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Sergeant G

Second Class Petty Officers
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About Sergeant G

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    E-4 Petty Officer 3rd Class

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  1. The other day I came across an internal memo from someone at the Appeals Management Center. The memo was submitted to the Director of the Compensation and Pension Service as a recommendation for denial of extra-schedular IU, and I could not believe what I read. The author of the memo was apparently hell bent on NOT recommending IU to the Director, and the “reasons” were absolutely ridiculous and show malicious intent from the author. So much for the VA’s so-called pro-claimant, non-adversarial claims process. First, let me provide a little background information. I was awarded 70 percent with IU for bipolar disorder effective on the date I originally filed my claim in December 2007. It took several appeals to finally get the IU, and to get my current effective date, which was ultimately awarded by the BVA in November 2012. In the same decision from the BVA, it denied my claim for an even earlier effective date (one year) for the 70 percent rating and IU. (38 USC 5110(b)(2) allows for an EED—up to one year—if evidence shows an increase in disability in the year prior to a claim being filed.) The BVA also remanded my appeal and directed the AMC to refer my claim for consideration of an EED for IU on an extra-schedular basis. I am claiming that I am entitled to an EED because my disability increased to the point where I met the criteria for IU prior to my current effective date. I was initially misdiagnosed with depression and rated at only 10 percent; therefore, until my diagnosis was corrected in October 2007, my treatment providers didn’t recognize the manic component of bipolar disorder. Also, I didn’t know that I was experiencing manic symptoms, so I did not know or have the insight to report the symptoms to my providers. I have a lot medical and lay evidence supporting my EED claims for 70 percent and IU, but the BVA ignored it (as is often the case with the VA in general). I appealed the 2012 denial to the USCAVC and my appeal was remanded to the BVA for a few reasons, including the BVA’s failure to consider the evidence I presented, or at least explain why it did not find such evidence to be persuasive. So now I have an appeal at the BVA for an EED for 70 percent and schedular IU, and claim with the AMC for EED for 70 percent and extra-schedular IU. (Actually, the later claim is now with the BVA for review.) (Back to the reason for my post.) The remand order from the BVA directed the AMC to issue a supplemental statement of the case (SSOC) for any issues denied. Unsurprisingly, I did indeed receive an SSOC because all issues were denied. Again, the VA failed to consider the abundant amount of evidence supporting my claims/appeals. The SSOC basically said there was no evidence supporting my claims for both 70 percent and extra-schedular IU, without providing reasons as to how they arrived at that conclusion, nor did they cite any independent medical evidence against my claim. While drafting my response to the SSOC, I came across the above-referenced memo. The reasons and bases section of the memo consisted of eight paragraphs, and all but one paragraph—the one merely citing the procedural history of the appeal—were wrong. Not only was the content inaccurate, the author’s clear intent was to fabricate reasons for denial. Therefore, the C&P Director was not fully or accurately informed regarding the merits of my case. (Who knows if it would have made a difference anyway, even if the memo were legitimate.) The most ridiculous “reason” the author gave to support his/her recommendation for denial is because, in the author’s opinion, the evidence I submitted to the BVA, “written in [my] own hand” shows my ability to write a “concise and well documented legal brief.” I am totally pissed off about this. Basically, I am being penalized for being well informed and articulate. Also, the author reviewed my 20-page “brief” enough to opine that it is well documented, yet does not address any of the content, and has the audacity to use my own evidence against me. I did attend law school and briefly practiced at one point—over 10 years ago—and the author uses this as “evidence” against me as well. He/she seems to imply that I am able to churn out “legal briefs” consistently and efficiently, and therefore, I must not disabled. That is not the case. Thanks to all the appeals I’ve had to file because most people at the VA do not do their jobs, I have had the “benefit” of almost seven years to acquire the knowledge pertinent to my claims, and a lot of the content in the documents I submit is copy and pasted from earlier documents because no one ever bothers to read the evidence. With every document I submit, I present my case in a thorough and organized manner, include excerpts from medical records supporting my claim (along with specific dates, providers, etc.), and cite pertinent statutes, case law, and VA regulations, and apply them to the facts of my case. I do this to make it easier for whomever reviews my 2,000-page claim file. All they have to do is read the document and verify the content of the treatment notes, if they so choose. So, for some a$$hole to use the evidence I submit to make it easier on him/her to their job against me adds insult to injury. The author also had the audacity to use my mother’s three-page lay statement against me. In the second paragraph of her statement, she briefly remarked how I graduated from law school and passed the bar exam on my first attempt (in 2002). The entire point of mentioning this was to show the difference between how I was functioning at a high level before my disability drastically increased and how I was unable to function afterward. I graduated from law school and passed the bar exam over four years prior to the time period being considered for the EED; therefore, this fact is irrelevant. He/she disregarded the rest of the detailed statement, which is supported by medical evidence. The memo also improperly relied in part on the portion of the BVA’s 2012 decision denying the EED for 70 percent and IU—the same part that was the primary reason for the USCAVC remanding it to the BVA. Furthermore, evidence from the relevant time frame that should have been under review is between December 2006 and December 2007. Yet, the author notes that I was able to graduate from law school and pass the bar exam—again, over four years before the time period in question—and also notes that I didn’t start receiving SSDI until January 2010. This is also irrelevant and it seems like the author is implying that I must not have been unemployable since I didn’t start receiving SSDI until then. I didn’t apply until July 2009 because I had been trying to work, but ultimately was unable to work in a gainful capacity. Social Security approved my application the first time. For the year in question, due to my disability, I was only marginally employed and earned less than $3,000. My medical records—from the VA, nonetheless—confirm that my “severe psychiatric impairment” was responsible for my inability to work in a gainful capacity for several years, including all of 2007. My VA therapist even expressly stated that in her opinion, I met the criteria for IU during this time. I won’t get into the problems with the other three paragraphs since this post is so long, but I’ll note that he/she did not include even one piece of positive evidence in the memo, nor was any included in the SSOC. I will definitely be addressing these issues in the memo—none of which were reasons included in the SSOC—when I submit my response to the SSOC to the BVA. I didn’t mean to write such a long post, but I just had to vent. Thanks to all for reading and for any input. G
  2. I wouldn't rely on Peggy. "She" has limited information, and, in my experience, there have been times when she was completely wrong. Hell, I even went to the regional office in person and they gave me the wrong information regarding the status of retro pay. I finally went to my service representative (who happens to be located on the same floor as the VARO) and he walked down the hall to talk with the manager of the VARO. It turned out that three months had gone by and no one had even touched my file to process the retro pay. Apparently, at the time, there were a lot of new people who didn't know how to do their jobs and didn't bother to ask, and my service officer also added that many of the people who have been there awhile don't know how to do their jobs either. Go figure. If you have a service officer, ask him/her to personally investigate the status and not to rely on what the VA has in their computer system.
  3. It's official. Bergmann & Moore are representing me. They filed the notice of appearance on February 20 and the same day, the Office of General Counsel requested my claim file from the RO and it shipped out also on the same day. It's amazing how fast things get done at the CAVC appeal level as opposed to the snail-like pace of the RO.
  4. Ok, here's the latest update: As I mentioned in my last post, the RO completed the rating decision on February 13. I am still waiting for it, and more importantly, my retro. I spoke with my VSO on 2/22 and he said that many of the VSRs are new and don't know their jobs yet. He went downstairs to the RO and gave my file to a VSR on a different team, hoping this individual would finish processing the grant. No luck. I was told that drafting the rating decision was the hardest part of processing a BVA grant and the only thing left to do before processing the payment is to get three signatures for approval. Sounds simple and not very time consuming to me. The VSO was reluctant to involve the VSCM yet because he did not want to get anyone in trouble. Well, the hell with that. The VSRs and their team leaders have had plenty of time to do their jobs and the time for accountability has now arrived. I sent a nice letter to my VSO on Thursday and said, among many other things, that if the retro is not in my bank account by 3/6, I am going to promptly file a complaint with the BVA Ombudsman. Grrrrrr.
  5. Thanks Carlie. I guess I misunderstood you. The BVA remanded my claim to the RO for it to consider an earlier effective date of IU on an extra-schedular basis, which is why I cited 4.16(b). (I forgot to specify that the claim was about IU.) I was under the impression that the BVA can't do anything until the Director of the Compensation and Pension Service denies extra-schedular consideration, and in order for it to get to the Director, the referral has to come from the RO. That's why I thought I wouldn't be able to waive RO consideration in this particular situation. If I can, that would be great. Thanks again for the information.
  6. Hi Carlie, I would definitely like to waive RO consideration. In my experience, it seems like RO personnel are not good about actually reading or understanding evidence submitted to them. Unfortunately, based on my interpretation of 38 CFR 4.16(b) and 38 CFR 3.321(b), I don't believe I can waive RO consideration. Both laws state that the RO must submit the request for extra-schedular consideration to the Director of the Compensation and Pension Service, so ultimately it is not the RO making the final decision. If the Director denies the claim, then I can appeal to the BVA. Like I said, this is only my interpretation; I could be wrong. Sergeant G
  7. BVA Decision Redacted_Redacted.pdf Hmmm... it doesn't look like the file attached. I'll try again.
  8. The BVA decision is dated 11/16/12 and it is not available on the BVA website. (Docket No. 11-03 845) I filed the appeal with the USCAVC on February 7. A redacted copy of the BVA decision is attached.
  9. Berta, The BVA denied my claim for an earlier effective date of my 70% rating, which was previously 10% (for bipolar disorder). It's my contention that I met the criteria for an EED under 38 CFR 3.400(o)(2) because it is "factually ascertainable" that an increase in my disability occurred within the 12 months prior to my current effective date. The reason why I didn't file my claim earlier is because I was originally diagnosed with depression, instead of bipolar disorder, and my manic symptoms were missed by my healthcare providers, and I didn't know that I was experiencing symptoms, so I didn't report them. However, I made a few major decisions while manic and exercised poor judgment. The results of these decisions are verifiable facts. (I'm being vague so I can be as brief as possible, but I'm happy to elaborate if asked to.) More than one of my VA healthcare providers stated in their treatment notes that I was manic (and depressed) within the 12 months prior to my current ED. My VA therapist even specifically opined in my treatment notes that I met the criteria for 70% and IU since June 2006. She said this in June 2008 after my diagnosis was corrected. She also said, "My impression [is] that she has been seriously disabled for several years and has been trying to work despite severe psychiatric impairment which has resulted in a series of failed efforts.” (My ED is currently December 11, 2007.) To make it easy for the RO and BVA, I even typed up a document showing these notes and other relevant excerpts from my notes along with corresponding dates and providers. The BVA basically said that there wasn't enough evidence to support a 70% rating prior to December 2007. However, the Board did not address my lay statements and most of the positive medical evidence that I cited, and in failing to do so, the BVA didn't provide adequate reasons and bases for its decision as required by law. (I can't remember the relevant case right now.) I believe that is enough to justify a remand, but there is even more. In addition, the Board relied in part on an inadequate C&P examination, which I previously disputed. Again, the Board failed to acknowledge my dispute and why they rejected it (assuming they looked at it in the first place). Furthermore, the BVA only looked at the symptoms listed in the General Rating Scale (GRS) from 38 CFR 4.130 instead of considering all symptoms affecting my ability to function socially and in an occupational environment. This is a violation of Mauerhan v. Principi, 16 Vet.App. 436, 442 (2002), which states that the GRS is not an "exhaustive list," but rather serves as a list of examples. Finally, while the Board didn't think I met the criteria for 70%, they failed consider a lesser rating of 30% or 50%. Again, I was only rated at 10% before I filed my claim in December 2007. My disability didn't jump from 10 to 70% disabling with IU on this date--it was a gradual increase. On a separate note, Bergmann & Moore called me back a little while ago after reviewing my BVA decision and they think there are some flaws as well. Sergeant G
  10. I filed my appeal with the CAVC last week. This week my mailbox has been flooded with advertising material from attorneys offering to represent me (provided they think my appeal is a winner). After giving it some thought, I think I'm going to proceed with an attorney. I called Bergmann & Moore today and they are going to evaluate my case. I believe my appeal will end up being remanded because there are at least five potential flaws that I found in the BVA decision. If I can find them, I imagine a lawyer specializing in VA law will find even more.
  11. Hello Everyone, I just wanted to provide an update following my visit to the RO on Tuesday. Before I was planning to go to the RO, I went to speak with a representative from DAV (they are located in the same building as the RO) because I had some questions regarding evidence I was going to submit in support of the remand from the BVA. I also asked about my retro. The VSO I spoke with happened to be the assistant supervisor, so he was very knowledgeable. He couldn’t find anything regarding my retro or remand in his computer, so he went and spoke with the VSCM. It turns out that absolutely NOTHING was done on either issue. Contrary to what I was told on January 15, my file was not on the VSCM’s desk awaiting his approval. The VSO said that the VSCM was totally pissed off and swearing up a storm due to the inaction. Also, documents I submitted after the BVA decision were placed in my claim file, which was in a locked file room for the purpose of preventing this kind of thing from happening, as nothing can be placed in a claim file when there is potential for an appeal to be filed with the CAVC. The documents should have gone into my temporary file, which was totally empty. Anyway, the VSCM said he was going to make sure my retro is processed immediately. My VSO told me that the RO has to write up a rating decision in order to promulgate the BVA’s order before I can get paid. The VSO called me the next day and said the decision was completed and that the next step is for the department that handles payments to process the award. I haven’t received the decision or retro yet, and was told that it could take up to two weeks for the payment to be processed. This seems like a long time to me for what appears to be a simple task, but I am glad there is definitely some action being taken on my claim. In light of the foregoing, I did not submit the letter posted above. I mistakenly thought going to the RO in person would provide more information than IRIS, the toll-free number, and eBenefits and expecting that the information would be accurate. It’s amazing how the information I was given on two previous occasions turned out to be so wrong. Also, I spoke with someone from the DAV on the same days I visited the RO. I’m kind of pissed that the individual I spoke with could have found out the real deal if he bothered to go downstairs and ask, rather than merely accepting what was on his computer screen, which basically the same information provided by the RO. I will let you all know when I finally receive the retro.
  12. Thanks to everyone for the feedback. I actually did submit the fast letter that Carlie posted to the RO on December 6. The BVA also denied a separate issue in the decision, so the fast letter describes my exact situation. My VSO told me that this VSCM is notorious for taking his sweet time when it comes to authorizing retro. Apparently he thinks he’s above the law and VA regulations. In response to the BVA denial, I filed my Notice of Appeal with the CAVC last week. I’m worried that I won’t get my retro before the appeal is docketed and my file is transferred to the Office of General Counsel. If that happens and the RO does not have my file anymore, who bears the responsibility for paying me? Berta, how did you get in touch directly with the OGC? Did it take long to get your retro after the OGC’s order to the RO? By the way, I recently found a great case regarding veterans’ rights and remands. In Stegall v. West, 11 Vet.App. 268, 271 (1998), the CAVC held that, “A remand by [the CAVC] or the Board [of Veterans Appeals] confers on the veteran or other claimant, as a matter of law, the right to compliance with the remand orders. We hold further that a remand by this Court or the Board imposes upon the Secretary of Veterans Affairs a concomitant duty to ensure compliance with the terms of the remand...” The Court continued, “We hold also that where, as here, the remand orders of the Board [of Veterans Appeals] or [the CAVC] are not complied with, the Board itself errs in failing to insure compliance.” If it gets to the point where I have to contact the BVA Ombudsman’s Office, I will be sure to cite this. I wonder if the VLJ’s get perturbed when an RO fails to comply with their orders.
  13. Hi, I was just hoping to get some feedback on a letter I am planning to submit to the Boston Regional Office on Tuesday. Here is some background information: The BVA awarded a partial grant of benefits last November and I am still waiting for the retro. On January 15, 2013, I went to the regional office for a status check and was told that my file was on the VSCM's desk awaiting his signature. (I am expecting over $25K in retro.) So he has had my file since at least this date and the delay continues. As I explain in my letter, I should have had the money by December 12, 2012. Anyway, here is the body of the letter: "The Board of Veterans Appeals (BVA) awarded a partial grant of benefits to me in a decision issued on November 16, 2012. My individual unemployability effective date was changed from July 16, 2009 to December 11, 2007. Accordingly, I am entitled to a retroactive payment of benefits. It has been almost three months and I am still waiting for the funds to be deposited into my bank account. In its decision, the BVA also remanded a matter to this Regional Office. As you know, matters remanded by the BVA must be handled in an “expeditious” manner as required by law. While this term is not defined, the VA Adjudications Manual M21-1MR (Manual) provides that “pon receipt of a remanded appeal…the DRO, VSCM, or his/her designee ensures that review and development of the remand are initiated within 15 days from the date of receipt.” It further provides that it is “important” that “[t]he VSC should implement BVA’s grant or partial grant of benefits in any favorable decision before initiating development of the remanded appeal.” Merriam-Webster’s Dictionary defines the word “should” as the past tense of “shall.” When used in the context of laws, regulations, or directives, the word expresses an action that is mandatory. A copy of the relevant page from the Manual is attached for your review. In addition, VBA Fast Letter 10-02, which I previously submitted, requires partial grants to be implemented “immediately.” I find it compelling that the author of the letter, Bradley G. Mayes, happens to be the Director of the Boston Regional Office. The Regional Office received my file from the BVA on or before November 27, 2012; therefore, development of the remanded matter should have been initiated by no later than 15 days, which was December 12, 2012, and the retroactive funds should have been disbursed prior to then. According to the eBenefits website, my appeal has been in the “authorization review” phase since December 6, 2012. As you know, BVA decisions are final and binding on the Regional Office. As such, I am puzzled as to what is left to authorize and review and why there has been a significant delay in implementing the BVA’s order. I received retroactive payments on multiple occasions in the past and each payment was deposited into my bank account within a week of my receipt of the rating decision. It is ironic that now it is specifically required that the grant be processed expeditiously and yet I continue to wait. Considering the foregoing and my Statement in Support of Claim dated December 6, 2012 (including the attachment of the above-referenced fast letter), I respectfully request that the retroactive payment be deposited into my bank account of record by no later than February 19, 2013. Thank you for your assistance." Thank you to everyone for the feedback. P.S. Should this letter not have any impact, I may contact the BVA Ombudsman's Office for assistance. Has anyone dealt with this office and what were the results? Sergeant G
  14. justrluk, Do you have the proposal to reduce benefits? If so, would you please post a redacted copy. Thanks. G
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