broncovet

Da Nang Thank you, also, for taking the time to reply. And, I tend to agree with you that hiring a lawyer is in order. Altho I should not have to pay 20% to get what I have already been awarded by the BVA (they awarded me a complete grant of benefit sought in 2004), I will do so. However, it is not easy to find a VA lawyer! I have checked with 3 lawyers in Ohio, all of them are so busy trying to fix the Cleveland Regional Office errors, none of them are accepting new clients! As far as I know, there are NO OHIO lawyers, experienced in Veterans law, accepting clients. Can anyone recommend a VA lawyer that is accepting clients, that has won your case? I would be most happy to talk to him! Yes, Pro Bono would be fantastic. One lawyer, In Illinois, advertises, "NO CHARGE TO VETERANS FOR REPRESENTATION AT COURT OF APPEALS". (Unfortunately, I called this lawyer and he is not taking new cases either) I recall reading something to the effect that, when your case goes to CAVC, the lawyer can ask (and usually gets) his money from the VA when the Veteran wins, so it costs the Vet nothing.

Carlie.. Thanks for your input. When I filed the NOD in March, 2004, the REGIONAL OFFICE had not acknowldedged my claim for tinnitus..my audiologist had..the BVA had also mentioned it, but the Regional Office "forgot" about it until 2005.. even then, they did not make it effective when I applied for it, but 3 years later when they "remembered" it. That is why I NOD'd it, at least in part, because they failed to consider my tinnitus claim. The VA is required to consider all the evidence and claims before deciding a claim and they cant just "blow it off", as they did to me. Roberson vs Principi points out this in mandated by Congress, as follows: "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)). Although Norris does not bind this court as precedent, it is both on-point and informative."

Berta.. I dont know what a 2138 is..I looked it up and it said something about an order for supplies, but I dont know what that has to do with a NOD?

Thanks Everyone on your good advice. A NOD was defined in the Supreme court, Gallegos vs Principii as follows: the regulation specifically states that "special wording is not required." 38 C.F.R. 20.201. It requires only that an NOD that serves to initiate the appellate review process contain language "which can be reasonably construed as * * * a desire for appellate review." Ibid. Moreover, the VA construes 38 C.F.R. 20.201 liberally in favor of triggering appeal rights. As it explained when the regulation was promulgated:VA has always been, and will continue to be, liberal in determining what constitutes a Notice of Disagreement. The continuation of this policy is demonstrated by the lack of a requirement for special wording and the use of the phrase "can be reasonably construed." Nevertheless, some indication which reasonable persons can construe as disagreement with a determination by an agency of original jurisdiction and a desire to appeal that determination is at the very heart of what constitutes a Notice of Disagreement. Without such an expression, the communication may be something, but it is not a Notice of Disagreement. Not much is required, but the communication must be recognizable as a Notice of Disagreement. In my case, this is what I wrote: "I believe the Regional Office Decision dated February 20, 2004 is in error for the following reasons:..."...I further stated that "the "disability rating should be adjusted to include tinnitus" and EVEN used the word "appeal process" I would like to point out that my NOD had a Regional Office "Stamp" on it with the word "appeals" circled and initialed by a VA employee. On the top of the NOD it says "CVA" (which stands for Court of Veterans appeals). My NOD meets the 2 regulatory requirements..1) The Veteran expresses disagreement or dissatisfaction with the decision, and 2) The Veteran indicates a desire to contest the result. I would like to also point out that I have filed TWO OTHER timely filed NOD's, those with my Veteran Service Officer with bold lettering "Notice of Disagreement" on top, and The Cleveland Regional Office has refused to process those NOD's either, but have given no excuse as to why not. So as to remove all doubt, I filed a clarification of the NOD (the RO is required to ask for clarification in the event the NOD is unclear, per regulations), and Clarified that I was alleging Clear, Unmistakable Error. The "Cue" part is important in that, CUE claims ARE NOT limited by the one year period, and CUE claims can be filed anytime, though CUE is harder to prove than a regular appeal. I am confident that I can prove CUE, however, the Cleveland Regional Office steadfastly refuses to consider my NOD with CUE, which is contrary to the regulations, but I cant seem to be able to make them follow their own laws.

I have copies of the NOD which was stamped received by the Cleveland Regional Office in a timely manner. Where I got the copy, is that I requested a complete copy of my C-file, and it was sent to me by the regional office, so there is no dispute as to whether or not they received it. I got upset and filed a Writ of Mandamus 4 years later, largely due to inaction on the NOD. In their response to the Writ, the Cleveland Regional Office claimed that my NOD was "interpreted as a claim for benefits" and therefore not valid. However, this is actually false because there was never any benefits awarded or denied on that date. However, my appeal has been effectively terminated as they steadfastly refuse to take any action on in, in spite of my protests. It looks like the Regional Office can interpret regulations in any manner they see fit, and I can not do anything about it. If they can just say that the Veterans NOD was interpreted as something else, they can (and have) simply ignored the Veterans NOD. It is like the wolf guarding the chicken house, and giving any count they want on the chickens.

I agree with Skunk. Your appeal could take years. And if you wait until its done, you will be loosing out on the potential of your "new" claim. Your appeal is in Washington, DC (if it is a BVA appeal) and a new claim at the Regional Office wont affect your Washington DC appeal, imho. I dont think they will do anything with your new claim until your file comes back from the BVA, however, it will preserve your effective date. So, I would go ahead and file it now.

What can we Vets do when the Regional Office Fails to follow Regulations? Example: The Cleveland Regional Office is supposed to consider all claims and evidence before rendering a decision. Moody vs Principii says it this way: "the VA has a duty to “fully and sympathetically develop a veteran’s claim to its optimum,” 251 F.3d at 1384 (quoting Hodge v. West, 155 F.3d 1356, 1362 (Fed. Cir. 1998)), and that this requires the VA to “determine all potential claims raised by the evidence, applying all relevant laws and regulations.” So, what do I do now that the Cleveland Regional Office "overlooked" my claim for more than 5 years, and refuses to acknowledge it? I filed a NOD in 2004, and the Regional Office ignored my NOD and "interpreted it as a claim for benefits" instead. What can we Vets do to force the Regional Office to obey its regulations? All my "Statements in support of claim" as well as 3 NOD's from 2004-2008 have simply been ignored.

Among other things, it may depend on your age. I recall reading where they arent supposed to require reexams if you are over 55. Of course, there is always their "weasel" clause.."under most circumstances". I think it also depends a lot on your regional office, too. The VA is a Heinz 57 Regional Office flavors, with a wide variety of results among regional offices. Then Congressman Obama got mad when Illinois was at the bottom of the list, and raised a stink about it. After a couple years, Illinois moved up several spots and is no longer in the bottom 5 states. . Now that he is not in Illinois anymore, I wonder if Illinois Regional Office will settle back into last place..right down there with Ohio and Indiana. Oh, Il, and Indiana pay Vets about $4000 per year less than Vets in New Mexico or New England (according to the Attorney General's report) The VA has tried to explain these differences, but few people have bought the VA's excuses. The excuse I heard was that Really sick Vets..the 100% kind, dont like cold weather so they move south, and that is why the cold midwest states pay less. In other words the 100% disabled Vets congregate in the south. However, Maine is about as far North as you can get, and it is one of the highest paying states..except for New Mexico.

Rentalguy..I agree with most or all of what you say. However, "calling the VA on their mistakes" has not worked with me. I called them..and they hung up on me, if you know what I mean. The "VA" is actually Heinz 57 varieties of Regional Offices, with 57 different managers, and different training, and different results! Of course, what works in One Regional Office SHOULD work in another, but, in my case it has not worked that way. I cant even get the Cleveland VARO to EVEN ACKNOWLEDGE my NOD filed in 2004. Of course, they broke the rules doing so..but The Cleveland RO doesnt give a rip what the rules are because they interpret the rules in any way the see fit, as they know many Vets wont appeal, others who do appeal, dont know the regs. Even those who do know the regs, and appeal..it takes years for the appeal to ever happen, and there is simply no risk to them at all for the VARO to simply deny every claim. They can cut and paste the denial letter, then go on coffee break for two hours. Even if they do get caught, there is no accountability, and no discipline for them. Cleveland Regional Office has "interpreted" the "favor the Veteran rule" to mean "forget the Veteran". I was awarded a "complete grant of benefit sought" by the BVA in 2004, and they have interepreted "complete" to mean zero percent. And I called em on it, and NOD'd them. So what do they do? They decided to "interpret" my NOD as a claim for benefits, and blow it off. Sure..that is against the rules, but so far they have jockeyed me around for 4 years, and I havent so much as been able to START with the appeal yet...much less finish it. I really would like to know what you think about this mess.

I agree with Rental guy and Berta. Moody vs Principi (quoting Roberson vs Principii) says it this way: “Roberson requires . . . that the VA give a sympathetic reading to the veteran’s filings by ‘determin[ing] all potential claims raised by the evidence, applying all relevant laws and regulations.’” There is no "escape clause" that the VARO can ignore evidence just because the regional office deems it not relevant, but they MUST CONSIDER ALL THE EVIDENCE and even "give it a sympathetic reading". Whether or not evidence is relevant depends on the point of view, while the Veteran may consider it quite relevant, the Regional office could then say any evidence is irrelevant in their opinion. They are referring to the relevance of applicable regulations, not the relevance of the evidence..all the evidence must be considered!

Tankerjoe I used to be in the insurance business..I wont tell YOU what to do, but I tell you what I did. I dropped my insurance and use the VA exclusively. I dont think you will have any hundred grand copays..these "hundred grand stories," tho they do happen on occasion, are mostly marketing ploys by the insurance companies. Even if you had an 80/20 policy, and you had a million dollar health bill, you would still owe 200 grand..even with insurance! Even worse, many companies pay 80% of what THEY think the hospital bill SHOULD be, not necessarily what it actually is. The other thing to remember is that all insurance has "weasel" clauses..wont pay for "experimental procedures", wont pay over a specified limit, often does not pay for things like weight loss surgery....the list goes on and on and will likely be several pages. Frankly most insurance companies are more interested in protecting their own profits than they are at protecting you and your family and will burn you to save them a claim, if they get half a chance. The only catch 22 is usually your own "worry" factor..insurance is about eliminating that worry, and most people just figure something else to worry about even if they have Prudential, Metropolitan, Blue Cross, Medicaid and VA combined. Medical insurance wont let you "make" money on getting sick, so having multiple policies is not gonna help. The most it would save you is the deductable, which VA calls the Copay. You know your own familys health better than I do..but I dropped mine..its your call. You are never going to have any REAL security with any insurance company. The danger, however is if you have assets to protect. If your net worth is under a hundred grand, then I am not sure you really need to "protect" something you dont even have. If you have the money, and if it makes you feel good, then buy insurance..just dont go without shoes or milk to pay for your insurance.

Yes, I saw the Dr. Phil show. I do thank Congressman Filner..and Dr. Phil they appears to be a true friend of the Vet. It is absolutely ridiculous for Veterans to have to go on Dr. Phil to get medical benefits when those should be provided by the VA. I appreciated the show and those guys not sugar coating the truth like the VA does. This "shredder gate" has been going on much too long. I think that probably the Regional Office "higher ups" are SELLING disability ratings, kind of like the governor of Illinois tried to sell Obamas senate seat. So, when they "sell" a VA disability rating, that means a deserving Veteran has to be denied. That is the crux of the reason so many Vets get the shaft, I think.

I think that is good advice Basser. Shall I tell the VARO that I am coming, or just show up? It is about 5 hours away, in Cleveland. Frankly I doubt very much that my VSO will go with me to Cleveland, but I might be able to get a new one in Cleveland, possibly, since they have a bunch of them there.

Yes, I have a copy of my C file. (That is where I found the NOD since I had forgotten about it in 4 years..It is stamped recieved by the Regional Office, and the word "appeals" is circled. Yes, the NOD was timely filed (within 60 days of the decision). No, I never got a SOC. Yes, I have a Veterans Service Officer. Yes, I said the decision was in error (there is NO specific wording required on a valid NOD), as well as the date of the decision disputed. (I even put the VA reference number on the NOD!) I filed the NOD directly to the VARO in Cleveland. Yes, it is a mess. I know they "interpreted the NOD as a claim for benefits" because I got mad and filed a writ of Mandamus. The judge ordered the Secretary to respond to my writ. In the Secretary's response, the excuse they offered was that my NOD was interpreted as a claim for benefits (In testimony by the manager of the Regional Office). The testimony was perjury, for several reasons: 1. It was not interpreted as a claim for benefits, there were no benefits awarded or declined as of that effective date. 2. She claim, in her testimony, that the VARO "did not hear" from the Veteran from 2004-2007. However, I have documents STAMPED received by the Regional office in the alleged "blackout period."

I filed a Notice of Disagreement on March 10, 2004. So far, it has been ignored. What can I do about this? I complained to them and the RO said my NOD was "interpreted as a claim for benefits". However, that statement conflicts with the evidence: 1) ON my NOD which was recieved by the Regional Office, it has "appeals" circled on it by a VA employee (although I cant make out the Employees intitials) 2. I have never received any benefits (nor denied any benefits) with an effective date of March 10, 2004. Any Advice? Can they just ignore my NOD or misinterpret it and get away with that? Thanks

Tanker Joe Thanks for serving our country. Here is my advice, and, I have been there: The VA Regional Office will do everything in their power to Delay, Deny, Discredit you. Accept that and beat the 3D's with the 7 P's..Proper Preperation Prevents Poor Performance then aPpeal, and Persist. You may even get lucky and get approved the first time, depending on your regional office though that is rare. When you go for your Audio C&P exam..do your homework. Always be 100% honest. Explain how military service trashed your hearing, for example, you fired weapons without ear protection, had to listen to jet engine noise, your superiors constantly yelled at you, etc if that is the case. Also be prepared to answer a question regarding occupational noise exposure after the military, and be prepared to answer the question, "why did you get hearing loss when your MOS normally does not have lots of noise". If you were a company chaplain, but were required to work in a hangar with jet engine noise, then tell the audiologist that. Ask your audiologist to put in your exam these words, "hearing loss most likely caused by military service".

Kelly The VA ALWAYS denies SC for hearing loss the first time. It is standard procedure, no matter what they tell you. They even denied my hearing loss the first time when my audiologist stated, "hearing loss most likely due to military service" at my comp and pension exam. The bad news is that it will take you years to fight it. The good news is you will probably eventually win as long as you dont quit. I have been denied SC for hearing loss, then it was denied again by Decision Review Officer. TWICE they cant read the audiologist opinion. Finally, the BVA can read and granted me a "complete grant of benefit sought". The regional office decided "complete" means 0%. I appealed. The regional Office decided to misinterpret my NOD as a claim for benefits AFTER sitting on my NOD for 4 years. So, I refiled the NOD, this time with CUE. (They had claimed, since they misinterpreted my NOD, that the one year period expired). So here we go again with ring around the rosie, and the Regional Office 3 D nature. Delay, Deny, and then Discredit the Veteran. They did all of those to me, and you can expect the same. Where is your regional Office? Hopefully you are not in the Midwest..Ohio, Illinois, Indiana...these are the worst in the country. New Mexico and Maine both compensate their Veterans about $4000 per year more, per Veteran than Veterans in the Midwest. REad your medical file, file NOD's and keep copies of everything. If you are in Ohio, they will shred key evidence in your claim and then blame you for not filing. Ask for "Special Claims Handling" if you believe evidence was not considered in your claim, because at least 500 Veterans had evidence shredded in at least 4 regional offices.

You can still file the NOD now..only you have to prove Clear Unmistakable Error. (CUE does not have the one year time limit.) One of the easiest ways to Prove CUE is to prove that certain evidence was not considered in the decision. Remember, you have to PROVE it. Go get the medical file. Get all the applicable decisions..approval, denial, mixed, etc. Pour over them, with the medical file, looking for instances they did not consider something in the decision..then file a cue claim. Remember, you can file for "special claims handling" if you have reason to beleive that evidence was shredded, as it was with AT LEAST 500 Veterans in 4 regional Offices. In my opinion if 4 regional offices shredded Vets files, so did most of the other 53 Regional Offices. GO to your Veteran Service Rep. They KEEP copies, many times, of evidence you submitted through them. Then ask for a complete copy of your file. Then make sure the Regional Office copies are the same and not missing stuff. if there is missing stuff, that the Veteran Service REp sent, but not in the copies of the C file from the VARO, then you got em. dont give up.

Belle, I just noticed something in YOUR NOD that you posted. There are two things required of a NOD: 1. Veteran expresses disagreement or dissatisfaction with VARO decision. 2. The Veteran desires to contest the result. (Maybe someone can look up the NOD regulations, I am doing this from memory) When you file your NOD, (and I certainly recommend you do exactly that..sooner is better than later but NEVER wait more than a year) make sure you have those two elements. I recommend you specify either (as in number two above): The Veteran desires to contest the result with a Decision Officer Review. (Of course, you can also elect to skip the Decision officer Review and go straight to the BVA. In that case, state something like "The VEteran waives the right to a decision officer review and elects instead for a BVA appeal") I recommend you CHANNEL YOUR ANGER into doing a great job stating your case with the NOD. I have been working on perfecting my NOD for MONTHS. The BVA (or DRO) will read your NOD, but may not read other stuff in your file. So make your case very clear. State exactly why you think your hubby should get a higher rating. Copy down the criteria for the disability rating you are trying to achieve. If you look it up, you can find the criteria for a 70%PTSD depression rating, for example, if you are seeking TDIU. Then, look through your hubbies entire medical records and LOOK FOR THINGS that the doctor said about your hubbys med exams that support your position of a 70% (or 100% rating) using the rating criteria. In my case, I am alleging the Regional Office "mishandled" evidence. (See fast letter 08-41) That is, they failed to cosider certain evidence through 5 regional office decisions, one DRO review and one BVA appeal. I stated it this way: This medical exam documents the Veterans 2002 claims for depression and TDIU, and, reveals the Veterans suicidal ideation's. The evidence of the Veterans suicidal ideation's was NOT considered in any Regional Office decisions. Instead, the Regional Office, in the 2005 decision rated the Veterans depression as if the Veteran had no suicidal ideation's, because suicidal ideation's are present only in the rating criteria for 70% and higher disability ratings. The Regional office rated the Veteran's depression at 30% and offered no explanations as to why it would be rated at 30% when the criteria would indicate that suicidal ideation's would warrant a minimum 70% rating. Surely, the issue of this medically documented evidence of the Veteran considering taking his own life would be worthy of consideration if this evidence were known at the time of the ratings review! The suggestion that the Regional Office knew of the Veterans suicidal ideation's but did not deem that information important enough to be included in the decision would both insult and trivialize the Veterans life. It is simply unacceptable for the Regional Office to consider the Veterans own life so trivial that it was unworthy of consideration when evaluating the Veterans depression ratings. I hope this helps. I am in nearly the same boat you are in. Good luck.

The thing you need to learn is this: The most important determing factor in evaluating your claim is your location. Not the evidence, not how well you fill out the form, not your Veterans service officer, but which state you live in and which regional Office you file in. Some regional offices are very chintzy in awarding benefits and others are more Veteran friendly. This is NOT a rumor or my idea, but the Attorney General's evaluation of the disparity among states. One article explaining it is here: http://blog.cleveland.com/openers/2008/04/...k_vasil_of.html

I have been SC'd for hearing loss, and there is no record on my military exams of hearing loss. My audioligist offered the opinion, "hearing loss is most likely related to military service". Of course, the regional office denied my claim, but the BVA pointed out that the rating officer can not make a judgement call about my hearing loss that trumps a qualified audiologist. ONLY a qualifed audiologist can dispute that statement, and, even then, if two audiologists differ in their opinion, then the "favor the Veteran rule" should apply. In a nutshell, you need to visit an audiologist, if you havent already, and ask him/her for this opinion, and explain your reasons. If you live in a "Veteran friendly state" then you will probably be successful. I got mine through even tho I am in a very Veteran unfriendly state, Ohio. (Ohio ranks second to last in its benefits to Veterans, according to the Attorney general report) You can find it here: http://blog.cleveland.com/openers/2008/04/...k_vasil_of.html

Belle Even tho I cant say as I blame you for being mad, there is a "silver lining" in all this. You got a decision from 2008, even tho it was bad, it was still a decision and you can now move on to appeal. My case is worse, I cant even get a decision on an appeal from 2004. The Cleveland Regional Office "misinterpreted my NOD as a claim for benefits" so, I am not even able to appeal UNLESS this interpretation is overturned. That is unlikely to happen, since the Regional Office decides how it interprets stuff. They are free to interpret anything in a manner that is consistent with their own agenda. It is like having the wolf stand guard over the hen house when we send NOD's to the Regional Office for "consideration". I wonder how many Veterans NOD's got shredded or misinterpreted, like mine.

I think your disability rating will be based on, in this order: 1) Your location..VARO's in Ohio, Illinois, or Indiana will rate you lower than New Mexico or Maine, for example. Its kind of like shopping for a home..if you want a good home, go to a nice area of town. If you want an honest disability rating, move to a "Veteran Friendly" state. 2) The rating specialist. Some of them are much more generous than others, and that will largely be determined by the "luck of the draw". Some have "good days" and bad days. 3) Lastly, by the facts. The facts are not nearly as important as #1 above, according to the Attorney Generals report of the disparity between states. So, if you are in one of the "bad states", get ready to appeal. If you are in a "good" state, then you may not have to appeal.