Opinions Needed To

[Berta]

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?

[Berta]

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.

[Arch]

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

[Berta]

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.

[free_spirit_etc]

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

[Berta]

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.

[Josephine]

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