broncovet

I agree with Delta According to this law firms summary, the Supreme Court decision would appear to allow you to ask for an extenstion of time, and not automatically be denied: http://www.faegre.com/12917

According to my Voc Rehab counselor, you can get an extension of the 45 months for "good" reasons. Nowadays, a 4 year degree is rarely completed in 4 years, and there are multiple reasons for this. If your child has a specific degree in mind that will or has taken longer than 45 months, yes I would ask for an extension. My voc rehab counselor seemed to think extensions were fairly easily obtainable, as long as everything else looks good, such as your child is making progress toward a degree, getting acceptablle grades, etc. I think they would be especially lenient about the 45 months if you were, say, persuing a medical degree especially if you had an interest in working at the VA. But that is JMHO. Budgetary constraints may have changed all this, because it was several years ago.

Big Red There is a test, called the Brokowski test, to determine if you have filed an informal claim for benefits which can establish an effective date. Unfortuanately have a "claim number" is not one of the criteria for the 3 part test. However, IMHO, having a claim number could establish "intent to file for benefits". All 3 parts of the Brokowoski test are required to establish an effective date: 1) It be in writing 2) It show intent to apply for a benefit and 3) you "specified the benefit sought". If you file an informal claim, the VA is required to send you a formal claim form. I do seem to recall reading about individuals who had NOT been sent the required claim form ultimately win an EED. To establish an effective date, it is important to rememeber that the effective date with be the later of the "facts found" or date of claim. You see, it would not matter if you applied for benefits in 1939, but if your doctor says you did not get the disease until 2010..your effective date would be 2010. I would agree there is a "glimmer" of hope, with it being only a glimmer as the VA aggressiviely fights Vets on very old effective dates. In this old Vets opinion it will take a very long fight for you to win a 1970's effective date.

According to Ebenefits, my claim went from the BVA judge to the VSO, then to the VSO again two weeks later. Im trying to figure out why. The issue is primarily the effective date, so I am guessing they dont remand those. It would look like the BVA either awards the earlier date, or they dont...I can not see the point in "remanding" an effective date. I appreciate your opinions or even guesses.

While I think I like Pete's idea the best, Vets need to be told about the birds and the Bees: There is no Santa Clause, and the VA does NOT want to reduce the backlog. All of the politicians talk about reducing the backlog is just talk. It would cost the VA too much money to reduce the backlog, because, other than denying claims, they would have to award benefits, and that costs money. They WANT the backlog, and prefer that it grows. Do not beleive the politicians promise to reduce the backlog..when they have done exactly the opposite. We have to look at what the politicians do, NOT their words. So, there is no Santa, and the backlog wont be reduced. In fact, the Secretary is doing his best to create NEW backlogs...backlog in Caregiver act, backlog in "new" GI bill education benefits, and more backlog in VA claims. There is a reason why VA employees are paid about $67k per year average, and disabled Vets get about $10,000 per year average. Politically, Vets are dead. WE are divided...Iraq Vets, Vietnam Vets, female Vets, male Vets for DADT, Vets against DADT, Democrats, Republicans..etc. ..Vets that think we deserve a Cola, and Vets that say we dont..even when VA employees got a raise, but we didnt. WE are not a force to be recokened with, we have mentally ill Vets, and the VA takes advantage of Vets, why? Because they can. And the VA will continue to get its way with VEts until we change and unite against this injustice to VEts.

ADC I agree with Basser that INDY RO is not good, and loved his term "a coctail of denials". Its like they cant figure out how to deny you so they try multiple different denial concoctions, trying to find one that will stick. It is so true. First they denied my hearing loss because it had been a long time since military service. "Time since military service" is not one of the rating criteria, and they know it. They have to rate on criteria...they are not supposed to rate our claim based on the color of our carpet or how friendly we are with the VSO. When I pointed out I had a nexus by a VA audiologist, the BVA awarded Service connection. Then, it was one attempted denial after another, and all of them pretty much as bogus as the first attempted denial, pretty much based on "non criteria". While I am unwilling to paint you a rosey picture when you are being bounced in between Indy and Denver, (some VSO's will paint you a cartoon picture of how long it will take to get your beneifts) I would strongly suggest you keep copies of everything you submit, and send it certified mail return reciept requested. Some have said that farming your claim out to another RO is a delay tactic employed by the RO's, so I would not be suprised at them trying the same thing using the excuse, "Well I thought .....RO was your AOJ". The RO's uses the St. Louis fire as an excuse for decades, even for Vets who had service after the fire.

I did not read in the report why those RO's were selected. I did notice that St. Pete, Cleveland, Buffalo, and a few other "horror story" Regional Offices were not on the review list. It makes me suspicious when they review RO's with fewer problems, and let the bad ones go without inspections. I also found it interesting they limitied this to TBI, PTSD and 100% Temporary. While I can see some value in limiting the scope, these particular conditions are suspect as, for example, the 100% temporary ones, the VA forgets to put it down in the diaries, so the VA never follows up and the temp guys sometimes get that forever. While I am not in favor of healthy Vets getting 100 percent after surgery and then the VA never takes them off of it, they could also have reviewed unjust denials, which they never bothered to do. I think there is a message here: The VAOIG thinks the VA is overpaying Veterans and wants benefits reduced. The VAOIG comes right out and says that Vets were overpaid more than a billion dollars...but makes no mention of the thousands of Vets who were underpaid billions. If ANYONE in our country deserves an "overpayment", then it should go to a Veteran who served this country, not a politician, or one of his friends. I have a definate problem with the VAOIG making reviews with an eye on reducing benefits, which this report does. I dont have a problem with them improving accuracy of decisions..Im for that whole heartedly. I do have a problem when they manipulate things to correct inaccuracies by reducing benefits.

CPL There are 57 RO's...I heard they had added a 58th. Pretty much each state has its own VARO. However, they are not always divided on state lines. Your VSO should know where your Regional Office is.

I think the biggest thing a Writ accomplishes is that it hits the VA where it hurts the most...in the media, since CAVC cases are public knowledge. If you could get 60 minutes to do a blurb on it, it would likely accomplish the same thing. The VA manages by "putting out fires". So you have to build a fire to get them to put it out. Smoke wont work.

I agree there SHOULD be a chain of command at the RO, but, if there is, it is a carefully gaurded secret. You see, the VA doesnt just let you call a supervisor and "fix things" like in the real world, but that would be nice. If there were such a chain of command easily available, then hadit may not be necessary..you just go up the chain of command, like we did in the military. Instead, first try an IRIS email. If unsuccessful there, send in a 21-4138. Then, if still no success, file an "Intent to file a writ of mandamus" with your RO. If still nothing then file a Writ of Mandamus with the CAVC. Some suggest this should be done if your claim has not moved in about 18 months. The manager at your RO will likely have to respond to the Writ of mandamus. This does seem to get things going. I have filed a writ, and, tho the writ was denied by the CAVC (they regurarly are denied), it helped move the RO off their duff to get the claim going. They will sit on your claim for decades if you let them. Dont let them.

Agreed. You need to decide if you can afford to travel to Washington DC or not. If you have the money, and want to go see the Smithsonian, Washington Monumnet, Lincoln Memorial, etc., then go. I can tell you that if you can afford it, the Smithsonian is worth the trip. While I have not been recently, the Smithsonian did have things like moon rocks (real), the Hope Diamond, and many many things like that. If there is one in the world, there is a good chance its at the Smithsonian. It is a world class museum of no equal. Nothing else is really even close. You can easily spend a week at the Smithsonian and not see it all. I was stationed at DC for 3 years, about well, I wont say how long ago, and visited Smithsonian many times. However, if you cant afford the trip, then do a video conference hearing. I have no idea how far it is to your VARO. IN my town, these hearings are sometimes held locally, at the county VSO's office, if the Veteran can not afford the trip to the Regional Office, which is about 200 miles from here. Of course, that is closer than Wash. DC., which is about 470 miles from here.

Delta Interesting and significant. I have always beleived the "implicit denial rule" flys in the face of 38 CFR 3.103 which states in pertinent part: (a) Statement of policy. Every claimant has the right to written notice of the decision made on his or her claim, the right to a hearing, and the right of representation. Proceedings before VA are ex parte in nature, and it is the obligation of VA to assist a claimant in developing the facts pertinent to the claim and to render a decision which grants every benefit that can be supported in law while protecting the interests of the Government. The provisions of this section apply to all claims for benefits and relief, and decisions thereon, within the purview of this part 3.<br style=margin-top: 0px; margin-right: 0px; margin-bottom: 0px; margin-left: 0px; padding-top: 0px; padding-right: 0px; padding-bottom: 0px; padding-left: 0px; "><br style="margin-top: 0px; margin-right: 0px; margin-bottom: 0px; margin-left: 0px; padding-top: 0px; padding-right: 0px; padding-bottom: 0px; padding-left: 0px; ">Read more: http://cfr.vlex.com/...1#ixzz1Mvme2n00

You always want to file with the RO a "Notice of Intent to file a Writ of Mandamus" before you file a writ. The reason is you give the RO one last chance to fix the problem. The CAVC likes that. A Writ is a last resort, after you have tried everything else. But, even tho your writ will likely be denied, it still get the RO moving on your claim, usually. I agree with Allan that if your claim has not moved in 16 months, then file a writ..after the Notice of Intent to file a Writ.

While whether or not to get a VSO is somewhat controversial, IMHO unless you have some significant knowledge of VA claims and CFR 38, as well as CAVC and BVA cases, you probably should get a VSO. Probably the best way to get a VSO is to go either to your county Veterans service office, or they almost always have them at your VA medical center. Just ask the volunteer, "Where is the DAV (or VFW, PVA, etc) service officer?" They will probably direct you to his office. Take your records with you, such as dd214, etc., and it may be a good idea to have a list of questions to ask your VSO. Be careful about depending on your VSO too much tho..they lose records, make mistakes, etc. like everyone else. Keep your own copies, and he should make them for you. You pay zero for a VSO. If they ask you for money, they are not a VSO.

I think it would be worth your drive, with a bit of advice. It would be a good idea to call or IRIS ahead of time and ask them if it would be all right if you discussed this issue in person: 1. Dont alienate the employee you work with. Even if you think he/she is wrong, or even rude, dont get mad. You will get better results if you co operate fully, but that does not mean you cant ask questions. 2. Have a list of questions. 3. Bring your copy of your c file..look it over well, and look at the one the RO has, too, if they will let you see it. Ask. If they let you see it, see if there is anything missing or altered. Hopefully you are very familiar with your C file. 4. Let them be the "expert". Say, "Gee, I dont understand why this was "cancelled"? What does that mean? Wait for their answer, and write it down...as the RO reps name. Rememeber, too, your fears could well be for naught. If this employee reported your case was cancelled, and that was 100% wrong, it wont be the first time that has happened. Telephone calls to VA give notoriously unreliable information. Have you spoke to your VSO about this? He should know of this..and ask him/her to go to the RO with you..

Thank you, Revelation There is information in your post I consider helpfull. For me, I am service connected, seeking an Earlier Effective date. Have you researched this? (EED)

I agree. This is what the Chief Justice of the Supreme Court (Roberts) meant when he stated that 70% of the time the VA takes a position, against the Veteran, which is "substantially unjustified".

Berta thats a great idea..Im glad I asked! I wish I would have thought of that!

Most of us are taking the "wait and see what the VA will do" attitude. If the past history is any indicator, I really do not see any real changes come from this. The VA goes its own way, and is famous for "snubbing" congress. Congressional inquiries rarely, if ever, produce any real results. If the VA can snub congress, why would they not likewise snub the courts? Here is an example of Shinseki defying congress: http://m.kitsapsun.com/news/2011/mar/12/tom-philpott-va-told-to-shape-caregiver-rules-to/ The VA is a train wreck, out of control. It will take a "new engineer" to have any hope of fixing the VA, as Shinseki is just along for the ride, and has no intention of following congress intent.

The VA is contending that I withdrew a claim via email. This seems more than a little bit odd. While I can not find the email they are referring to, it is possible that I may have casually mentioned something like, "if you speed up x claim, I will withdraw y claim". However, "x claim" was never decided until two years later, but now they are saying "y" claim is withdrawn. Even worse, they seem to be linking "y" to everthing, saying that everything is withdrawn. "Horse Puckey" , as Colonel Potter on Mash would say it. It would have had to be an IRIS email, but, even tho I keep ALL IRIS emails, there is no record of it. I dont think there is such an email, with a possible exception of a "contingency" email where the VA never met the contingency. Of course, I am almost certain you can not apply for benefits via email, unless there is some sort of signature, electronic or pen and paper. So, it would follow that there would also be a signature required to withdraw a claim. I really think the VA is "bluffing"..and do not have such an email. While I would drop "y" to be awarded an earlier effective date for "x", they are going to have to meet their half of the bargain first. I appreciate comments in advance. Thank you.

Hoppy I should clarify the Veteran mentioning to his doctor that he is unemployed is only ONE part of the 3 part Brokowski test to determine if an Informal claim has been filed. The test says the claim 1)has to be written 2) It has to show an intent to apply for benefits and 3) It has to specify the benefit sought. However, the courts are required to liberally intertpret the Veterans filings, and the Veteran does not have to say, "I want to apply for the benefit of TDIU". He can say he cant get a job (due to SC conditions), and that will suffice if he meets the other two parts of the Brokowski test. I am not at home and wont be supplying case law to support my position at this time, but "a liberal" interpretation of the Veterans filings is not in dispute. However, the VA decides "how liberal", and they seem to want that to mean "every I dotted and every T crossed". As I have mentioned elsewhere, however, there is a gap between how the courts interpret the laws and how the RO interprets them, so that often means you have to appeal the case to get the RO strict interpretation overturned. That being said, if the Veteran meets the 3 part test, summarized above, this should qualify for an informal claim, establishing the effective date, remembering that would only apply if the formal claim has already been filed. I am not pretending to be a great case researcher. If a Veteran wants to research case law, I am probably not the best person to ask. However, I think CAVC case law is more applicable than BVA..as if it is a "panel" or "en banc) CAVC decision it establishes a precedent, while BVA cases do not.

Ester.. I will mention something that may help. In a nutshell, apply for NSC Pension. This is a needs based program, and its approval is almost automatic if 1) you are a "wartime" Veteran, and it sounds like you are and 2) You have little or no income. You dont have to prove service connection..and probably dont need a c and P exam. NSC Pension, with one dependent, is something like about $1000 per month. No you wont get rich with that, but it probably will keep a roof over your head. You can also ask for social security disability. In a discussion with a person who trains rating specialists, as long as you could document "need" and wartime service, approval for NSC Pension was almost automatic. If you have not gotten the results you need, ask for pension. It wont hurt your chances at PTSD or other VA benefits, as many Vets, like myself, qualify for both Pension and SC compensation. Your VSO should have told you this, but many do not tell Vets about Pension.

Tom.. Here is a suggestion that worked for me. Yes, I know IMO/IME's are expensive so try this alternative: If your VA doc wont give you a nexus or the evidence you need, simply ask for another VA doctor. When you go to the next VA doc, simply tell him why you switched: "Doc..the reason I swithched from Dr. A is that he is apparently unable to provide a nexus statement that I need for benefits. While I am pretty sure that my sleep apnea is a direct result of military service because....(list your reasons,) my opinion matters little, and I am looking for a Veteran friendly doctor to provide this nexus, as I simply can not afford a doctor in private practice. Do you feel like, that this is possible, or am I going to need to keep looking?" In a nutshell ask the doctor for what you want..if he cant/wont give it to you, ask for still another doc. Simply ask him point blank if he will help you..there is some chance he will say yes. I am not recommending lying to the doctor..heavens no..a thousand times no. But, doctors have different opinions, and if your doc seems to be less than generous about providing a nexus, simply ask for another doc. To find a "Vet friendly" doc..go hang out at your VAMC and ask other Vets about their docs. In my case one of the "old time" Vets told me of a Vet friendly doc to go to. I happen to know that this works with social security disabilaty also. If you go to a SS lawyer and you have been denied, there is pretty good chance if he "knows the ropes" in your town, he just may know a "claimant friendly" doc for you to go to. To repeat..I am not recommending lies, and I am not recommending "faking" any illness. No, No, a thousand times no. However, if you are afflicted with an illness, and your doc is not helping you with your benefits, simply ask for another VA doc who will.

Test While I appreciate Teac posting these rules, it is unclear that you are eliminated from eligibility, based on the rules. In fact, it would appear you are eligible. With an ejection fraction of 10%, there is probably little doubt that can cause "loss of use" of your feet or legs, possibly requiring a power chair. A weak heart can hardly pump enough blood to the legs..thus the need for the power chair. Of course, my opinion is no good, and you may need a doctor to say this instead.

CC Thank you for mentioning my name with those others you mentioned. It is an honor to me to be mentioned with those Vets advocates such as Berta, Hoppy, John, Basser, etc. Most of these know far more than I know, but there are a few topics I can help on. Teac... Yes, its complicated...the VA loves complicated, and therin lies the problem. Just look at the CFR's. There are hundreds of regulations that are unnecessarily complicated. One example is they make different laws for different era's of VEts. Why? Isnt a Vet, a Vet? Why should a Iraq Vet get any more than a Vietnam Vet? There should be one set of rules that apply to all Vets..we just dont need different rules for different eras of Vets. Another example is fuzzy math. The bottom line is its all about saving money, so they have complex rules to allow some Vets to get benefits while others dont. It is not a particularly fair system. IMHO the present system favors the younger Vets.