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Berta

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Berta last won the day on February 4

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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. One more thing to add- ( maybe this should be in the FTCA forum too) It has always bothered me that 1151 awards do not appear in a separate accounting in BVA annual reports to Congress. I emailed the BVA ombusman last year to see where and how the BVA report to Congress accounts for any 1151 awards. He told me that they are absorbed into the general total for service connected awards, in their annual reportand when he confirmed what I feared, I had even more evidence for the OAWB. 115l awards however , made at the Regional Level are filed in an illusive " Area 1151" but the VA knows where those awards are and how much they cost the taxpayers, solely due to piss poor VA health care.
  2. This article on S 221 is exactly what I hoped my OAWB complaint would lead to- that something has to be done! I emailed the Triage OAWB manager to see if the evidence I sent to them ,starting this past June , had input into it -otherwise I will send it to the Senate VAC. In part the article reads: "The VA Provider Accountability Act, S. 221, sponsored on Jan. 24 by Sen. Gardner, who was joined by original cosponsors Sens. Moran, Collins, Cassidy and U.S. Sen. Joe Manchin (D-WV), would amend title 38 of the United States Code to require the under secretary of health to report major adverse personnel actions involving certain health care employees to the National Practitioner Data Bank, as well as to applicable state licensing boards, among other purposes, according to text of the bill. “It is critical that those on the front lines of caring for our veterans are held to the highest level of accountability,” said Sen. Moran. “For too long, mistakes made by VA providers have been concealed by the VA and not reported to the appropriate state and federal databases.” https://riponadvance.com/stories/senate-republicans-tout-benefits-of-va-provider-accountability-act/ This could impact as well on my 1151 complaints to OAWB. "Area 1151" as I call it, holds no outerspace aliens- it is where the VA hides their 1151 payouts. Between me ( on 115 1 DIC 1994 until 2009 , then it changed to direct SC )and my husband's Vietnam Vet buddy (they both worked for VA) and I got him 100% P & T under 1151 about 22 years ago-if you consider the math alone, VA has paid us a bundle that of cash that is solely due to VA malpractice. ( MY FTCA offset as refunded by my AO DMII death claim-but without filing that claim, it would still be 1151 money for 24 years.) I dont have a problem with 1151 comp for any deserving vet or widow- but I do have problems with the fact that these negligent medical people who actually work for the VA ( Unlike the VA's contractor program- hiring contracting medical personnel who are NOT VA employeess, therefore Not subject to FTCA or 1151)yet can treat veterans, are never disciplined in any way for causing 1151 awards. This is GREAT NEWS! I just hope it gets enough sponsors and gets passed. I have been griping on this issue to anyone who could change it for 24 YEARS!!!!!! That included the House VAC , under Jeff Miller, years ago and the Office of General Counsel, many times since my FTCA settlement. I am estatic !!!!!! This can and will SAVE LIVES!!!!!!!!
  3. You said : "I know this because I just recently received my brown envelope that stated that even though there was plenty of evidence in folder." and that the claim was recently denied. Did you make any attempt to have the missed C & P exams rescheduled? It is the C & P exam and diagnosis that reveals the criteria of what the rating should be. Do you have a proven nexus to your service for these MH issues? Can you scan and post the denial here as to their rationale for denial and also the Evidence list they used? Cover your C file #, name, address prior to scanning it.
  4. I always use the regulations themelves because BVA does : "The general rule regarding effective dates is that the effective date of an evaluation and award of compensation based on an original claim, a claim re-opened after final disallowance, or a claim for increase will be the date of receipt of the claim or the date entitlement arose, or the date of increase if the increase is shown within one year prior to filing the claim, whichever is the later. 38 C.F.R. § 3.400. " https://www.va.gov/vetapp18/files9/18138958.txt EED and 'date entitlement arose' can be used in the BVA search feature. This is how it works- My deceased husband had two claims pending at his death- one under 1151 and one for a higher rating of his 30% SC PTSD. He was awarded SSDI solely for PTSD soon after filing the claim with VA for higher rating. Along with copy of the SSA award, he also sent a VA a TDIU application. Almost three years after he died ( VA told our Congressman and senators SSA refused to release his SSDI info- it was a lie) they received the SSDI info and awarded 100% P & T for SC PTSD. The date of the claim was in 1992. In an accrued award to me, as his survivor, they gave him an EED of Nov 1991 of 100% P & T PTSD, because the date his entitlement arose ( via medical evidence from the SSA) -as the last day he worked was Nov 1, 1991. However, to add, the SSDI used his VA medical records to determine the 100%.He had been treated for PTSD by the VA in two states, since 1983. VA could have awarded that claim in his lifetime. They also could have awarded the 1151 in his lifetime as well. Another example is found here: https://community.hadit.com/topic/52876-bva-cue-granted-eed-of-8-years/
  5. I missed your last reply- "I'm thinking that I need to reopen that 1990 claim with new and material evidence but I'm not sure whether or not this process should have been automatically started due to the inextricable connection between the original and new claims. Is there legal basis upon which to compel the VA to consider the first claim service connected without reopening the claim? I'm thinking through the concept of reasonably raised claims (they should logically look back through my files, see the 1990 claim for anxiety, and put two and two together) and/or the fact that my two claims are obviously inextricably intertwined. " I am a hardcore claimant.The VA does not "automatically' infer "inextricable connections"and they sure do not use Logic, nor are they required to, via 38 USC. If they did my AO DMII death claim would have taken a few months, but it ended up taking almost 7 years. BVA uses the term inextricably interwined, in very few cases: "The Veteran also contends that his kidney cysts are related to his currently demonstrated hepatitis C, which he asserts developed as a result of high-risk activity during his active military service. The Board is required to consider all theories of entitlement to service connection. See Szemraj v. Principi, 357 F.3d 1370, 1371 (Fed. Cir. 2004), and Roberson v. Principi, 251 F.3d 1378, 1384 (Fed. Cir. 2001) (explaining that the Board must consider all potential theories of entitlement raised by the evidence). Furthermore, the Veteran's claim for service connection for kidney cysts is inextricably intertwined with the issue of entitlement to service connection for hepatitis C, which is being remanded for further adjudication. Therefore, a final decision on the issue of entitlement to service connection for kidney cysts cannot be rendered at this time. See Harris v. Derwinski, 1 Vet. App. 180 (1991) (two issues are "inextricably intertwined" when they are so closely tied together that a final decision on one issue cannot be rendered until a decision on the other issue has been rendered)." The veteran had a logical claim regarding the kidney cysts and his Hepatitis C, which an IME would have helped, possibly to support that claim. Unfortunately he was stuck with a Remand asdding more time to the claim. "The Board is required to consider all theories of entitlement to service connection. See Szemraj v. Principi, 357 F.3d 1370, 1371 (Fed. Cir. 2004), and Roberson v. Principi, 251 F.3d 1378, 1384 (Fed. Cir. 2001) (explaining that the Board must consider all potential theories of entitlement raised by the evidence). Furthermore, the Veteran's claim for service connection for kidney cysts is inextricably intertwined with the issue of entitlement to service connection for hepatitis C, which is being remanded for further adjudication. Therefore, a final decision on the issue of entitlement to service connection for kidney cysts cannot be rendered at this time. See Harris v. Derwinski, 1 Vet. App. 180 (1991) (two issues are "inextricably intertwined" when they are so closely tied together that a final decision on one issue cannot be rendered until a decision on the other issue has been rendered). https://www.va.gov/vetapp17/files1/1700898.txt (sorry for double posts- weather has been affecting my Sattelite dish lately-so have not been here much) As Broncovet said 38 CFR 3.156 (c) appears to be the best way to go here- Or they might have committed a CUE ( Clear and Unmistakable Error) in the 1990 decision. We cant really opine on that without being able to read the decision and evidence list. https://www.law.cornell.edu/cfr/text/38/3.156 And CUE: https://cck-law.com/news/cue-claims-how-to-challenge-a-final-decision-video/ and in multiple discussions here at hadit in the CUE forum. I wish your statement was true!!!!!!- that VA would connect the dots whenever they seem obvious. But that has become our job, as claimants. This is funny to me now-but not funny when my RO refused at first to even re- open my death claim. My daughter USAF Intel, insisted I re open the claim and use this phrase along with the medical evidence I had ( (3 IMOs my RO ignored)- -"since the VA had already admitted that their malpractice caused my husband's death due to undiagnosed and untreated heart disease and stroke, as well as improper medication for his HBP,( 1998 DIC decision) it is 'as likely as not' the VA did not properly diagnose and treat his DMII from his exposure to AO during the Vietnam War.' I threw that into the claim , because it was logical and made sense- but the probative medical evidence was the main evidence I had. I was in college at the time and had no time to continue to try to fight with my RO, so I was elated that the claim went to the BVA, where they gave the claim the actual FIRST review of the evidence and they awarded it. This was not a 1151 claim, it was for a direct SC death-I already had gotten DIC under 1151.
  6. Can you scan and post the 1990 denial as to the VA rationale, and post the evidence list as well? Cover your C file #, name, address prior to scanning it. When a veteran succeeds on a claim, for the same disability that has been denied in the past, they can often recover retro under 38 CFR 3.156 or under a Valid CUE claim. But that depends on what evidence VA had at time of the denial. We cannot determine whether either 3.156 or CUE would help, until we see the denial from 1990. Do you receive SSDI, and if so is it for anxiety /depression? Has VA Voc Rehab ever turned you down solely due to your present SC condition?
  7. "Advice for Blue Water Vietnam Veterans Regarding Procopio v. Wilkie Decision On January 29, 2019, the U.S. Court of Appeals for the Federal Circuit issued the groundbreaking decision Procopio v. Wilkie, No. 2017-1821 (Fed. Cir. Jan. 29, 2019) The Court held that Veterans who served in the 12 nautical mile territorial seas of the Republic of Vietnam during the Vietnam era are entitled to the presumption that they were exposed to Agent Orange. This decision overruled the Court’s previous decision in Haas v. Peake, 525 F.3d 1168 (Fed. Cir. 2008), which held that the Department of Veterans Affairs (VA) could exclude from the presumption of Agent Orange exposure those Veterans who did not set foot on land or serve on the inland waterways of Vietnam. The Federal Circuit’s decision in Procopio opens the door for tens of thousands of Blue Water Vietnam Veterans or their survivors to obtain service-connected VA disability or death benefits for diseases caused by Agent Orange exposure. Diseases that the VA presumes are caused by Agent Orange exposure include ischemic heart disease, type 2 diabetes, Parkinson’s disease, and numerous cancers. A full list of the diseases that the VA presumes are caused by Agent Orange can be found here. Claimants may also be able to obtain service-connected VA disability or death benefits for other diseases with medical evidence linking the disease to Agent Orange exposure. The Procopio decision is not yet final. The VA has 90 days (until April 29, 2019) to ask the U.S. Supreme Court to overturn the decision. Although the decision is not final, we recommend that VA claimants who may be affected take the following action, which will likely help, and certainly do no harm, in ensuring that the claimant gets the earliest effective date for benefits ultimately warranted by law: 1. If the VA previously denied service-connected disability or death benefits based on a finding that the Veteran was not exposed to Agent Orange because he or she served only in the waters offshore Vietnam, and that denial has become final, then as soon as possible file to reopen the claim (if filing before 2/19/2019) or file a supplemental claim (if filing on or after 2/19/2019). Note that the U.S. Court of Appeals for the Federal Circuit’s recent decision in Procopio v. Wilkie, No. 2017-1821 (Fed. Cir. Jan. 29, 2019) supports an award of benefits. 2. If the VA has denied service-connected disability or death benefits based on a finding that the Veteran was not exposed to Agent Orange because he or she served only in the waters offshore Vietnam, but the denial has not yet become final, appeal the denial or continue pursuing the appeal of that denial. Note that the U.S. Court of Appeals for the Federal Circuit’s recent decision in Procopio v. Wilkie, No. 2017-1821 (Fed. Cir. Jan. 29, 2019) supports an award of benefits. 3. If the claimant has not previously submitted a claim for service-connected disability or death benefits, but may qualify for such benefits based on the Veteran’s exposure to Agent Orange in the waters offshore Vietnam, file a new claim for such benefits as soon as possible. Note that the U.S. Court of Appeals for the Federal Circuit’s recent decision in Procopio v. Wilkie, No. 2017-1821 (Fed. Cir. Jan. 29, 2019) supports an award of benefits. 4. If the claimant has a pending claim for service-connected disability or death benefits based on exposure to Agent Orange in the waters offshore Vietnam and the VA has not yet issued a decision on that claim, no action is required. However, there is no harm in submitting a Statement in Support of Claim arguing that the U.S. Court of Appeals for the Federal Circuit’s recent decision in Procopio v. Wilkie, No. 2017-1821 (Fed. Cir. Jan. 29, 2019) supports an award of benefits. Additionally, NVLSP can assist you in getting the benefits you are eligible to receive. You can write to NVLSP at bluewater2019@nvlsp.org, call us at our toll-free hotline: 855-333-0677 or complete our survey at https://goo.gl/forms/fxlLszXwvhO83wC12. NVLSP is still analyzing whether claimants may be entitled to retroactive benefits based on previously denied claims in the event that the Procopio decision becomes final. We will post advice regarding potential retroactive benefits based on previously denied claims at a later date." https://www.nvlsp.org/news-and-events/news-articles/advice-for-blue-water-vietnam-veterans-about-procopio-v.-wilkie-decision By this statement: "NVLSP is still analyzing whether claimants may be entitled to retroactive benefits based on previously denied claims in the event that the Procopio decision becomes final. We will post advice regarding potential retroactive benefits based on previously denied claims at a later date." ....they mean if Nehmer will kick in. This all has quite a way to go-but hopefully the results wll be GREAT! NARA has all Navy Deck Logs on line now: https://www.archives.gov/research/military/logbooks/navy-online
  8. Berta

    Blue Waters WIN!!!!

    The VA has less than 3 months to appeal thi decisio- hopefully they wont, and there is another BWN AO bill pending anyhow. I tried a Deck log link here and it isnt working but NARA has complete deck logs on line now: https://www.archives.gov/research/military/logbooks/navy-online
  9. A Remand is far better than a denial- The CAVC publishes their opinions here: http://m.uscourts.cavc.gov/RecentDecisions.php We can find it by Docket #. A Remand opens the door for more evidence, but that might not be the case here. In any event this is good news, compared to being denied by CAVC.
  10. The links in the Press Release above offer a lot more info but I agree that it appears one cannot get to the BVA if they choose Higher level review or supplemental claim- in the Press Release- hopefully vet lawyers out there will provide a better explanation of that- it will sure affect them negatively- as well as claimants ,if that is true.
  11. Right- and it pays to state the easiest one to verify, first, when asked by VA for stressor info,assuming it falls under the VA's definition of stressor.
  12. VA Press Release yesterday VA’s Rapid Appeals Modernization Program to end ahead of implementation of new Veteran appeals law WASHINGTON — Today, the U.S. Department of Veterans Affairs (VA) announced it will discontinue the Rapid Appeals Modernization Program (RAMP), which provided eligible Veterans with early resolutions to their appealed claims, ahead of full implementation of the Veterans Appeals Improvement and Modernization Act of 2017 that takes effect Feb. 19, 2019. VA will not accept RAMP elections from Veterans with a legacy appeal after Feb. 15, 2019; however, RAMP claims pending on or after Feb. 15 will continue to be processed until the inventory is complete. Beginning Feb. 19, Veterans who appeal a VA decision will have three decision review choices: Higher-Level Review, Supplemental Claim, and appeal to the Board of Veterans’ Appeals. VA will now offer Veterans greater choice in how VA reviews their claim is committed to ensuring the claims process is accurate, timely and fair. “VA has been preparing for full implementation of the Appeals Modernization Act over the past 18 months to ensure the new, streamlined process is available to Veterans who have long sought reform of the broken legacy system,” said VA Secretary Robert Wilkie. “We encourage Veterans whose appeal is currently in the legacy system to opt in to RAMP before February 15 to take full advantage of the benefits of the new process.” VA initiated RAMP in November 2017 to provide some of the benefits of the new law’s streamlined process before full implementation. Participation in RAMP is voluntary. However, processing times under the program have been faster than legacy appeal processing times. Under the legacy process, decisions currently average three to seven years. Veterans who have a legacy appeal after Feb. 15 will be able to opt in to the process when they receive a Statement of the Case or a Supplemental Statement of the Case after the new law is effective Feb. 19. Veterans who participate in RAMP can choose to have their VA decision reviewed in either the Supplemental Claim or Higher-Level Review lanes. In the Higher-Level Review lanes, a more experienced adjudicator will conduct a new look at the previous decision based on the evidence considered in the previous decision. Participants who select the Supplemental Claim option may submit new and relevant evidence, and VA will assist in developing new evidence under its duty to assist. VA’s goal is to complete Supplemental Claims and Higher-Level Reviews in an average of 125 days. For more information on Appeals Modernization, visit https://benefits.va.gov/benefits/appeals.asp and https://www.bva.va.gov/. " https://www.va.gov/opa/pressrel/pressrelease.cfm?id=5203 I am glad AskNod mentioned CUEs he has pending. I have 4 or 5 pending. I agree that CUE cannot get an "artificial hair cut." They would have to re -write CUE regs. The evidence for 3 of the CUEs comes from an Office of General Counsel Pres op-the other evidence is basic VA case law.
  13. I just spoke to the WH Hot LIne. They were concerned that I said the C & P exam I requested months ago, (which an IRIS complaint did not produce) must have been done by a non -VA medical person. I made it clear that I intend to send the SOC to the H VAC Subcommittee on Disability/ Memorials, but past experience I have had ( sending that info too) reveals how a past C & P exam was manipulated by the Buffalo RO and only by calling the doctor who wrote it- did I acquire the actual exam he did. They had withheld from him my most probative evidence. I won that claim but that is not the point- It became part of the RO backlog for no good reason, until they awarded it. They put a 21-0820 into my C file and on the evidence list- because they called me 4 times that week.regarding my evidence etc. I think the man who called me did the C & P exam. He said they had already 'picked' someone who would do it .He is NOT a medical person, just some RO VSO..and attempted to go against my evidence, whch came from VACO's top cardio doc whose als has specific expertise in HBP -Strategic Health Team VACO. (It was an 1151 HBP claim, and my CUE on the award is still pending.)
  14. " Would getting a DBQ done by a family doctor that specializes in depression and anxiety do me any good?" Maybe if they are a psychologist or psychiatrist. A BIG MAYBE. I suggested above: Google her name for her credentials. Contact the contracting firm who hires her and complain. The contact info for QTC, VES, and LHI s here under a search. And/or call the White House vet Hot line. 1-855-948-2311 And in addition, you can file an IRIS complaint. I am calling the WH today- I have been waiting for a copy of an actual C & P exam, for 6 months ,that might be different from the way they wrote it in the SOC. As soon as I filed CUE they reversed their denial. I dont know who prepared it and I do not think it was done by anyone with a medical background. My sole piece of evidence for this claim came from VA's top cardio doctor, and it was listed as evidence but never had been considered,until I filed CUE the day after I got the denial. I have seen ths C & P crap for decades. Someone in Congress is supposed to be filing a Bill to help correct it. The GAO knows it and we know it- many contracted C & P exams are geared to deny claims, in spite of any probative evidence the veteran has. I will find the Congressman's name and info and post it here - I am sending him every posthumous exam VA ever did on my husband, all to deny the claims, yet they failed,because I overcame those exams, wth evidence they VA had, and I only had IMOs for one of them. If vets start to really complain, via IRIS, the WH Hot line, and to this Congressman and most importantly to the Contractor who hired the examiner- who VA Pays- this crap could change. Widows and widowers have to watch out for this as well- since the veteran cannot speak for themselves, a fact VA takes adevantage of, they have to act fast on any bogus posthoumous C & P exam. Make sure your spouses hold back a few thousand if you die with life insurance- they sure might need a costly IMO.
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