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scienter
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Posts posted by scienter
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On 11/3/2019 at 1:30 PM, broncovet said:
It wont do any good to appeal a decision over 1 year old. Try some alternatives, instead:
1. Refile a supplemental claim, with the new evidence. If awarded, you can then appeal the effective date if its wrong. The VA posits:
Why keep it simple? If you can complicate it and draw it out for years, the Veteran may will give up, or pass away.
2. Submit the new evidence via 38 cfr 3.156 b or c to reopen the claim.
3. (Similar to number 1) file a new claim, and fight the effective date if its wrong.
Cue, tho possible, probably does not apply here. Cue is based on the evidence AT the time of decision. The VA has made this clear. When the VA loses, destroys, overlooks, shreds, or just plain does not read our evidence, the burden of proof is on us. They get away with everything, we get away with nothing.
But if you file to reopen, then you lose any EDD and it starts from the date of filing to reopen?
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On 7/1/2020 at 12:04 PM, brokensoldier244th said:
I can empathize with that, but there has to be a record the exam- at least if its recorded its subject to discovery later. Its not like VA is just going to take a veterans word for it that they are disabled and hand out money. There do have to be controls. Its not any different than SSA, other than its a whole lot easier to get based on the standards applied vs SSA.
SSA is far better- certainly time wise. You don't have to wait for years. The hearings with SSA are before a Federal Administrative Law Judge separate from SS, as opposed to the BVA which is part of the VA. Not only that SS appeals take about 8 months, and you can view your SS file including medical records online. And you can appeal a SS appeals decision to the Federal District Court which you can't with the DVA system; you can file with the Court of Appeals for Veterans claims on a BVA decision, and, if necessary to the Federal Circuit for the Federal Circuit. I have been in both systems and there's no comparison; SSA is far superior in my view.
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On 6/24/2020 at 4:14 AM, broncovet said:
At the BVA, its no longer even called the "cfile"..its called the "record before Agency" (RBA). Im not sure that is defined either, because I have several "RBA's" and each is different.
Nowadays, the "VBMS file" is more important than the cfile. Why? Because the VBMS file is "current", while the cfile is out of date by the time you have received your copy, since new stuff has likely been added, and old stuff shredded, lost, deleted, misfiled in another Veterans file, mishandled, etc. You only get access to your VBMS file "through your VSO, attorney, or non attorney practioner". Vets are not permitted access to see their VBMS.
In short, "cfile" is a term mostly used by VA employees and Veterans, short for "claims file". If they dont know what a "claim" is, then they dont know what a "claims file" is. (see above post on disputes of what a "claim" is).
My understanding and experience with VA is that the VBMS is your digitized C-file. What's unfair is that a pro se veteran can't get access to his VBMS but a VSO (and now attorneys) can. Yes, you can request to see it but have to go to some RO or VA office and use their computers to see it. I know from personal experience that the RO can't be trusted contray to their Congressional mandate. The system is a maze which is easily gamed by the DROs and a pro se veteran doesn't have a chance in my view.
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On 6/24/2020 at 4:14 AM, broncovet said:
At the BVA, its no longer even called the "cfile"..its called the "record before Agency" (RBA). Im not sure that is defined either, because I have several "RBA's" and each is different.
Nowadays, the "VBMS file" is more important than the cfile. Why? Because the VBMS file is "current", while the cfile is out of date by the time you have received your copy, since new stuff has likely been added, and old stuff shredded, lost, deleted, misfiled in another Veterans file, mishandled, etc. You only get access to your VBMS file "through your VSO, attorney, or non attorney practioner". Vets are not permitted access to see their VBMS.
In short, "cfile" is a term mostly used by VA employees and Veterans, short for "claims file". If they dont know what a "claim" is, then they dont know what a "claims file" is. (see above post on disputes of what a "claim" is).
When you go before the BVA, it's your entire c-file, which is now digitized but, you need to see the entire "C-file" before the BVA rules on your claim. The RBA is a file selected by the General Counsel attorney which is only select documents, he or she selects (not your entire c-file), and the GC only selects relevant documents to the BVA decision and that is filed with the CAVC. The veteran does have to agree to the RBA and if a dispute, then the CAVC decides. The problem in my view, is that the RO can manipulate what's in your c-file; I know this from personal experience, therefore, you must get a copy prior to it going to the BVA. You can also do a FOIA request, which the VA characterizes as a Privacy Act request so that they only have to give you e.g. what's in your c-file, but if you file both, you can get all that is on file with your name. There are for example, internal memos on you discussing your case, and contrary to popular belief the VA non-adversarial system, pro-claimant system is often silently adversarial; again having perssonal experience with it. The whole VA benefits system takes so long (years for many) because you can always appeal it, and hence, stay in the hampster wheel. It's important to have a qualified VA attorney because the rules, laws, including many CAVC and FCFC case law, that it's almost impossible for a Pro Se veteran to represent him or herself properly. And if you get a VA attorney, he or she must have had at least one case they represented go to the BVA, and at least one they represented before the CAVC, and one before the FCFC. This is a must, because many
"VA certified attorneys" havent't been before the CAVC for example nor the FCFC. -
On 8/9/2019 at 8:11 AM, Christypl said:
My husband applied for compensation for PTSD among a few other things. He was seeing a private dr at the time. He had a bad C&P exam (examiner asked only a couple of questions and the exam was about 5 minutes) and the first go was denied. They said that he didn't have PTSD and he ended up with 10% for hearing loss. We appealed the decision. In the meantime, he started being seen regularly at the VA and was given a diagnosis of chronic PTSD. We submitted supporting evidence about the stressor (mission logs, an article from the Marine Times and a buddy letter. Today, he got his decision and it said that the PTSD was not service connected. What are we missing? Do we need a dr to flat out say that his PTSD was caused by combat?
If he has an attorney or VSO, they would tell him to file a notice of disagreement (NOD). Read the decision letter, it explains.
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11 hours ago, broncovet said:
A HUGE problem is uncovered here. This is what happens. THe BVA denies, and, when the Veteran goes to appeal to the CAVC "the file is sealed" and new evidence can not be added for consideration by the CAVC. The Court decides the merits of the claim based on a RBA (RBA is the cfile but, at the BVA), that the Veteran has not had a chance to review.
Now, my attorney did point out the lawyer representing the Veteran at the CAVC gets a chance to review the RBA, and he can "challenge" the contents of the RBA. This is how I got my RBA, my lawyer sent me a CD with the RBA on it. But that is AFTER the BVA already decided!!
Understand the difference between BVA and CAVC. The CAVC is not a trier of Fact. The "factual findings" by the Board are generally not subject to review by the CAVC (unless they are "arbritrary and capricious"). This arbritary and capricious is a very high hoop for the Veteran to jump over..it might be higher than the CUE standard of review because:
This is such a huge burden to over come. If the VA has "unaccountable changes", how would the Veteran even know about them because they are not documented?
ABSOLUTELY RIGHT! That's why you have to have your c-file before your BVA appeal because the RO can delete certain documents, it's all digital, and you would never know it. Now if you appeal the BVA decision to the CAVC, you get a chance to agree to what's in the record before the agency (RBA), and ask that other documents be added, but the RBA probably is not your entire c-file. The General counsel picks what documents are going to be in the RBA based on the issue before the BVA that the judge made the decision on, but if you two can't agree, then the court has to decide it. Further an appeal to CAVC is adversarial so a good experienced veterans appeals attorney who has done at least one CAVC appeal, and at least one before the CAFC is essential- or a pro se veteran who's on top.of his case and the law. This is not legal advice but my experience in going through this. The CAVC uses the ''clearly erroneous'' standard but there can be no plausible reason found for the BVA's decision or it won't be remanded.
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11 hours ago, Buck52 said:
I totally agree with bronco the VBMS is what all veterans need to prefect their claim..
I don't use a VSO or Attorney OR VA Accredited Claims Agent..but sure thinking hard about HIRING the VA Accredited Claims Agent...That has Real time Access to the VBMS.
I called Accredited VA Claims Agent Robert Blacklidge in Argyle Tx and made a future appointment with him. he has over 30 years experience with Veterans Claims and was Accredited in 2011
Ms berta quoted
''Voc Rehab records, and often Physiological records are often kept separately- and are not in the C file.''
I notice some of my Voc-rehab records and some of my MH records were in my C-file and the Myhealthyvet notes were in it , but probably not all of them just some records , but this was 2015 when I got my C.File. in on CD.
so a lot of records that were not written in ink or type out or was in light pencil did not copy.
I need access to the VBMS very Bad.
I hope they change this and let All veteran have access to the VBMS
WE NEED TO WRITE PRESIDENT TRUMP ABOUT THIS.
As I have been told by the General Counsel the VBMS is your digital copy of the C-file. But if a pro se can't access it without a VSO or lawyer prior to your claim being heard by the BVA, then you don't know what's in it and the RO can put what they want or don't want in your claims file. To me this is critical because this is the only record that the BVA is looking at de novo is that record.
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3 hours ago, broncovet said:
I can "somewhat" appreciate the "security issue" with having Vetreans access their VBMS file. Rememeber there are about 25,000,000 Veterans, and probably at least some of those know what it takes to "hack" a system.
At least, if they only allow attorney's and VSO's to have access, they should be able to know where to find them if it turns out the hacking came from there. The world, however, is probably too big to locate all 25,000,000 Veterans.
Usually, we can find a VSO or attorney somewhat easily by just doing a search, since they make at least some of their information public, so potential clients can find them.
I dont have a good answer, except to only allow "read only" to VSO's, or attorneys concerning the Veterans VBMS file. That is what they do now. VSO's can not delete documents to the VBMS file, or at least they shouldnt be able to.
VA has hired a third party to scan in Veterans evidence at he Evidence intake center. Supposedly this means the VA cant say, "Oh, NO! THAT would allow the Veterans claim to be awarded right away, so let's delete that document!" ...kind of like what VA did in the past.
Its a very awkward situation. If you were suing your neighbor, would you say, "Ok. Here are all my files I have against you, as I should get at least 5,000,000 in this lawsuit. Now dont delete or lose any of these documents because I need all that evidence"
Yea right. You would "never" put your opponent at law "control" over your documents. It makes no sense, but that is exactly what VA does. How do they get away with it? Well, they pretend they are a "Pro claimant, veteran friendly" office designed to assist the Veteran in getting benefits. Its mostly a lie. The VA is here to PREVENT us from getting benefits and provides as little help as possible.
Your c-file is the evidence of your claim, and what's in it is what's before the BVA, but the pro se veteran can't access it. Why not? It's because the DVA doesn't want you to.know what's in it even though your representing yourself. A VSO can look at it but a pro se can't. Why not? And why is there no law or DVA regulation that defines what is required to be in a C-file? That's even worse, if you appeal a BVA decision to the Veterans Court of Appeal for Claims (CAVC), an adversarial process, General counsel attorneys get to.pick what records from your C-tile go before the CAVC. So what's legally supposed to be.in your c-file is critical. The RO controls your file and they take stuff out without notice to the veteran, in order to- in my view- defeat or prolong your claim. The system is rigged against the veteran cloaked with the Congressional mandate of pro-claimant, non-adversarial, when in my view, is a manipulative corrupt process, propped up by "well you can.appeal it".
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Trying to understand FOIA and Privacy Act when requesting C-File
in VA Disability Claims Research
Posted
When making your request do it in both the FOIA and the Privacy Act. The VA must do both, and for the FOIA request, if after 20 days of no request, you have exhausted your FOIA and can file in Federal Court. You can also file an application for Extraordinary Relief in the form of a Writ of Mandamus. The VA has been ignoring FOIA requests, and only responding as Privacy Act requests because it has no time limits. It's important to obtain your complete C-file prior to agreeing to the Record Before the Agancy (RBA). The GC only puts documents in the RBA that they think pertains to the BVA's decision, but you need to make sure that all relevant documents are includedd such at the relevant V9, NOD's ect.