Phury & Rhage

Hi Penguin, Thanks for updating You have an option here and it is not a widely advertised one because AMA is so new. Supplemental claims filed on 20-0995 can be filed on anything any time - pre and post 2/19/19 rating decisions. However, if you have a legacy appeal, you will have to withdraw it in writing to submit the Supplemental claim. Ideally, you would do that simultaneously. Withdrawing an appeal can be done on any form or piece of paper. It just has to be written - you can't do it by phone. I'm going to talk about that for a minute, but that doesn't mean I'm recommending it. I just want folks to have the necessary information to make a choice. ***In practice, if you submit multiple pages to the Evidence Intake center, those pages could get split up - I've seen it happen. Make sure your file/SSN and name is on each page. That way, if they get separated, it will still make it in your file.*** If you intend to withdraw a legacy appeal so that you can simultaneously submit a Supplemental claim, you can do it on the same form - the 20-0995. You need to be super specific though. Say something like, "I want to withdraw my legacy appeal (NOD dated 1/19/18), but I only want to withdraw the PTSD portion of it. I am doing this so I can file a Supplemental claim simultaneously and submit new and relevant evidence for consideration. Please continue processing the other issues in my legacy appeal." Or, you could say, "I submitted an NOD on 1/19/18 for my right ankle. I am withdrawing that appeal in favor of a Supplemental claim so that I can submit a nexus statement from my private doctor." The thing is, if you write that withdrawal statement on the 20-0995, the VA processor has everything they need to withdraw your claim from the legacy appeals process and initiate a Supplemental claim. Now, why would you want to do that? I'm not making recommendations, but here are the issues I see. 1) Yes, it looks like the AMA process (including Supplemental claims) is moving quite a bit faster than the legacy process. There are other reasons you might consider it. 2) If you have new evidence to present, you can only do that through a Supplemental claim. That's because the Supplemental claim is an "open" record. In fact, you have to have "new and relevant" evidence to get a new decision on the merits of your claim. Any new evidence requires a new decision, but if the evidence turns out to be duplicative or irrelevant, that's what your new decision will say. And here's one of my favorite reasons (still not making a recommendation): 3) the rules change all the time and almost always are more favorable to Veterans. The newer the decision, the more likely it is that judgment calls will be in your favor. Also, if you get a new decision now, it's eligible for Higher-Level Review (HLR) on the 20-0996. I am TOTALLY sold on those. I've talked about it in other posts, but those go to 2 DROC locations for processing with people who specialize in those claims. They are getting really good at spotting the errors that are made in rating decisions. That's particularly true with procedural/development errors. Your last processor missed evidence in your STRs? The last processor didn't send you for an exam or the exam was inadequate? Nobody tracked down your Reserve/National Guard personnel/treatment records? I'm getting those "Duty to Assist" errors back ALL.DAY.LONG......sorry, bunny trail, lol. Every case is different, but there are very common threads that run through each. If you've been denied, it's CRITICAL that you understand "why" they denied you. Your new and relevant evidence NEEDS to be something that was missing the 1st time around. Or, find out if they SAID something was missing, but it was actually in the file. Either way, you have to know/understand why you were denied. Remember, for every Veteran there are 3 things necessary for service-connection: 1) an event in service; 2) a current disability; and 3) a link between the first 2 (nexus). Never, ever turn in a claim that doesn't address all 3. Here is the most basic example: I broke my _____ in the service. (event) It's bothered me ever since then. (nexus) I "hurt" "can't do _____" "get therapy" "take medication" "am getting worse" (current disability). Holy smokes, I got off track. I've been up since 5 working overtime, lol. Ignore what you don't need Phury

Coming soon to a military base near you! I'm attaching a document that was just released that describes new access granted to service-connected Veterans (not just IU/100%) to military bases and MWR activities including Commissary and Exchange activities. There are a number of categories of Veterans and caregivers that this affects. Spread the word! Phury & Rhage Expanded Patronage.v2.docx

Here is a document that describes new access coming for caregivers. They (and service-connected Veterans plus others) will have access to military bases and MWR activities including BX/PX/NEX and Commissary. Spread the word!!! Phury & Rhage Expanded Patronage.v2.docx

Hi Penguin, When you send in more than one application, on different days, each application (if it's valid) will result in its own claim. So, your reconsideration/reopen claim in December is totally separate from the Supplemental Claim you submitted in April. Even though both applications do very similar things, the rules say they can't be combined. Also, different rules apply to the SAME type of application, depending on when you submit it. Your reconsideration is its own separate claim. It appears that you haven't heard anything about the reconsideration, except what's in that 2nd paragraph in your decision. The 1st thing I would do is talk to your POA. They should be able to look in VBMS and make sure there is an active claim pending for those reconsideration issues. Mistakes happen - particularly in the transition from the legacy appeals process to the AMA. Double-check that your reconsideration claim is still open. If the claim is open, you....wait. Or you can ding-dong VA in various ways. Let us know what the answer is to that question and I'll follow up. Thanks, Phury

I'm sorry your experiences have been so negative. I've had my share of those as well. In my case, I moved around a lot so I had an opportunity to see how different ROs handled my claims. Hawaii and Nevada sucked, but Seattle and Fargo (of all places) really got the job done. I'm sad that Seattle (hello, employee) can't work my stuff anymore, and worried about which RO will do that work (when I next file a claim). It has been my experience (inside and outside of the organization) that the RO definitely matters. My partner and I bought a house in Tucson 10 years ago and Phoenix is "no bueno". Fortunately, I was able to continue using an address in Washington, so I was able to move my claims right back up there. As for your RO, that stinks and it may not change anytime soon.... Phury

lol, I'm sorry! I should have spelled that out. VBA - Veterans Benefits Administration. VA consists of 3 components: VBA, VHA, Cemetery Administration. So VBA is everything to do with benefits, and that's where I work. Phury

Congrats! That's seriously excellent! As for the system glitch -- maybe not There is a severe backlog on the mail since AMA came out. I heard a statistic last month (not saying where) that 20% of the volume of mail for the entire VBA for May was directed to the DROCs. To 2 locations that aren't even fully staffed yet. The process is: 1) mail/fax your documents to an evidence intake center where the contract scanner scans it/them and uploads them to the digital mail system; and 2) wait for VA personnel to "process" that mail. Open it; review it; put it in the Veteran's claim folder; and take initial action (create claim, etc). However, it's possible that there is a huge backlog of mail because Veterans are taking advantage of this new opportunity to get their claims reviewed and everyone and their brother is sending in stuff. It's possible for that mail to sit in there for a couple months before folks can start processing it. It's also possible that folks who don't normally process incoming mail might get the opportunity to help reduce that backlog, which brings its own problems. People doing what they don't normally do, don't always get it done right. Even if they really want to. Add in that the AMA is seriously young and the bugs/kinks are still being worked out in the process AND the software... In my humble opinion, your most timely option is to submit your claim and documents through eBenefits. It is an immediate process. Hypothetically, I could be talking to a Veteran on the phone and mention that I need a statement on a particular issue and the Veteran could say, "I have it right here." I could suggest that the Veteran upload the document through eBenefits (after verifying they have an account set up) and I could literally see the document appear in the folder while I'm still on the phone with the Veteran...hypothetically. Doing that bypasses the evidence intake center and the mail processing issue. The "system" creates the claim and your documents go directly in your folder without further processing by folks who might, on occasion, put'em in the wrong place. Just sayin' Phury

Sorry, I got distracted. No, I can't skip the BVA, but as I mentioned in the other portion, there is a single form (VA Form 10182) with 3 options for review. If my case is solid, I'm going for the higher-level review which should have the quickest decision time. Then, I'm going to the CAVC...and pray for Judge Greenberg.

You aren't wrong, however, I'd like to point something out. The writ process takes time. It might be faster to take the exam. If you get your private provider to fill out the DBQ, and they do so thoroughly, then the evidence is probably adequate to rate an increase. BUT, development VSRs are trained from the get-go to order exams for increases. While the manual states that an exam is only warranted where the evidence of record is not adequate, in practice, we (dev VSRs) don't make the call on exam adequacy - raters do. And it's a big, fat error (something we get graded on) to make that claim ready for decision without ordering necessary exams. If you feel strongly that your private DBQ is thoroughly complete, you could probably refuse an exam and send in the form that says to rate the claim without further evidence. If my private physician described my current state in terms that are helpful to my claim, I might also try to make the VA rely solely on that exam for increased severity. In practice though, I see tons of private DBQs with blocks left blank. I don't closely look to see if those blocks are necessary because, again, I don't make the call on exam adequacy. You suggested a viable option, but there are some considerations in exercising it. Thanks for the cool example Phury

I get why you'd feel that way, but I think that call best serves your interests. You should be your own best advocate (as Berta suggests) and making that phone call will get results. I ended up with 2 of those calls inside of a week. They come directly down from the top and have very short suspense dates. I think I was given 3 days to closely evaluate the claim and provide a thorough summary of exactly where it was in the process and what still needed to be accomplished. From my experience (and your description), I think I would ask a couple things: 1) exactly where is it in the process; 2) do they need any further evidence to decide the issue; and 3) when is the next action scheduled to take place? In the last question, there is room for directed action. For instance, the system automatically sets suspense dates based on certain actions. For an initial claim, there might be a 6-week suspense date where the claim is sitting out there not being touched by anyone. It won't be assigned out until the beginning of that 6th week. I don't claim to know the rhyme or reason for setting those suspense dates, but I think calling the WH line could get your suspense date shortened. You'd have to be incredibly specific though. If I have to send out for private medical records, I set a 15-day suspense (per the manual). If I don't get a response (and that's the only thing the claim is waiting for) then I'm going to send you a "final attempt" letter saying you are ultimately responsible for getting those records to us and then I'm done with that claim. The system is going to set the suspense date and then it should go to a decision-maker. If you call in and say, "I want my claim moved forward because there is no further development necessary and they've had it "pending" for an unreasonable amount of time," there's a pretty good chance that someone will direct action to be taken. That's a guess, but I know just how seriously those WH calls are taken. Good luck to you, Phury

Yes, there are only 2 locations doing HLRs - Here's the reference in the M21-1: I.6.1.d. Who May Conduct HLRs - Experienced adjudicators who did not participate in the prior decisions will conduct HLRs. Decision Review Officers (DROs) at decision review operations centers (DROCs) have the authority to conduct HLRs for compensation rating issues. There are only 2 DROCs - Seattle and St. Petersburg, Florida. As you can imagine, there is a distinct advantage to getting your claim before folks who are specializing in a particular process. SUPER IMPORTANT: HLRs are a CLOSED record review. You can ask for an Informal Conference (phone call with you or your POA) with the DRO, where you can discuss your claim, but no evidence is allowed to be reviewed if it was added after the date of the decision. If you have new evidence, you file a Supplemental Claim - end of story. HLRs are the s***! You get a personalized review of the issue/decision, where the DRO is authorized to change the decision based on a difference in opinion. That is a rare opportunity and is new to the appeals process. Used to be, the decision-maker had to find something wrong with the decision to change it. Yes, you can request the same thing from the BVA. Two major differences: 1) the form you use is the VA Form 10182 - gives you the same options as the 2 non-BVA forms (0995, 0996) and that is an HLR with or without an informal conference and a review that involves submitting new evidence; and 2) I don't know anything about their processing, so I can't tell you how well it's working. I can quote the manual and tell you how it's supposed to work, but not how it actually does work. I'll address the 2nd part after...work

1st - don't assume that this was an intentional thing. If someone was going to send you a letter and someone else reviewed their activity and said, "hey, IU is not appropriate in this case as the Veteran is 100%," then it's possible (likely) that an entry was made but closed out shortly thereafter. If you didn't get the letter and the issue is moot, you are probably safe to ignore it - but you could always ask a VSO to look in VBMS to verify that there is no ongoing development happening. 2nd - a clarification isn't necessarily specific to you. There are a number of problems that can occur when someone is ordering an exam and a request for clarification is an attempt to straighten those out. Clarifications also happen when raters or DROs need more information than the examiner provided (i.e. the examiner only talked about direct service connection and didn't address aggravation; the examiner didn't comment on estimated loss of ROM during flareups; etc.) 3rd - mistakes happen, obviously. Someone else's 8940 & 4192 got filed in your record and, hopefully, the next claims processor will spot it and move it.

That's true enough. Actually, I'm talking about appeals (not real clear about that, lol) because they are what I'm more...familiar...with. It's possible to get the right result the 1st time, but I think it's rare. Of course, you have to have the right facts, but then it's a matter of getting it in front of the right decision-maker. In my opinion, with an AMA-eligible rating decision. you go for the higher-level review. I think the odds of getting the right decision-maker are better since the claim goes straight to a DRO in one of 2 locations, where that's all they''re doing. I know you can ask for that review from BVA, but I'm not sold on them. Every day, I read where the CAVC smacks the snot out of them. I don't have an active case at the moment, but if I did, I'd go to the DRO. If that didn't work, I'm going to the CAVC and praying to get Judge Greenberg. I wish you the very best with your case and I hope you get the right result earlier rather than later. And, "independent" medical opinions are great! It's especially useful if you can get your VA treatment provider to fill out the DBQ. They have access to the same stuff as VA C&P examiners and they have access to MORE of your records than the contract examiners. Make sure they will state that they reviewed your service treatment records as well. It's tough for the VA to counter that in a battle of the opinions.

When you submit a written statement to support your compensation claim, it's called a "lay statement". There are specific things that you are considered competent to say about your claim. Symptoms, events, and emotions are some of the things you can describe. The VA has to consider what you say. When you give a statement - it's evidence. Why is that important? If you receive a rating decision and it says "there is no evidence that your disability began in service"... And, you gave a written statement that described how your condition started in service? VA got it wrong. This doesn't just apply to the people rating your claim. It applies to the doctors who write the opinions about service connection. They also have to consider your statement. They can't discard it because they want to see "objective" evidence. Here's a quote from a recent decision by the Court of Appeals for Veterans Claims, "the examiner was required to consider the lay statements establishing the various symptoms appellant exhibited." Crawford v. Wilkie. I'm attaching the decision as well. Remember the Benefit of the Doubt doctrine? Your statement, your spouse's statement, and any buddy statements are evidence in your favor. Evidence in your favor must be considered and can't be rejected unless there is evidence to counter it. Look at the list of evidence the VA used in making their decision. It has it's own section on the decision. Look for your statement. Compare what you said in your statement to what the VA said in their denial. They have to address favorable evidence and explain how/why it is outweighed by other evidence. By the way, absence of written documentation in your service treatment records is not "evidence" that your condition didn't occur in service. The Court has made it very clear that the VA can't use the absence of evidence in the records to deny your claim. If the denial didn't address your statement and other positive evidence, ask for a review - Supplemental or Higher-level depending on your case timeline. Don't give up. Crawford v Wilkie No 18-1528.pdf

Good luck to you!

Yep, you nailed it. Associating something is just a fancy term (possibly a legal one?) for making sure it's in there: we associate medical records, buddy statements, sleep studies, personnel files, etc. Tabbing something is no different than bookmarking something. When I write an exam request, I want to tab relevant evidence for the examiner even though they are typically required to state that they examined the whole eFolder. It's super important to do that for contract exams because they don't get to see everything in our system; just what we tab for them. So my tabs look like - TAB A: STRs received 12/28/18 knees pgs 4-7, 22, 89; right shoulder pg 47; TAB B: personnel record shows confirmed RVN service as a combat medic pg 15. ; Duty MOS is 11B infantry with exposure to hazardous noise conceded etc. I spend a lot of time reviewing records and I'm looking for specific stuff. Our motto is supposed to be "Grant if you can; deny if you must." I take that to heart. Plus I'm a vet.

I'd like to be a resource, just not an advertised one There are regulations that govern (and I sign a statement and get training every year!) what folks in that agency can do in public and online. Love my job (seriously) and not trying to lose it. Here's some other framework. I have been trained and work exclusively in "pre-development". That means I'm pulling in all of the records and reviewing them for specific stuff. Even working appeals, there is a ton of "dev". For instance, you appeal a denial for PTSD on a Supplemental claim and you say that you more documentation on your stressor that didn't make it in front of the decision maker. You point to deck logs or OSI investigations of incidents. I'm going after those records. You say that it looks like your in-service mental health treatment didn't make it in the file with the rest of your STRs/SMRs, I'm going looking for them. When I gather all of that information, I'm going to be looking to send you to get that exam you didn't get last time. Or an addendum to the medical opinion because we have more facts to put in front of the examiner and we can concede your stressor. I'm not a rater. I can only guess why they make the choices they do unless I've personally seen a case (and THAT won't be anywhere near a website). But I do get a sense over time so I might be able to offer some tidbit or suggestion. I'm working with a really small team that has all of the "roles" you'll see in an appeal case - without naming titles. It does give you a broader perspective, but not enough depth to be considered an authority. Anyway, your specific stuff runs throughout the life of a claim, so I'm not going to be knowledgeable about most of it. But I'm a good researcher with good resources, so bounce specific questions off me and I'll do what I can

Thanks, actually all of those are familiar but BOD. Of course, I've know about benefit of the doubt, I just don't see it abbreviated much. Also, I'm brain dead from working overtime, lol.

Excellent! The thing with filing online is that any time you open an application and hit save - whether you ever finish it or not - it creates an ITF. I don't know how the software handles it, but the processors know that the subsequent one gets labeled "duplicate" and has no effect. Obviously, an ITF is only good for 1 year or less (until you file a claim that it attaches to). But an ITF is also only good for ONE claim - the 1st valid claim after the ITF is created. Once you file a valid claim, the active ITF is attached to that claim. Then, you need to file another ITF so you have another active one for the following year...follow, lol?

You're welcome and good luck with the exam! I can't imagine having to use a manual wheelchair. I work from home full-time as a reasonable accommodation, so I'm fortunate not to have to navigate much. So...I just passed my one year mark working for the Agency Who Shall Not Be Named. But I do want to say that I spend virtually all day, every day processing...appeals - strictly RAMP and AMA. It's obviously very new and the learning curve is steep. I look forward to contributing here for those who might have questions. I certainly don't have all of the answers, but I know where to find them Phury

Hello You folks use a shorthand that I'm not sure I'm getting but here is some relevant information on your "review" options: If you receive a decision notification after February 15, 2019, you are able to select 1 of the 3 AMA lanes covered above. The trick is you need to know what you want done. HLR is a closed record review. Nothing new after the date of the rating decision you disagree with except what you say in the Informal Conference with the DRO (if you elect one). That's where you say, "they did it wrong and this is why..." But it is strictly based on the evidence and regulations/laws in place at the time of the decision. Supplemental is not only an open record, but you are required to submit new evidence with it. I'll go into more detail on that in a bit, but if you don't submit "new and relevant" evidence, you will be getting a letter that says so and no claim will be opened. The cool thing about the new and relevant is that it is a lower threshold than new and material. Also, some excellent stuff is considered new and relevant: new treatment records, a new theory of service connection, your statement that points to evidence that isn't currently in the record, etc. It's critically important that you say what the new evidence is when you fill out the form. Say that new evidence is in the folder since the last decision. Say that you have new VA treatment records. Say that you believe it's secondary to a service connected condition (different than the last one) or that it was aggravated by a service connected condition. Use the words new and relevant when you fill out the form, "my new and relevant evidence is a different theory of service connection." BVA, which essentially offers the same lanes above, plus they still review RO decisions. I'll write separately about the pre-2/19/19 decisions. I'm kinda rummy from overtime. Phury

I know I'm new but here's my 2 cents: ITFs are still a valid thing, but they mostly relate to effective dates and that means they are *typically* going to have more impact on new or original claims. AMA, RAMP, and Legacy are all appeals processes, so effective dates for those are usually more complicated than with new/original claims and ITFs are only a single factor among many others that impact effective dates for issues granted on appeal. I'm unclear about what Buck is trying to get an answer for. Do you have a scenario? Thanks, Phury

Hello, I'm probably missing something here but I want to make sure that you didn't file the claim on the 4138, right? You included a detailed statement on a 4138, but you filed a 526EZ for the new condition? Thanks, Phury

Some things to know about RAMP - it's over. You had to opt-in by February 15, 2019 - there are some exceptions to that rule, but not many. There was a great big backlog on processing those claims as huge numbers of folks were hired to deal with RAMP and the new AMA review claims. There were software and human glitches; there still are. RAMP HLRs are almost finished. The folks who opt-in toward the end of the program are moving much faster than those who opted in early. RAMP Supplementals are still going strong. Because work/development has to be done on many of them, they take much longer to process. Speaking of which, in RAMP and the new AMA process both - you will virtually always get a faster processing time with the HLR rather than the Supplemental. That's because the HLR is a closed record - no new medical records, buddy statements, etc. It's just another (but independent) re-weighing of the evidence and issuing a new decision. The DROs are looking for any Duty to Assist errors or other mistakes. If they find them, your claim is going to take longer. It basically becomes a Supplemental claim because it's going to need new evidence. The seriously good news on Supplemental claims is this: you can submit it at any time after a decision as long as you submit "new and relevant" evidence. The timeline only matters for preserving/establishing the effective date of any award. The best thing about new and relevant evidence? It can be as simple as a statement saying you want the VA to consider a different theory of entitlement. For instance, you get denied for a direct service connection for sleep apnea. You can file a Supplemental claim and say you believe the sleep apnea is secondary to PTSD. That's new and relevant evidence! M21-1 III.ii.2.D.1.b. Important: In claims for compensation, a claim based on a new theory of SC is a supplemental claim. A new theory of SC (for example, when direct SC was previously denied, and secondary SC is now claimed) is sufficient new and relevant evidence to satisfy the evidentiary threshold discussed in M21-1, Part III, Subpart ii, 2.D.1.e.