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Berta

HadIt.com Elder
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Berta last won the day on June 28

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About Berta

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    PLEASE post questions in the main Forums
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    Beautiful hills of NY andwidow of  2 vets, 2 HD each and mother of USAF vet-my daughter, 7 years Top Secret Intel
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  1. When did he get this denial? I don't see the evidence list but the VA did indicate they did not reveal any service nexus regarding the schizophrenia. Whether VA put the SMRs on the Evidence or not , they might have simply breezed through them.. He can request his SMRs via NARA again - but they might still be at the VARO , if you have filed a timely NOD. Years ago I requested my dead husband;s SMRs and 201 Personnel file, from the USMC and from the US Navy. I got all of the Navy records a few months later but the letter with them said his USMC SMRs were at the Buffalo RO (where they were supposed to be as I had accrued claims in progress there.) NARA https://www.archives.gov/veterans They ( the SMRs) would be critical to this claim. Does he recall any MH issues that were documented in his SMRs by any medical person while he was in service? or put on his Discharge Certificate?
  2. Oddly enough this was the last OGC Pres Op published in 2019 and there are none so far in 2020. The General Counsel's Office has been greatly affected by the Covid situation- like many parts of VA Central. I was going to post this today but realized I already did when it was published. It concerns me that we have not had many Blue Water AO vets here.....or even their survivors. But if they fall into HR 299, ( have AO presumptive disability and ship's logs verify they were in 10 Mile limit, during the war ), their claims would be easy for VA to handle. I hope.
  3. Buck, there are so many reasons for a denial that I do hope the poster will attach the redacted decision. It might be missing one or more of the Caluza elements. I wanted to add as well....neither a VSO, vet rep, or lawyer can perform a miracle. On the other hand, many if not most of us here, have done better with our claims, by representing ourselves. The past vet reps I had did not have a clue. I was at the VAMC one day and could hardly believe what I heard my vet rep tell a PTSD veteran. Luckily I saw the vet later going to his car and I gave him the best advice he could get-I knew that would make his PTSD claim succeed. Here is Caluza : 1. current diagnosis 2. In service event or aggravation. 3. Nexus. From Broncovet's many posts on this basic VA regulation. The nexus factor means the 'link' to an inservice event, documented illness, or accident in service. I do not feel that many vet reps fully explain that to claimants. Caluza cannot be repeated enough and I appreciate that Broncovet brings it up often. But a denial can be based on far more things than just Caluza- we just dont know until we see the decision.
  4. VietnamVetFam- Since the claim was denied twice, you will need New and Relevant Evidence to reopen the claim. The VA, within the past decisions, stated why the claim was denied. Have you been able to overcome that denial by obtaining what they said they still needed? Can you scan and attach here their last denial? (Cover C file # and name prior to scanning it.) Do you have the veteran's complete SMRS, In service Personnel file, and copy of their C file?
  5. Case Number:20-3907 Docketed: 06/05/2020 Luis Negron-Ortiz v. Robert L. Wilkie Appeal From: Department of Veteran Affairs Fee Status: dfh "On June 5, 2020, the petitioner, Luis Negron-Ortiz, through counsel filed a petition for extraordinary relief in the form of a writ of mandamus compelling the Secretary to take immediate action to implement a December 6, 2019, Board of Veterans' Appeals decision that granted a disability rating of 20% for right and left lower extremity diabetic peripheral neuropathy and a 70% disability rating for post-traumatic stress disorder (PTSD), both throughout the claim period, and a total disability rating based on individual unemployability from January 1, 2009; and remanded the issue of entitlement to an effective date for PTSD earlier than May 30, 1997. Petition at 1-2, 8; Appendix at 9-18. The Secretary responded to the petition on June 18, 2020, and asserted that a VA regional office issued a rating decision on June 15, 2020, implementing the awards. Secretary's Response at 2-4. Later the same day, the petitioner filed an unopposed motion to voluntarily dismiss the petition. Motion at 1. Accordingly, it is ORDERED that the petitioner's June 18, 2020, motion is granted. It is further ORDERED that the petitioner's June 5, 2020, petition for extraordinary relief in the form of a writ of mandamus is DISMISSED." https://efiling.uscourts.cavc.gov/cmecf/servlet/TransportRoom?servlet=CaseSummary.jsp&caseNum=20-3907&incOrigDkt=Y&incDktEntries=Y Maybe the petitioner sent a copy of this writ to the VARO---I cannot tell if that caused the RO to act swiftly on his claim or not- and I assume he still has an EED claim still open. Very unusual to see this type of situation.The veteran, upon receipt of the award ( this also was a hardship case) correctly filed the Motion to dismiss the Writ.
  6. "VA rolls out simplified travel reimbursement system for Veterans, beneficiaries WASHINGTON — The U.S. Department of Veterans Affairs (VA) is rolling out a new system in July for Veterans and eligible beneficiaries to submit and track transportation reimbursement claims using VA’s secure web-based portal, Access VA. The Beneficiary Travel Self-Service System (BTSSS), which is accessible 24/7, 365 days a year, will simplify how eligible Veterans and beneficiaries claim mileage reimbursement for travel to and from both VA health care or VA authorized non-VA health care service locations. “VA is working diligently to find new ways to innovate and simplify how we serve Veterans and their beneficiaries,” said VA Secretary Robert Wilkie. “Streamlining the Beneficiary Travel Self-Service System will help our Veterans get their travel reimbursements more securely and efficiently.” BTSSS enables Veterans and caregivers to submit claims for reimbursement of costs from a personally owned vehicle, common carrier, meals and/or lodging, and other travel related expenses such as tolls, parking and luggage. The national implementation across Veterans Integrated Service Networks (VISN) will run in phases through November. The first phase will start in July and includes VA Salt Lake City Health Care System, Kansas City VA Medical Center, Bay Pines VA Health Care System, Bay Pines, FL and Minneapolis VA Health Care System. The implementation will continue in phases beginning on the following dates: September 8: VISN’s 1, 9, 12, 17, 21, 22 October 5: VISN’s 2, 6, 10, 15, 20 November 2: VISN’s 4, 5, 7, 8, 16, 19, 23 As BTSSS goes live, the use of kiosks will be discontinued however, in person claims and hard-copy submissions are still available. For more information on BTSSS and eligibility, visit the VA Travel Pay Reimbursement webpage." https://www.va.gov/opa/pressrel/pressrelease.cfm?id=5478 Additional info: https://www.va.gov/health-care/get-reimbursed-for-travel-pay/ ###
  7. This is Outstanding News Peaches- and your post will encourage so many others...... You NEVER Gave up! I commend you!!!!!! Well Done!
  8. I see my post yesterday did not go through-??? This is exactly what HRL is for- to find legal errors , and any other errors, before the decision is finalized. Asking for HRL review, and/or filing CUE on a recent decision, if successful- will take YEARS off the claims. I see many cases at the BVA that never should have been there----on remand for what the RO should have done in the first place. A CUE on the RO decision might have changed that picture significantly for some of those veterans. I am glad you took that "route" too. CUE should never be viewed at as a "last resort'- it should be the first thing in a decision ,that the claimant seeks.I say "claimant" because many VSOs and reps and even lawyers who rep vets do not really know what CUE is- in my opinion. And even if a lawyer or agent saw a CUE in recent denial, they might never raise the issue to the veteran because they wont make much money unless the vet goes to the BVA. CUE is explained in the CUE forum ad finitum.....I think they are the easiest claims of all, in most cases.Particularly when the decision is recent ( within the one year NOD period) They should be filed ASAP on any recent decision that you believe contains CUE.
  9. Hill and Ponton agree with that- https://www.hillandponton.com/va-disability-benefits-what-happens-to-my-claim-if-i-am-wrong-about-my-diagnosis/ In part: The Court noted in the case of Clemons v. Shinseki that most veterans applying for disability compensation are not medical experts. As a layperson, a veteran’s diagnosis of his or her condition would not be accepted as evidence that the condition exists. Why then, would the VA be allowed to hold the veteran to that diagnosis in terms of limiting his or her claim? Instead, a veteran is considered to be competent to provide testimony as to what symptoms he or she observes and experiences, but not to assign a diagnosis to those symptoms. The VA, then, in considering a veteran’s claim, may not limit the claim to the diagnosis listed by the veteran in his or her claim form but must consider the symptoms described by the veteran and the medical evidence provided which relates to those symptoms. As stated by the Clemons court, “the fact that the [veteran] may be wrong about the nature of his condition does not relieve the [VA] of [its] duty to properly adjudicate the claim.” It should be clarified that there is, in fact, a requirement in almost every case that the veteran have some diagnosed disability in order to receive disability compensation. [See our post on Gulf War-related illnesses to find an exception to that rule]. So a veteran can be wrong about the proper diagnosis and still receive compensation, but if the VA finds that the veteran cannot be diagnosed with ANY condition, no compensation will be paid. Tweet Pi Sha When VA benefits are being discussed, we are generally referring to VA disability compensation benefits. However, you may be entitled to some of the other benefits offered through the VA…"""" VA Disability Benefits - Back to Basics We often blog about the intricate details of specific issues in VA law, so I wanted to take a moment to take us back to the basics of VA disability…" (article by)Shannon Brewer, Senior Attorney Hill And Ponton
  10. So far it seem that Clemons is the best case law I could find. Ingram has a lot of good info on CUE claims. https://www.courtlistener.com/opinion/817166/ingram-v-nicholson/ A long read but very detailed.
  11. WONDERFUL!!!! That is exactly what a VA HLR person should do,and it even helps if the claimant files CUE as soon as they get a decision that they feel is legally wrong, andthey should also ask for HRL review. That saves some vets who do have clear and unmistakable errors in their recent decisions, not to have to go the LONG BVA route.
  12. PS, if this procedure for getting your VA records has changed, please correct me somebody...... As within the scanned letter above, the VA is supposed to process FOIAs for veteran's records ,under the Privacy Act without the veteran asking them to do that - FOIAS take more time then Privacy Act requests .
  13. I have made a point here dozens of times------ FOIA is for any lawyer you have gained POA with, so they can get your C file. Just use The Privacy Act 5, USC, 552 to request your records or better yet use this form, as I mentioned in this thread before: https://www.va.gov/vaforms/va/pdf/va3288.pdf Send it to the RO who holds your C file. A C file has limited info , your SMRs may or may not be in it and can be obtained via NARA. Your VA medical records can be obtained via a request to the VAMC that has them. I think they -the local VAMC - gave me a small form to sign to get my husband's VA medical records. I think had to prove I was his surviving spouse- but the VAMC knew that already.I was already a VA claimant . Under the Privacy Act the VA MUST release to you what is yours- The lawyers need to use FOIA if they need your records,if they represent you. Covid has messed up a lot at VA, and at everywhere else- and VA Central still has a limited crew as far as I know.
  14. https://www.va.gov/vetapp14/Files1/1410073.txt This case has citations to include Clemons that might help here- it will take me time to review the case and citations. Basically it states this: "The appellant initially asserted that he had an ulcer related to his service, but more recently he expanded his claim to additionally include diagnoses of diverticulosis and GERD, so this claim has been recharacterized more generally as for a digestive disorder. The U. S. Court of Appeals for Veterans Claims (Court/CAVC) has held that the scope of a claim for a disability includes any disability that reasonably may be encompassed by the claimant's description of the claim, reported symptoms, and the other information of record. Clemons v. Shinseki, 23 Vet. App. 1, 5-6 (2009); see also Brokowski v. Shinseki, 23 Vet. App. 79, 85 (2009) (A claimant's identification of the benefit sought does not require any technical precision), citing Ingram v. Nicholson, 21 Vet. App. 232, 256-57 (2007) (It is the pro se claimant who knows what symptoms he is experiencing and that are causing him disability); see, too, Robinson v. Nicholson, 21 Vet. App. 545, 552 (2008) (The Board is required to consider all issues raised either by the claimant or the evidence of record). Clemons concerned VA's failure to consider a claim of entitlement to benefits for a disorder other than the one specifically claimed, even though it shared the symptomatology for which the Veteran was benefits. The Clemons Court found that, where a Veteran's claim identifies a condition, without more, it cannot be a claim limited only to that diagnosis, rather must be considered a claim for any disability that reasonably may be encompassed by the evidence of record. The Clemons Court indicated that, when a claimant makes a claim, he is seeking benefits for symptoms regardless of how those symptoms are diagnosed or labeled. The claims of entitlement to service connection for an acquired psychiatric disorder and alcohol dependence, however, require further development before being decided on appeal, so the Board is remanding these claims to the RO via the Appeals Management Center (AMC) in Washington, DC. Whereas the Board, instead, is going ahead and deciding the remaining claims for a digestive disorder and back disorder." Ingram V Nicholson is 34 pages long- https://www.courtlistener.com/opinion/817166/ingram-v-nicholson/ It will take me time to read this and the other citation in the above BVA citation. Did the VARO ever " re characterize" your initial claimed disability to fibromyalgia.
  15. I will try again to find proof of this: "I am very interested in the statement that you said about a veteran not knowing medical terminology and when a veteran files a claim, VA has a duty to assist the veteran" Without knowing what the older decision said, and since you had a successful CUE already, I would file BOTH CUE and a 38 CFR 3.156 claim, on the same form adding the evidence for each of those claims. Just separate them with a line after the first claim __________________________________________________ We are never prevented from filing a claim with more than one theory of entitlement. I did it myself on my very first DIC application. I succeeded on the initial theory ,1151 DIC due to wrongful death. 1998. I succeeded in a re open of the direct SC death claim filed in 1995, in 2009.AO DMII, than direct SC death for AO IHD in 2015 ( i think it was) and have an additional claim pending for service connected death contributed to by AO HBP. As you already know Pacman, the VA will need a copy of the decision you are filing these claims on. This is a very good piece of evidence.-, but did the examiner give a solid rationale for that? "the C & P exam notes where it does state that my effective date should be 2000 and not 2007." The only FAST WAY ( and it sure can be fast) is when a claimant files a successful CUE right away, on a VARO decision they have just received. Or better yet, if they ask for HL Review and the HRL calls a CUE on the decision before it is finalized and sent to the veteran. It is part of the HL reviewer job to do that. But I feel that is our job as well, to seek CUE in any recent decision any of you get.
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