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autumn
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Posts posted by autumn
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I honestly feel the secretary of the VA is operating under orders of the president. The president on many occassions has stated publicly that he was determined to clean up the VA and its backlog of claims. The person who he appointed to do this, is not coming through in the pinch. There is no accountability. The backlog of claims is over one million strong and growing more. It is a shame when a veteran applies for an SC disability, goes through all the hoops, blows all the whistles, takes all the exams, follows all the instructions and is still waiting two years later. The same vet files for SSDI and has it in six months. I will not give up, and I have told my family when I go, do not give up on anything. I have said this many times, and I will say it again. This backlog is a complete, intentional, way of PROTECTING & GUARDING THE COFFERS. The second part of the mission is to completly frustrate the veterans into GIVING UP, and moving on. And the VA hoping the veterans will die before they have to address the claim. I know this has happened in Mid 2001 when veterans 70 and over had their claim files placed on the bottom in hopes they would pass away before the claim was worked. A whistle blower brought it to the surface, and then retired.
more legit whistleblower's need to speak out. i know they are worried about losing their job, rightfully so, but, there has to be more employee's at VA that see the crap being shoveled daily.as it seems veterans as a group won't march on washington or ROs these days, remember it did happen in 1932, the Bonus Army march of 1932. that march woke up some people. -
i was put in contact with Mr Rosinski. after being led astray by the VA and PVA and DAV, i'm going to trust him to help sort this stuff out. he seems to be on the level more so than other lawyers i spoke with. some claims are very complicated and when your sick to boot. i need the extra help. so hard to trust anyone
appreciate the links. good education
One can rationalize that a lawyer will get 20% and maybe more, from any retro they succeed in getting ,on a successful claim.
But without a lawyer ,some claims are so complex that the vet ,without a lawyer, might end up with 100%
of nothing.
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Thanks, Berta, I wanted to contribute to the CUE discussion because the BVA has thrown around terms like "undebateable" even as they admit I had a CUE since all evidence of record was not before the adjudicators at the time of rating. The CAVC is saying that my CUE is just a "reweighing of evidence", and that there is an asumption that all evidence in VA's hands is reviewed. This is typical BS. You have a terrific grasp of the CUE concept as does Carlie and Phil. This is our only shot at justice for these old decisions where we young vets were screwed to the wall by the VA. I went years thinking all I should get was 10% and thinking the VA had used all the evidence my doctor and I had submitted. Now I and thousands of other vets have to jump over a very high wall to get what we could and should have got 30-40 years ago.
John
i did the same as john, that is thinking i was getting the correct rate/diagnosis all those years. i too am fighting for CUE. its worth the fight.
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autumn - I don't think anyone's saying you're trying to get more and shouldn't. The point is you're now at 100% and anytime they look at your claim they could also re-evaluate your claim(s) and possibly reduce your award, even in error, which could take some time to correct. If you feel the need to have it corrrected then go ahead with it. Just be aware of the minefield you are entering and whether the risk will be worth the possible results. Good luck, whatever you decide! jmo
pr
point well taken. that mine-filed has irreversibly changed me over the years so, no, it isn't something i want to revisit. yet years of incorrect diagnosis triggers that personality change. with ms, another c&p will present itself in the future, i'll take care of it then. thanks for the replies
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leave it alone, unless it gets to the point where you can not put weight on your feet.
even if the condition isn't "arthralgia" in my ankles? just leave that as it is? i see you all's point about it all. but don't auto assume i'm just out to 'gain' more. it has more to do with getting the "correct" medical issue listed. thx for the replies
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There's a saying. Don't rock the boat. You're rated at 100%. What do you expect to gain by filing a NOD?
all i was thinking was the getting the correct ailments listed. that was all. years of having the incorrect listings "i guess" has left me a bit uneasy.
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i was recently awarded the secondary issue ratings for ms, tot=170.
one thing i'm curious about, is it listed 10% arthralgia for each foot but i don't ever recall getting x-rays, mri's, complaints of foot arthralgia. joint pain is one thing, but the pins, needles & pain in my feet arn't joint pain that i know of.more likely than not, spine or ms related i would think.
they rated my cervical issues at 10% though a non-VA surgeon(s) recently said i needed surgery there but was leery to do it due to my ms.
my question is how, do i go about disagreeing with this?
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Yes I am at Fort Knox. I send all requests to the VARO in Louisville. Most vets have received their c-file within 2 weeks (working days). I have had only a few that took longer. I guess it just depends on their work load and the size of the C-file when you send the request in.
Autum, I would use the VA FM 21-4138 if you don't want to send a regular letter.
appreciate the help!
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you can write the VARO in your state requesting a copy of your C-file in its entirity. This can be on a VA FM 21-4138 or you may just write a letter.
I write a letter for the vets that I work with. Request normally take about 2 weeks.
thank you for your reply.
the 21-4138 is the form vs the 3288? just want to be sure.
when you say 2 weeks, is that the time to actually get the copy or a reply that VARO got the request?
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Please take the time to complain to the BVA ombudsman in email:
bvaombudsman@va.gov
and
Secretary Eric Shinseki
Department of Veterans Affairs
810 Vermont Avenue, NW
Washington, DC. 20420
and
Chairman Jeff Miller
House Committee on Veterans' Affairs
335 Cannon House Office Building
Washington, D.C. 20515
If I get a response on my recent letters to the Sec and the H VAC chairman, I will let you all know.
As mentioned before the BVA told me that a 'contractor' had to fix the BVA web site. There have been problems with it since Oct 2010. This lastest problem started in mid July 2012.
Looks like ebenefits is all snafued now. too
Next thing you know the VA Finance check department will be buggered .(No soup for you.)
That DID happen some years ago.
I hope the totally 'paperless' VA that Secretary Shinseki envisions, does not have to rely on a 'contractor' if problems occur with the extensive medical data and claims evidence that a 'paperless' VA will involve.
i know this an old post but i have a thought that hasn't left my head and want to ask:
i filed a complaint 4 times with local VA advocate. that many times was due to first advocate not getting it into the computer so i was told, and the other times due to i never heard back. that is to say, the advocate would tell me i would be hearing from someone about the complaints and that she had forwarded them and that they were in the computer. that was back starting in 2011.
i told the advocate i was writing to DC and she said something to the effed, "why, they will just send it back to us".
i see you advise writing & emailing those addresses you list. i had Shinseki's address but not the others. i can send my list of concerns to them?
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btw, i did a search for "requesting c-file" but with my browser, FF 17.0.1, it only returned "loading" but never loaded any results so i posted that question that has probably been asked thousands of times.
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now that i have no claims pending at current time, i want to request my complete c-file.
i've heard to use form 3288 or 21-4138. i want to use the correct one
which is the correct one to use and for information requested i simply write "request my c-file" or does it need to be some legal lengthy statement to that effect?
tia
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Your TDIU claim with 90% and SSDI is pretty much a slam dunk. You might get 100% if your other disabilites add up to 50% on their own. That would give you 95% rounded up to 100%. If you want to go back in time and say the VA should have inferred TDIU when you got SSDI that would depend on other factors including if your claim became final at any time. This is for a CUE.
those words, "...if your claim became final at any time...". i'm a bit fuzzy on that. there were a few "closed claims" in past and as recent as 2010. the 2010 closed without RO taking into consideration MS secondary conditions, which we know is supposed to be a mandate. anyways, PVA resubmitted to open claim for secondary issues, late 2010 dec, i think. the 90% recently was due to MS secondary issues and the two recent C&P's are for spinal injury increase and the MS secondary issue "major depression". beats me how RO will rate those two. i was already SC'd fro major depression, secondary to chronic pain. now since they admit/agree i have this MS stuff, major depression gets lumped into that and has to be re-rated.
don't want to confuse us all, i'm too confused at times as it is. a sentence or two on the "claim becoming final" would be appreciated in simple terms please. thanks
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Here is an examle of what I would consider a very good inferred claim for TDIU: A vet is rated 70% for PTSD and is on SSDI for the same condition. The VA has the vet's SSDI records showing the vet can't work. The VA should infer TDIU.
Here is an example where the VA should also infer TDIU: The vet is rated by the VA as 50% for PTSD and the vet is also on SSDI for PTSD and the VA knows it. The VA should infer TDIU
Another example is that a vet is rated 30% for PTSD and requests an increase and has an IMO from a psychiatrist that states the vet is unable to work and that his PTSD has gotten worse in recent months. The vet is currently unemployed. The VA should schedule a C&P exam and also consider TDIU. The VA should not dismiss the TDIU case just because the vet has not met the schedular requirement that they, the VA, made up out of thin air by ignoring 4.16b.
I know the VA has many claims where vets have met 4.16b for many years and the VA has not awarded TDIU. I think this is an error, but a vet will have a hard time proving it unless he/she can show the VA knew the vet was unemployable and yet refused to infer TDIU.
pva recently put in for tdiu and is using my 100% ssdi stuff. va recently raised my percentage to 90% though they are in process of rating two other recent c&p's to see if that will add to the recent 90%. of course, only now is VA looking at ssd and stuff because pva is pushing it.
beats me if pva will/can get an inferred tdiu
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Autumn
My suggestion is to Consider every OTHER possibiliyt for an EED, and only then look at "cue" as a last resort.
Reason:
CUE is the most difficult standard to meet. Cue claims must be proven "undebateably". In claims OTHER than CUE, the Veteran gets the "benefit of the doubt", as well as the "doctrine of equipose".
You dont get BOD or DOE with Cue claims. So they are harder to win.
If there is something wrong with your car, always consider the "cheap to fix" things first. Does your car have enough water? Dont change the engine if all you need to do is add water.
In a similar way, dont handicap yourself trying to meet CUE if a simple appeal will suffice. Dont "give up" your right to Benefit of the doubt, unless you have to...that is, its been more than a year, and you can not qualify for any of the other possible EED theories.
good intel. i'll research this. a BOD may be the way to go. does BOD go with "inferred claim"?
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It looks like The controlling factor on effective date for MS will be the date it was diagnosed in conjunction with filing dates and such. You will not be able to CUE for lack of diagnosis or misdiagnosis. The document that diagnosed it, may very well constitute an inferred/informal claim, it then needs to be sorted out whether it was deemed denied and has become final, whether a request for a formal claim was made, or if it remained unajudicated prior to the current decision. If it was unadjudicated and the diagnosing document is determined to be an implied claim than the effective date should be the date of diagnosis (since nor formal claim was on file).
Clear as Mud??
i appreciate the insights.
clear as mud? yes & no...the realm of inferred claim gets muddier. here's some thoughts and cases in points ...
And what of the Federal Circuit returned, holding on several occasions that the decision in Roberson v. Principi requires "sympathetic reading" to the veterans' filings ... determining all potential claims ..."
before i get blasted for inserting that tidbit, read on...
I'm aware that, Brokowski v. Shinseki, the CAVC returned that the "sympathetic reading" requirement does not obligate the Board to conduct an exercise in prognostication. However, the VA manual does mandate that VA raters must adjudicate all claimed disabilities, and all chronic disabilities found in the service medical records, even if they were not specifically claimed.
it didn't say C-File, it said, "service medial records".
and what of VA Adjudication Procedures Manual, M21-1 Manual Rewrite (Manual M21-1MR) that stress that all inferred issues also must be adjudicated.
Manual M21-1MR, Part III, subpart iv, 6.B,2. states:
"When preparing a decision, the RVSR must recognize, develop, and/or decide all issues, whether expressly claimed, implied, informal, potential, mandated, or ambiguous."
Manual M21-1MR, Part III, subpart iv, 6.B,3. states:
"An inferred issue is derived from the consideration or outcome of related issues. Often the primary and inferred issues share the same fact pattern."
and to add:
regarding, Coker v. Nicholson, 19 Vet. App. 439 (2006), didn't CAVC reject the VA argument that because the veteran had not discussed his foot condition in relation to a claim for compensation his bilateral foot condition was not before the VA?
and, the clemons v. shinseki, case and what it returned.
and what of documented procedural errors on past claims/appeals that happens to veterans ?
and what of legal theory, regulations, new legal arguments, etc ?
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yes, some of this thread is clear, yet much isn't. nevertheless, i'll move forward inch X inch.
clear as mud though for sure ;-)
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I tell people going for these exams to steer it away from your childhood or events other than what happened to you in-service. You were fine before the military and now you are not fine.
good point and true
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"VA has scheduled a C&P from an outside VA facility contracted by VA. This is for major depression"
I don't like it. My opinion is that you are going to have to assume you will have to appeal when either the VA or SS uses an outside party. You need to get to BVA....
its from one of those "QTC exam" places contracted from VA. i don't like it either. i take it they didn't like or use my non-VA doctor IME's and SSD psych evals.
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i had the psych c&p eval. i guess it was standard. most exams are a blur to me afterwards. i took a few non-va psych evals/IME's. beats me if they will use them. i told VSO about them and he sent them to RO to be sure.
out of the blue that same testing place now scheduled a cognitvie screen. guess that is standard VA not to let you know about it or the first psych eval doctor not letting you know about it.
is this another legit screening or what is this all about.
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“and a CUE regarding the many time evidence ignored and medical conditions not pursued “
I don't see either one of those situations as a CUE basis.
Not enough here to know and maybe best to tell us more when you get copies of your past decisions .
I am confused on this and it looks to me that maybe the EED they gave you was correct.
In filing CUE claims it is necessary to have the actual past unappealed decisions so that the CUE error can be determined. I sent VA copy of the actual decision I cued and the rating sheet was with it.
I don't see how one can file a CUE claim without the actual decision.
Have you requested a copy of your C file?
Also I assume your vet rep has a POA file on you and might have the older decisions in it.
appreciate your help.
it was the rating decision from 1986 dr bash mentions is CUE.
i can't even make sense to this board which is my issue not anyone here. i seem to get that a lot lately. LOL
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Good question Carlie- when Dr. Bash did my IMos he advanced an additional disability I never claimed.But might,under 1151.
His IMOs can cover a lot of medical nuances that we claimants never consider since we aren't doctors.And I think the VA just breezes through these IMOs,focusing on whether they support the claim or not, as many C & P docs never see the IMOs,
and they could contain info as to what should be 'inferred' issues, but VA does not take the steps to infer much at all.
I posted a template for CUE claims here:
You stated:
“#7. When Vet applies within a year of discharge.
:filed the month i was discharged “
and
“ i filed for the conditions the navy discharged me with which didn't include MS.
i didn't file for MS specifically due to navy peb and va stated i didn't have MS though they ignored all medical documentation relating to MS symptoms and also listed 3 positive spinal taps as false, thus leading me to believe i didn't have that condition. VA ignored specific medical evidence relating to MS symptoms that was presented to them. the recent IMO points these things out backed by documentation. “
Are you filing for better EED of the MS?
When did you first file for the MS?
What specifically did the VA say in your award letter as to how they determined the EED?
“#8. Clear, Unmistakable Error can lead to an EED.
:have IMO detailing this “
If other words, do you mean Dr, Bash's IMO said the MS had been resent in service or soon after discharge?
What specifically did VA say regarding that in the award letter?
71M10 asked the question I also have here (which is an important point):
“ Did you file a claim for the specific condition or was it noted on the exam that you had for some other condition? “
CUEs are like the famous Watergate Question:
(What did the President know and when did he know it?)
Meaning what did the VA know and when did they know it?
When did you first raise a claim for the MS that was denied?
If the IMO reveals you had MS at time of that denial,then the potential CUE would lie in the rating decision.
Did VA ever misdiagnose or mischaracterize the MS in a past denial?
Then the CUE lies in that rating decision.( as in my template regarding my CUE claim in the link)
Rating decisions ,if incorrect, are legal errors that can raise to level of CUE.
Can you scan and attach here (cover personal stuff) the first denial the VA made regarding your MS claim? And the Rating sheet?
We cant do anything when the Military misdiagnoses a condition due to the Feres Doctrine.
But if VA continues to misdiagnose and treat for the same condition, that falls under 1151.
There could be 1151 potential here.
“3.157 visit to the clinic can establish the claim effective date
:true for me, plus i have C&P from that pereiod stating "severe chronic disese..." th “
Do you have a copy of the actual C & P and does it fail to contain any specific diagnosis?
Can you scan and attach that C & P here too?
On the current award, are you still within the appellate period? Meaning, you would still have time to fight the EED on that award.
>>When did you first file for the MS?
2010 right after civililan diagnosed it
i requested a list of claims filed from RO to see exactly what was claimed in 1987 and why denied.
i've yet to receive that
>>What specifically did the VA say in your award letter as to how they determined the EED?
navy & VA medical evidence
VA C&P neuro statement of SC
Dr Bash IMO, statement of SC
Statements from civililans regarding my sympotms over the years
>Are you filing for better EED of the MS?
i guess, i've had MS since active duty, which is clearly stated in records. and a CUE regarding the many time evidence ignored and medical conditions not pursued
>If other words, do you mean Dr, Bash's IMO said the MS had been resent in service or soon after discharge?
yes
What specifically did VA say regarding that in the award letter?
>“ Did you file a claim for the specific condition or was it noted on the exam that you had for some other condition? “
can't be sure until RO sends me a list of cliams filed and outcomes. but, answer is yes, to second part of question about "some other condition"
>Meaning what did the VA know and when did they know it?
i have no way of knowing. but a case going before a review board (federal circuit) might "see" that the VA did know something.
>If the IMO reveals you had MS at time of that denial,then the potential CUE would lie in the rating decision.
it reveals this, but without seeing that first claim denial i can't be sure what it says. and RO is slow to send me a copies.
>Did VA ever misdiagnose or mischaracterize the MS in a past denial?
they turned everything around to psych issues and minimized back injury just after that VA C&P where the doctor lists the "severe chroniic illness" along with back injury and he found no pre-mil evidence of any issues. now they won't even discuss all those weird psych labels they listed me as having like it didn't exist and i should just forget about it
>>Then the CUE lies in that rating decision.( as in my template regarding my CUE claim in the link)
i'll work with that template for rough drafts. thnx
>Rating decisions ,if incorrect, are legal errors that can raise to level of CUE.
i believe this is where IME is crucial, that shows/details this
>>Can you scan and attach here (cover personal stuff) the first denial the VA made regarding your MS claim? And the Rating sheet?
i don't have this, this is what i've asked the RO to send me and they repeatedly have not. they send me copies of my "request" for these but not the actual claim and decision. odd
>We cant do anything when the Military misdiagnoses a condition due to the Feres Doctrine.
so i acn't write Navy to have them correct a record?
>But if VA continues to misdiagnose and treat for the same condition, that falls under 1151. There could be 1151 potential here.
seems like they did all these years.
>Do you have a copy of the actual C & P and does it fail to contain any specific diagnosis?
i have a copy of this, and doesn't specifically list specific injury or specific disease/illness, but says i suffer from them.
>Can you scan and attach that C & P here too?
i can, but leery to put it up here.
>>On the current award, are you still within the appellate period? Meaning, you would still have time to fight the EED on that award.
i don't know, i'll have to ask PVA
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autumn,
Wasn't it Dr Bash's IMO evidence, that finally got the MS service connected?
yes it was along with non-VA neuro statements of correct diagnosis, so both of them
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Autumn,
Need a couple of more bits of information.
Is the EED you are looking for related to a decision that is final (over a year since original decision with no appeals, or appeals exausted, or SOC or SSOC BVA/CVAC decision not appealed within the specified time limit)? For CUE the decision must be final.
Did the Doctor state on the exam that the chronic condition is SC, or did they state it is related to your military service or another SC condition. If the exam doesn't opine on its relation to service this might be a thin argument for inferred claim.
you indicate you filed the month you were discharged. Did you file a claim for the specific condition or was it noted on the exam that you had for some other condition?
Best regards,
yes to your first question and at that time i didn't appeal that decision.
yes, at that time, the VA c&p doctor did state the chronic condition incurred in service. did state the secondary issues at that time were related to injury plus "chronic severe disease". he could find no pre-mil condtion(s) to account for secondary issues and thus they related to injury in service along with the disease statement i just mentioned in the previous sentence.
i filed for the conditions the navy discharged me with which didn't include MS.
i didn't file for MS specifically due to navy peb and va stated i didn't have MS though they ignored all medical documentation relating to MS symptoms and also listed 3 positive spinal taps as false, thus leading me to believe i didn't have that condition. VA ignored specific medical evidence relating to MS symptoms that was presented to them. the recent IMO points these things out backed by documentation.
what other condition would that c&p doctor have been speaking about? he was shown my navy medical documents from what i barley remember so he knew of the injury, knew of all the myriad symptoms, and knew of the positive spinal taps that the navy called false.
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When you file the CUE you must be very specific as to what the error was and where in the process it occurred. For instance, in you original rating if the VA ignored an IMO or information in your SMR's you have to point that out specifically. If your c&p doctor said "veteran cannot work due to service connected condition", and the VA denied your claim then that might be a CUE for TDIU.
yes, that is what happened from what i can tell and what the IMO addresses.
your input helps me to get the ball rolling on rough drafts. i can have it ready to present to VSO if they decide to own it or file it myself. at this stage i'm seeking help/guidance here for rough drafts. i didn't know how to start a letter with this but do now.
Veterans Affairs Failing Faster In Nearly All Areas, Monumental Problems
in VA Disability Claims Research
Posted
you wouldn't know which poet/poem would you?