broncovet

"IRIS" has gone downhill almost as fast as "peggy". The twins have largely been taken over by "Allie"...Allison Hickey. It serves VA right to have the bosses have to answer when IRIS and Peggy should be able to do the job, but aren't. I think its largely a "pass the buck" problem. No one wants to actually "do" anything at VA to fix any of Veterans problems until Allison Hickey or Ronald McDonald insist on it. Allison and Robert should not be fixing these things..they should be telling the RO directors to fix them BEFORE Vets have to email Bob and Allison. Its a middle management problem.

I agree that citation is long winded, and I will attempt a summary: 1. The VA is forbidden to "develop to deny". This means if the VA thinks there is no chance in your claim suceeding, they should not order a C and P exam. Ordering a C and P suggests you have met all the criteria EXCEPT, perhaps a nexus and maybe the degree of disability along with an onset of symptoms. 2. You can challenge the C and P exam. But, if you do not challenge the exam, it is presumed correct. You can challenge the examiner's credentials, and you can ask the VA for them. If the C and P examiner does not have expertise with your disability, then you can challenge and probably get another exam. 3. If you are working on an appeal, and the exam is highly unfavorable, then consider cut and pasting, the wording, above (in blue) , by attorney Chris Attig

I already congratulated you in an email, but what is the score now? Something like Ask nod 20 vA 0 ?

Yes, it makes a difference the VA ignored your remand, but it may/may not be enough to get benies. In the end it will depend on your evidence. Still, you are entitled to remand compliance. There are multiple ways to Cue, as there are other ways to an eed. First, you need to get a rating for your knee. Its unlikely a Cue will produce a rating, normally cue is used for an earlier effective date, as the key word is "material" error. If the VA forgot to dot an i, that does not mean you will get 100% because the VA forgot to dot an i. I agree with Berta that new and material evidence (38 cfr 3.156 )may be the best method for you to "reopen" the knee claim and preserve the effective date if you do get rated for it. I also agree "non compliance with a BVA remand order" is an automatic Cue...that the Veteran is entitlted to compliance with the BVA remand is not debatable..you are, indeed entitled to remand compliance. Its an "automatic cue" in that you deserve the terms of the remand, it does not mean you will get benefits. The VA can pull this fast one: "Ok, we considered your knee per the VA remand, and we are denying it again." You do understand, however, when you get a remand, you can submit new evidence and it will be considered as filed with the initial claim. Most remands specifically state you may submit new evidence, but, even if the BVA remand omits that, you are still entitled to this. For advice on an earlier effective date, read this over, thoroughly and see if any of it applies to you. For best ways to win an eed, go here: http://www.purplehea...ate ErrorsL.pdf

One out of 10 Veterans have spent some time homeless in the past year in Orange County, California, according to Bergman and Moore. Isnt that where someone gave VA a whole bunch of land provided the VA build a homeless shelter, and the VA leased it out and kept the money instead? Source: http://www.vetlawyers.com/morning-muster-2202015-one-in-ten-vets-homeless-house-to-meet-at-tomah-vets-want-on-campus-support/?utm_source=feedburner&utm_medium=email&utm_campaign=Feed%3A+BergmannMoore+%28Bergmann+%26+Moore%29

The VA is not supposed to "develop to deny", and Veterans attorney Chris Attig suggests including this language in your appeal: .a VA Nurse offers an opinion on the cause of a complex motor neuron disease she's never heard of... ...an Internist with generalized experience writes an opinion on the causation of a cancer ...VA Docs support naked conclusions with NO medical evidence ...VA docs use exams to Develop the Claim to Deny it (an illegal practice). This is more than a one off problem....junk science has invaded the Veterans Benefits System. The Court and the BVA haven't made any efforts to delineate what is - and what is not - acceptable and reliable medical expert evidence But YOU can help bring this issue into the limelight... ALWAYS include THIS language in any Notice of Disagreement or VA 9 where the VA relied on an inadequate Comp and Pen Exam. end Chris Attig quote. http://www.attiglawfirm.com/communicate/inadequate-c-and-p-exams/?utm_campaign=vlb_daily&utm_medium=email&utm_source=Put+THIS+language+in+EVERY+Appeal...&utm_term=Put+THIS+language+in+EVERY+Appeal... more from Chris Attig: Using this language, ALWAYS challenge the adequacy of the examiner's credentials at the NOD and VA Form 9 stages: The Code of Federal Regulations requires that to be competent, a medical opinion must be "provided by a person who is qualified through education, training or experience" to offer one. 38 C.F.R. § 3.159(a)(1). Competency requires some nexus between qualification and opinion. Dep't. of Veterans Affairs Proposed Rules, 66 FR 17834-01, 17835 (Apr. 4, 2001) (citing Espiritu v. Derwinski, 2 Vet. App. 492 (1992) (stating that "opinions of witnesses skilled in that particular science, art or trade to which the question relates are admissible in evidence"), overruled on other grounds by King v. Shinseki, 700 F.3d 1339, 1345 (Fed. Cir. 2012)). However, the VA Benefits from a presumption that it has properly chosen a person who is qualified to provide a medical opinion in a particular case. Sickels v. Shinseki, 643 F3d 1362, 1366 (Fed. Cir. 2011). Even though the law presumes the VA has selected a qualified person, the presumption is rebuttable. See Bastien v. Shinseki, 599 F.3d 1301, 1307 (Fed. Cir. 2010) (explaining that a veteran challenging the qualifications of a VA-selected physician must set forth specific reasons why the veteran believes the expert is not qualified to give a competent opinion). Given that one part of the presumption of regularity is that the person selected by the VA is qualified by training, education, or experience in the particular field, the presumption can be overcome by showing the lack of those presumed qualifications. I hereby request that a copy of the C&P Doc’s resume, CV, list of publications, list of specialties, etc., such that his/her experience and qualifications may be examined, reviewed, questioned, and/or challenged. I specifically request that any and all information stored in VetPort - or any other system of records - that pertains to the Examiners' credentialing as a medical professional since the Examiner's date of first employment and/or association with the VA - be included in my C-File and specifically examined by the BVA and CAVC to determine the adequacy of the Examiner's so-called expertise. 38 U.S.C. 7402; 38 CFR Part 46;VHA Handbook 1100.19; VA Handbook 5005, Part II, Chapter 3; VHA DIRECTIVE 2012-030. Furthermore, I object to the following aspects of the VA Examiner's opinion: a) The lack of support in the opinion with scientific, technical or other specialized knowledge, and how it relates to the conclusion being sought b) The lack of facts, tests, or data on which to base the opinion. c) The lack of evidence demonstrating the Examiner's conclusion is the product of reliable principles and methods d) The Examiner's failure to reliably applied medical, scientific, and or forensic principles and methods to the facts of the case. By challenging the adequacy of the exam and directing the VA to include that information in your appeal, the BVA cannot overlook that evidence without forcing a remand. By failing to get information that allows you to participate in your appeal, the BVA cannot fail to collect it without violating the Duty to Assist and - I would argue - violating Constitutional Due Process.

I heard "Peggy Gate" and "Shredder gate" were dating the same guy. With the same last name, they should not be dating.

Berta Thank you. The old CAVC "deemed denials" were highly Veteran unfavorable, and were in conflict with another statue that said, basically, the VA owes Veterans a written decision (of course it does not say "when", so the VA interprets that to mean a written decision will be put inside the Veterans casket, but only after his widow complains). I could not view "Adams vs Shinseki" on the link you provided, but I was aware that the Veteran "had to be able to tell his decision was implicitly denied", on newer CAVC/Federal circuit cases. This seems to open up a huge can of worms for Vets. On one had, the "implict denial" remains in force, BUT the decision had to, apparently imply, that it was denied, but that is unclear how they would do this. Maybe the decision would be like this: "This decision amounts to a "complete grant" of the benefit sought, unless there were issues that we forgot about, and those are implicitly denied, because they must have been shredded so how would we know about them?" or "We are denying all claims, whether or not we can find all of them. Specifically we are denying PTSD, but if there were any others not known to VA those are also implicitly denied". or maybe "We are deny all the Veterans claims. Here is a list of the ones we are denying, but if there are others that we dont know about, those are denied, too. " or even "We are denying claims to which are undocumented. An undocument claim means the Veteran never completed a satisfacory 21-4192, or that it was sent by the Veteran and then later shredded by overworked employees by Veterans trying to game the system." Yes I know Im being facitious, but this is how I feel trying to document claims the VA shredded. I know Im not the only one. This occurred over a half dozen regional offices that were caught...who knows how many were not caught. Notice there was never any follow up to shreddergate, the Va assumes this problem stopped in 2008 and never happened again. However, we have multiple Vets who have other Vets documents in their cfile. This means they dont shred em as much anymore, they just place them in another Vets file, which will take years to find out and fix. Its actually worse than shredding, as it violates privacy and the documents in another Vets file are, for practical purposes, just as lost as if they were shredded. Frankly, I have no idea how this "new" deemed denial will work, or what the VA will do about "undocumented" (that is, lost or shredded) claims. Im working on one of these, now, and will let you know the results.

"Peggy" is so sick, she would have to get better to die. This ongoing communication problem with Veterans and VA is a key factor in VA's troubles. This happened some time ago. You see, VA employees did not want to talk to Veterans for several reasons. First, they did not want to get yelled at, and next, they claimed it slowed down production. (Maybe these employees should consider a different career if they did not want to talk to Vets..after all, they could try Burger King, and would rarely have to confront mad Veterans, there) In reality, communicating with Veterans does not slow it down, it speeds it up. Let me explain: Lets say you could not speak to your Burger King Window. You just had to pull up to the window, and honk your horn. The poor BK lady would then "guess" your order..oh I think he wants a Whopper and large fries..and a coke. So, you pull up and honk as required. Only you want a fish sandwich, no fries, and diet dr. pepper. So, if this were VA, you would get a whooper large fries and coke..after a 2 year delay, having to fill up your car in the line which would extend from Washington DC to San Francisco. Once you got your order, you would realize it was wrong. So, you would send it back, (appeal for a fish sandwich, no fries and diet dr. pepper). After 4 more years, the BVA would say, ok, you got your fish sandwich fries and coke. Then you would appeal again, honking the horn again (remember, lack of communication saves time, according to VA employees), as you were not actually allowed to speak to anyone human, ever. This continues until you die of starvation, or get food elsewhere. This is the way VA operates..under the false premise that non communication will help..this is why Peggy does not work. VA does not want it to work.

Of course they "agree with management decisions", but, remember, each rating specialist has "discretion", too, otherwise we would just be rated by computer. I think it may help some. A few years ago, I remember when VA was "trying to get its number of Veteran employees below 20%", because they were concerned too many Vets would help too many vets. I think VA is between 20 and 30 percent, now. Of course, this is in conflict with VA's "get rid of Veteran homelessness" program, because few Vets, if any, are homeless and working at VA. Its part of what has been called a "culture of denial" at VA. I hope the firings get rid of some of this, at least.

Well, yes. Berta will chime in, but a CUE would only apply if you were diagnosed with agorophobia when your decision occurred awarded 100 percent. In other words if you were not housebound then, but are now, then an increase is applicable, not a cue. All this said, listen to Berta who went through this: The regulation you mean is not only a regulation but SMC is a statutory mandate, and I used that reg for my SMC CUE. and a direct quote and copy of how NVLSP explains the mandate in the VBM. Chuck is right .In my case my husband had been rated 100% P & T for SC PTSD EED to 1991, but they failed to consider SMC due to his 1151 1992 stroke, 80% NSC on the 1998 rating sheet. Their lack of consideration and application of the SMC regulations was the first CUE, Their ratings on a NSC stroke (which was actually 1151) became the next CUE, And their diagnostic codes were wrong, 3rd CUE I also enclosed the rating sheet that contained 4 CUEs. The 4th CUE I raised in a separate CUE claim, as to no diagnostic code or rating at all for an 1151 IHD condition,which ultimately became an AO IHD condition. 100% PTSD, & 100% 1151 CVA equaled the SMC S award. As jbasser said, treat this as a CUE. end of berta quote.

Hopefully this is just the "first" 900 employees...maybe more. I would like to know who was honored by being the first one to get fired. Maybe that will straighten out some of the others who thought they were "fire proof".

If you cant handle the stress of trying for an increase, then have someone do it for you. A spouse, a VSO, an attorney, or a friend..you choose. You can just give em the paperwork and dont check to see how its going. This will give at least as good a result as doing nothing. Ask your rep not to contact you until there is a decision. Or, dont even look for a decision, just do something else..get a hobby. Some people do well without "baby sitting" their claim constantly. Sometimes, a watched pot never boils.

It would not make sense to award IU if you qualified for 100%. However, VA does not make sense. I think Pete may have it...award 100% then hoodwink you out of an earlier effective date. This is similar to what they did to me.

Kelly It would be interesting to see...the unions fight VASEC for firing incompetent and untruthful VA employees. This would look very bad for unions. He is not firing good help..he is firing those who need to be fired.

I agree with USMC...its not enough to be unemployed..to get IU, your doc has to say that your inability to maintain SGE is because of sc conditions.

Buck posted: " yes you are entitled to SMC,you might want to recheck your award letter, if they never mention SMC to you? ( explain the entitlement) then there's the cue!" I think I recall reading that..something about if you are awarded a single 100% award, they are supposed to adjuticate SMC-s. But I can not find it. Does anyone know where that it says the VA is required to adjuticate SMCS when there is a single 100 percent award???

Im in a fight now to get SMCS back for years. I will let you know when I know how it turns out.

Yes, its worth it. I think SMC S is about 340 per month. Since you get the OLD rate when ever there is retro, you still are looking at 300 per month average times 14 years...that's "about" a 50,000 retro.

You need 2 things, and I saw neither in your statements: 1. That you are unable to mainitain SGE (Substantial Gainful Employment). 2. The reason for number 1 in Service connected conditions. Its not enough to be unemployed, or even "underemployed". Your doctor needs to state you can not work due to Service connected conditions. YOu see, there are many reasons to be unemployed or underemployed, some of which have nothing to do with Service connection: Maybe you dont have the skills to get employed in todays market..maybe you didnt apply...maybe there is a bad economy..maybe you are sick, but it has nothing to do with what you are service connected for.

Your doc is in a much better position to answer that than we are. If you have doubts, you can get a second opinion.

Im gonna guess "yes". It is a little unclear if its 100 plus 60 (added) or 100 plus 60 (combined). I think you get it either way, tho. Expect VA to fight you tooth and nail for this, but maybe not.

I hope this sends a message: LIE TO VETS AND YOU LOSE YOUR JOB. We should be able to count on what they say, and if they dont know, they should say that, too.

This is good news for Vets, maybe even good news for employees. I bet its tough to work where you are pressured to be dishonest, and to retaliate on whistle blowers. http://www.nbcnews.com/storyline/va-hospital-scandal/v-secretary-900-people-have-been-fired-n306041

Im in somewhat similar circumstances...I had evidence shredded from 2002-2012 and it appears to continue. I emailed Robert Mc Donald a week ago, and have not received a response yet. I think I will wait another week before emailing Allison. We should be able to email our VARO director, directly, so that he/she can look into it personally. While I love that Alison and Robert are moving forward, I think this needs to be expanded with the VARO director held responsible. We should be able to email the director and, only then, go to the big boss. Its called "chain of command" and most of us learned this quite well, while in the military. You ask your boss first, and, only if he does not adequately respond do you go up the chain of command. It does make sense..why email the president of the United states, if your immediate supervisor does not even know your problem exists?? I will say, given what I posted above, I should have emailied Allison first, before Robert, as I have already tried dozens of times to get this resolved at the RO level. In that, I guess I have no one to blame but myself.