SgtStelmo

Broncovet, I agree with your excellent advice. As I read your advice I was reminded of another of my pet peeve's. I do not remember exactly when, but it certainly was years ago that the VA decided to issue new VA ID cards. At that time, their stated reason was to provide each Veteran with an identification number such that they could discontinue using SSN's. Well I have the new card and the ID number on it. But after spending all that money the VA still uses one's SSN. Not one time have I ever needed to use my VA assigned ID number.

I would like to address one thing that vetquest said. He explained how a file was pulled in order to address the congressional inquiry which was certainly true not long ago. But the VA has decided to move out of the stone age and they now digitize the file. That allows it to be in multiple places at the same time. But to address the larger question. The primary means Congress has to control the VA is through appropriations. They have no say on individual VA decisions such as claims. But a congressional inquiry generally cannot hurt. Like anything else it really depends on the particular parties involved. Once I prepared a letter for my mother to send to her Congressman. As is the norm, the Congressman served as a message boy between her and the VA. Well the VA's reply was provable false. The Congressman's staff showed no concern that they had been provided false information. Happens, but admittedly not often. Writing is a prime way to vent your frustration with bureaucracy so in that regard it always helps.

Asknod, First, I never said one could get both pension and compensation. Because you state 'by law' would you mind providing me a citation for that law. I see no reason why a person cannot get both, providing the sum total of those two plus any other income does not exceed the pension maximum. But eager and willing to read your citation. I was talking about the requirements to get Aid-in- Attendance, which is neither pension nor disability. In order to be eligible for AIA you must meet the basic eligibility requirements for a pension. Today there are hundreds of thousands of veterans who cannot meet these requirements. AIA is a means tested benefit once determined eligible. All your medical expenses are deducted from your income. So if you need a person (could be anyone, son, daughter, whatever.) who charges two hundred dollars a week to cook and do laundry, you need a statement from them. Those eight hundred would be deducted from your income and AIA will ultimately make up the difference to the full pension total. Many medical expenses are deducted so it is a yearly basis determination. Hope that helps clarify issues.

You mention many things but one thing seems to be missing. You have not stated that you have not been working or in the alternative that your condition causes you to miss a substantial amount of work. In this regard let me remind all that the VA has the ability to check your IRS records. Perhaps this could be the roadblock, but cannot be certain because you do not address it.

Great answer Berta, In my case the VA sent two requests to Social Security. After the second Social Security replied that they had no records for me! I was dubious at first, but after checking the fax number it was evident that Social Security is as bad as the VA is some areas. I always wonder why people think more government is the answer when the opposite is most efficient.

Okay let me chime in a couple of issues here. I read the statement and find two crucial problems with it. First the statement is dated November 11, 2018. Considering that is still five days away that seems problematic. Second, I did not read the words "under penalties of perjury" or something similar. Aside from that (and I admit this is a SWAG) is that Aid and Attendance is only available for one who meets the eligibility criteria for a VA pension. So would be helpful if you explain how you are procedurally entitled to it as opposed to medically entitled to it.

Hello 8up, I think you are correct when you state they are waiting for the 120 days to lapse. That is because the Order is not a Final Order until the appellate period has closed. Even though one might have a favorable decision the VA can choose to appeal. (This only applies to cases at the CAVC.). The CAVC is the first level where the proceeding is 'adversarial', and the VA is formally the opposition.

I have an answer here. You have heard of the 'opioid epidemic' this country is experiencing. As such, the government is tracking down on these and other addictive drugs. (i.e. benzopyrenes). This is not necessarily the doing of the VA, but what is required pursuant to collateral government bureaucracy. And so when you identify the drug as 'pain med' I am sure this is but the first step of their changing your routine. Sadly our government (not just the VA) tends to overreact. And that is what is going on now. My dad was dying. The doctor wrote out a script and gave it to me. She said right from the start, good luck getting this filled. It is almost next to impossible. I lucked out and after a half dozen pharmacies I found one willing to sell the drug. I do not remember the name but it was an opioid. So the sick pay the price for the criminal actions of others, a really sad outcome.

Nobody answered so I will using one word, no. The people who schedule the tests (medical personnel) having nothing to do with billing and collecting. So one hand does not know what the other is doing, nor do they care much. On another note, I have found the VA will always try a CAT scan first. Then, if that does not complete the task, they mostly likely will schedule you an MRI. Naturally if the CAT scan solves or answers the pertinent medical question, there is no need for an MRI.

Yes this is a sad, sad situation. But let me take it one step further. (Yes, I know when I do this my local facility asserts I am crazy, but so be it.). I maintain this is criminal conduct, and the VAOIG should refer the matter to the DOJ for criminal prosecution. There is a federal criminal statute codified at 18 U. S. C., Section 1001. The short title for this criminal law is 'false statements'. (Ret. Gen. Flynn et al. can give us the low down on this I suppose.) So not let us review the elements of proof necessary to establish this crime. First, a VA appointment is an official proceeding of the executive branch of government. So the first prong requiring an official proceeding of the executive, legislative or judicial branch is met. Second, is the statement false. In this situation the nurse (I am assuming it is a nurse as it is not explicit.) admits the reading he/she put in the record did not reflect the actual BP reading. Thus the statement is not true, ergo false. Third, is the false statement material. Well the VAOIG found that in 99.5 % of cases it could result in catastrophic results. Sounds material to me. The last and final element of proof necessary is if the false statement was intentionally done. Not only did the person admit they intentionally altered the reading but they explained why they did so. So every single element of proof a prosecutor would need to establish is found in this brief article. People like this, be in within or outside the VA, need to be prosecuted and punished. But the reality is that very few VA crimes are prosecuted. And when there is no deterrent one witnesses what happens. Sad on steroids!

One aspect of what you say really concerns me. You correctly mention that the Evidence Intake Center is run by a third party. I have mixed feelings on this. First, does anyone know anything about this company? A year ago or so I looked them up and found countless complaints against them, although none of those complaints concerned Veterans nor the VA. Do you want items such as your date of birth, address and social security number revealed to unknown third parties. Will we be notified if this/these third party has a security breech? With identity theft being what it is today, this is seemingly a slippery slope we will slide down. Back to your post, one other comment. It might be too late to reap some benefit provided by the VA to counter this situation. But it is not too late to file a belated appeal. If you provide sworn testimony that you provided the documents, copies of the documents, with articles showing what transpired, you stand a good chance at winning. Worst case scenario is you lose, but you won't know that unless you try.

"38 CFR § 3.102 Reasonable doubt. It is the defined and consistently applied policy of the Department of Veterans Affairs to administer the law under a broad interpretation, consistent, however, with the facts shown in every case. When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding service origin, the degree of disability, or any other point, such doubt will be resolved in favor of the claimant." I have provided this regulation because of it's pertinence. And yes, I know the VA can ignore this regulation, like they ignore countless other regulations, laws and the United States Constitution. But if one is going to fight for their lawful benefits, they should fight to have the strongest possible case. That being said, most VA doctor's (Note I did not say 'all') are not the Veteran's friend in issues concerning disability. And so I assert it is always in the Veteran's best interest to create "doubt". Id. Assuming this doctor's report is construed as opining there is no nexus between his active duty record and his claimed disability, what argument does he have to appeal if he does not have an opposite declaration from his private doctor?

You mention 'and all I am doing is going for secondary not a direct' in a way that implies some importance to it. I am not sure that is true. It seems to me that the only true difference between the two is that in a primary you must establish the nexus between an event/condition during active duty and the claimed disability, while in a secondary you must establish a nexus between the primary and the claimed disability. You still need to make all the connections, which I sometimes find to be an absurd standard. Especially when the secondary is a well known symptom(s) of the primary. But that is life with the VA. And speaking of absurd standards here in another one I fail to grasp. If a person has a condition that is incurable, why must they have an active diagnosis? By definition, an incurable condition is one that is active for life, except within the wacky world of the VA.

This is truly sad. If one tried they could not make up this kind of reprehensible conduct.

Let me add one other point about shredding. It is a criminal violation of the Federal Records Retention Act. But nobody is ever held accountable so if there is no jeopardy is it a real crime? I also wasted my time once actually talking to a VAOIG special agent and recommended they could monitor the trash cans in the hospital. The philosophy at the VA is, why work when one can just as easily use the circular filing bin (trash can).

Okay you asked a number of questions. Let me take a stab at it. First, let me address a procedural issue. Even though your hearing is in front of one Administrative Law Judge, he is part of a team that will make the decision. Included in that team is the Attorney for the Board. That is why the proceedings are transcribed, and you (or your attorney) will get a copy of the transcript. (If it goes to your attorney, make sure he gives you a copy for your files.). As far as the number of questions, I do not think it matters. I would rather have the Judge ask a question to be able to make a positive decision than leave him ignorant whereby he then rules against your claim. Yes the Judge no doubt forgets much of what he hears. That is why the proceedings are transcribed. In this matter I think the VA system exceeds that of non VA courts. Go to any courtroom on motion day and the judge will hear hours upon hours of motions and litigants. All he will have is his/her notes because he/she will not have a transcript. Those proceedings are recorded, but not transcribed unless and until a party pays for that. Quite expensive a process, I assure you. The part about your attorney asking for 30 days is unclear to me. I think he is asking the Judge give him notice with thirty days to respond if the Judge finds he needs some form of additional information. That sounds prudent. Again better to have to provide some additional information that to be denied. It sounds to me like your hearing was more or less the status quo. I would not worry because that accomplishes nothing. The worst case scenario is that you are denied, and you have at least one more appeal to go.

Berta, Well once again I must somewhat disagree with you, so let me apologize in advance. I mean no ill will, just that I have a different opinion, based on a little knowledge and a little experience. First, there is a five month mandatory wait period for SSDI benefits. But if you subtract five months from the date of disability, that is your potential start date. This is certainly much different than the VA system which does not allow retroactive payments in most circumstances. You then state that the awards are 'in essence, an independent medical opinion that determines one can no longer work due to their disability'. I would proffer that if you take out the term 'medical' from that quote you would be more accurate. Outside of myself, no one opined that I was disabled and could not work. Certainly there was no medical opinion (diagnosis) that stated I was unable to work. This was solely my decision, a decision I consider rational and substantial. But when I made my decision I applied for SSDI. I was initially denied, so I did the natural thing for me, which was to appeal. At my hearing I testified that my condition rendered me unable to work. I then provided the Administrative Law Judge a copy of my Military Medical File and my VA medical file. (Actually I offered them into evidence and at the conclusion the assistant made copies for the record, and he was hesitant because of their voluminous content, but I assured him I wanted every page there for the Judge to review.) Well I won my appeal and I contend for one simple reason: the facts showed that the symptoms of my condition prevented me from obtaining employment. Now if only things were that easy with the VA. But the VA is a whole new world, and not a friendly world at that!

I was not surprised when I read about the shredded documents that was above this thread. Perhaps I will relay part of my story. At this point useless to detail all my disability claim problems, but suffice to say I was initially denied due to a false statement. (Please See, 18 U.S.C., Section 1001). What compounded this was that I had no idea this false statement was even asserted until I got my initial denial letter. Subsequently I received a letter from the VA telling me they were going to take away my co-payment exemption for the failure to file an updated means test. This is sort of where I got too smart for my own britches. It was mere inadvertence that I did not file an updated means test, but looked at this letter as a sort of godsend. In this situation the VA was proposing taking away a means tested benefit. I have read (many times) an article published in the VA Law Review. This Memorandum of Law can be found at this URL: https://www.bva.va.gov/docs/VLR_VOL3/4-DeutschAndBurriesci-DueProcessInTheWakePages220-262.pdf. Now I knew (assuming of course that the VA will follow the law) that before the VA could take away this means tested benefit I was entitled to an evidentiary hearing with the right to compel the attendance of witnesses. After all, not only is this constitutional law, but the VA's own lawyers admitted such in the above referenced article. So I followed the directions in the VA's letter on how to perfect my appeal. I filed a NOD with my local facility. Because nothing moves quick in the VA I sat back and waited. Next thing I know I am getting bills from the VA. They had directions on what to do if I challenged the fee's and followed their directions explicitly. Next thing I know my Social Security disability was being garnished to pay the co-payments. Come to find out all my NOD and my objections were all 'lost'. Fortunately time was not yet of the essence so I filed an Amended Notice of Disagreement and hand delivered it and had them date and stamp my copy. Still got lost. By that time I was educated in VA deception so I had made sure I emailed a copy to the Director of the Facility. (firstname.lastname@va.gov works 99 % of the time). This, if nothing else, provided me an electronic footprint that a subpoena duces tecum will conclusively and incontrovertibly establish. I am still waiting on my hearing. In the absence of a hearing, I am even still waiting on a decision which would open a normal appeals route. Regardless, got it to the BVA via mandamus. Had my BVA hearing which I would categorize as 'confrontational'. The BVA judge wanted me to waive AOJ consideration of evidence but that is just not going to happen. Now why is this happening? This is supposition but I nonetheless assert that the VA has clearly figured out I want to compel the two people who made false statements to testify under oath. Let me go off on a tangent. It angers me that the Veteran and any witnesses he uses must provide sworn testimony. Yet the VA personnel do not have to be under the same penalty. Yes, there is still the felonious false statements offense, but that applies to Veteran's as well. Just seems to me that the fundamental fairness of the system would require the same level of jeopardy. End of tangent. So I anticipate my BVA transcript to be followed by my decision. I assume it will be an adverse decision. Admittedly, I have not written a brief in decades, but I think I will still manage to get it done. Keeping my fingers crossed for a precedential decision from the CAVC but time will only tell.

Berta, Great post, but I would like to expand on one thing you said. Namely, "ut the truth is most attorneys for veterans know what they are doing and are worth every penny of their fee." While I support every word you say there is an even better option. That is an attorney that works pro bono. I realize they are not a dime a dozen but persistence can pay off. In another of your posts you referenced the class action case of Monk. He was represented pro bono by an attorney named Michael Wishnie, Esquire. This attorney runs the Yale Law School law institute. The students do the work but Mr. Wishnie reviews it and signs his name to the pleadings. If you live in Connecticut this organization will consider handling your appeal free of charge. For those outside of Connecticut you will find most law schools have a similar program. But it takes patience and persistence to locate them, and then apply. In this regard the sooner the better is applicable. And so now having my say, let me again repeat that you have done an above excellent job with your post.

This is an old thread but I am enjoying this opportunity and would like to comment on a few previous statements with my two cents. As you can see not worth much, but it might help someone. Now Broncovet seems to think that the file is sealed after a BVA decision and I am not sure that is correct. I think that any Veteran can get a copy of this evidence by filing a request with the FOIA/Privacy Officer at the BVA. Her name is Margaret Peak and her fax number is (202) 343-1422. I would sure like a citation for any rule, regulation and/or law that would prevent the Veteran from obtaining evidence in their case. Let me also give her direct number (and I can attest that if she is in she will answer the phone) which is (202) 632-5435. Next it was discussed about things dying a slow death at the VA for inaction. Sadly this happens far too often, but there is a remedy from the All Writs Act. A veteran would need to file a Petition for a Writ of Mandamus with the CAVC. Using google and/or another search engine will produce many outlines for this petition. The key to remember with any writ is they are considered as 'original jurisdiction'. As such you must provide the evidence to the court to support your demand. Now it is highly doubtful the court will issue the writ, but that should get you an applicable court order to revive the proceeding. One can also search CAVC cases at their website. You would be able to read writs that prevailed. Those would give you a good idea on how to proceed. Keep in mind, the VA plays the numbers game, at each roadblock a certain percentage gives up the fight. That is their goal but you have the power to prevent this.

Berta, I find you to be an extremely learned individual, but I must take exception to one thing you said earlier in this thread, and I will keep my fingers crossed I am not the errant individual. You said that an individual cannot file a class action lawsuit, and I am not sure you are correct in this context. Let me start by referencing Broncovet, who queried about the Nehmer class action lawsuit. His answer is simple, Nehmer was decided in a regular Federal Court that maintains class action jurisdiction, while Monk conferred upon the abnormal federal court, the CAVC, to hear a class action. Now I suppose using the word 'abnormal' is probably too strong a declaration, but the reality is that the CAVC operates under a whole set of rules apart from any normal Federal court. The United States is a sovereign state, and as such, can pretty much do as they please without regard to inferior jurisdictions. For instance, it is against almost every state law to practice law without a license. Yet you can do so in the CAVC. If the CAVC approves you, and a law license is not a prerequisite, their decision trumps a particular State law. (Generally, please see CAVC Rule 46 (a) (2), but also note Rule 46 (b) (1) (F). The CAVC was set up to be Veteran friendly. Thus, they allow a non-lawyer to argue a case, which no regular Federal Court would consider. So this refutes the general assertion that a lawyer is necessary. And there is one other thing to mention. I have long said one can file anything in any court for any reason. It is the prevailing on the merit's that matters though. Any Veteran who is not an attorney can file a lawsuit in the CAVC pro se (I prefer to use the term in propria persona). At the same time as they file the suit they can file two motions. The first motion would be entitled, "Motion to Certify Class Action Status". Technically speaking, one cannot file a class action, they must have a normally filed suit certified as a class action. In other words, they need the Court to approve it, which is never a guarantee. Many such motions have failed in one federal court and/or another. Then we move on to the second motion, which would be entitled "Motion to Appoint Attorney" moving the Court to appoint counsel. If the Veteran pleads a well versed motion showing a class of Veterans are suffering irreparable harm which will magnify exponentially without immediate declaratory relief, the Court would find it hard to deny the motion. I contend such a denial would be a permissible interlocutory appeal as well. So in closing I believe that if a veteran believes in their cause, takes his/her time, does his/her homework, such persistence could well be the squeaky wheel that gets the oil.

Yes something can be done by an earlier date.....these dates are just estimates and not written in stone. But I hope I can convince you to do something else. I learnt by experience that you cannot trust a VA examiner. I have a name for this and I call it the Great Conundrum. On the one hand the VA cannot say, hey Dr. John Doe. Last month your work authorized us to spend ten thousand more taxpayer dollars than anyone else. Therefore you get the promotion. No it does not work that way. Rather these workers (all VA workers involved in spending public funds) are rated on a consideration of how much they deny. Thus they have, to use a cliché, skin in the game. And it is not that they are anti-veteran as much as they are pro securing their financial future. So what is the solution. Go to a private doctor. The VA has, codified in Title 38 of the Code of Federal Regulations the schedule of ratings for each subgroup of conditions. One need look up the conditions they are claiming, see what must be medically established per disability rating, and then author a statement in support of your claim using the terminology the VA is looking for. Have your doctor sign it. If you can show the doctor either by examination or by other medical records your statement conforms to your situation, they will almost always sign the statement. (Keep in mind that the VA cannot punish a non-VA doctor, which I claim is the root cause of the problem.) There is an old adage that goes, 'it takes money to make money'. In that regard it will take money for a private doctor. But you will save yourself much headache by getting what you need, and getting it sooner rather than later. Thus the sooner you will 'make money', which I suggest is your ultimate goal.

Wow, let me try to tackle this one. As far as I know Service Connection is Service Connection is Service Connection. That being said, their are certain conditions that are presumed to be automatically Service Connected if you served in the Gulf War. As such, you do not need to provide the nexus to your condition like Veterans who did not serve in the Gulf War would have to. If I am wrong on this someone please let me know. Now let us talk about the doctor. Although you do not directly state so, it is almost obvious this doctor is a VA doctor. Doctor's out in the private world do not use the phraseology "less likely than not". Both phrases you reference are synonymous, which means they say the same thing. And I might point out, this is not a good thing. (The second quote arguably is grammatically awkward, but do not think for a minute the VA will use that in your favor.) For their to be a nexus between your condition and your military service the phrase must read, "more likely than not". I have a recommendation for you, make an appointment with a non VA doctor. It is preferable this doctor is one you have previously seen. Before your appointment prepare a statement in support of your claim for this doctor to sign. Prepare it similar to what the VA doctor opined with the exception that it is "more likely than not". And if you are really energetic, you can refer to the VA Disability Ratings Schedule and use the terminology the VA is looking for with each condition. That creates a conflict, and as a matter of law, a difference must be settled in favor of the veteran. Yes it will cost money for the doctor, but that is a mere pittance to what you stand to lose if your claim is denied. And yes, even with the difference the VA might rule against you. but if the BVA does not correct that error. the CAVC will. Well I hope this is somewhat helpful. And if I am wrong on the Gulf War Syndrome I hope someone let's us both know.

This is nearly an impossible question to answer because it all depends on who you have to deal with. Lack of consistency is rampant within the VA. But I have a suggestion. As soon as practical make an appointment with a Private Physician. Take your records and prepare a Nexus statement for the doctor to sign. Most private doctors will gladly sign the document. The verbiage within this statement should tie in the condition and/or event in service with your current diagnosis. The most important words are "X caused more likely than not from Y service diagnosis'", which is a fairly innocuous standard for the doctor to sign. (I am assuming these are real problems the doctor can see documented.) Get that in ASAP.

This topic intrigues me and it is on to do list. Let me start by saying I do not believe your records (or mine) are very private at the VA. Just my opinion, based on experience. Numerous times I have gone to the Patient Advocate. She swipes her card and she has access to my records. I always meant to check if the VA keeps a log of who reviews what, but never have. And then probably more important is if a record or log is kept of who makes a hard copy from your file. Seems rife with holes to me. There is another thing I always meant to check, perhaps someone here knows. The VA went to this new system where we have the Evidence Intake Centers. Interestingly these entities are not run by the VA but rather a private contractor. I cannot fathom how they got around the Privacy Act of 1974 with this actually. When you add HIPAA to the equation, you would think your records are secure. But does the government ever get anything right?