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UpToHere

Second Class Petty Officers
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About UpToHere

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    E-4 Petty Officer 3rd Class

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  1. I eventually succeeded on my 1151 claim “for the residuals of surgery & radiation therapy.” ”Eventually,” because, initially, a DRO denied “my” “claim” for 1151 benefits for “soft tissue sarcoma.” 1.5 years passed, before a different DRO upheld my appeal that my 1151 claim was for benefits the “residuals” of surgery & radiation therapy needed to treat the belatedly diagnosed sarcoma, and not for benefits for the sarcoma itself. Flash forward to today, VA is continuing to deny there were any adverse events in my care (alternatively, that there was any adverse event that
  2. So do I. My situation began 5/2003, and I’ve been pushing VA on it continuously (as I got new information), most recently, 2 weeks ago. (No “giving up” in that history.) The issue, as I see it, is that VA keeps feeding me bogus* denial rationales. ”Bogus” = my medical records & my C-file put oaud their denial rationales. The problem has been that, when I point out the discrepancy between the record, and what VA misstates is the record, VA doubles-down, and comes up with a new denial rationale. Other than a miraculous, spontaneous, VA “change of heart,” who/what en
  3. Have tried. Again & again & again & ... Failed. 2 adverse events (a 13-month delayed diagnosis of soft tissue sarcoma, and an improperly performed procedure that necessitated further (i.e. corrective) surgery; 5 providers’ failure to disclose them (1 of those providers is on record that he deliberately did not discuss my case with me, out of concern I might take legal action v. VA/VA providers); subsequently, the VAMC director’ reported that the standard of care had been met, and that there were no adverse events in my care that necessitated disclosure; his “advice” was
  4. No, not at all. EED & ER are not “birds of a feather.” They’re two entirely different beasts. Consider, “Case #13, from the Secretary’s CY 2002, 503(c) Report to Congress on Equitable Relief,” (attached). In Case #13, the Secretary held that although the statutory bar to an Earlier Effective Date of Claim (EED) is inviolable, it is, nevertheless, not a bar to a grant of Equitable Relief. To put it another way, in Case #13, the Secretary granted ER in the interests of justice, precisely *because* EED was barred by statute. 2002EqRelGrants.pdf
  5. I prevailed in my 1151. 1151 is no longer an issue. The only remaining issue is ER. And that VA says I’m not eligible for ER under (a) or (b) of 38 U.S.C. § 503, *and* that a review of the record showed “X,” when, in fact, a review of the record unequivocally shows “not-X.” *That’s* the issue. The *problem* I have, is getting VA to *actually* review the entire record (not the “top-sheet” version of the record), page-by-page. I’ve tried this, from different angles, repeatedly. VA is quite happy with the bogus denial they put in the record, and refuses to go anywher
  6. Strictly speaking, my goal is to recoup the approximately 40 months’ benefits I lost when I believed erroneous counsel that I was not eligible for VA disability benefits. It took me 2 years to learn that was bum counsel. When I did learn that, I applied for 1151 benefits the very next day, but that was much too late to get 1151 benefits back tothe date of injury. My POA did, in January, with a request to expedite because of my age (84). To date, still no C-file. I believe I’ve already gotten all my benefits I’m entitled to. I appealed to BVA for EED to get the 40 months’s benef
  7. Again, thank you very much. Previously, AskNOD stated there was *no* way to appeal denial of an ER petition. I’m assuming AskNOD was, much more likely than not, correct. So, my question is, if VA gave me a series of denial rationales, all of them demonstrably incorrect (v. the record), how do I push back (*not* appeal), to more or less force them to revisit my petition? The only thing that comes to mind is the Administrative Procedure Act, which, as I understand it, doesn’t tell the government what to do, but simply requires that actions of federal agencies be supported by
  8. Thank you very much. The problem, however, is *not* error(s) in my record. The problem is that when VA says, “a review of the record disclosed [yada, yada, yada],” going back to the record, and *actually* reviewing it, discloses [not-yada, not-yada, not-yada]. To put it another way, someone at VA in the early stages of my situation *said* you’re not eligible for ER under 38 U.S.C.§ 503(a), or (b), because there was no administrative error, no erroneous decision you relied on to your detriment, when, in fact, the record *does* show *both* administrative error, and an erroneous
  9. I accept asknod’s points: 1. Only the Secretary can award ER. 2. There’s no way to appeal a *denied* ER petition. 3. There’s no way to file an NOD for a denied ER petition. 4. There’s no way to file a Writ at the Court. 5. ER is a one-shot deal that’s not appealable. Nevertheless, I have a question: When VA provides its rationale for denying a petition for ER, and a review of the record unequivocally demonstrates VA misstated the record, is there a way other than NOD, CUE, Writ, or, Appeal, to urge VA to revisit its denial? To put this question another w
  10. I accept asknod’s points: 1. Only the Secretary can award ER. 2. There’s no way to appeal a *denied* ER petition. 3. There’s no way to file an NOD for a denied ER petition. e. There’s no way to file a Writ at the Court. f. It’s a one-shot deal that’s not appealable. Nevertheless, I have a question: When VA provides its rationale for denying a petition for ER, and a review of the record unequivocally demonstrates VA misstated the record to justify that denial, is there a way other than NOD, CUE, Writ, or, Appeal, to urge VA to revisit its denial? To put
  11. “Administrative law” may sound like a boring subject, but it isn’t. It’s both fascinating and, in the 73-year history of the Administrative Procedure Act, more important than ever for providing the legal structure in which encounters between citizens and their government take place. The Administrative Procedure Act doesn’t tell the government what to do. It simply requires that actions of federal agencies be supported by reasoned decision-making. When challenged, agencies have to provide explanations that are plausible and consistent rather than “arbitrary and capricious.”
  12. Godspeed with your audit request/CUE issues. But what are folks who know just enough to “get” VA’s incompetence/obstruction, but not enough to get an audit request off the ground, to do? Thank you.
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