broncovet

IMHO the bottom line is this: The VA can declare a QTC examiner who is either a Physician Assistant or Nurse Practitioner as "qualified". That is, if a NP or PA says in your C and P exam that your condition is unlikely related to military service, a rookie VSR can send you a denial letter almost immediately. However, if you are owed $250,000 Retro, the VA will contend that the C and P examiner was not qualified and try to find a "more qualifed" C and P examiner to agree with them. Even if this new C and P examiner was a board certified MD with 20 years experience who has been your doc for 10 years, you can count on that rookie C and P examiner not having the authority to approve 250k retros. For that, you will need an experienced DRO review officer who approved it and then sent it to the VACO so that management can check it over for errors. Bottom line: Any rookie NP or PA can deny a claim, but it takes almost congressional approval for large retros to be approved.

I would add that I think you need to specify the IMO's qualifications. That is, if your Doctor offering the IMO is board certified in his specialty, then you should state so. It may not be enough that he/she has a medical license, he/she may well need to be qualifed in a particular specialty. For example, If your IMO "doc" has a Phd in English Literature, his opinion will have little, if any, bearing on your claim for PTSD. Finally, on the form it may be a good idea to specify why the doctor is opining that your diagnosis is related to military service. One example of this why might be something like this: According to the AMA Journal, Sept. 2009, on page 17, "Studies show that individuals with a traumatic event may manifest its symptoms of PTSD 20 years later." (This is an example only and not a citation of any medical journal)

I agree with Berta. It just can't be coincidence that "errors" keep popping up over and over and over, and they are almost never in the Veterans favor. If they were just "errors" there should be an equal number of errors in the Veterans favor, and that is simply not the case. Overwhelmingly, the "cards" are stacked against the Veteran. I also agree with Carlie in that it would appear that your claim was never adjudicated and still pending. Because the law is still quite fuzzy, and in constant change, I recommend filing a NOD on an issue never adjudicated on the basis it was "deemed denied". Reason: It is the safest way for you. Surely, you dont want to miss out on any retro that is owed to you. If you dont file a NOD within a year, then the court could rule your issue "deemed denied" with an expired appeal period. You could potentially loose out on tens of thousands, or even hundreds of thousands of retro dollars. However, if the courts ultimately decide that "deemed denials" are illegal (which they should be), then your NOD would be meaningless. All you would have lost is the time and postage invested in filing a NOD.

I came across this link to order your military records online. Hope this helps a Vet. http://www.archives.gov/veterans/evetrecs/index.html

http://www.warms.vba.va.gov/admin21/m21_4/ch02.doc Maybe this will explain why your claim is taking so long. I have always said the VA takes something very simple and complicates it enormously.

A NOD is filed whenever the decision was within the one year appeal period. In the NOD, you have 3 options: 1. DRO Review. An experienced person looks over your claim and makes a new decision. The fastest option (However, if it is denied by the DRO review, you will still have to file a BVA appeal, and you loose all the time waiting for a DRO Review) 2. DRO Hearing. A hearing will be scheduled with a DRO hearing officer where you would be present, for example, to make sure all the evidence is available for the decision maker to award your claim. DRO hearings take a long time because DRO hearing officers are mostly booked up for a year or more. 3. BVA appeal. The most thorough appeal, but also probably the most lengthy. Veterans for common sense says this takes 4 years. A CUE normally applies only when you did NOT appeal within the one year period after your RO decision.

I agree with Delta. IMHO "deemed denials" are one of the VA's many "dirty tricks" right down there with shredding evidence. To be safe, a Veteran needs to file a NOD within one year of a decision the Veterans did not receive. For some links on cases and discussions of "deemed denials" see the link at the bottom of this post. PR seemed to think that the issue of "deemed denials" has been settled in favor of the Veteran, but I am not quite that certain about that. http://www.hadit.com/forums/index.php?showtopic=34528 I do not think it is a "goof" and I will explain why I say so. Some time ago, there was a big complaint about companies overcharging consumers. The price would be on the shelf, but when it was scanned, the customer would be charged the scanned price. Statistically, you would have a 50/50 chance of being charged more or less than the price quoted, in the event of an "error". However, since about 90% of the errors were in the companies favor, you begin to wonder how many of these were really "errors", and how many were to generate additional revenue for those customers who do not check their receipts. In the same way, if it was a legimate error, the VA would inadvertandly award benefits to Veterans that the Veteran never sought, as well as just plain forgetting about the ones he was seeking. With the VA, it makes errors/delays in its favor, and those errors in the Veterans favor are so rare that it could easily lead one to beleive they never happen at all. Have you ever heard of the Va making a mistake and awarding benefits in one week? I didnt think so.

I am more than a bit skeptical of anyone who claims to be from the VA who says you are crazy and are here to help you. I recommend you get to the bottom of this, as follows: 1. Go to the VA, get your medical records and see for yourself if you have been diagnosed as such. Remember there are multiple scams of people claiming to be one thing, while they are really a hacker/con artists. Some of these have pretended to be with the FBI, VA, Yahoo, Microsoft, Bank of America, the National Lottery, etc. as they are looking to get credibility from someone else's good name. Consider taking your wife/trusted friend with you. They may be identity thieves trying to get your social security number and/or other private information, or even be trying to get you to sign over power of Attorney to them. 2. ASk if this man really is with the DVA, and then ask his secretary if he sends out these letters. 3. If his secretary confirms this is for real, then ask her for an explanation in detail, again bringing your wife/trusted friend. 4. If you are satisified this is for real, and is in your best interest, and your friend agrees, then tell them you will give them an answer in a few days. Then come back to hadit with this additional information and some of our search gurus will try to help you. Try to get the name of the government program they are referring to.

Berta I have a question...would you ask them to "Cue" themselves when the decision is still within the one year appeal period? I guess you are suggesting a "request to cue themselves" works better than a NOD or a Motion for Reconsideration. I guess what I dont understand is that CUE is a more difficult standard than a typical NOD, so it is unclear the advantage of them Cue ing themselves. Thanks..Bronco

There was a mention of shredder incidents in November, 2008. Please note that these do not qualify for for "Special Handling" in Fast letter 08-41 as those shredded incidents only apply documents shredded from April 07 through Oct. 14, 2008. What about evidence that was shredded both before and after their "limiting dates"? I guess the VA is saying its okay to shred Veterans evidence, just as long as it was not done between April 07 and Oct. 14, 2008, because those are the only applicable dates, according to the VA website. Reference: http://www.vba.va.gov/VBA/SpecialProcedures_qa.asp

PR Good post and great info. I certainly hope you are right that this "deemed denied" trap for Veterans has gone away with Ingram II, where the court would appear to have reversed itself, or, at a minimum, "lightened up" on "deemed denied" by saying that the Veteran had to know the case was denied or else it was still pending. Are you reasonably certain that Ingram II, was precedential, that is, if a Veteran was "deemed denied" but had no knowledge that his claim had been denied, his attorney could cite Ingram II, and prevail. I am very fuzzy at knowing whether a case is "precedential" or not, but I think I understand that if a case is precedential, and you can demonstrate that your case is similar, then the courts should rule the same as the result of the precendential case. However, If I cited a NON precedential case, the court would reject the argument. Pete I am unfamiliar with what you call the "shotgun". I am guessing you are saying when the Vet goes to the VSO and applies for, say, hearing loss, the VSO also adds depression, PTSD, arthritis, AO, and whatever else he can think of.

This guy should go to work for the VA. Instead of being prosecuted for fraud, he would be given an executive position with bonuses. The VAOIG rarely prosecutes its own employees..only Veterans.

Wings... I am trying to understand what these dates you cited mean? It sounds like you are suggesting to Vync that if his case was after those dates mentioned, it would apply to him, correct?

I will agree with Carlie that not all errors rise to the level of CUE. However, the statement: "the Veterans Court noted that it "could construe the Secretary's failure to respond to these arguments as a concession of error." would imply that at least ONE aspect of CUE was met: The error needs to be "undebatable", and the secretary admits they are not debating the error, the are conceding that it is in error. Other CUE standards still would have to be met, (To qualify as CUE) but this particular one, as to whether or not the error was debatable or not, would appear to have been met. I also agree with Carlie, that: “New and material evidence received prior to the expiration of the appeal period . . . will be considered as having been filed in connection with the claim which was pending at the beginning of the appeal period." May also produce a favorable outcome for the Veteran, with better chances than trying to meet the CUE standard. IMHO the only time the Vet should even try CUE is if he failed to appeal in one year. Carlie's "New and Material" statement, above, assumes that the claim was appealed within a year. ("prior to the expiration of the appeal period") I am only suggesting CUE when the claim was NOT appealed within a year. I also agree that it gets very "fuzzy"...after all, WHEN does the appeal period expire, on a "non decision", that is, the Veteran got a decision on one issue but not on others? Since many Veterans get multiple decisions, which one of those, by not mentioning an issue, "deemed denied" the claim? Katrina Eagle mentioned that the "deemed denial" was very bad for Veterans. I think it is not only "very bad" but also very confusing.

This appears to be the link to the case you are looking for: http://openjurist.org/440/f2d/613

PR We are not communicating correctly, and it is probably my fault. I am referring to multiple issue claims where the RO adjuticates some of those issues, and does not mention others. Some earlier cases have suggested those unadjuticated claims are "deemed denied". According to the way I interpret Charles v Shinseki, (and I certainly am not suggesting that the court would always agree with my interpretation), the VA OWES the Veteran a decision, with reasons and basis, on every issue, not just some of them, and the Veteran is NOT required to submit "new and Material evidence" to re open a claim that the VA never finished the first time! If you follow the link, it says it this way: " RO must notify the claimant in writing of decisions affecting the payment of benefits or granting relief. 38 C.F.R. § 3.103(f). Among other things, this notice must provide the reason for the decision, summarize the evidence considered, and inform the claimant of the right to appeal." Here is the link again: http://veteranclaimresearch.blogspot.com/2...hinseki-no.html

No, you aren't crazy. Even tho there are NOT any more awards going on now, than say, 5 years ago, awards are much more memorable than denials. I mean, think about it..which are you more likely to remember...when you proposed to your wife and she said yes...or when you proposed to your girl friend of 20 years ago and she said no. There are "VA police" who watch rating specialists like a hawk to make sure they dont approve too many claims. The "VA police" will never say a word if a rating specialist denies 100 claims..even if they were all awarded upon appeal. However, if a rating specialist approves a claim with a retro over 250k it will be gone over by supervisors with a magnifying glass at 500,000 power to see if this claim can possibly be reduced or denied instead, even tho the courts have said the VA cant do that anymore. JMHO

Yes sir, Commander! SOAR also has archives of other quarterly attorneys opinions about VA benefits/ and advocacy. You can find other excellent, highly informative quarterly attorneys opinions of VA benefits also at: http://www.pva.org/site/PageServer?pagename=rights_gc_SOAR

Yep. I can see the fast letter now.. "The Regional Office will now email the Veterans denials mixed in with junk mail with subjects such as, "You may have just won 4.2 million dollars" or "Secretary Shinseki announces NEW plan to reduce backlog". Inside the email, which you have to "open", it says: The VA has a new plan to eliminate the backlog of claims, and also eliminate the BVA backlog. To accomplish this, we are sending all Veterans a denial of their claim in a junk mail that they probably wont read, like this denial we are doing to you right now. We are hoping you wont get this email, or at least not read it, so you wont appeal. If you do insist on appealing anyway, remember that the VA can call for a "reexam" on any of the benefits you already have(and take them away) and the Va is launching a new joint program with the IRS to automatically audit any Veterans tax return who feels they need to "clog up" the BVA with their appeal. Through the use of "junk email" denials, and scare tactics aimed at deterring appeals, Secretary Shinseki hopes to reduce the backlog to 100,000 before 2012. The VA will disavow sending this email and attribute instead to hackers from Nigeria if Vets complain about it and congress hears about it. Signed, Department of Veterans affairs where we care about the Veteran and his widow.

Here is the link to this attorney at Service Officers Appeal Report (SOAR) who recommended these tips: http://www.pva.org/site/DocServer/SOAR_Vol...pdf?docID=12444 You would need to use the index or scroll down to page 4. This comes from the Paralyzed Veterans Association (PVA), which is one of the most credible VSO's, IMHO.

Stretch.. Maybe the attorney that wrote this is in cahoots with the post office. The Post office is desperate to generate revenue lately or face job cuts. Vync I agree. We should make our claims clear by writing them in crayon using pictures of animals that suffered disabilities, cartoon style, for the benefit of VA employees who can not read. If someone has one of those gifted 5 year old crayon cartoon artists, how about scanning a cartoon where a Veteran in the military got hurt in the head so the Va is supposed to send him money, and posting it.

Delta I appreciate your input and your analysis. Gee, I am no lawyer, but I think it will be interesting to see if the court would agree with me that "Concession (by the Secretary) of Error" + "material basis" = CUE. That is, once the secretary concedes that an error occurred, the "undebatable portion" of the CUE was resolved in that they admitted the error. (One of the "tests" for CUE is that the error is "undebatable".) I do think this case definitely left some "weasel room" here on this, unfortunately. Remember, they said that it "COULD construe the secretary's failure to respond..as an admission of error" and not that it "WOULD be construed as an admission of error".

Advocacy Tips (from the same link as Broncovets previous post) 1. Many of the written arguments VA receives in support of claims for VA benefits from veterans’ advocates do not appear to appreciate that the principal reason a written argument is submitted to VA is to persuade the VA decision maker to rule in favor of the claimant. Everything that appears in a written argument must focus on persuading the VA to grant the claim. Anything that does not help persuade VA to rule in favor of a claim should be omitted from a written argument. 2. When a veteran’s advocate files a written argument with VA on behalf of a claimant, the advocate is presenting the VA decision maker with a problem. The advocate is also asking the VA decision maker to solve the problem. Rather than simply asking the VA decision maker to solve the problem, the veteran’s advocate should provide the VA decision maker with a recommended solution to the problem. For example, in a claim by a veteran for service connection, rather than simply stating that the veteran seeks service connection for a particular disability, the advocate should explain to the VA decision maker—in detail—how the decision maker can award the veteran service connection based on the evidence and the controlling law. 3. The veteran’s advocate should make it easy for the VA decision maker to read the advocate’s written argument. The advocate’s arguments should double-spaced, employ large fonts, and provide lots of white space. 4. Too many written arguments present VA decision makers with too many issues to consider and decide. This is counterproductive. If possible, the veteran’s advocate should present no more than two or three issues to VA. Presenting more issues to a VA decision maker may suggest to the decision maker that the advocate believes that he or she has a weak case; is unable to identify a “winning” argument for the VA; or expects the VA decision maker to identify a winning argument for the veteran’s advocate because the advocate in unable to do so. Ask yourself this question: If the advocate is unable to explain to VA why it should grant a claim, why shouldthe VA grant the claim? 5. If the veteran’s advocate determines that the outcome of a claim is governed by a particular statute, regulation, court opinion, VA manual provision, or VA general counsel opinion, the veteran’s advocate should quote the controlling language from the governing statute, regulation, court opinion, VA manual provision, or general counsel opinion in the advocate’s written arguments to VA. By quoting the actual language from the governing statute, regulation, court opinion, VA manual provision, or VA general counsel opinion, the veteran’s advocate will help make the job of the VA decision maker easier. 6. The advocate should not present a policy argument as a replacement for controlling statutory or regulatory language. The advocate should not argue about what Congress should have done while ignoring what Congress actually did in a statute. Do not argue about what the law should be. Instead, argue about what the law is and explain why the veteran is entitled to claimed benefits under that law. 7. Any written argument that a veteran’s advocate submits to a VA regional office or the BVA should contain an accurate statement of facts. A good statement of facts will help orient the VA decision maker to the evidence and issues involved in the case and will assist the VA decision maker to understand what the case is about. 8. Do not misstate the holdings of Court opinions. If an advocate misstates the holdings of court opinions and the VA decision maker discovers these misstatements, the VA decision maker can make two conclusions: One, the VA decision maker may conclude that the advocate intentionally tried to mislead. Two, the decision maker may conclude that the advocate is sloppy and unprofessional. Neither conclusion will help achieve a successful result on the veteran’s claim. 9. If the record contains evidence that is against the award of the veteran’s claim, the veteran’s advocate must not ignore this evidence. Even if the advocate ignores unfavorable evidence, the VA decision maker will not ignore it. Therefore, the veteran’s advocate must identify any evidence that is against the veteran’s claim and try to minimize its adverse effects on the veteran’s claim.

Link: http://www.pva.org/site/DocServer/SOAR_Vol...pdf?docID=12444 Appeals Checklist & TipsIt is important for anyone appealing to the Court of Appeals for Veterans Claims (Veterans Court), to be sure to present all issues and arguments in the opening brief. An appellant cannot wait to present them to the Court in a replybrief because the Court will not consider them. Courts, including the Veterans Court, “have consistently concluded that the failure of an appellant to include an issue or argument in the opening brief will be deemed a waiver of the issue or argument.” Carbino v. West, 168 F.3d 32 (Fed. Cir. 1999). See also Fugere v. Derwinski, 1 Vet. App. 103, 105 (1990) (“Advancing different arguments at successive stages of the appellate process does not serve the interests of the parties or the Court. Such a practice hinders the decisionmaking process and raises the undesirable specter of piecemeal litigation”), aff’d, 972 F.2d 331 (Fed. Cir. 1992). Claims Checklist . The supervisor of VALO, Linda E. Blauhut, PVA associate general counsel and her colleague, Jennifer Zajac, PVA assistant general counsel, have been able to identify some of the most frequent reasons the Court has given for remanding appeals to the VA for additional development and adjudication of veterans’ claims. By identifying the reasons why the Court remands cases to the VA, Blauhut and Zajac were able to create a claims checklist for use by PVA service officers as they file and develop claims by PVA members and other claimants for VA benefits. Use of the checklist may help PVA representatives to ensure that the claims of members and other claimants are fully developed. Has adequate VCAA notice been provided? The Veterans Court has remanded many appeals to VA because VA did not provide notice to the claimant of information and evidence that is necessary to substantiate his or her claim. Has VA provided incorrect notice? The Veterans Court has remanded many cases because VA gave the veteran incorrect information. Have all of the veteran’s servicerecords been obtained? A surprising number of veterans’ appeals are remanded by the Veterans Court because the agency did not obtain all of the service medical and personnel records. PVA representatives should review each veteran’s claims file to ensure that all service records are present in the claims file. If not, the representative should notify the VA and request VA to obtain the missing records. Have all of the veteran’s private medical records been obtained? Many cases are remanded because the records before the Court indicated that the veteran had been receiving private medical care but the records of that care had not been obtained. PVA representatives should request that the veteran obtain a copy of these records and provide them to the representative for review before they are submitted to VA. When the records are obtained the representative should review them to decide whether they are relevant to resolution of the veteran’s claim. Have all of the veteran’s VA treatment records been obtained? Many court-ordered remands are issued because all of a veteran’s VA treatment records were not obtained or reviewed by VA adjudicators. PVA representatives should ensure that all VA treatment records have been obtained. If the records are missing, the VA should be asked to obtain them for incorporation into the veteran’s claims folder. Is the VA examination or VA medical opinion adequate? Many cases are remanded by the Court because of inadequate VA examinations or opinions. PVA representatives should closely examine VA examination reports and medical opinions to ensure that they are adequate and respond to the medical issues involved in each claim. If found inadequate, the representative should inform the VA and request that the agency obtain a more accurate examination report or medical opinion. If it appears to the veteran’s PVA representative that VA’s examination report or medical opinion does not support the veteran’s claim, the representative should notify the veteran of this conclusion and should advise the veteran to obtain and submit a medical opinion that supports the claim to benefits. Many claims for VA benefits require detailed and well-reasoned medical opinions or examination reports. When reviewing the quality of medical opinions or examination reports, try to ensure that they are complete and unambiguous. If they are incomplete, confusing, or ambiguous, request that VA obtain a more complete medical opinion or examination report. See 38 C.F.R. § 4.2 (2004) (requiring that, if examination report “does not contain sufficient detail, it is incumbent upon the [RO] rating board to return the report as inadequate for evaluation purposes”); see also Bowling v. Principi, 15 Vet.App. 1, 12 (2001) (emphasizing the BVA’s duty, under 38 C.F.R. § 19.9 (2000), to return inadequate examination report); Hicks v. Brown, 8 Vet.App. 417, 422 (1995) (1995) (concluding that inadequate medical examination frustrates judicial review). Did VA inform the veteran of the need to obtain and submit an expert medical opinion? The Veterans Court frequently finds it necessary to remand an appeal because VA did not inform the veteran that he or she should file an expert medical opinion to support a claim. PVA representatives should review a veteran’s records to determine whether to advise the veteran to obtain and submit an expert medical opinion that supports the veteran’s claim. Did VA provide the veteran with an adequate personal hearing? Did the VA official conducting the veteran’s personal hearing inform the veteran of all of the issues involved in the case? Did the VA hearing official also suggest to the veteran that the veteran should obtain and submit necessary information and evidence to help support his or her claim to VA benefits? During the hearing the veteran’s PVA representative should ask the VA hearing official to state, on the record, what he or she believes the issues to be in the case. The veteran’s PVA representative should also ask the VA hearing official to state, on the record, whether the veteran needs to obtain and file additional evidence to support his or her claim.

Pr That is not what this decision says. It says the VA owes the Veteran a decision..if they decide it is NSC, then that is a denial and they have to give reasons and basis for the denial, and give the Vet an opportunity to appeal. Yes, I know the Va regurarly did this in the past and got away with it, but they should not be able to get away with it anymore, that is, if the Veteran appeals, if this federal case is precedent. In this example, there would be no "clicking one year appeal clock" because the Va failed to render a decision, which, it has been suggested is an error, possibly CUE. As it says on the link: "Neither 38 U.S.C. § 5108 nor 38 C.F.R. § 3.158 can be interpreted as requiring a veteran to submit new and material evidence in order to reopen a pending, unadjudicated claim." The case goes on to suggest this is CUE, coming barely short of calling it CUE: " In fact, the Veterans Court noted that it “could construe the Secretary’s failure to respond to these arguments as a concession of error.” Charles, 2008 U.S. App. Vet. Claims LEXIS 626, *22."