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RBrogen
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Posts posted by RBrogen
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2 hours ago, Buck52 said:
RBrogen
Your more than likely correct here if they list them desperate but
The only thing to watch here is pyramiding
If it is considered pyramiding to do both then I assume the higher of the 2 ratings would be used correct?
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Hey Everyone,
Quick question/validation on C&P and rating. I had a C&P in January that diagnosed my upper extremity radiculopathy as mild and affecting all 3 radicular groups and Ulnar nerve as incomplete paralysis mild right (dominant side), left side was diagnosed normal. The overall rating wound up at 20% Left and 20% Right side.I just had a new C&P that diagnosed upper extremity radiculopathy as moderate and affecting left and right lower radicular group and Ulna nerve as incomplete paralysis moderate Left & Right sides
Question 1: Do they give a rating to both the diagnosis for 3 radicular groups and the Ulnar nerve damage or just one of those? They list it separately and 38CFR.
Question 2: If I am reading the rating properly then it should be something like this:
- Radiculopathy Upper Extremity Right affecting lower radicular group, incomplete moderate paralysis (dominant hand) - 40%
- Radiculopathy Upper Extremity Left affecting all lower radicular group, incomplete moderate paralysis (non-dominant hand) - 30%
- Incomplete Moderate Paralysis of Ulnar Nerve dominant arm - 30%
- Incomplete Moderate Paralysis of Ulnar Nerve non-dominant arm - 20%
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6 minutes ago, Patton said:
Wow, I never thought I would get this many replies. Sorry for the high jack RBrogen. I just thought that it was related to your post.
I think I would have a problem with a Law Suit, since I work for the U.S. Government in Germany. I am going to do a little more research but I am going to get them to fix the problem.
No worries at all .... the more info out there for all of us the better.
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26 minutes ago, Patton said:
I read that too. The problem I have is that the VA has information on me that they are not willing to share with me. Sounds like you are having the same issue. This is just another way for the VA to hold all the cards.
I not sure how to put a case together for this but I will figure it out.
From my understanding, you can get the information "forcefully" via FOIA/FOIA Appeal/Law Suit in US District court. I have the complaint for the law suit completely filled out so all I would need to do is go to the local US District Court magistrate and file it and it would then have the court order them to release the information in a "short period" of time.
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53 minutes ago, asknod said:
File an Extraordinary Writ of Mandamus at the CAVC. Free. It takes 45 days for the Court to whip the OGC into giving you a copy. About two weeks after the Judge gives them 30 days to poop or get off the pot, they'll say " Your Honor, we're mystified as to what the bitch is here. We gave his complete c-file records to him almost two weeks ago. Here's the certified mail receipt with his signature on it. We move for denial of the Writ."
Here's a link to 64 articles I've written over the years and includes Ex Writs I've filed for myself (4) and for a client (2). I've also included some really interesting Ex Writs of other friends and neighbors. It'll give you the basics of how. When you file an Ex Writ, you are not the movant, claimant or appellant. You are the Petitioner. Always speak of yourself in the third person- i.e. "Petitioner begs the Court to..."
By way of explanation, a movant is one who files a Motion to Revise (CUE claim).
https://asknod.org/category/extraordinary-writs-of-mandamus/page/1/
On the other hand, you really only need to use the Court's informal claim process. Unless you have over $2 million stashed in a Swiss bank or the Cayman Islands, it's free.
You can use regular stationary and ask (in simple language) the Court to make the Secretary give you your c-file. Since the Court has never set eyes on it-or you, you will need to send them all copies of any previous correspondence asking for the file. The Court likes it when you have a good paper trail. This also gets the OGC all in a dither and they start trying to get that claims file out to you lickity spit before the Court grants the Ex Writ. By way of explanation, only 11 people have won a Writ since 1990.
A word of warning. Never get involved with the OIG. They'll be spending more time looking in your underwear than the bad guys'. Normal turnaround for me on a c file is about three months from the RMC. However, within 30 days of my filing the 21-22a POA for representation, I can see it all on VBMS with no restrictions. For some silly reason, VA gave me a Level 6 access instead of a 4 or 5. It lets me review all the HIPPA stuff unredacted like Psychiatric records. Shoot, I can even look at my own c file! That's a MegaBozo no-no at VA. If you're a VA employee, your VSO or attorney has to be in another state!
I'm confused by your post probably because of my lack of experience/knowledge of the Writ. It seems you say on one hand to file a Writ and then later you say only 11 people have won a Writ since 1990?
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8 hours ago, Patton said:
Thanks for the information! This is very helpful. Patton is my last name, which there is a few of us out here but I would not say it is a common last name.
I need to look closer at my old C-File, but I do know that not all of my STR are there. Then there are multiple copies of other things in the file. Something has just dawn on me, when I filed for GERD, I could not find the results from an upper GI done during service, but the C&P Examiner did. I just looked and it is not in my C-File they sent me in 2017.
I will look into how to file an OIG Investigation, because I am done playing games. In the past I have tried to get things corrected (thru FOIA) in my Healthy Vet with no results. Maybe I can bring that up again with the OIG.
It looks like I have a lot of work in front of me.
I will google OIG but do you have a link for them?
Here's how to file OIG Complaint online ... just did one a couple of days ago: https://www.va.gov/oig/hotline/
- Patton and GeekySquid
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UPDATE: Okay bear with me on this one. So as you may have read in this thread that I got a denial for my C-File request via FOIA Appeal from the Office of General Counsel for the VA citing Exemption 6 as the reason. As it was so perfectly documented here by GeekySquid, this was actually illegal given the fact that in the first paragraph of the Exemption 6 rule it states that Exemption 6 CANNOT be invoked with the requesting your own records.
Last Monday, I figured out of the "why not closet", I'd try to call the FOIA Liaison number on the letter that was only 3 days old and see how this decision could even be considered. Come to find out that the person listed as the contact was and has not been the FOIA Liaison for a while. The person was very nice and gave me the number of the current FOIA Director. I called expecting an assistant or voicemail but was very surprised when the Director actually answered the phone. My initial thought was that the FOIA Director's tone was that I was bother/interrupting her. I succinctly explained my situation, and told her the reason cited in the letter for denial and she didn't say anything about that UNTIL I said, "How can this be invoked when the US Justice department rules for Exemption 6 clearly state in the first paragraph that the Exemption 6 CANNOT be invoked when one is requesting their own records." Her entire demeanor shifted to one of concern and interest. She said " I don't know who said that in the letter but it definitely isn't accurate" to which I replied the name of the Chief Legal Counsel, and the FOIA Director said, I know her personally and she knows better. She asked me to send her a copy of the letter which I emailed to her and said she'd reach out to the appropriate people and see what was going on.
I followed up on Friday because I hadn't heard from her and she wrote me back saying she had reached out to the Records Management Center (RMC) for explanation and was waiting to hear back. Today I sent another followup and she almost immediately sent me a note back and said that she had heard back from the RMC Director and that they are asking the team that is assigned to my C-File FOIA to work my request this evening and that I should receive a response soon.
I still have my Federal US District Court suit waiting to be submitted as a backup plan if I don't get my C-File in short order.
I'll keep you posted.
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52 minutes ago, Berta said:
That sure sounds like a CUE beauty to me--- I recently helped someone here with a similar issue-
And there are BVA cases that show how that can work, such as:
"ORDER
Whether new and material evidence has been received sufficient to reopen a previously-denied claim to establish service connection for major depression with polysubstance abuse, to include as secondary to a service-connected disability, is granted.
Entitlement to service connection for a gastrointestinal disability, to include as secondary to a service-connected disability, is denied.
Entitlement to service connection for diabetes mellitus, type II, claimed as secondary to a service-connected disability, is denied.
Entitlement to an effective date earlier than March 13, 1998, for the grant of service connection for bilateral hallux valgus and pes planus, to include whether a July 1977 rating decision contains Clear and Unmistakable Error (CUE), is granted."https://www.va.gov/vetapp18/files6/18111231.txt
( a nice retro !)
Vets can use the Presumption of Soundness regulations, the pre existing regulations, and my favorite regulation 38 CFR 4.6, to combat this type of VA BS.
There are quite a few decisions there at the BVA over those regulations, and the last CUE I won regarded all of them, but I just used 38 CFR. 4.6.
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I have to get the C&P prior to the one I have screenshotted here. I didn't not have Knees condition prior to entry and nothing is mentioned on entrance exam. Any reference to a previous knee injury comes from a question that one of the doctors asked me "Did you ever have any sports injuries?" to which I replied honestly and said I had a left knee issue when I tried out for football. The first day of practice, one of the players blocked me and my left knee hurt. I did not ever go to the doctor with this and it was fine the next day but made me realize that football was NOT my cup of tea. Also, both of my knees are now service connected. The C&P that is referenced in the attached screenshot from 2009 states that I had been denied for the condition prior to this C&P. I don't remember the date of the original denial so I don't know exactly how to get that particular C&P. I think it is the only one I don't have a copy of.
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2 hours ago, Berta said:
GOOD!!!!!!! Nothing like taking the Bull by the horns,that is interesting- what the Director told you-
The last posthumous C & P result I got was as outrageous as the ones they did over 20 years ago.
In one part of the exam the examiner stated it was an inperson interview with the veteran who had been dead by then for almost 2 decades.
I was furious but then I noted an addendum that stated the veteran was not interviewed in person.
Then I learned that this examiner runs the Agent Orange Registry program in NY.She is a bonafide internist, but I could find nothing beyond that, that showed she had any expertise at all, regarding
anything.She was not a contractor, but was employed by the VA.
My medical evidence overcame the lousy C & P exam under a CUE.
After I get the rest of my messes straightened out here, I want to look into filing a CUE for my original knees denial for them ignoring the rule of presumptive soundness. The examiner claimed that my knee issues were pre-military without any history or medical evidence.
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On 6/11/2019 at 9:54 PM, RBrogen said:
I originally filed this claim myself (had done one before with no issues at all). Since I have had so many issues, I reached out and just started working with a VSO ... supposedly best in the state ... I think that is what she mentioned before if this happened we'd do. I am going to be speaking with her again tomorrow since the decision is done now.
UPDATE: The VSO I was working with sat on my claim for another 6 weeks and didn't file anything so I took it back. I went to the C&P Examiner's boss who is the Director of the C&P for the facility and he was "fully aware" of my situation and said that he used my case and evidence as a "Training Opportunity" for the examiner. Ultimately after a few minutes talking with him, he sent an email to his VBA connection and said that the he completely agreed that I should get a new C&P exam. After I also went to my RO and discussing it with them as well 2 times, I finally got someone on the phone at the VA to help me. My claim is now back in Gathering Information stage and I have been told I am receiving a full new C&P exam at a different location that I chose. I should be able to get it scheduled hopefully next week and correct this BS.
- ShrekTheTank and GeekySquid
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5 minutes ago, Berta said:
I just downloaded the letter-remanded to the RMC- if they do not react to it timely ( I dont know how to define 'timely' when it comes to the VA,by all means sue them in a District court- you very seem well versed in handling that without a lawyer- but please request from the district court , the state where the RMC is, a copy of their Rules and Procedures.
It is a lot to read but a good guideline to this type of action. You will probably get the Prisoner guidelines as well. More prisoners probably file more Pro Se District Court cases than many non incarcerated people do.
They have more access to a law library at most prisons then I did when I sued the VA.
Thanks Berta .. I have a template that is all set ready to go, all I need to do is take it along with the fee waiver request to the clerk and file it. No lawyer needed as it is pretty cut and dry relief/injunction.
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22 minutes ago, Berta said:
Just to add- a recent VHA FOIA I sent got the same response very fast- they needed more specific info to search for the info- meantime I found some specific areas of VA ,that might have what I requested..... I have until 8-24th 2019 or they will close that FOIA.
I dont think the VA might even have documentation of what I seek, but it is worth a shot.
The Local VAMC responed to a FOIA I sent to the some time ago- I was shocked at what I got-
I only asked for redacted copies of any applications for employment for a specific job , within a specific time frame.
They sent me 12 applications, for the specific job ,with the SSA numbers, and full names, contact info on those applicants.
They violated these applicants rights.The info revealed the evidence I was seeking but I burned the applications after I told VA what they did.They showed limited concern.
They violated many disabled veterans rights too because these veterans were part time seeking full time in a VA job they already had done well, yet they hired a non disabled civilian with No VA experience at all - because she knew someone who worked in the same department. All the vets there knew him too.
As you mentioned the VA doesn't have a specific time frame unless. This is the main reason to use FOIA. The violation should be reported to the appropriate authorities for sure.
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1 minute ago, Berta said:
Yes, you are correct that FOIA should garner a response within 20 days.
The VA Central FOIA officer responded to me very fast, but it was just a response- acknowledging the FOIA.
The FOIA info I requested came in about 3 weeks.
I had a fast response to a FOIA I have at the OGC.
The response wanted me to be more specific as to where they could find the info.
I named a specific OGC lawyer, the name of the veteran involved, the name of the private lawyer he had, and a few more specifics as to the dates and what the issue was about, and where they could find the documentation.
So you were requesting information not directly related to you which is why they wanted to be specific about the exact info so they could protect the privacy. In my case, I'm requesting MY information that has nothing to do with anyone else. As per GeekySquids info, I went to the Justice Department website and read exactly what exemption 6 covers. Conveniently enough, the one piece that is missing from the VA denial letter is the last part of the sentence in the first paragraph of the explanation. This is literally the first paragraph on the page and check out the bolded part I highlighted which is EXACTLY what the VA is doing. Denying me my own information. Full info here: https://www.justice.gov/oip/foia-guide-2004-edition-exemption-6
Exemption 6
Personal privacy interests are protected by two provisions of the FOIA, Exemptions 6 and 7(C). While the application of Exemption 7(C), discussed below, is limited to information compiled for law enforcement purposes, Exemption 6 permits the government to withhold all information about individuals in "personnel and medical files and similar files" when the disclosure of such information "would constitute a clearly unwarranted invasion of personal privacy." (1) These exemptions are a vitally important part of the FOIA's statutory scheme, (2) but of course they cannot be invoked to withhold from a requester information pertaining only to himself. (3)
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10 hours ago, GeekySquid said:
your post brings up an interesting situation. I have to admit you are the first veteran I have heard of being denied their C-File under FOIA Exemption 6. I am sure you are not alone, just my limited exposure to that event.
I did a little quick research and Justice.Gov provides some illuminating points on FOIA and Exemption 6...information you may have or want.
https://www.justice.gov/oip/foia-guide-2004-edition-exemption-6
Second, the Court articulated the general rule that the identity of a FOIA requester cannot be taken into consideration in determining what should be released under the Act. With the single exception that of course an agency will not invoke an exemption when the particular interest to be protected is the requester's own interest, the Court declared, "the identity of the requesting party has no bearing on the merits of his or her FOIA request." (24)
further the link reads:
It also is important to remember that while the government may voluntarily or involuntarily waive its right to an exemption when its own interests are at stake, it cannot waive an individual's privacy interests under the FOIA by unilaterally publicizing information about that person. (100) The privacy interest inherent in Exemption 6 "belongs to the individual, not the agency holding the information," and "the fact that otherwise private information at one time or in some way may have been placed in the public domain does not mean that a person irretrievably loses his or her privacy interest in the information."
Essentially what you are saying happened, assuming it is your own c-file, is a violation of the Law and in clear contradiction to SCOTUS several appeals court rulings.
You might just have a legal case if you have the funds to fight it.
Here is the actual denial letter.
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27 minutes ago, Berta said:
I have made this point many times here over the years- a veteran does not need to file FOIA to get a copy of their C file or a copy of their medical records.
FOIA adds considerable time.
The form is here, or you can even do it via myhealthva, I think.....not sure, others would know
https://www.washingtondc.va.gov/patients/roi.asp
Your C file can be requested with this form:
https://www.va.gov/vaforms/va/pdf/VA3288.pdf
FOIA might be appropriate only when VA has caused wuite a bit of time to lapse from your original 3288 request or medical records request .
Personally I would call the White House Hot Line if the initial requests on the proper forms are taking too long.
1-855-948-2311
If a vet wants to cie 5 USC 552, they need to cite the Privacy Act, not FOIA-
you have every right to any records that actually are yours in the first place.
There are ways to obtain SMRs as well, available here, but do not use FOIA.
Lawyers need FOIA to access their client's claims issues.Veteran's don't need to use it for what is theirs anyhow.
Hey Beta ... the reasoning behind using lawyers using FOIA is so they can get the documents faster. The FOIA doesn't give them the right to get another vets files, a power of attorney does that. The reason for this is because FOIA has a LEGAL DEADLINE of 20 business days to respond where as all other avenues, including privacy act requests have no deadline so the VA can take as long as they like to respond which is why on average it takes 6-12 months for them to produce a file. If you are fine with that amount of time then no worries but it is another option. Generally speaking, you file FOIA, the VA has 20 business day to respond, when they don't (and they won't), you file FOIA appeal and they clock is 20 business days for them to respond, when they do, and use the BS of denial because it's a privacy act statement to delay further, you can call their FOIA mediator. This position they created to try and avoid litigation costs because people are finding out about FOIA and that it is making them do their jobs. If their mediator doesn't side with you or delays the process, will out a complaint at the US Federal District Court, you can get fees waived ( or covered by the US Attorney's Office defending the VA) because they will loose. Bottom line is that the VA 1) has no right to deny a veteran's files 2) a legal obligation to provide a veterans information to them in a "timely" fashion and 3) morally to do so without throwing up road blocks that wind up delaying until some veterans die and leave their families stuck trying to sort their mess out, or worse yet, not even aware that they have benefits.
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13 minutes ago, Patton said:
I really don't understand why our C-File is not on eBenefits and / or VA.gov? It could be set up just like our VA Medical records. Then we would have access to it when we need it and it would free up VA employees to work on claims / appeals.
I am still waiting on my C-File after filing an FOIA in January. It took them 2 months before it even showed up on VA.gov. It finally closed a little over a week ago, so hopefully it is in the mail. My ETA deadline was June 23, 2019.
The VA always make things harder than they should be.
They don't make it easy because if vets have all of the information it makes it more likely that they will find new conditions to claim.
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17 minutes ago, shrekthetank1 said:
This is interesting, but I have no idea.
I say this because I did some research and found this lawyer who specializes in veteran's claims and who is a vet himself. According to his information (and templates for use), you use the FOIA process to hold the VA accountable because it has a deadline for producing the documents (which the VA tries to ignore). According to this lawyer, the VA says that you can't use FOIA because it should be a Privacy Act request and tells veterans that their FOIA is denied but it will be responded to under the Privacy Act request path. The problem with that is that FIRST: the have no legal reason for denying a veteran their own c-file via FOIA, SECOND: The Privacy Act has NO DEADLINE so the VA can stall as long as they want without any worries.
The FOIA process is
- FOIA ORIGINAL REQUEST (time it and mark 20 business days) : I did this in March 2019 and my FOIA request shows in my E-Benefits. I have had ETA deadlines pass but still have not received my C-File.
- FOIA APPEAL REQUEST (sent to original FOIA recipients as well as Office of General Counsel Veterans Affairs): I did this on July 17, 2019, CERTIFIED MAIL and got myself a letter from the Office of the General Counsel today July 27, 2019. The letter said my FOIA was denied for FOIA Exemption 6 but remanded to be handled under the Privacy Act path. Now, FOIA Exemption 6 "protects records the release of which would lead to clear unwarranted invasion of personal privacy." Uhhhhh, it's MY C-FILE, MY INFORMATION so no invasion of personal privacy. See the rub here?
- Lawsuit for failure to comply with FOIA laws which should cover filing fees and if you hire an attorney. : Getting ready to do this next week if when I call then FOIA mediator listed on the Appeal denial letter, I'm not satisfied with his answer. I'm also going to be doing a filing fee waiver of the $195 filing fee so hopefully the filing won't cost me anything since I'm doing it myself.
- GeekySquid and ShrekTheTank
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Curious if anyone here has gone through the FOIA and had to ultimately sue the VA in Federal District Court to force them to provide their C-File in a more timely manner? FOIA's are required to be fulfilled in 20 business days by law assuming no special circumstances. Obviously the VA isn't going to respond to anything in 20 days but when it goes on for 6 months or longer that is ridiculous and slows our ability to address claim denials/issues quickly. I just filed a FOIA appeal and was sent a letter from the Office of General Counsel, Veterans Administration that my FOIA request was DENIED under FOIA Exemption 6 but remanded to be provided via the Privacy Act. The issue is that the Privacy Act process has no deadline so they can take as long as they want, while the FOIA actually has deadlines and a process for relief when they don't do what they are supposed to. From my understanding, this is a tact the VA uses to confuse people into thinking it is a Privacy Act request and not a FOIA request.
Any thoughts would be greatly appreciated.
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Just now, Patton said:
I asked an reviewer to see what was wrong with my claim. He said that he could see that I had issues during service, I am being seen for it at the VA and my IMO had everything needed to be awarded. All the C&P Examiner needed to do was record how many flare ups I have in a year and the level of pain.
It will be interesting to see if they order a third C&P Exam.
I would bet they do an additional C&P .... it's a strategy to try and get vets to miss an appointment so they can outright deny or get frustrated with the repetitive BS and quit trying.
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12 minutes ago, Patton said:
I filed for mine right after they denied a claim, only to find out that they reopened it after reviewing my records. Oh well, I needed to get a copy anyway. As soon as this claim closes, I will file the next one.
I had a similar situation where I had a undeniably inadequate C&P that I documented over 14 major issues. The examiner's boss even said they agreed I should get a new C&P, it just got reopened so we'll see how it goes.
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1 minute ago, Patton said:
I filed the same way.
I filed in January, but it was not recorded until March. Here is what it looks like on VA.gov:
Find out why we sometimes combine claims.
Recently closed:
Your freedom of information act / privacy act request – Received March 4, 2019 has been closed as of July 18, 2019
This is what my status looks like on va.gov
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1 minute ago, shrekthetank1 said:
Also know what an unstable scar is.
Yes and the importance of them measuring your scars and not just guessing. I still have to have them add a scar because when I was at the C&P, I thought they were only interested in scars that were from surgical procedures that I had but I should have had them include one that happened when I got my jaw broken, not just the surgery to fix it.
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Just now, GeekySquid said:
interesting..did you file it through VA.gov? I have submitted 4 directly to a VAMC an none appear and I requested a C-File by fax and that is not up there either.
I filed using fax and the FOIA documentation from veteranslawblog.com. I followed up a couple of weeks later with a call to VA to have them check status and told them I didn't see it on E-Benefits. Shortly after, it appeared. Also, after the legal 20 days of time had passed for the VA to supposedly comply with the FOIA, they say to send a FOIA appeal, which I did but after a couple of months given that I knew the VA would never comply with the 20 days.
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On 7/20/2019 at 7:27 PM, cavscout1967 said:
Thanks alot! Very helpful and appreciate your replies to me.
Also, make sure you have every scar counted because 2 scars that are painful is 10% in addition to the disfigurement rating and 3 scars is 20% in addition to disfigurement rating.
C-File Law Suit
in VA Disability Claims Research
Posted
Hey Asknod, Thanks for the explanations. I am just not familiar with Ex Writs and how they function. The process that I became aware of to get my C-File was Privacy Act Request which doesn't have a time line so it could be 15 months, FOIA/FOIA Appeal/US District Court Law Suit which has teeth and time lines and is pretty straight forward to do. I'm going to look into the Ex Writ and educate myself on that process so I have it in my bag-O-tricks.