broncovet

My opinion is that it wont make a lot of difference to your case whether or not you received the decision. Reason: EED's are usually reviewed under the "CUE" standard of review anyway, which requires you to prove your case "undebatebly". Since you did not recieve the decision, and the one year appeal period expired, you have to appeal using the CUE standard. So, it wont really matter which part of your claim requires the "CUE" standard...you are likely going to have to prove your case "undebatebly". Now, for the good news. According to the Chief Justice of the Supreme Court, Roberts, the VA takes a position against the Veteran that is "substantially unjustified" about 70% of the time. (I have supplied the link where he made that quote in the past and wont do it again here) This basically means the VA knows their case against you is bogus, and, about 2/3 of the time Veterans cases are awarded or remanded. I recommend you do try to rebut the presumption of regularity using the VA's own documents. For example, is their ANY reference to this mysteriously disappearing decision in any of their other decisions? Did they supply you a copy of it? If not, why not? What were the reasons and bases for denial in the mystery decision? It amounts to a "deemed denial", and, yes, you can challenge "deemed denials" on the basis that that you need to be reasonbly able to conclude your claim has been denied. Sometimes the VA "throws you a curve ball" like this trying to get you to not think of the real reasons you should win your claim. Remember, the hundreds of lawyers working for the VA have to have something to do, even if its wrong.

According to the Veterans lawfirm of Bergman and Moore, the VA has a new chat to help Veterans apply for benefits: http://vetlawyers.com/vetblog/index.php/2011/01/live-chat-function-helps-veterans-apply-for-health-benefits/?utm_source=feedburner&utm_medium=email&utm_campaign=Feed:+BergmannMoore+(B Feedback on the site?

If your claim is "stuck" and you have tried repeatedly, without success, to get it moving, then this VA attorney suggests filing a Writ: http://wvajustice.com/?m=201101

I have never known a hardship letter to actually "help", but it shouldn't hurt you. If they did help, my guess would be that a Veteran would have posted it on here.

It isnt JUST Atlanta and it isnt Just December. In the two years or so that Shinseki has been Secretary, the Nationwide backlog has increased by about a half million claims, and is now the worst in history. Further, I have heard the VA trying to justify the backlog with the large number of claims in two wars. Ha! There were far, far more Veterans in the Vietnam war, then there ever were in Iraq/Afghanastan. Just compare deaths.....about 4000 deaths in Iraq to about 67,000 deaths in Vietnam. The fact is that our military is far smaller now than it was in Vietnam, and the VA's backlog of claims is much much bigger.

Yes, Berta, I agree that it is Worse than Shreddergate because they are stealing money from people far too ill to be able to defend themselves. At least shreddergate Victims have a better chance of fighting back, assuming, of course, that shreddergate victims are not ALSO victims of fiduciary fraud. It is possible, or even probable, that a Veteran could be BOTH the victim of shredded evidence AND be a victim of fiduciary fraud. I dont know about you, but I am BOILING MAD that they are stealing money through fiduciary fraud and denying due process for Vets to at least keep it from continuing to happen, even tho it does not personally affect me. In a way, it does affect all Vets, when you think about it. If they can steal from Vets, then deny them due process because they are mentally ill (incompetent), what is to stop the VA from extending that one step further and doing that to us? Where are the rights my Veteran brothers died for? Isnt "shreddergate" just another way of stealing from Veterans not really all that competent to defend themself? That is, most Vets dont even know that their claims evidence was shredded...if the effective date was wrong, many do not appeal and just shrug it off. And how would a Vet know if his evidence was shredded? Except for a few thousand or so of hadit/watchdog readers, most people dont even know the VA shreds claims. There was at least one instance where a VA employee, on vavantage point, said, to the effect, "We are sorry you would beleive that the VA would deliberately destroy Veterans evidence". I will say this. If my father in law becomes a victim of VA fiduciary fraud, you can bet that fiduciary, "has done bought the whole can of whoop a**", because "I am coming after them".

This situation kind of reminds me of the Mash series, when they were out of medicine they needed. If I recall, to get the medicine they needed, Klinger wound up bribing the supply people to get the medicine they needed, trading something the mash 4077th had for something someone else wanted. The funny part about this is that "paying a bribe to get needed medicine" was similar here. It was almost like "paying a bribe to get fee basis to pay for your care"...tho I am not accusing those people for accepting a bribe. However, it does seem a little bit more than odd that some people get the VA to pay for retro dental care, while others do not. I am sure a part of this, at least, is John's persistence in getting it paid.

John Im glad you got it. I was told that I would not be reimbursed for dental care to the effective date, but it sounds like that is one of those hidden benefits that was discussed.

Its not likely you will be reimbursed for dental expenses from 5 years ago. It will only apply to future dental work, regardless of the effective date. You can, however, apply for reimbursment for copayments you may have made on prescriptions back to the effective date. This is often a nice check for people. I think mine was about $200. I just went to my VA, and there was a special person who handles such stuff. I didnt even try to figure it out, just gave him a copy of my decision and about 6 weeks later got a check.

Well, there is no question that the RO made a mistake. Instead, the question is how can the mistakes the RO be made be worked in your favor? Unquestionaby, you want to appeal, UNLESS a MFR will do it for you. If you do file a MFR (Motion for Reconsideration) , and submit corroborating evidence, then remember if they dont respond to the MFR, then you still need to file a NOD/notice of appeal. In other instances, Berta has suggested you "ask the VA to Cue themselves". Maybe that will work here, as the date of you filing the claim is aparently not in dispute. The effective date is the later of the date of claim or the "facts found", that is, when you first "got" the condition you claimed. If I understand this right, then they are awarding you benefits since Nov. 1994 when you say it should be Jan. 1994. This is possible a handwriting error. If you write it down 11/1/1994 may look a lot like 1/11/1994. If so, they may just fix the error with a MFR. JMHO. A "slight" difference between 1/11/1994 and 11/1/1994 could mean tens of thousands of dollars to you, as that is almost a years worth of Retro.

Im sure this is frustrating, but I do agree with Carlie. She may be able to explain the situation to those involved, but there is no guarntee they will listen. This is a good example of "Justice Delayed is Justice Denied" concept. You see, by delaying your friends benefits, often unreasonably so, they miss out on a lot more than money. In this case the delays could well cost your friend her job.

The RO decision sounds like it is in conflict with itself. Normally, P and T means "no future exams scheduled". And you had to get P and T to get Ch. 35. My RO, in a letter to get an id card at the base, used the term "No future exams are scheduled" instead of P and T. That is, the VA "assumes" the rest of the world knows that "no future exams scheduled" means "Permanent and Total". Fortunately, they have apparently "interpreted" this conflict in your favor and awarded DEA benefits. This is very good for you. My advice is to not "rock the boat" because a "bean counter" may question your approval of DEA benefits if it is brought to their attention. Dont use it as an excuse to worry, but dont raise a red flag and say "look at this" either. And, yes, my son also gets Ch. 35 and no, the VA does not pay tuition in addition to the $936 per month, tho I agree the regs are not real clear on that. The new GI bill benefits, however, is different and pays both the monthly stipend and tuition. Dependents benefits are good, but they are not near as good as the new GI bill. Of course, I dont know anything about your/your sons finances, but he may be eligible for Pell Grants, as getting VA benefits does not mean you are not eligible for a pell grant/student loans. Your son will need to actually attend classes and get a decent grade to keep his benefits. The courses he takes will have to be ones that work toward his degree.

The "presumption of soundness" goes something like this: Once the Regional Office official says he put your RO Decision in the mail, it is assumed you got it. Yea, right.

It looks like Waco is trying to become one of the VA's Ten Worst regional offices. The competition for the worst RO is fierce. Just when I thought Detroit had a lock on it by shredding thousands of Veterans claims, you have RO's like Buffalo pull stunts like this: http://www.vawatchdog.org/08/nf08/nfdec08/nf121008-2.htm Cleveland is always a contender for worst RO by doing things like this: http://www.vawatchdog.org/08/nf08/nfdec08/nf120408-1.htm St. Pete, Philadelphia, and a few others are also "TOP CONTENDERS" It seems we need a vote, like on American Idol, for worst Regional Office in the nation. This year, Waco seems to be the favorite. I think I am voting for Waco, because it really is disgraceful, as Berta pointed out, to steal from Vets en masse just because they are not mentally capable of defending themselves.

Thanks, Berta: I never did get my retro check to add up either. I did not say anything because, I knew it was possible, at least in my case, that the retro check was wrong IN THEIR FAVOR, because there were some things I did not completely understand about calculating them. (Even tho I am a math whiz) I think we need a "Retro CHeckup Test", where we can post the dates, percentages, etc., and "check their math" on hadit. (Most of us know about the "VA math" and how it has no relationship to reality)

Tom Yes I agree that you deserve the EED! Heck, if I could, I would send your award via email attachment and you would be at the mall spending your retro by this afternoon! Always remember tho, that none of the people on this board will be making the decision on your claim, and your decision maker should have more evidence in front of him than any of us do. We are playing "arm chair quarterback" and saying that he should have thrown the ball to the open man, all the while very few, if any, of us are uniquely qualified to play quarterback (or rating specialist). Personally, I think you are ahead in the game by a score of 13-10 with 45 seconds to go in the game. I say do not take any chances with "hail Mary" passes, or don't even risk the running back maybe fumbling the ball. Take a knee, win the game, and then advance in the playoffs. Dont try to beat your next playoff opponnet by trying to score again here. This is why I am suggesting get your award, then NOD for an EED.

I agree with John and Berta...you probabbly should file a NOD, but you will get more specific help on what your reasons for appeal should be if you post at least the relevant parts of your decision. However, if you are getting close to the one year appeal date, dont wait to try to figure out reasons for your appeal, just do a "generic" NOD something like: Notice of Disagreement: I disagree with the decision dated ..........1 January 1994 and plan to contest the result electing a DRO review. The issue(s) I am disputing is the effective date. (If you have more issues with the decision, percentages, unadjuticated claims, etc, then dont neglect to include those other issues in your NOD also.) DONT get your NOD in LATE, ever. A generic NOD timely filed is much better than a detailed well written out NOD filed late.

You will likely have to go "the long way around". That is, win your claim then appeal it for effective date. Sometimes I think the VA "chops up" claims like this in order for VA employees to be able to be retained long term, becuase it appears likely that claims will be processed electronically in the future, but appeals are unlikely to be decided by computer any time soon. I dont see being able to "fix" an erroneous potential effective date until AFTER benefits are awarded. However, you can try sending the VA a 21-4138 disputing the "reopening" of your claim before it is decided, but you may be putting your claim at risk that way. If it were me, I would not take chances, but would do it "the long way" of waiting for a decision then appealing the effective date.

Frankly, it is not hard for me to beleive that thieves will search out victims who cant defend themselves, such as Vets with a fiduciary. That is, not all thieves are stupid...most muggers wont try to mug "Iron Mike" Tyson, and would prefer a little bit easier prey, such as an 85 year old Vet with dementia. But....where are all these Veterans Service Organizations whose Vets they represent are being "ripped off"? Im not a VSO, but I can tell you that if I were, and one of my Veterans I helped get benefits had them stolen by a fiduciary, I would be more than a little bit mad. Dont those VSO's get money from the government for representing Veterans interests? It looks to me like they should have to pay that money back if they cant/wont even defend mentally handicapped Vets from thieves.

It may vary by state, but people often go into a "72 hour hold" if they are deemed a threat to themselves or others. As far as VA benefits goes, they use the term "suicidal ideations" and it is one of the criteria for mental health issues which is on both the 70% criteria and 100% criteria, but is "noticably absent" on the criteria for 0%, 10%, and 30% ratings. IMHO "ANY" time a person even hints about the possibility of suicide, it should be taken seriously. Even tho some people commit suicide WITHOUT any sort of a hint that they need help, very frequently there were "red flags" along the way that were ignored by those around them. You dont EVER want to have to live with the guilt that a friend/family member did themselves in while maybe they "asked for help" in their OWN way, and you did not heed their cry. I dont recommend you trying to help the person yourself. Don't tell em things like, "Oh, everything will work out"...this could sound like you are "dismissing" their issue, and their cry for help. Just take them to the Docs who are trained and know what they are doing. People are very different. While one person may threaten suicide dozens of times, another may never threaten but just complete the task. A Veteran at the Dayton VA medical Center shot himself near the front statue of the hospital. People need to be taken seriously: http://www.daytondailynews.com/news/veteran-commits-suicide-in-front-of-dayton-va-center-656012.html

I agree with the others. This information, along with the payment of the required fishing license fee, should get you a fishing license in most states. Of course, you really dont need that information to get a fishing license. Just the money. But, I recommend you use the fishing license regularly, while awaiting your benefits, as they usually dont "carry over" into the next year if you dont use them. Most of the time its best to occupy your mind with something else during the sometimes long wait.

The regulations contradict each other. As was pointed out, the regulations state the BOD is applied on "ANY" material issue, but, this is contradicted, because, for, example, BOD does not apply to CUE, and it also does not apply to establish eligibility. There, a much higher standard applies, "preponderance of evidence". In Cue, there is no "benefit of the doubt" but, instead, it has to be "undebateable". As a result, the VA can often justify their decision either way. On a more practical matter, however, there is a clear cut "pecking order" in the VA as there was in the military. We called it a "chain of command". There is not much doubt in my mind that "lower level" rating specialists do not want to "stick their neck out" and approve a large retro. Remember a large retro is essentially an admission of error. Why else could it possibly take, say, 10 years to process a claim (for a large retro)? There HAD to be errors or it would have been approved years ago. So, does a rookie rating specialist want to risk his job by approving a large retro, when one of his peers has already denied it earlier? I dont think so. Even if they are a senior DRO rater, they are unlikely to "go against" their peers to approve a large retro that one of the others has already denied. For this reason, I think it is probably productive to "skip" the DRO review in large retros, and instead send it "uphill" to the BVA judge. The BVA judge has the undisputed authority to overturn DRO and rating specialists, and will do so if he feel it is justified. Of course, the "hampster wheel" remand at the BVA creates a problem, where the BVA judge remands it to the RO, the ro denies, the Veteran appeals, the BVA remands it again, etc. The only way to get it off that hampster wheel is to: 1. Appeal the BVA remand and send it to the CAVC. 2. Try to make your claim "remand proof". This will take lots of preperation and research. You will have to find out what instances are remanded, find out which ones are not, and not leave your claim to chance about remand.

Delta Also, I would generally comment that Professor Linda Bilmes suggested that Veterans benefits "are eventually awarded to the Veteran anyway", so why not just give them to the Veteran upfront? Time and time again, we have seen a Veteran persue benefits that others thought would just "not fly" and they persisted and persisted, through many appeals and eventually won, tho they may not have "won" their "point". In other words the VA may have well awarded benefits for different reasons than the legal theory the Veteran was relying upon. For me, it does not matter one bit if the VA awards my benefits for totally different reasons than the ones that I have proposed. When I go buy a gallon of milk, the clerk is unlikely to say, "Are you paying for this milk with money from the VA based on a legal theory you did not know or understand?" I think the clerk will gladly take my milk money regardless of which theory advance my Veterans benefits. The only issue to me is that I be honest...I am entitled to "legal theories" that others may find baseless, and still be able to win my benefits, sometimes based upon VA law that I never even considered.

Delta When you say hubby was "very sick", do you mean he had mental health issues? You are very good at "finding things" but I recall reading a case where the applicability of the "liberal interpretation of Veterans filings" doctrine stated in Robinson and reiterated and expanded in Comer, is "particulary acute" when the Veteran has mental health issues. In other words, if your hubby was experiencing an "active phase" of mental issues, then the court must be "especially liberal" in interpreting the Vetrans filings, or else the VA would be taking advantage of his disability in denying his benefits. I would assume that would mean that the court would not require that he was precise about those dates, and allow you to expand them to encompass getting all the appropriate medical records. I do not think the intent of congress was for the VA to use 38 CFR 3.156 C (2) to deny your hubby benefits because he was unable to remember his dates of service, especially if hubby was "very sick". Instead, I think a liberal interpretation of the Veterans filings, along with the VA's "duty to asist" would "cover" any mistakes hubby may have made in recalling those dates. This may well invoke the "benefit of the doubt" rule, because it does seem plausable that your hubby may not recall those dates in his illness, and it would seem reasonable that the VCAA would require assistance to the Veteran in "developing his claim to the optimum". JMHO

Congratulations Vets Lady. I certainly understand the frustration of an 8 year wait, because I started my claim in 2002, so this is my 9th year and counting. I will likely join the "Two Decade Club"...where a VA claim takes MORE than 10 years to happen, and is in its second decade. I spoke with a Vet in the hospital today who filed his claim in 1973, and he will likely go to his FIFTH Decade of waiting on the VA to process his claim (that is, more than 40 years) because his claim recently went to the BVA and that is likely to be at least 2 more years.