Jump to content
Ads Keep HadIt.com Online. Consider Turning Off Ad Blockers to Keep HadIt.com Online! ×
  • 0

Opinions Needed To


Berta

Question

The VA just told me all of my main issues -AO death, and 2 SMC CUEs went to the DRO this AM.

I thought this was odd.

I sent in a DRO election form on the 2 CUE claims on Sept 17th,2007 reminding VA that the reconsideration request I had filed a year ago was still in process and the NOD had been filed in June.

It took over a year for me to get my 2005 DRO review o my AO death claim-and it was a sameo sameo so I asked them to CUE it and they gave me a DRO conference immediatly but with my POA -who screwed that all up-

I wonder why the DRO has all my claims again-?

I sent a letter on the recent VCAA letter I received but pointed out that it was sole one I ever got that complied with the VCAA-

and that this is why my claim was remanded so fast from the BVA last year.

I sent again (for about tenth time) my IMOs,with this letter to RO and also copied them to the back of the SMC DRO request form- even though they arent involved with those claims-

and I raised many regulations they broke for 4 1/2 years that I want finally applied to my claims.I pasted the exact citations from M21-1 and 38 CFR etc into the letter.

They got all this from me on Sept 12th 2007-

it was given to a "case worker" from adjudication that same day -and it all went to the DRO today.

Would this kick back to the initial DRO request I made in 2004 and maybe this time they will do it right?

Any thoughts?

Link to comment
Share on other sites

  • Answers 14
  • Created
  • Last Reply

Top Posters For This Question

14 answers to this question

Recommended Posts

forgot to add-

I told VA in my recent letter that I could -with the proper AO decisions based on my unrebutted preponderant medical evidence -that I could withdraw all of my other issues except for the SMC CUE claims- fully supported by legal evidence.

It makes no sense to me for them to be trying to re-open a claim that is the weakest claim (the one I got my sole legal VCAA letter on weeks ago) when the strongest claim has been pending for over 4 1/2 years and has the most medical evidence to award.and is on remand from the BVA.

The Rep at 800# said the DRO only had the AO death claim and the 2 CUEs.

Maybe someone there went to night school and learned how to read.

Link to comment
Share on other sites

Berta,

How do you feel about over-nighting a request for a face to face hearing with the DRO and following it up with an Iris request. My feelings are that if you don't get in there and present your evidence in a chronological order, then the DRO is going to rubber-stamp the prior decisions.

Also, they probably don't have all of the evidence you've sent so they haven't considered some of it at all. I have found it to be true that in much of the paperwork I have submitted and received back from VA, that it's a real pain in the azz for both the VA & the Claimant to keep up with the evidence that VA states has been submitted.

Between the Listings of:

1) The Evidence listed on the Original Rating Decision.

2) The NOD & additional evidence the claimant submits.

3) The Evidence listed in the SOC.

4) The Evidence listed from a DRO Hearing.

5) The Evidence listed in the SSOC.

Years transpire during all of the above.

I sure wish everytime VA sent the claimant an answer they would include a complete list of the All Evidence, that was considered in relation to the current Decision being made.

But hell no - that would be make sense!

Now also, when you take each claim into consideration as in the above - then start breaking that down into multiple issues such as:

1) Diagnostic Code XXX

a) percentage granted

b) effective date

2) Diagnostic Code XXX

a) percentage granted

b) effective date

3) Diagnostic Code XXX

a) percentage granted

b) effective date

Another thing I find very aggravating is when the claimant submitts Evidence for a certain Issue and VA doesn't even list that Evidence in the Decision that deals with that Issue BUT instead VA DOES LIST THAT EVIDENCE on a Decision concerning a completely Different Issue.

I feel this to be a MAJOR REASON for such a tremendous backlog with the VA system.

Once a rater looks at the Blue Sheet from the last Decision made -- that's it -- they just refuse to go any deeper into the claimant's file, therefor they never find the truth in the Evidence that is in fact, contained in the file.

Does anyone understand what I am saying here -- and do you find this relevant to the claims process ?

jmho,

carlie

Link to comment
Share on other sites

Berta,

You posted, "The Rep at 800# said the DRO only had the AO death claim and the 2 CUEs."

Have you gone thru your paperwork in chronological order to see exactly everything the DRO

should currently have for consideration ? All paperwork, NOD's, 21-4138's, IMO's, Evidence,

everything you had submitted (around the same time frame that the AO death claim and the

2 CUE's) that VA states is currently before the DRO, I fell should be - being considered with this DRO.

Hope this makes sense.

jmho,

carlie

Link to comment
Share on other sites

Thanks Carlie- I was told yesterday that the DRO has the AO claim and the 2 CUE claims- and the medical evidence-as of Oct 3rd.(these are my main issues) and that the DRO will deal directly with me- by email or phone.

I have the DRO job description on my PC and it clearly states what the DRO is supposed to do.It will not be the same DRO I had in 2005.

This happened in response to my September reply to them. I used the election form they sent me in late August regarding a old CUE I had denied at the BVA which the RO is trying to re-open.

I incorporated my main issues and evidence into my election response as it was the only one I had received from the RO since filing clams back to Jan 2003.

I was thrilled to get it although it was on the wrong claim but they have to deal with it.

This Sept response to the VA I made is what triggered my POA to drop me.

It reveals their incompetence.They are angry because I got a NYSDVA rep in July to actually read the letter I got in 2003 and he immediately said it was not a legal VCAA letter.

They have insisted for 4 years that it was.

You have to actually read it to see that it is not.

Also every effort they made to make me think the RO rejected my initial Nov 2004 IMO from Dr. Bash has been proven wrong by established VA case law and VA's own statements in the SSOC of 2005.The VA has never seen this IMO until 2 weeks ago.It went to an adjuducator and then to the DRO Wednesday .I have email from the RO that after numerous submissions it disappeared from my files.I made sure that I attached the August 2006 IMO again too.

I cited VA case laws in my response and asked that they be applied to my claim.

But this response to RO is what will finally get my claims resolved-I have no doubt of that.

Link to comment
Share on other sites

Berta,

You posted, "I was told yesterday that the DRO has the AO claim and the 2 CUE claims- and the medical evidence-as of Oct 3rd.(these are my main issues) and that the DRO will deal directly with me- by email or phone. "

I wish they'd put that in writing to you. I have the DRO job description also, question is, HOW DO YOU GET THE DRO TO DO THEIR JOB ?????

Their job description entails quite a bit and I sure haven't seen many cases where they follow it.

Berta, can you give me some feedback about what I posted to you about submitting evidence and if you see this as a problem also ?

carlie

Link to comment
Share on other sites

  • In Memoriam

Carlie,

I have had the VA look at evidence in one claim, and then use other evidence in a different claim. It seems like the DRO was admitting what they wanted or would accept for different claims.

After I went to the BVA; back to the AMC; then to DRO, the evidence was finally looked at. The BVA judge request complete SMC records (which would suggest they were reading partial records prior to BVA), and he requested other records which had not been allowed in the prior DRO review.

Also the BVA said that the claims were all interwoven with each other and should be viewed from that point of view. Then the VA resent the CVAA letter to me.

I am sure that it makes a difference in the claims process, if different evidence is not allowed.

Link to comment
Share on other sites

Carlie- all I can think of is what I do- I list the evidence for each specific claim-I list it again everytime I correspond with them- actually I have re-sent my evidence also many times-

In the 1990s I had problems getting them to use my evidence so I just kept rebutting everything they sent me with it until they used it.

In my recent VCAA response I copied and pasted these following regs and asked them to be applied to my claim:

(it is all basic VA 101 but I raised these issues so if they dont use these regs it is one more point I can rebutt with,:

"I will list the evidence I am again enclosing , to include the signed Election Notice,

And I cite the following established VA case laws and regulations and ask that they be properly applied to my claims:

§4.6 Evaluation of evidence.

The element of the weight to be accorded the character of the veteran’s service is but one factor entering into the considerations of the rating boards in arriving at determinations of the evaluation of disability. Every element in any way affecting the probative value to be assigned to the evidence in each individual claim must be thoroughly and conscientiously studied by each member of the rating board in the light of the established policies of the Department of Veterans Affairs to the end that decisions will be equitable and just as contemplated by the requirements of the law

“b. Review of Evidence. Concisely cite and evaluate all evidence that is relevant and necessary to the determination. Rating decisions must evaluate all the evidence, including oral testimony given under oath and certified statements submitted by claimants, and must clearly explain why that evidence is found to be persuasive or unpersuasive. Decisions must address all pertinent evidence and all of the claimant's contentions. “

Source: September 23, 2004 M21-1, Part VI

CHAPTER I--DEPARTMENT OF VETERANS AFFAIRS

PART 3_ADJUDICATION--Table of Contents

Subpart A_Pension, Compensation, and Dependency and Indemnity

Compensation

Sec. 3.159 Department of Veterans Affairs assistance in developing

claims. (XC 24 884 978 Page 4 of 5)

(a) Definitions. For purposes of this section, the following

definitions apply:

(1) Competent medical evidence means evidence provided by a person

who is qualified through education, training, or experience to offer

medical diagnoses, statements, or opinions. Competent medical evidence

may also mean statements conveying sound medical principles found in

medical treatises. It would also include statements contained in

authoritative writings such as medical and scientific articles and

research reports or analyses.

(2) Competent lay evidence means any evidence not requiring that the

proponent have specialized education, training, or experience. Lay

evidence is competent if it is provided by a person who has knowledge of

facts or circumstances and conveys matters that can be observed and

described by a lay person.

I remind VA that I proved the VA killed my husband without any background in medicine. My lay statements and the clinical record proved that the VA had committed malpractice and caused Rod’s death. I proved numerous VA doctors had been wrong in their assessment of the veteran’s disabilities and diagnoses.

I also cite Mariano V. Principi regarding the value of probative competent medical evidence thus:

“Additional development by the Veterans Benefits

Administration Appeals Management Center (VBA AMC) would only

serve to further delay resolution of the claim. Bernard,

supra. See also Mariano v. Principi, 17 Vet. App. 305, 312

(2003) cautioning against seeking additional medical opinion

where favorable evidence in the record is unrebutted.”

As defined in BVA decision http://www.va.gov/vetapp04/files/0404870.txt

The evidence in my C file of ALL past submissions since 2003 I have made - to include the IMOs from Dr. Craig C, Bash are preponderant and competent and unrebutted.

I also cite:

“The probative value of a medical opinion is generally based on the scope of the examination and review, as well as the relative merits of the expert’s qualifications and analytical findings.”

Guerrieri V. Brown, 4 Vet App 467 (1993)

(XC 24 884 978 Page 4 of 5 )

I also cite the VCAA to include provisions of Pelegrini and Dingess Hartman and again state that this is the sole legal VCAA letter and election notice I have ever received from the VARO Buffalo and yet am still unsure of what specific claim it is on as listed in the issues in MS. Kloc’s enclosed letter."

I think it is ridiculous when a vet or widow has to tell the VA what they should already know but this whole response got me more action on my claim than anything else did since my remand last year.

I use citations from VA case law for everything I send them.My CUE claims have numerous citations as to their legal errors on the older decisions I cued.

"HOW DO YOU GET THE DRO TO DO THEIR JOB"

by using the DRO regs

This is how I got the VA to CUE a sameo sameo DRO decision I got in 2005.

I emailed the VSM and asked the decision be cued and copied the specific DRO regs the DRO broke right into the email to VA.

I will do that again if I have to.It was fun.

Link to comment
Share on other sites

Berta,

There is a time when self help is no longer a viable option. I have noticed that these VARO's tend to lump things together and then make one single erroneous rating. I am in a similar situation although not as complex but in it's

formative stages. I am considering hiring a lawyer and going for the throat or other vital zones. These people are definatly not equipped as some of the board members here, I even quoted title 38 to one of the #800 number flunkies and they did not know it existed? And "they are supposed to help me" I think not.

NO 1, Go to the VARO and speak with a supervisory case worker, one who has some ability to understand the situation. If that does not clear up the VCAA situation then go to step 2.

NO. 2, Hire a competent lawyer, one who will listen to the case history and the results which the VARO has adjucated and its weight with respect to the USC to which it applies. Also ask the attorney that you be "made whole" for all the aggrivation and time lost and suffering due to thier errors.

(made whole is all back pay and losses including aggrivation, loss of sleep, worry and expenses, in terms of compensation and other losses in Dollars.)

Arch

Link to comment
Share on other sites

Arch-I am quite satisfied with what has happened with my claims since the VARO got my response to their VCAA election form.Sept 12th.

I am also very surprised at how quickly it all went to a DRO (OCt 3rd)-and not the one who handled this before.

There is no way at all that they can overlook my IMOs this time as they have the Election form response.

I am also glad that my POA (who did not know any status whatsoever of this all)revoked my POA the day before it went to the new DRO.

That means they cannot remove anything from my c file.

The RO after reviewing my c file in Dec 2006 told me via email the IMOs (sent back with my fast remand) again did not appear in my c file.

The VA has probably never seen them at all until they got my election form on Sept 12th and they were attached to it.

Men and women this bears out exactly what I griped to Cong Filner and many others at the VA-as the main cause of the backlog situation-

and 2 weeks ago a RO vet rep confirmed it-it is the elction notice response that triggers them to look at your evidence-

my case proves what he said.

The VA -if they fail to send a proper VCAA letter and do NOT receive your signed VCAA election form-(you cannot respond to it if they also fail to send that) will NOT pursue the evidence to resolve your claim and continually deny it.

If the VCAA letter you receive is faulty in any way -per the US CAVC-this is a prejudicial error and the claim- unless the vet has mitigated that error with significant medical evidence-will go to the BVA and then a year or more later will be remanded to the RO-

I proved immediately to the BVA in July 2006 that RO had committed prejudicial error to my detriment and they had to remand the claim-not after a year or more-they(BVA) did that right away.

My remand was done a year ago- and still at the RO so this goes to show how much time this takes for a proper resolve of any remand.

I assume the DRO now has to work directly with me as I have no POA.

If the DRO clearly follows their job description and the regs I put into my response- I have no doubt that I will get a proper decision.

OR- if the VA goes doctor shoppong in violation of Mariano which I also referenced in my VCAA response- I can easily obtain another IMO.

The VA has never rejected my medical evidence or IMos yet-

it is competent, preponderant and unrebutted and fully knocked down an IMO from a VA expert.

In the late 1990s I dealt with an MF- the mysterious force at VA who seemed to continually removed my probative evidence-

I just kept sending it back in to them and I won those claims.

These days I believe the MF -who I thought was employed by the VA-

was actually my POA.

Regardless-

This odd turn of events has given me the opportunity to finally get my claims resolved.

I will be contacting Congressman Filner on the amendment I proposed to the VCAA and will show him how- when I proved to VA my VCAA letter of 2003 was illegal- my POA -who insisted for 4 years that it WAS legal-dropped me immediately.

Link to comment
Share on other sites

Wouldn't that be great if your claim got approved right AFTER the POA withdrew from your case?

I have been fighting Bureaucrats and Buzzards on different issues - and amazingly if you can find someone who knows what they are doing actually read your stuff - it is a walk-in. Otherwise you spend months and years fighting their excuses.

And it seems in your case that your Vet Rep, instead of doing what he could to help you fight your case - had some type of an ego problem and just kept working against you.

Free

Link to comment
Share on other sites

Free-what really would be great is -if I get a good VARO decision soon-

or even if I get a denial because they get another VA doc to go against me- I am prepared to get another IMO-I did state to RO this would be- however- a violation of Mariano V Principi-if they do that.

I can deal with VA quackola-I cannot deal with having my IMOs from a real doctor ignored. This is against all established VA case law.

I could send a proper decision in to Congressman Filner- as it would support my discussion with him in August, my subsequent corresponce to him, and make it even more mandatory that the VCAA is amended.

It would also support my strong belief that vet orgs -when they see the vet got an illegal VCAA letter in the first place-

just let that slip by so the claim gets out of their hair for years.

My amendment would give reps the responsibility to question a illegal VCAA letter right away.

The Remand problems at the BVA are due to VCAA violations in most of the remands.

Link to comment
Share on other sites

  • HadIt.com Elder

if I get a denial because they get another VA doc to go against me- I am prepared to get another IMO-I did state to RO this would be- however- [b]a violation of Mariano V Principi[/b]-if they do that.


I can deal with VA quackola-I cannot deal with having my IMOs from a real doctor ignored. This is against all established VA case law.

Is this not what the VA R. O did to me? Remember I am not that knowledgable of the system.

Perhaps years ago, much younger, this would not all be so Greek to me.

Josephine

Link to comment
Share on other sites

Josephine- I believe that you posted the results of that C & P here long ago and that the C & P doc did make the more than likely statement but had offered no rationale for a linkage as to your inservice nexus.

I have seen that before and worked for a long time with a vet who had a more than likely from a VA shrink but could not support his nexus nor any of the stressors he had told the VA doctor about.

I thought this was why the VA did not accept this C & P- it said the key words but still -it did not support the nexus.

I felt the BVA had stated exactly what they would consider a Nexus and asked for evidence of that in the remand.

I think it involved witnessing death of another servicewoman-in the remand.Something like that is definitely a bonafide event that could cause anxiety and even PTSD -wether combat or not.

If the VA has received evidence of any inservice event that would cause anxiety

such as proof of that situation- then the initial favorable C & P would sure have a lot of weight.

Link to comment
Share on other sites

  • HadIt.com Elder

Berta,

No the first C&P with the More Likely than Not gave a complete rationale for his decision.

The first C&P was ignored and 5 months later a new one was ordered.

It is the two psychiatrist that refuse to give a rationale, even though the AMC has sent it back to them again and they will not concur with the remand. They are not in agreement and will not reconcile their differences.

I have an IME from a Board Certifed Psychiatrist that stated that the fear of death in the swimming pool may have caused PTSD. This would be 3 months after that farce of a C&P.

I never turned it in to the VA, because I was not about to open a claim for PTSD.

Thank,

Josephine

Link to comment
Share on other sites

Guest
This topic is now closed to further replies.


  • veterans-crisis-line.jpg
    The Veterans Crisis Line can help even if you’re not enrolled in VA benefits or health care.

    CHAT NOW

  • question-001.jpeg

    Have Questions? Get Answers.

    Tips on posting on the forums.

    1. Post a clear title like ‘Need help preparing PTSD claim’ or “VA med center won’t schedule my surgery instead of ‘I have a question.
       
    2. Knowledgeable people who don’t have time to read all posts may skip yours if your need isn’t clear in the title.
      I don’t read all posts every login and will gravitate towards those I have more info on.
       
    3. Use paragraphs instead of one massive, rambling introduction or story.
       
      Again – You want to make it easy for others to help. If your question is buried in a monster paragraph, there are fewer who will investigate to dig it out.
     
    Leading too:

    exclamation-point.pngPost straightforward questions and then post background information.
     
    Examples:
     
    • Question A. I was previously denied for apnea – Should I refile a claim?
      • Adding Background information in your post will help members understand what information you are looking for so they can assist you in finding it.
    Rephrase the question: I was diagnosed with apnea in service and received a CPAP machine, but the claim was denied in 2008. Should I refile?
     
    • Question B. I may have PTSD- how can I be sure?
      • See how the details below give us a better understanding of what you’re claiming.
    Rephrase the question: I was involved in a traumatic incident on base in 1974 and have had nightmares ever since, but I did not go to mental health while enlisted. How can I get help?
     
    This gives members a starting point to ask clarifying questions like “Can you post the Reasons for Denial of your claim?”
     
    Note:
     
    • Your first posts on the board may be delayed before they appear as they are reviewed. This process does not take long.
    • Your first posts on the board may be delayed before they appear as they are reviewed. The review requirement will usually be removed by the 6th post. However, we reserve the right to keep anyone on moderator preview.
    • This process allows us to remove spam and other junk posts before hitting the board. We want to keep the focus on VA Claims, and this helps us do that.
  • Most Common VA Disabilities Claimed for Compensation:   

    tinnitus-005.pngptsd-005.pnglumbosacral-005.pngscars-005.pnglimitation-flexion-knee-005.pngdiabetes-005.pnglimitation-motion-ankle-005.pngparalysis-005.pngdegenerative-arthitis-spine-005.pngtbi-traumatic-brain-injury-005.png

  • VA Watchdog

  • Can a 100 percent Disabled Veteran Work and Earn an Income?

    employment 2.jpeg

    You’ve just been rated 100% disabled by the Veterans Affairs. After the excitement of finally having the rating you deserve wears off, you start asking questions. One of the first questions that you might ask is this: It’s a legitimate question – rare is the Veteran that finds themselves sitting on the couch eating bon-bons … Continue reading

×
×
  • Create New...

Important Information

{terms] and Guidelines