broncovet

I will add that it would appear from this case, that it is a Clear Unmistakable Error, as it should be, whenever a RO fails to adjuticate a Veterans claim and provide notice to the Veteran.

Vync Of course, I am no lawyer, but since this case is an Interpretation by the court of 38 CFR 3.103, I would guess that it would apply retroactively as long as 38CFR 3.103 was in effect at the time your case was decided. In earlier cases, the court has decided that when a RO does not adjudicate all the Veterans claims, those not adjudicated are "deemed denied". This Federal court case, (which I will guess is precedential, someone please, if you think it is not precedential, please so state) appears to overturn this "deemed denial" stuff. This quote, "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." ..appears to make it the RO responsibility to notify the Veteran, and not the Veteran's responsibilty to figure out that when the VA never mentions the issue, that his claim was denied. JMHO

This is good news for Vets where the VA failed to notify the Veteran of a decision, and I think this applies to "unadjudicated" claims when the RO decides one issue, and "blows off" other issues, as they did in my case. http://veteranclaimresearch.blogspot.com/2...hinseki-no.html I will post pertinent parts of this: <h2 class="date-header">Tuesday, December 1, 2009</h2> <h3 class="post-title entry-title"> <a href="http://veteranclaimresearch.blogspot.com/2009/12/federal-circuit-charles-v-shinseki-no.html">Federal Circuit, Charles v. Shinseki, No. 2009-7024, 3.103(f), Secretary's failure to respond to argument </h3> We are presenting this decision as it addresses several issues and an explanation of 38 C.F.R. § 3.103(f), that the "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. Id. " This seems like a useful quote to have on hand. The FedCir also addresses the abandonment of a claim and the concept of the Secretary's failure to respond to an argument as a possible admission of concession.

Stillhere Yea, its true they are supposed to waive the copay at 50% and above, but the VA is supposed to be claimant friendly and supposed to give Veterans the "benefit of the doubt", they are supposed to reduce the claims backlog, they are supposed to eliminate Veteran homelessness, they are supposed to give expeditious treatment to Vets claims being remanded, etc. The fact is that VA pays no attention to its rules whenever it is advantageous for them to do so.

According to undersecretary Walcoff, the processing times for Veterans benefit claims will get worse in 2011. Gee, this is refreshing that we are finally getting honesty from the VA. Here is the story: http://www.veteranstoday.com/2010/02/03/to...-the-country-2/

How I "fixed" a bad doctor. (Veteran unfriendly). 1. I put up with it for a while, until I heard other Vets also thought this doc was "anti-Veteran". 2. I put in a request to change my doctor away from her. 3. She called me and asked me why, so I told her exactly why. 4. She was "in trouble" probably because other Vets had switched from her also. 5. She pleaded with me not to change docs. I have an idea she would have been fired if one more Vet complained about her. I told her I wanted to see positive improvement and I would quash the switch. 6. Next time I saw her, I got what ever I wanted. No more crap from her. She is now Veteran friendly. Note: If this does not work, continue with the switch, and change doctors.

The VA delays sending Vets C files for as long as possible because: 1. It helps keep Veterans uninformed. Uninformed Veterans rarely appeal, so the VA likes keeping Veterans in the dark. 2. It gives the VA an excuse to deny the "Special Handling Request" because the Veteran wont know WHICH evidence was shredded, and may list the wrong evidence on the SHR, so the VA can deny it. 3. Delaying the C-file = Delays to the claim, and the VA likes that as that makes them money at Veterans expense. 4. They delay sending the Vets C file because they can, which is the same reason they delay our claims..because they can get away with it.

Allan... Yes, according to the some people, "Dr. Pepper" is determined by a magic formula, CPI-W, and has nothing to do with politics. So, if it has nothing to do with politics, why are all posts that deal with the possibility of an annual Veteran's increase in compensation all closed?

Obama posts are allowed. You are not allowed, however, to mention a popular soft drink made by Pepsi and Coke, because any post having anything to do with whether or not Veterans get a raise is closed immediately..but not sure why. So, instead of the dark colored soft drink that also means a Cost of Living Adjustment, I use the word "DR. Pepper" instead.

The VA encourages employees to shaft Veterans, so not only will she not get fired, she can expect a handsome VA executive bonus for her hard work and excellent service.

Great Post, Alan. We all knew that the VA had NOT taken effective "corrective action" to resolve the last "shreddergate". They posted a fast letter, and when I sent them a "Special Handling Request" due to shredded documents, a VA employee called me to tell me that my shredding "did not qualify" for special handling because the shredding occurred outside of the limiting dates between 2007 and 2008. They admitted on the phone that my evidence was shredded but said the documents I referred to in the SHR were outside of the limiting dates. What the VA is saying is that it is ok to illegally shred Veterans documents as long as those documents are not dated 2007-2008. I really would like to have that in an IRIS email...I save mine on my computer, so the VA cant destroy them. I would like to add that since I wrote the fast letter, I received a copy of my C file and more than 1000 pages, or better than 60% of my C file was missing, and assumed to be shredded.

I am very skeptical of anything with "DAV"'s name on it they consider "non-controversial" to "help" Veterans, when they really dont specify what it is. If the DAV had their way, we would NOT be able to hire a lawyer to represent us. According to the DAV, we dont NEED a lawyer..we have VSO's. If they want to supply a link to this "non controversial" legislation, then I will consider reviewing it to determine if it warrants my support. However, I am not going to just let the DAV figure it out for me! If this legislation is so "non controversial" and helps Veterans that much, then why do they even need our support?

Yep. Here comes the fuzzy math..the same fuzzy math that figured out the Cola. It goes like this: -2.6% Real budget decrease = 8.1% "VA spin" reported increase.

This is a disgrace. While the VA should have already treated Veterans fairly, they didn't and they wont until such time when they get a court order requiring them to do so. They are like a guy who wont pay his bills until he gets sued and they are about to garnish his bank accounts. The bottom line is that the VA owes this money but they wont pay Veterans a dime until the court orders them to do it. And the VA claims they are "non adversarial". If they are "non adversarial", why does the VA have about 400 lawyers on staff, using VA budgeted money for Veterans, to represent the VA AGAINST the Veteran? At least half of these Veterans working for the VA should represent the Veteran against the VA if the VA were truly, "non adversarial".

If you are SC for PTSD, and even if you were awarded 50%, remember the VA will nail you for "fuzzy" math. That is, since you are at 80% now, and if you got another 50% that equals 90%. Its the VA way.

Who told you it is "IN rating"? IRIS? The 800 number? It probably does not mean a lot..these sources are both notoriously unreliable. If you have given the VA your checking account numbers, I have been told they sometimes deposit money to your account before you even get the decision, so keep checking it. "In Rating" should mean you should get a decision soon, but we dont have any idea if it will be an award or denial.

I think Quint is right on this. Maybe someone can look it up, but I remember reading something about benefits starting the first day of the month following your application. So if you apply july 14, then it does not start until August.1. Using this example, you may even get more money next month. In other words, you get 2 months of retro, and one month of "regular" 100%, so it would come out in the wash.

I agree with Basser. File a NOD disputing the effective date and there is not much else you can do. You could try a Motion for Reconsideration, remembering that your NOD clock keeps ticking and 11 months later, you need to file a NOD unless you have already won your effective date. CUE does not appear to be an issue here, since you still have an opportunity to file a "conventional" appeal within the one year appeal period, and I cant see any advantage for you to try to meet a stricter "Cue" standard. I am not saying there is NOT CUE here, I am just saying that you dont need to meet the "strickt CUE standard" to win your case. As far as "asking the VA to CUE themselves", Berta is the best person to ask about that, and to guide you on whether that would be better than a traditional appeal. Even tho I can not see an advantage to introducting a "Cue" standard when you have already met the one year deadline, Berta has actually done this, and I fully recommend you listen to Berta carefully. She has some experience with this. Remember: Working with the VA is not always a common sense issue, because the VA does not always have common sense. If they did, why wouldnt they just grant you your claim with the real effective date, rather than try this chicanery of manipulating the effective date?

I advise any Veteran seeking Vets benefits to "hunker down for a long fight". Veterans for Common Sense says it takes the Regional Office 6 months to make a decision, and another 4 years to appeal. On another post, I suggested that anyone who got their "full" VA benefits in 6 months to send me a PM..not one sent me a PM. I am aware of one lady who got her full Va benefits in 6 months..she has moved to another forum. Most of the rest of us waited multiple years on our benefits, and some hadit members have not gotten any at all yet. What I am getting at is that it is unlikely for you to see your full check from the VA in less than 4.5 years. Please don't have me shot, I did not cause, or invent the 1,000,000 VA claims backlog. I promise you I dont like it either...I lost my home waiting for the VA to process my check. My benefits took 7 years. I dont know anything about this "BDD" program..it may work and you may get your benefits in 2 weeks. However, other VA programs have been less successful. Consider the "Post 9-11 GI Bill" program, implemented by the VA. Students were so angry when their checks did not arrive, Shinseki was pressured into making them "Emergency" $3000 payments.

Any "mid year Cola increase" would have to be a bill passed by Congress and signed by the president. Since our congress/president have not indicated any desire to introduce/pass such legislation, IMHO you have a better chance of getting more money by buying a lottery ticket.

This question has been asked before, and, there is wide differences of opinion on this. My view is that if you delay putting your claim in, you are hurting your effective date. However, since the VA has just one paper file of your claim, pretty much it doesnt get worked on by several people at once and something is going to get held up. However, the Va does not need multiple claims to delay you, they seem to be experts at delays with/without our help. I think it depends on the claims. For example if you have a claim in for IU, and you are considering filing a new claim for sleep apnea and you are not on a CPAP, I would suggest waiting. That is, keep the 100% claim going, and put the much lower percentage claim "on hold". I say, "go for the money". I would not jeaprodize an IU claim for something like tinnitus that can only get you 10%. On the other hand, if you have a tinnitus claim in, then dont hesitate to file for IU, if applicable.

It is the LATER of the date filed, or when the disability occurred. The date the disability occurred could be the date of the disability c and P exam.

The toxic water bill, submitted by Republican Senator Richard Burr, (North Carolina) has been killed in committee. The democrats argued that Veterans/dependents only deserved 5 years of benefits for exposure to this. http://www2.journalnow.com/content/2010/ja...une-water-bill/

While I agree about the VA, I have gotten a very fair shake at the BVA, tho it has taken much longer than what I would like. I won my case at the BVA level, after loosing at both the RO and DRO levels first. Mine was not a "remand", but an ourtright BVA grant of benefits. It has been my experience that the BVA did "resolve all doubt in favor of the Veteran", where the RO resolves all doubt against the Veteran. There is an enormous skill level difference between the VARO and the BVA. The BVA knows the laws, inside and out, and also knows that if the Veteran went to the trouble to appeal at the BVA level, he wont stop there and will appeal to the CAVC or federal court if necessary, so that BVA decisions will be looked at carefully, and probably by lawyers, including, and especially, the "Reasons and basis" for decisions. You dont often see the BVA cases overturned because they failed to read the evidence. They read it. RO decisions are often overturned because the rating specialist never bothered to even read the whole file, and missed evidence. There is ONE BVA in Washington, DC. There are 58 RO's, all over the country, and some are much better than others. All 58 of them, however, eventually have cases go to the BVA in Washington. The BVA has a set of regulations they go by, and they know, they will be "nailed" with an appeal if they do not follow regulations to the letter. The RO's get away with any violation, shredding, failure to adjuticate,..anything goes. The BVA's takes a lot more pride in their work and does not like the boss (CAVC) overturning their appeals, so they study CAVC cases and learn from them, applying the law consistent with what they think the CAVC will do.

Berta said, " I have always felt you had strong basis here for CUE." I said I thought it was a slam dunk, in agreement with her. Of course, you are right..NOBODY can accurately predict the outcome. Your lawyer is probably in the best position, however, and you mentioned that he felt good about it. We were merely offering "layperson's" opinions, which dont mean a lot. I am certainly not trained in law. We were just trying to be helpfull, and I was probably overly optimistic in using the slam dunk words. I do think, however, that attorneys are VERY GOOD at getting paid, and dont often take big risks with cases they dont think will fly. I dont think most attorneys would invest the time and money necessary to do your case if they thought there was less than a 50% chance of getting paid. I think most of them would like to work on the cases where they had an 80% or better chance of winning, at least in their opinion. I think Berta knows the law as well as any layperson, and better than lawyers who are not familiar with VA law. Based on Berta's opinion, and my opinion, I still think your chances are better than 80%. Frankly, I can't even see how the VA can "weasel" out of this one. As far as the "constructive notice" rule of Bell not going back to 1973, that is somewhat of a grey area. For this, however, I would suggest that the "constructive notice" rule just put into words what what may well have been happening before that time. Bell certainly was an important case, but the "presumption of regularity", for example, has been around for some time. It could well be that your lawyer could argue the presumption of regularity, that is, the VA ordered your files, and a clerk sent to them, and we can presume that the VA was in "constructive receipt" of your evidence. The presumption of regularity could well mean that we can presume the clerk sent the VA your entire file, inclusive of this probative evidence, and that the post office delivered it. This POR would have a basis for support as the Va had other evidence in your file, so why would it not have that evidence.