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Everything posted by Berta

  1. Good question- I got a 46 page packet from the Philadelphia Nehmer VARO- which contained awards for AO IHD , 1988-1994, SMC, for 2 years, as they award both CUE claims I had pending, on IHDE and SMC ,and also an award under 1151-100% Aug 1992 to Oct 1994. The CUE I recently filed is because the audit and payment from my AOJ (Buffalo RO) is clearly wrong to my detri ment. But it also was a SOC. I think they misinterpreted one of my statements in the evidence list for the Nehmer VARO ( 3 pages long) and maybe they thought I would appeal that issue-maybe that is why the SOC? But the last two claims I filed- 1151 HBP denied March 2015, (I cue d them )- 1151 awarded April 2015 did not have a Statement of the Case. I only needed one piece of evidence for this claim. They never listed or considered it as evidence .Although they told me by phone they had received it with my 5103 waiver. Violation of 38 CFR 4.6 ( my favorite regulation) awarded the CUE and the claim.
  2. Berta

    SC comp and 1151 comp

    If you have both award(s) for a SC disability and also award for a 1151 disability ( Section 1151, 38 USC ) please go over VA General Counsel Pres Op # 08-97 to see if VA properly applied it to your claim. If you were awarded a FTCA case, as well as a 1151 award for the same malpractice, you need to be aware of the offset provision in M21-1MR, Part IV, Subpart ii ,Chapter 2 Section G. I know VAOGC Pres Op #08-97 is still relevant and has never been changed and was used in my Nehmer AO death (IHD) decision.(2012) The offset provision in M21-1MR does not apply to me or to my deceased husband.But does apply to many 1151 awards if a FTCA case was successful. I have always considered that the Regulations, and any Pres Ops from OGC and CAVC Precedent decisions , and M21-1MR allow the VA to control us and our claims. HOWEVER, we can use any or all of above to Control Them. BVA decisions apply solely to the claimant they made the decision for. You might have been denied with a claim almost exactly like something at the BVA, that they awarded. It does not matter-you annot use that as evidence- however BVA decisions contain legal statements that can support a claim -been there done that- and also BVA citations , if searched for, can often reveal legal evidence for a CUE claim.
  3. Berta

    SC comp and 1151 comp

    forgot to add----(my advice is for really any type of claim, in addition to 1151 plus SC claims) do not expect any vet rep or VSO to do any of that research for you. I know how time consuming research can be and how difficult to is sometimes to understand the VA legal lingo. But the difference to you might well be CA$H !
  4. Do you mean their decision regarding your daughter as a dependent? You could write to your VARO and request an audit. I have a brief audit thing that came with my Nehmer AO award. It never made sense to me and VA told me all accrued benefits were paid 2 years agowhen I challenged the decision. I have been going over the audit carefully using the past Comp rating charts, and found that they are missing about 2 years retroactive at 100%. This happened to me before- the regional counsel had to look over my AO DMII claim and saw my letters there in the C file telling them they had withheld too much for my DIC for a FTCA offset.They ignored my letters and I was in college at the time- and more focused n my AO DMII death claim. The RC ordered them to pay me and I got a little over 27 thousand. I got an audit staement with the letter and went over it carefully. They had forgotten an entire year of my DIC , over 11,000 bucks.I sent my calculations directly to Finance department and got the rest of what they erroneously withheld- in about 3 weeks. I have a CUE recently filed on their last decision- because something is wrong with the audit- in it over 46 pages with the regs etc, the Nehmer RO awarded for IHD 1988 to 1994, awarded 2 CUEs I had generating SMC, and properly considered VAOGC Pres Op 08-97 which my VARO Buffalo- does not seem to understand. Yesterday I realised they owe me far more than I thought. I am sending a 4138 with my calculations to them as well as to their Finance office. Oddly enough (I am telling all this because it might help someone else as to OGC Pres Op 08-97) *** the Nehmer decision contains a 3 page evidence list, that confirms the DIC error and also the fact that OGC had to order them to pay me for something else-for which my letters were ignored. Did you send them proof originally that you have a dependent? ** *VA OGC Pres Op OGC 08-97 provides that VA must pay ALL "as if SC" 1151 compensation in additional to ALL SC comp. The problem is that I am the only claimant as a survivor that I know of ,who has awards (posthumously) for my husband's 100% P & T for PTSD and also 100% "as if" SC P & T for a stroke that VA caused. And a Direct SC DMII (AO) death award in addition to a 1151 DIC wrongful death award. I should put that info in the DIC forum.I dnt thik tyhey are eve allowed to "combine" 1151 with SC comp but they do sometimes.
  5. These posts are a little out of order- for the new member- VA is still paying Temp comp 100% for PTSD InHouse: " VA may grant a temporary 100% disability compensation rating to a Veteran who is hospitalized for more than 21 days for a service-connected disability. Learn more about Hospitalization" https://www.benefits.va.gov/compensation/claims-special-index.asp I am not sure what you mean by "residential " labeling.
  6. PLEASE POST this stuff in the main Forum.

    That is where the answers are- 

  7. oppps I didnt mean covert- I meant cover letter---to the Sec. actual covert is a good description of the VA's Deep State.
  8. Yes they are, but I think it is deliberate. I just mailed a CUE claim and put right at the top of it that I am sending it to the Secretary as well, with a covert letter. I have put this claim off because ,although I won my past issues- this one was denied (like all the others were at first)and it really stressed me out and I did not want to deal with them anymore. I feel 100% better that I got it in the mail today and added a history of my issues and they all reveal major incompetence.I dropped a dime on the VARO Director as well- I went against my own advice here- to correct errors in anything they say or state IMMEDIATELY. But I sure feel much better now that the CUE is filed . I think you should file an IRIS complaint ASAP- Go to www.va.gov, the main page, click on the Contact Us thing in the upper right and then click on Ask a question, this will cyou to IRIS-you will have to fill out some fields n the site but file this as a Complaint- (there is a complaint drop down box) and it will go directly to VA Central, and to your RO. Tell them what you told us here. It might take a week or two to hear back- ask for an email reply- so they cant make something up on the phone. Not at all. The VA is snafued and fubared up the ying yangs, but luckily most claimants are not victimized by incompetence or maybe they don't even know yet that VA made errors in their claims, to their detriment. There are only 3 VA entities in my opinion, who know VA case law and can read: The BVA , the CAVC ,and also the OGC. The very fact that so many claims get awarded at the BVA level and/or are remanded to receive a RO award that should have occurred in the first place, is proof that some employees at the ROs are illiterate, or have little knowledge of basic VA case law and regulations. This crap does not happen in a vacuum. Twice the VA tried to get me to believe a regulation that does not even exist. And the history of my issues I added to my CUE, reveal deliberate attempts to withhold my evidence, not only from a Posthumous C & P examiner, (1151 claim, but also from the General Counsel itself.(FTCA issue) I am angry whenever I see the VA pulling that sort of crap. Dont let this go- I almost forgot- put the alphanumeric they use near the date after the Re: in your IRIS complaint that appears in this letter: ". The VA wanted me and my oncologist to explain the exposure to the "dioxin". The alphanumeric holds the initials of the last VA idiot who handled your claim and sent that letter.
  9. This is great news and DFAS audit is worth waiting for......!!! I assume for CRDP.....
  10. Also check out the Camp LeJuene regulations: http://www.tampabay.com/news/military/veterans/us-agrees-to-pay-billions-to-marines-affected-by-toxic-water-at-camp/2309435 Toddt is correct. I saw many Kidney (renal) cancer claims denied at the BVA but this is a winner: "ORDER The appeal as to the claim for service connection for a spinal cord disorder other than peripheral neuropathy is dismissed. As new and material evidence to reopen the claim for service connection for right renal cell carcinoma has been received, the appeal as to this matter is granted. Service connection for renal cell carcinoma, status post right nephrectomy, is granted. Service connection for adenocarcinoma of the colon is granted. Service connection for depression, as secondary to service-connected disabilities, is granted." https://www.va.gov/vetapp17/files5/1729711.txt The veteran had a superb IMO/IME. The full IMO/IME criteria is here at hadit i our IMO forum.
  11. Berta

    Who decides amounts of DIC?

    I mentioned I have another CUE claim- I have a lot to copy because I am sending it all to the new Secretary as well as to the Intake center. That way if Buffalo ignores my legal evidence, it will bolster my complaint to the Secretary...... I realised after preparing a brief history of my claims experience, that Buffalo VARO made errors on every single claim I have had. Almost all were violations of 38 CFR 4.6. I dont know if I am an isolated victim of their incompetence, but survivors have to make sure the VA considers ALL probative evidence they have sent to them. VA said when I was on ebenefits years ago that I had 53 issues with them. But I think they got that total frm ny H VAC testimony during Shreddergate.I sent the committee copies of53 tracking slips of evidence the VA ignored or shredded. Make sure you keep copies of everything you send to them and get a USPS receiipt for any snail mail you send. My VCAA 5103 rights were violated again, and that led to an additional CUE.( 2 in one) I will explain that in the CUE forum when I get time. DTA canot be CUE basis. The results of a DTA error (5103) can be.
  12. Berta

    Who decides amounts of DIC?

    Thanks Buck - yes all veterans in their lifetime should take heed. I get stuff like this all the time: "UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE Jeanice Farley, individually and on behalf of Michael Farley, an incompetent adult , v. United States of America . Civil No. 13-cv-261-LM Opinion No. 2015 DNH 064 In part: “Unfortunately, Mr. Farley’s doctors at the Manchester VA did not adhere to this standard of care. They failed to provide him with an adequate diagnostic evaluation, and as a result, they carelessly prescribed him the wrong medication. In the words of one of the expert witnesses, Mr. Farley was “medically abandoned” by his doctors. “ “Conclusion The clerk of the court is instructed to enter judgment against the United States in favor of Mrs. Farley, on behalf of Mr. Farley, in the amount of $21,468,710.62, and in favor of Mrs. Farley, individually, in the amount of $100,000.00. The judgment shall be paid in a lump sum. The portion of the lumpsum payment to Mr. Farley that is devoted to Mr. Farley’s medical care ($13,368,710.62) shall be placed into a trust for the benefit of Mr. Farley. The parties are ordered to meet and confer, and to file, on or before April 22, 2015, a proposed order setting up the terms of such a trust. “ https://3mc77e18jo7n1uk8m71my8ml-wpengine.netdna-ssl.com/wp-content/uploads/2015/04/STROKE-Decision-Memorandum-and-Order1.pdf
  13. Berta

    Who decides amounts of DIC?

    Also to add- it pays to understand the meds VA precribed and to make sure they are not contra-indicated by another medication. That was one way in which the VA killed my husband. I found that he did not even have the disability one med was prescribed for , and it contraindicated ( meaning it worked against) his HBP med, which was also wrong dosage. I think if the Choice program ever really works, and any vet can get outside care, there will be more 1151/ FTCA claims filed.
  14. Berta

    Who decides amounts of DIC?

    https://benefits.va.gov/compensation/types-dependency_and_indemnity.asp There are other ways for a surviving spouse to attain DIC, in addition to the ten year continuous 100% SC P & T award. I suggest all veterans get their spouse up to speed on DIC and make sure they have your hadit password and can use a PC. Although the link from VA is good, it does not include 1151 DIC. If I had not purchased the VBM from NVLSP annually from 1991, I would have never known about FTCA and 1151.Those were pre- internet days with limited info on these claims. If the VA causes the death if any veteran due to wrong meds, inappropriate treatment, failure to diagnose etc,etc, etc...the survivor can file for DIC under Section 1151 and also file a FTCA case at the same time. However 1151 claims and FTCA cases are two separate issues-explained in detail in our FTCA/1151 forums here. They require documented proof of VA malpractice and documented proof that the VA malpractice caused the veteran's death. I found all of the documentation of VA malpractice in my dead husband's medical records and autopsy. It started with a incorrect diagnosis and improper medication, while he was a VA employee, and ended up with his death caused by “multiple deviations” from a “usual standard of care” as the rhetoric in my 1151 DIC award stated- The FTCA findings were worse.
  15. Berta

    VACO shake up

    https://www.disabledveterans.org/2018/08/14/getting-fired-va-secretary-wilkie-demotes-orourke-revokes-years-of-agency-delegations-impacting-terminations/ Yippee!
  16. Berta

    VACO shake up

    The VA has it's own little deep state- I have finally prepared my last (hopefully last) CUE for the VA. I am still reeling over 2 phone calls I got from their Director in 2015. I decided to drop a dime on her in the CUE claim.That is I prepared the exact legal errors they made, but once again my VCAA rights were denied, as well, and I had to explain that as that led to the CUE. She called me to "explain" the denial of 1151 accrued, saying me my husband's 1151 Stroke was total but not permanent when he died. That defies his autopsy, death certificate, and all the evidence of permanancy I supplied with my 5103 waiver- not to mention why I won my FTCA case for wrongful death. I asked her what miraculous cure he got because the Medical Examiner found multiple brain infarctions in addition to the 1151 disabling stroke.But her only response was that the claim was OVER. I am angry at myself for not pursuing this matter sooner.I thought by now she would be gone- Twice the RC and OGC ordered them to pay me over the years , and I think she is still poed at that. My evidence of legal error is OGC Pres Op 08-97, 38 CFR 2.6 (e)(8) AND 38 cfr 14.507 (B)-delicious legalize... In 1997 (when I was in the Gardner Moratorium) Ron Abrams (NVLSP)made a odd comment to me about 1151 and direct SC, we were talking about AO, but he knew I was waiting for the moratorium to lift. That comment has haunted me from time to time-now I know what he meant -OGC Pres Op 08-97. It is quite clear that VA still owes me cash. His comment was if I succeeded 1151 and then subsequently with direct SC death, the VA would have to pay all compensation due to veteran or to me as accrued. that “ the language and legislative history of 38 USC 351 make clear that Congress intended that all veterans monetary benefits payable for service connected disability or death be payable for qualifying disability or death resulting from,among other things, medical examination or treatment in the same manner as though the disability or death had been a result of military service.” (reference to OGC Pres Op #80-90 as withi OGC Pres Op 08-97.) 351 became 1151 yet did not alter that opinion.) No one has ever challenged this type of situation before. I have searched for years to see how VA would handle a 100% P & T SC disabilty and a 1151 100% P & T independent disability. And a death that is SC death as well as 1151 FTCA death, as i my husband's case.
  17. "I requested Military Disability Retirement for undiagnosed PTSD to BCNR." Can you clarify ?
  18. https://www.va.gov/opa/pressrel/pressrelease.cfm?id=5093 The new VA SRD for skin disability is found in the link within this press release.
  19. Berta

    Claimed Denied

    It is possible you are reluctant to reveal a valid stressor. I worked at a vet center in the 1980s and found this was prevalent in some of the combat veterans. But non combatants certainly can experience stressors- Can you scan and attach here the C & P exam for the MH issue? Cover C file # , name prior to scanning it. I do not consider fear of deployment as a stressor. I bet many, if not most men and women who served or are serving now-would have that same concern. However this veteran succeed at the BVA, due in part to fear of deployment: https://www.va.gov/vetapp17/files2/1710389.txt "ORDER: Service connection for PTSD is denied. Service connection for chronic adjustment disorder with depressed and anxious features is granted. tment disorder with depressed and anxious features is granted.
  20. "So my question is: if it is in my military medical records as an issue that I sought treatment for or as a peripheral "current issue" listed, does this give the VA sufficient evidence for service connection? These are current medical issues for me as well, ones that I am being treated for in the civilian sector, and I have provided those records to VA via eBenefits." You do have the inservice "nexus" , the cause of these disabilities- but VA will need the private records to determine continuous treatment and current disability and give you a C & P exam and will determine the residuals of the right knee after your discharge.Hopefully they will SC the left knee and hip. Also it is possible that any knee, hip condition can cause disability in both knees and hips. You said something SO IMPORTANT I need to repeat it: "It is unfortunate, since all of this compensation won't be effective till my intent to file date." Correct "However, I have learned a few things and am telling my fellow vets to go through their records with a fine tooth comb, consider ALL issues when doing their VA medical exam after retirement, and document, document, document. " INDEED! You are so right!
  21. Great advice Broncovet! I dont think the doctor's entries would trigger a C & P exam but one never knows what the VA could pull.
  22. Berta

    Retroactive Back Pay.

    "When studying the appeal of the FTCA claim, I discovered "Petition to Appeal" Provisions to bypass the BVA and CAVC in the Federal Appeals Court Rules. " A FTCA claim has nothing to do with the ROs, BVA, or CAVC. If a Section 1151 claim was also filed for the same negigence/malpractice basis, the a successful FTCA settlement would garner a 1151 award- which is subject to offset due to the settlement with USA. A Section 1151 claim has all appellate rights, same as any other claim. https://www.law.cornell.edu/cfr/text/32/536.89 A FTCA claim, against the VA, if denied, can sometimes be reconsidered,if that request is timely ad with more evidence. If the tort claim remains denied , the recourse is to file in the appropriate Federal District Court, and the filings must be within the Court Rules ( every District court has rules ,that might be on their web site.) The difference is this- A FTCA claim is filed against USA . A VA Section 1151 is filed against the VA. My FTCA settlement states the VA OGC signed it but the settlement I agreed to was with the USA. My 1151 claim was filed with and awarded by the RO I got involved about 2 months with a malpractice law firm regarding malpractice at Fayetteville, Ar. I posted a comment to a news story on one of their clients who got a VA letter saying he might have been malpracticed on. The story is being hushed up by the Deep State VA- so far 7 misdiagnosed vets and 3 potential veteran's deaths were all caused by the same VA doctor. one of the malpractice lawyers called me up when he read my comment and we talked for almost an hour.They have a great malpractice record but had not seen anything like this Fayetteville situation before. There were a few things they had to consider ( since then our former Radio show tech's surviving spouse also got in touch with them)and I rattled off my three concerns. The lawyer thought I was a lawyer-I am only a pro se lawyer-a successful pro se lawyer-and one of my concerns was would this possibly go Class Action. He said the firm had just discussed that, the same day before he called me. Class Action cases are Very difficult to certify. But out of over 20,000 vet medical records , they found 7 midiagosed vets in the first 900 stacks they looked at-it is as likely as not- this sane doctor messed up more vets as well. They can establish a class with the names of and medical records of all malpractised veterans.It involves the premise of commonality-such as the Class Action Nehmer cases. But they needed the doctor's name- VA would not release it under Hippa. I found out who it was an emailed them the name. Class Action involves commonality: In this case, all affected would be 1.veterans or surviving spouses of veterans, 2. all would have had their pathology reports prepared by the same VA doctor. 3.all would have been found to have been misdiagnosed or dead on the basis of the pathology reports. The problem with "all' is, the town hall meeting the director had when over 20,000 vets had gotten letters to the affect they might have been misdiagnosed, is that the place was full of malpractice lawyers and no one knows yet how many SF 95s have already been filed-or if the lawyers have all considered Class Action. And VA has not publicly stated ( the medical review will take months more) how many ,in total , will be "all" Nehmer # 1 is a good example of a class action case.
  23. I could not find hearing loss rated at 80%. It seems you have a 100%% P & T designation. I wouldn't take the test , if you don;t have to. Question- do you get SSDI for the hearing loss? "My first CP resulted in 0%--- when was that and did you appeal to get the second C & P exam. and the 80%? My 2nd test resulted in 80%" They might have committed a CUE in the first decision.
  24. I agree and make sure they used your military service to credit your SSA account. This link and many at the SSA/SSDI site might help: https://www.ssa.gov/planners/disability/qualify.html I am sure you can appeal the denial. Your VA EED might help. "Social security said since I haven't worked"- did they say that by phone or in person? Or did they state that in a denial letter with appeal rights?
  25. Equitable Relief is different - I might have to use this regulation under Part (a) and (b), if the RO does not apply a specific General Counsel Pres Op to my next claim. Two or three times already the VA OGC has had to order my RO to pay me, so I didnt need to use this regulation. This time I am sending copies of my claim to the Secretary.These regulations s dont come up much here at all. My situation is very unique. (a) If the Secretary determines that benefits administered by the Department have not been provided by reason of administrative error on the part of the Federal Government or any of its employees, the Secretary may provide such relief on account of such error as the Secretary determines equitable, including the payment of moneys to any person whom the Secretary determines is equitably entitled to such moneys. (b) If the Secretary determines that a veteran, surviving spouse, child of a veteran, or other person has suffered loss as a consequence of reliance upon a determination by the Department of eligibility or entitlement to benefits, without knowledge that it was erroneously made, the Secretary may provide such relief on account of such error as the Secretary determines is equitable, including the payment of moneys to any person whom the Secretary determines is equitably entitled to such moneys. (c) Not later than April 1 of each year, the Secretary shall submit to Congress a report containing a statement as to the disposition of each case recommended to the Secretary for equitable relief under this section during the preceding calendar year. No report shall be required under this subsection after December 31, 2018. (Added Pub. L. 102–83, § 2(a), Aug. 6, 1991, 105 Stat. 386; amended Pub. L. 106–419, title IV, § 403(c)(1), Nov. 1, 2000, 114 Stat. 1864; Pub. L. 109–233, title IV, § 403, June 15, 2006, 120 Stat. 411; Pub. L. 111–275, title VIII, § 808, Oct. 13, 2010, 124 Stat. 2893; Pub. L. 113–175, title IV, § 403, Sept. 26, 2014, 128 Stat. 1905; Pub. L. 114–58, title IV, § 404, Sept. 30, 2015, 129 Stat. 535; Pub. L. 114–228, title IV, § 404, Sept. 29, 2016, 130 Stat. 940; Pub. L. 115–62, title IV, § 404, Sept. 29, 2017, 131 Stat. 1164.) https://www.law.cornell.edu/uscode/text/38/503

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