decision acts favorably or unfavorably on one of the claims but fails to specifically unfavorably on one of the claims but fails to specifically address the other claim, the second claim is deemed address the other claim, the second claim is deemed denied, and the appeal period begins to run). denied, and the appeal period begins]
could mess the whole process up. It this rule is correct, filiing a claim with multiple issues can be detrimental because it seems to say once a decision was made on some of the issues, then the rest are 'deemed denied'. Is that what this decision is saying?
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Hello all again. My C-file should be hear this week. I will go thru it with a fine tooth comb to find and verify that there is evidence in the file to indicate that I requested adjudication (official and unofficial) on my nerve issue as far back as 1996 (since service connected, May 2017) and two, the VA did not adjudicate the claim and it is still pending.
I believe I have a firm understanding of the Adjudicated and/or pending claim doctrine's. However, I am looking for opinion from you all as to whether or not I should find an attorney to handle this or should I write it up myself and give it to an attorney if the appeal is denied. I write fairly well concerning claims and appeals, but because this could be a 5/6 figure back pay claim, I don't want to screw it up to where it can't be fixed.
I know it is will not happen quickly, but I would like to have it written up very well and do it the right way.
Questions are:
1. Should I give a complete write up when I send in the NOD about the EED?
2. If not, what should be included with the NOD, other than, 'I would like to appeal....'?
3. If so, are there any downside to the complete write up? ie, if I don't include something, can I add it later? Am I penalized if something is not included in the initial filing of the NOD?
4. In the write up of the NOD, how much detail should I go into about the appeal? ie, should I trace it from the beginning to include all my submissions and what the VA responded with in their correspondence back to me? or just show them the dates when the claim was both unofficially and officially claimed.
Long post here, I'm sorry. I am hoping to start the process next week or start looking for an attorney. By the way, How much do attorney's usually charge for something like this?
Thank you all
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14 hours ago, Berta said:
There are hundreds of decision on this type of action at the BVA:
:ORDER The debt resulting from an overpayment of benefits due to the award of dependency compensation on behalf of the Veteran's son "J" from April 19, 2003 to October 1, 2005, concurrent with Chapter 35 DEA benefits, is valid. A waiver of the entire amount of overpayment, $5,962.80, is granted."
https://www.va.gov/vetapp18/files1/1805692.txt
On the other hand :
"ORDER
An overpayment of VA compensation benefits in the amount of $6,732.80 was properly created, and waiver of recovery of the overpayment is denied."
https://www.va.gov/vetapp17/files8/1744861.txt
If your search the BVA web site under decisions, you will find more-
using the search terms overpayment dependent DEA
I didnt read those decisions above in full but they will give you an idea of how to request a waiver and appeal -and why some waivers were granted and others were denied.
Berta,
Thank you as always. I will review and start preparing.
Atlcocky
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Hello All,
I am trying to get information about appealing a decision from the VA to make me pay about $3100 back pay. My son started receiving DEA benefits in Aug '17. The VA just sent me a notice that they have overpaid me since that time because you can't receive both DEA benefits and be payed as a dependent. I have 60 days to appeal the the notice of back pay owed to the VA. I'm ok with the reduction of the dependent portion since it is much less than the DEA amount. I don't think its fair for them to want the back pay when I didn't do anything wrong.
Has anyone successfully have this overturned or at least not have to make the back payment?
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53 minutes ago, Berta said:
" I believe this falls under the 'unadjudicated claim doctrine' which has affected the effective date for this disability. I believe that if the VA would have reviewed/acknowledged the request and sent me to the appropriate doctors, I would had this claim approved years ago."
You say " request" but was this a formal claim filed in 1996?
Do you have a copy of it and proof they got it?
Succeedful EED claims usually always rest on 38 CFR 3.156 or on CUE ( 38 USC 5109).
38 CFR 3.156 is here:
Plenty on CUE as well under a hadit search.
The older claim would certainly be in your C file if they got it as well any attempts they made to find you if they sent you letters that were returned to them if you had moved.
When I separated, I submitted my original claim where I asked for a rating for my neck, back and left shoulder. Since that time, on at least one SSOC, we requested that the VA adjudicate the nerve claim. They rated me for a shoulder condition but ignored the nerve condition requested. I have documented evidence of a nerve issue date prior to my separation and since then. It is in my VA medical records and in private medical records submitted to the VA.
Here is the initial write up that have been working on to submit of form 21-4138:
I am a honorably discharged veteran. I have an Unadjudicated Claim Radiculopathy/Nerve Damage) that has not been acted on by previous Regional offices (Atlanta [1996], Montgomery [1996-99], Louisville [1999-2003] and Atlanta [2003-present]), the Appeals Management Center and the Board of Veterans Appeals. This claim originated prior to my separation from the USAF and continues through today. Some of the highlights of this claim are as follows (complete chronology will be included):
1) January 27, 1989 – Paravertebral trigger pt t12 level, bilateral (Military Service Records)
2) September 14, 1990 – Cervical injury in Auto accident (Military Service Records)
3) 1995 – Several reports of Radiculopathy (Physical Therapy and office notes)
4) September 2, 1997 – First report after separation from USAF (HealthSouth)
5) October 24, 2000 – VA Compensation report and Supplemental Statement of Case
6) April 17, 2003 – Numbness and tingling (Requested Adjudication for this on VA Form 646-Statement of Accredited Representative in Appeal -Page 2, Para 3)
7) April 30, 2004 – Numbness and Tingling (Letter to AMC. Specifically requested Adjudication)
Nov 5, 2005 – Numbness and tingling (Letter dated Nov 8, 2005, requesting adjudication of the claim)
9) Jan 30, 2006 – American Legion Written Brief Presentation to BVA on my behalf. It is law that the veteran is requesting the maximum benefit to include adjudication of unclaimed disability. It states that the issue cannot be ignored.Complicating this Unadjudicated Claim for Radiculopathy is the fact that it is inextricably intertwined with a Spinal issue. I was denied disability for both Cervical Strain and Back Condition as “Not Service Connected, Not incurred/Caused by Service”. Because the Nerve issues were totally and completely ignored in the initial VA exam (No spinal xrays, EMG or any test/discussion about the nerve damage), this very likely led to the denial of my claim. I believe if this Radiculopathy claim had been adjudicated from the start, I would have also been service connected for the Cervical Strain.
Based on clear evidence that I suffered a neck (cervical) injury while I was on active duty (1990) and a long history of numbness and tingling (Radiculopathy) in my arms and fingers, I believe I should be Service Connected for Bi-lateral Cervical Radiculopathy (Neuralgia – Code 8716 Ulnar Nerve and/or Code 8712 Lower Radial Group) and Code 5237: Lumbosacral or cervical strain and/or Code 5238: Spinal stenosis—the spinal column narrows and presses on the spinal cord or nerves. My evidence will show the gradual degradation of my condition.
My request:
A full adjudication of my claim for Nerve Damage/Radiculopathy in my arms, hand and fingers that has been pending since my original claim for benefits in 1996.
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3 hours ago, Buck52 said:
JMO here but it sounds like you may be in for a long wait to the BVA AND REMANDS
IF you don't have a good attorney you need to find one.
That is so disappointing it's not funny. I never expect anything to happen quick with the VA but hiring an attorney was never a consideration until now.
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Ok all. Update concerning my situation on EED...Based previous answers on this thread, ie that there is an order to things concerning EED with the VA. I now have Step 1 and 2 complete (service connection and what I believe to be the correct rating). This leads me to Effective date. It was ordered on the date that I filed, March 2017.
To refresh and then ask for help..The American Legion and I have both formally and informally asked the VA to rate my neck, shoulder and nerve issues dating back to 1996 when I separated from the Air Force. I have NOT received any denial, approval or acknowledgment from the VA about this claim at any point. I believe this falls under the 'unadjudicated claim doctrine' which has affected the effective date for this disability. I believe that if the VA would have reviewed/acknowledged the request and sent me to the appropriate doctors, I would had this claim approved years ago.
That brings me to the question..How should I approach this issue with the VA when I am claiming that they didn't adjudicate a NOW approved claim and I am looking for an EED for that disability/disabilities?
Any help would be greatly appreciated. By the way, I don't know what's in my cfile because they have not sent it yet.
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On 7/18/2017 at 1:33 PM, saxman said:
Atlcocky- I agree with Broncovet. The order in which you need to attack this is crucial. You must get service connection first, then correct percentage, and lastly EED. I'm trying to get my EED back to a claim from 1993. I submitted a claim back in 1993 with two issues on it but they only addressed one. Fast forward to 2013. I resubmitted a claim for the same issue that was ignored and it was grated. Now I'm fighting trying to get that EED back to 1993. This is a 5 figure back pay! It's currently at the board.
Hey Saxman,
Did you back from the board about your EED?
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Hello all,
Great news on my giant new claim/reopened claim. I was awarded 100% P & T with the effective date of March 2017, date of intent to file. I actually submitted the claim in November 2017. I would like to thank you all for helping me to organize my thoughts and write claims that were easy for the the VA to approved and in very short order. I don't always post, but I always read before I make any moves dealing with the VA. Fortunately, it did remain in the FDC program and I got my award letter in late January or early February.
I am in the process of getting a copy of my C-file and then I will have question about EED thru appeal or CUE which ever is appropriate. I was service connected and rated on a 'new' claim that was actually an adjudicated claim that the VA never responded to since 1996. I have another old thread about EED that I will use to get help with this issue.
THANK YOU ALL
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On 11/16/2017 at 1:11 PM, MikeHunt said:
Sorry- RFD is 'Ready For Decision' in the VAs system.
The VSR marks your claim RFD when it's complete in the 'pre' decision stage- It then goes to the rater.
IF everything is in order- You have a good DBQ, and a good IMO, and all the other items are in order- Service Treatment Records (STRs), your DD-214s, etc, then it can simply be rated.
Sounds to me like it is- IF I followed correctly. IF so, just ask it to be rated directly.
Write 'Please mark RFD'
Unfortunately I saw this after I sent the claim. I hope it doesn't slow down to much. I did file it as a FDC.
Thank you for your help.
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6 hours ago, MikeHunt said:
This- submit everything, but definitely do this.
Make it so the VSR can instantly justify moving claim along- slam-dunk.
If you have complete DBQs w medical opinion (IMO) be even more brief; "All documents complete for decision; please mark RFD"
There's zero difference in FDC and non FDC claim processing. All claims use exactly same procedure.
If something's left out, or they have to develop for STRs- in either case- it might take forever.
What's RFD? and STR's?
Board of Veteran Appeals and "double jeopardy"
in Appealing Your Veterans Compensation Disability Claims NOD, DRO, BVA, USCAVC
Posted
Good morning Vync,
My case was mainly based on a pending unadjudicated claim. Truthfully, all the information was in the file since 1996. I asked, in writing and in front of the BVA, for the claim to be adjudicated for all of these years. Once the case went to the CAVC, I hired a lawyer to finish the case. He was excellent! It still took back and forth from the BVA to CAVC twice before they finally ran out of reasons to say no.