broncovet

Welcome to the Department of Veterans Affairs "21st Century" benefit program headed by Mr. Shinseki. In response to Veterans complaints about not getting enough sex, and, due to the high cost of Viagra, Veterans will now be "serviced" by their mail man, when they open the yellow VA envelope from the VA.

Pete I think awards are made in October because Oct. 1 is the start of a new fiscal year, and they get "new" money in the budget, since they run out before the end of the year so they have to deny everyone.

James.. Congratulations. 4 years and 5 days is pretty fast for the VA, since many Vets claims takes much longer.

Yes, Hoppy. Thanks for your help. I will wait. Have your blood tested for HIV, Hep B and Hep C both before and after your colonoscopy. That way, it will be hard for the VA to blame it on your tatoo you had in 1968. Remember the VA's mantra: If they can get away with screwing up at one hospital, then try it at others.

Instead of writing to the President, why dont you write to Santa Claus? I hear he works for the show "Home Improvement" now during the summer. Sample letter: Dear Santa All I want for Christmas is my VA benefits approved and the check here so that my family wont be homeless like other Veterans. I watch Home Improvement every week, and I really think you are smarter than Al Borland. Oops..I am not supposed to lie, so instead, I think you are almost as smart as AL. Signed...A Veteran

Cowgirl... IMHO the supplemental Life insurance is a bargain considering that hubbie is a disabled Vet. Yes, I understand if you cant afford it.. One alternative, if either you or your hubby is working, is to get more life insurance at work since most of the time group life is cheaper. For me, I cant get cheaper insurance..the "regular" private insurance wont sell me insurance because I am disabled. I have to go for the high risk AARP kind, which is more expensive and has less benefits than the VA insurance. Source: I used to be an insurance agent years ago.

The farmer and his wife were talking. "Honey, our 50th Anniversary is coming up next month.... And I think we should kill the pig." The farmer responed..."Why blame the pig for what happened 50 years ago?...It wasnt his fault. "

Sample SHR letter: Jones, Robert..123-45-6789 RE: Special Handling request due to critical evidence being shredded. The above named Veteran humbly requests the RO give attention to this "Special Handling Request" per Dr. Peak's fast letter 08-41, because it appears that evidence critiical to the Veterans case has been shredded or mishandled by the RO as follows: 1. On Sept. 1, 2001 the Vetran applied for benefits due to a broken back suffered during military service. Since this condition was not listed in any of the decisions since then, this critical evidence appears to have been mishandled. A copy of this application is enclosed. 2. The Veteran supplied an IME by Dr. Bosch on July 1, 2001 which was not listed as evidence in the December, 2004 RO decision so it also appears to have been shredded. 3. A copy of the claims file received by the Veteran on Oct. 1, 2009 is missing several key pieces of evidence, and the VEtran is enclosing this missing evidence. 4. One document, an application for dependents, is missing, and the original is also missing. However, the Veteran filed this evidence on Sept. 1, 2001 along with his application listing Robert Jones Jr. age 3 on the document, and Mrs. Sally Jones as spouse. Since the Veteran is not being paid for dependents it is assumed this evidence was also shredded. The regulations require the VA to consider that the VEteran is seeking the maximum benefit allowable by law, and there is simply no evidence that this Veteran was not seeking benefits for his spouse and dependent children also. I certify that the above information is true to the best of my knowledge. Signed, Robert Jones, Veteran dated 11/01/2009 Robert Jones name was used, and is not my real name. My apologies to anyone who may also have that same name.

Pete992 Late last year, Dr. Peake wrote "fast letter 08-41" regarding the subject. Since all you will get from the VA's website about the shredder scandal is pretty much lip service where they promised not to do it any more, and gave amnesty to employees who violated the law and shredded evidence. Your best source of information on the shredder scandal is VA watchdog...Larry Scott has kept a close eye on it and is much more credible than the VA..the VA is trying to save several executives neck on this deal, and many of us would like to "attend the hanging" of VA executives nailed for shredding evidence. It appears that the VA has gotten their way, again, at the cost to Veterans. Not only were VA executives NOT prosecuted for this shamefull illegal destruction of evidence, at least one, at the Cleveland RO was actually promoted, instead of being jailed. http://www.vawatchdog.org/08/nf08/nfdec08/nf120408-1.htm Other shredder scandal information is here: http://www.vawatchdog.org/VAshredderscandal.htm My recommendation: If you feel that you are a shreddergate victim (many are victims and dont even know it...there were no letters sent to possible victims), then file a "Special Handling Request" (SHR). You can file it on a 21-4138, if you like. I recommend you include your reasons why you think certain evidence was shredded, such as RO Decisions which do NOT reflect certain evidence. It is a good idea to send copies of evidence you feel has been shredded, if you have copies. If you dont, file a SHR anyway, and explain that even tho this evidence is missing, it is confirmed by medical evidence, etc. etc, and recall the shredded documents contents as best as you can. File all this at your RO and send it certified mail return receipt requested BEFORE NOV. 19. If you do not get a response, then complain to the VAOIG. Keeping copies of everything, if the RO "blows off" your SHR, like they did mine, then include this information when you appeal. Nail em..dont let em off the hook.

Hoppy: I am trying to understand what you wrote..not that you didnt write it well, but it is fairly complex, with lots of loopholes to their loopholes. I am interpreting Moody as an expanded version of Roberson, because Moody suggests that the view of Roberson was "too narrow" and applied ONLY to TDIU. Moody suggests that this "liberal interpretation of the Veteran's filings" be extended to all claims and appeals, not just those applicable to TDIU. I have been denied TDIU as "moot" because I was ultimately awarded 100% for depression. However, in my appeal for an EED, the issue of TDIU would definately not be moot if it meant 5 years of retro. My VA doc wrote in the notes that I was depressed and even wrote me a prescription for anti depressants, back in 2002, AND also noted that I was unemployed because my hearing loss makes me unsuitable for many jobs. When I applied for benefits, I wrote a 3 page letter, that I have copies of, to my VSO, explaining that I was fired from my job because of misunderstandings from my hearing loss. This letter of explanation was included with my application, but shredded by the RO. Essentially I contend that: 1. I applied for the maximum benefit in 2002, including TDIU and depression. 2. RO shreds most of my evidence and considers only hearing loss, and denies it. 3. I appeal to the BVA and it was reversed, granting sc for hearing loss. BVA also did not addreess depression, I beleive, because the RO shredded any evidence related to depression. BVA "noticed" tinitus, and awarded it. 4. RO "implements" BVA granting zero percent for hearing loss. I file NOD to this, which was ignored. 5. Ro awards partial disability which I did not appeal. (30%) 6. I ask for increase, it was denied, and I appeal. 7. Increase to 100% depression was granted effective in 2007. 8. I appealed the effective date, contending effective date should be 2002 as that is when I first applied for depression/hearing loss in INFORMAL claims at least, because I do not have copies of everything the VA shredded, but I feel I do have copies of enough..they cant shred medical exams, as I can just get another one. Does this make any difference, and how would you recommend appealing the effective date? I think there is a possibility of "staged" ratings, where depression begins in 2002 and is increased in 2007. However, I am not going to even suggest this. I am appealing the 100% disability effective date, NOT the 30% effective date, and I clearly applied for depression in 2002, not 2007. I listed what happened above in chronological order. I think the VA's position is that the 30% award "resolved" my earlier NOD. However, I think case law supports otherwise, that a Veteran has a right for his case to be heard by the BVA. I do not dispute the BVA..my BVA decision was fully favorable. One way I could go is "new and material evidence" new not because the evidence was new, but new because the VA shredded it and never considered it earlier.

The VA has replaced a few of the letters to the benefit of the doubt doctrine. It is supposed to read, "when in doubt FAVOR the Veteran. " It now says, "When in doubt FU** The Vetran"

The VA calling it a "non adversarial" process reminds me of when the politicians refused to call Vietnam a "war". If Vietnam was not a war, then what happened to the 57,000 KIA, and even more Prisoners of War never accounted for? Were they getting together for a crafts fair, trying to learn the Teabury Shuffle? If 57,000 Veterans loosing their lives in Vietnam is not a war, then it would not suprise me that they call the claims process "non adversarial" Was the Vietnam war also "non adversarial" according to the VA? I get tired of the VA's Euphemism's. They are just plain lies. The VA didn't "mishandle" Veterans documents, they illegally shredded them, and those who did it were granted amnesty. And the VA patting itself on the back calling the claims process "non adversarial" is not only a lie, but an unbelievable one. No one calls a wedding "non adversarial" because they dont have to..everyone knows that both parties agreed to it willingly. The VA calling it "non adversarial" is because, for good reasons, people are seeing it as a war, and the Va is trying to cover it up. This VA policy is like the kid on Funniest Home Videos. He was caught, in the act, literally with his hand in the cookie jar, on tape. He exclaimed, "I didnt do it.!"

James Breckenridge... We appreciate your posts as it is certainly from another perspective. I just wish there was some way Vetrans could be heard. If we were heard, I think many Veterans who have waited years for their benefits would say that it is more about WHEN we get our benefits, then HOW MUCH we get. Better than 99% of hadit members would agree that Veterans are not getting their benefits in a timely manner, and we feel it is unfair, that the Va is given an unlimiited amount to time to process our benefits, but if we are one day late filing our NOD, it will be denied.

One of the links that Alan posted had comments from Ms. Childers, a Veterans attorney representing the VA against Veterans, who argues that the one year time period for Veterans to file a NOD is excessive. She cites Social Security's 60 day period, and some other federal programs, trying to get legislation changed to further limit Veterans from filing a NOD. She argues that shortening this time period will eliminate some appeals, and benefiting other Veterans waiting on their appeals. I disagree with Ms. Childers. Instead of Veterans having time limits, a time limit should be imposed upon the VA. It is the fault of the VA for the claim backlog, not the fault of the claimants. The VA currently has an unlimited period of time in which to process Veterans claims. Many Veterans claims are more than 10 years old, and some are more than 30 years old. Before considering further limits on Veterans, it is high time that time limits be imposed upon the VA for processing claims. For example, did it occur to Ms. Childers that some disabled Veterans may well be in the hospital more than 60 days, and it may well not be practical for a Veteran to file a NOD from their hospital bed? By shortening the appeal period, some legitimate claimants who, for whatever reason, are unable to file a NOD within the specified time period, will be denied. Veteran claimants deserving of their benefits but unable to file a NOD in time, hardly deserve to be denied appeal rights. If Ms. Childers wishes to compare the VA to Social Security or other government agencies, this comparison will not make the VA look good! This is a very good example of the needs of the Agency (VA) taking precedence over the needs of Veterans because, while this change may well reduce some appeal backlog since Veterans who file nod' past the appeal period are automatically denied, it will do so on the backs of deserving Vetrans. Lets reduce the backlog, yes, but not by denying Veterans who are not able to dot all the VA's I's and T's. Ms Childers comments were posted at the VA website at the link provided by Allan's post.

Hoppy Again, thank you for your informative response. I really think the claim may be ruled "open" because, I filed a NOD to the 2004 RO decision, which the RO basically blew off and never responded to the NOD. Since I have "proof" of the NOD (a copy of the NOD date stamped by the RO), the RO cant, as much as they would like to, allege they never received my NOD. This is the reason I think it is "open", and, since I filed for a nod within the one year period, I do not need to meet the strict Cue standard. I also think there is another factor in my favor: I timely filed a "Special Handling Request" due to shredded claims. That is, even tho I can not recall specific documents that I filed in 2002, and, since my home was repossessed while waiting on Va benefits in 2004 , I do recall asking for an "advance on the docket" that was never acknowledged and does not appear in my 2007 copies of my C file. That is, it was shredded. I am almost certain that I can proove shredded documents, as I have documents that did not appear in my 2007 C file. Altho some of the shredded evidence may not be probative, I still think that claim spoilation will weigh in my favor, even if the documents shredded were not outcome determanitive. For one thing , how do we know if they are outcome determinative, if the evidence was shredded and there is no record of it. (When I lost my home, I also lost most of my va documents.)

James R Another name for "retro" is backpay. Since it takes so long for the VA to process your claim, often several years, if awarded you are supposed to get paid back to the date you applied, then the payments occur monthly, assuming you are eligible. So, if you applied 24 months ago, and were awarded 100%, you would get about $2600 per month, plus a "retro" payment of about $2600 per month times 24 months or about $62000 in retro. Your actual numbers will depend on when you apply, what your disability rating is, if any, and how many dependents you have. In this example, you would get zero for the first two years until you were approved, then you would get one retro check for about $62,000 plus about $2600 per month for as long as the VA determines you are disabled. Altho the VA pretends that you will get your benefits about six months after you apply, the reality is for most Veterans it takes at least two years, because most of the time you are turned down the first time and have to appeal, which takes a long time. Still using your example, if you wanted to take your "retro" of $62,000, you could do what you please with this money including, if you like, the purchase of an annuity through an insurance company. This could create you an additional income. If you purchased an annuity at 4% with your $62000 retro, it could create you an income of about $2480 per year, or about $206 per month. But it is your choice what you do with the retro, and the annuity could be purchased through a private insurance company and have nothing to do with the VA. If you did take the $62000 retro and purchase a 4% annuity, in this example you would get $2806 per month..$2600 from the VA plus another $206 from the insurance company annuity. You would want to do your homework and pick a strong company for your annuity, as insurance companies sometimes do go broke.

Carlie... Reading what you quoted from Moody, this new 2004 case does in no way invalidate Roberson, but rather even expands the "narrow view" of Roberson making it applicable in even more cases, not just TDIU. Thanks for pointing that out to me: (Emphasis added) . Prior to the Szemraj and Moody decisions, VA's position was that Roberson should be construed narrowly and confined to the situation in which a claimant alleged the existence of a prior, unadjudicated TDIU claim. See VAOPGCPREC 12-2001. However, in Szemraj, the Federal Circuit rejected that narrow construction of Roberson and held that VA's obligation to fully and sympathetically develop a veteran's claim to its optimum applies “to all pro se pleadings” by a veteran. 357 F.3d at 1373. The Federal Circuit stated that, “when determining if CUE exists in an earlier decision, the VA must give a sympathetic reading to the veteran’s filings in that earlier proceeding to determine the scope of the claims.” Id. The portion you stressed suggests that the VA had to give a sympathetic reading even before Roberson, probably because, as Roberson suggested, it is a congressional mandate and not "just" case law. I do think that Moody may actually make it less productive for Veterans to hire an attorney, because Moody seems to limit this liberal interpretation to Pro Se proceedings, and once a Vet hires a lawyer, he is just not going to get that liberal of an interpretion. In other words, if the Veteran hires a lawyer, he is going to have to specify "TDIU" because the lawyer should be familiar with VA law, but the pro se Vet can still tell his doc he is unemployed and still have it count as an informal claim for TDIU. There is still another case, after this one, that decided that a Veteran represented by a VSO is not the same as a Veteran represented by a lawyer, and a VSO represented Vet is still entilted to this liberal reading of Vets filings, as in Roberson expanded by Moody. Moody is good news for VEts, as this means this liberal interpretation of the VEterans filings does not just apply to TDIU, but could apply to depression, PTSD, or any/all of the Veterans conditions claimed. I seem to remember reading that some of the good lawyers, like Ken Carpenter, cite Moody in behalf of his Veteran clients.

You probably need a nexis. They are available today at your local Toyota dealer ....no..a nexis is a statement from your doctor which links your condition to military service. Your audiologist needs to say something like: "The Veteran reports subjective tinnitus. This tinnitus is at least as likely as not caused by excessive niose in the military service as opertaing aircraft is highly likely to cause tinnitus/hearing loss." It does not sound like they are disputing tht you have tinnitus...but "blame" your tinnitus on something other than military service, such as playing in a band, or operating heavy equipment.

Montana... Altho not all would agree with me, there is a good chance you can benefit from a Veterans Service Officer, such as VFW, DAV, etc. (S)he can help you fill out the forms, if you have not already. I woulld recommend you keep a copy of everything, and best if you can mail it to your Regional Office Certified mail return receipt requested as RO's have a habit of shredding your evidence and then saying "we never received your claim for ....". You came to the right place, here on hadit. For further information about shredded documents at the VA, see here: http://www.vawatchdog.org/VAshredderscandal.htm You will get a much more honest opinion here or on vawatchdog.org that you will at www.va.gov. However, you can look up information at the VA's website. Beleive it or not, some of the information the VA publishes is actually true.

Carlie I agree completely with Alex Humphry's interpretation of Roberson, and I do not think his quote was taken out of context. Further, altho the other evidence confirmining Roberson's unemployability is important, I do believe the "money" was the date of the Veterans informal claim made at his docs office when the doc noted he was unemployed. I am sure you already know this, but for others, Alex Humphrey is an attorney, who is highly experienced in VA law. The quote I made from him was only a small but important part of a Veterans claim, as you pointed out there was also other evidence in support of this Veterans unemployability at an EED. However, Alex Humphrey's quote was NOT taken out of context, and I think Alex's post was highly valuable, from a highly informed and qualified individual. Of course, A Veteran should not rely on ONLY a statement made to his doctor to try to get TDIU. However, as Alex pointed out, after TDIU is awarded, this doctors statement constitutes an informal claim for TDIU because of Roberson's precedence. I am merely pointing out that there may be one or more Veterans out there getting TDIU that could appeal the effecitve date based upon Alex Humphry's post, and be awarded much retro. I think the important thing that the VA would love for us to forget is that the VA must assume the Veteran is seeking the maximum benefit allowed by law. They cant just say...well the Vetran is unemployed, and seeking benefits, but why would he want TDIU?..I think he is just trying to get hearing aids and no money. So, we'll just skip over the TDIU informal claim and shred anything related to it, and just assume he wants just hearing loss. This attitude will work at the RO level, but when the Veteran appeals, the BVA CAVC are required to follow the precedence of Roberson and assume the Veteran is seeking the optimum benefit..TDIU. Unless a newer court case contradicts this position, I think a Veteran would be a fool not to seek an EED if he was awarded TDIU at any later date than the first time the Vets VA doc wrote it in his chart that he was unemployed. The law requires a "liberal interpretation" of the Veterans filings, and the burden of proof would shift to the VA trying to get Roberson overturned, if the Veteran were not awarded benefits the first time the Vets doc put it in his record that he was unemployed. ,

Jay As far as I know the "List of Evidence" is contained only in your Regional Office decision. If you do not have that, call, write, or email your RO and request a copy. Carlie I will quote Alex Humphry on June 25, 2007 You can get an earlier effective date on TDIU if the vet tells VA at the time that he is unemployed. Under Roberson, this constitutes an informal claim for TDIU, which will act as the effective date if this benefit is ultimately awarded. Reconsideration is generally a waste of a veteran's time. Alex

Carlie... I am not advocating that a Veteran go tell his doc that he is unemployed, do nothing else, and then hope he gets TDIU...not at all, as you are suggesting. I certainly concur that a Veteran should indeed follow those extra steps..file the correct forms, attend C and P exams, etc., etc. I also concur that the doc may/may not include that in the records, so it is best to not leave that to chance. However, if the Veteran's doc did write in his medical report that he was unemployed (as mine did) the Veteran can cite Roberson that this medical evidence of TDIU constitutes an informal claim which would mainly apply at appeal when the Veteran is seeking an Earlier Effective DAte. I am not advocating a VEt do a half fast job on his claim. Not at all. Veterans should fill out all the forms, and dot all the I's and cross all the T's. However, WHEN the VA shreds the evidence of the VEterans formal application for TDIU, the Veteran can appeal the effective date, citing Roberson and the Veteran's medical exam where the VEterans Doctor recorded that the Veteran was unemployed.

Hoppy You asked, "My question is, are they required to adjudicated TDIU if it is not requested?" Roberson vs Principii seems to answer that question in the affirmative because when the Veteran tells his (VA) doctor he is unemployed, that constitutes an Informal claim for TDIU, as Roberson points out below: Roberson alleges that the Court of Appeals for Veterans Claims misinterpreted 38 C.F.R. § 3.155(a), governing informal claims, which states in pertinent part: Any communication or action, indicating an intent to apply for one or more benefits under the laws administered by the Department of Veterans Affairs, from a claimant, his or her duly authorized representative, a Member of Congress, or some person acting as next friend of a claimant who is not sui juris may be considered an informal claim. Such informal claim must identify the benefit sought. 38 C.F.R. § 3.155(a) (1994) (emphasis added). The Court of Appeals for Veterans Claims held that even if the VA had a duty to develop all possible claims that are reasonably raised from a liberal reading of the record, Roberson was required under section 3.155(a) to specifically request entitlement to the benefit sought – in this case TDIU. The Court of Appeals for Veterans Claims determined that because Roberson did not make a specific request for TDIU, the VA was not obligated to adjudicate such a claim. Roberson alleges that Norris v. West, 12 Vet. App. 413 (1999), is applicable and holds that the VA’s requirement that TDIU be specifically requested “loses sight of the Congressional mandate that the VA is to ‘fully and sympathetically develop the veteran’s claim to its optimum before decision on its merits.’” Norris, 12 Vet. App. at 420 (citing Hodge v. West, 155 F.3d 1356, 1362-63 (Fed. Cir. 1998)). End Quote. The gist I get from this case is that the Federal court indicated that when the Veteran tells his VA doc that he is unemployed, it meets the requirement that "the benefit requested (TDIU) is met". This "congressional mandate" requires a liberal interpretation of the Veterans filings, that is, frankly not all Veterans even knows what "TDIU" even means..he just knows he is out of work, and is asking for help from the VA. I really think the VA wants to require that the Veteran have intimate knowledge of the VA system to get his benefits, but it is clear that knowledge is not a requirement for the Veteran to get his just benefits. Many Vetrans are depressed, some have PTSD, not all are educated, especially in VA knowledge, and the courts just are not requiring that the Veteran "apply for TDIU", but rather merely tell his doc he is unemployed or out of work. It is the Va's responsibility to identify and assist the Veteran with his claim, with the VCAA, and to award the Veteran the maximum benefit allowable by law. Can you imagine a depressed, unemployed, homeless Veteran seeking benefits, and the VA turns him down because he did not specifically tell them he wanted "TDIU", when he had no idea what TDIU meant?

Congrats..Cowgirl. I hope you got about 25 years retro, and are running for the office of Secretary of VA..oh shucks you dont "run" FOR that office you RUN that office into the ground. LOL

Hoppy.. Wow, thanks for your thorough and informed answer. Do you know much about a "deemed denial"? That is, the VA adjudicates one issue of the Veterans claim, then fails to address other issues. I understand the courts has called that a "deemed denial" and the one year appeal period starts ticking which hardly seems "non adversarial" to me. In other words the VA blows off some of the Vets issues, then calls their not addressing the issue a denial, and hoodwinks the Veteran into beleiving he will get an answer soon on that issue also, and when he does not, the Veteran victim can not even meet the CUE standard? It is shredded claims at their worst. It basically means that the Va can shred evidence with impunity, and it is the Veteran who has to ultimately pay, even when it is determined with the medical records that the evidence was shredded, because the VA cant go the the VAMC and shred the medical evidence. Sometimes, that is the only evidence of a claim, because it is pretty easy and pretty widespread where the VA just simply shreds the Veterans 21-4138 as I am certain they did mine. When I visited the doctor and told him I was depressed and unemployed, that is the only evidence of my depression, TDIU claims left that has not been shredded. I thought it would be enough, under Bell's constructive notice rule, for me to get CUE since the court is saying that I had a deemed denial, and since I did not appeal THAT ISSUE, the one year appeal period has expired, and I can not get CUE.