diabetes Famous Va Brown Envelope

[Chuck75]

Well, it's quite obvious that the VA Atlanta RO is in the denial mode at year's end.

The famous brown envelope received this week denied multiple issues.

It is blatantly obvious that denial was the predetermined result.

Favorable evidence was not referenced. Oddly enough, a recently received letter from the VA only referenced part of the denied items as being under consideration.

The Denials are in direct conflict with current medical thinking, practice, medical references, VA documents, and even a medical opinion from a treating VA doctor, which was not mentioned. Also, medical opinions from two non VA treating doctors were not mentioned.

The denials are even at odds with language contained in the VA's primary care treatment guide. The key statement in the guide is that Diabetes II exists on the average for ten years before diagnosis is made.

If that isn't enough, I requested a copy of my C file almost a year ago, last February, under a procedural clause in the VA's regs and language used in replies to veterans. The VA has yet to supply a copy or make an appointment with me to review the file. It is my opinion that this is a violation of not only written procedures, it is a denial of due process. As a result, any unfavorable decision by the VA might/should be considered defective.

(So much for "duty to Assist"!)

Looks like lawyer time to me!

At heart is a claim that is actually over 100% SC (and retroactive for a few years) by the VA's own rules, and also can involve TDIU, as SSA has already ruled on two of the issues, resulting in SSDI payments, including about 20K in retro payments.

Constructive Comments Please!

[john999]

The VA is obligated to review and evaluate all evidence that is relevant in its decision. If they do not list, mention, or cite important evidence you submit how can you determine if they reviewed it or not? For instance, if you send in two IMO's and the VA neither lists or comments on the IMO's, and denies your claim this seems to circumvent due process. If then are not required to list evidence they could ingore any and all evidence you submit, and you are left in an impossible situation. This simply does not make sense. This is the situation me and my lawyer are in where a medical opinion stronly in my favor is not listed or mentioned in a decision. We say it is CUE because it is impossible to determine if they reviewed it or not, and it would have altered the outcome of the decision if reviewed.

[yoggie2]

Chuck, it almost sounded like you were reading from my brown envelope. I go to the DRO Hearing in a week or better, there is know way I'd let them rate this again with out me there to hold there hand. Buddy they got me good the first time and they knew it'd be at least a year before they'd see this claim again, but for now I'll get that X-Mas bonus. I to had multiple items and was denied SC for all and an increase for 1, I was crushed. Put plainly they read a page or two and cut and pasted a denial...

Edited January 1, 2009 by yoggie2

[LarryJ]

That sounds like the way they did me concerning my SSDI that I kept sending in to them. I was receiving SSDI for the exact same thing that I had applied for disability.

Anyway, I listed my SSDI award on "the things that VA should get for you" section. And, just to make sure that they received it, I sent them a copy. I received a denial, no listing of SSDI evidence. So, I appealed the denial, etc., BVA, AMC, all the time I'm sending them copies of this SSDI. I wound up sending them Four Copies and they STILL weren't listing it as evidence that they had reviewed (of course, if they HAD listed the SSDI award letter then they would have had to have explained their lack of consideration of the SSDI and all the supporting medical evidence in support thereof).

So, the easy way to deny you your claim is to simply LIE about what they had before them as evidence.

The last time I sent a copy of my SSDI in to them, I had my U.S. Representative's VA Laison Person FAX it to them. Bingo, it shows up as evidence on my 100%'er.

It's hard as hell for them to deny having evidence when a Congressman has FAX'ed it to THEM! Sure cuts down on the VA's wiggle room, don't it?

The little gal that is the VA laison person for my Congressman told me to simply FAX ANYthing that I wanted to make sure the VA received, to her and she would simply FAX it on to the VARO, with the cover sheet from the Congressman's office.

It works.

I'm proof thereof.

[Teac]

The VA is obligated to review and evaluate all evidence that is relevant in its decision. If they do not list, mention, or cite important evidence you submit how can you determine if they reviewed it or not? For instance, if you send in two IMO's and the VA neither lists or comments on the IMO's, and denies your claim this seems to circumvent due process. If then are not required to list evidence they could ingore any and all evidence you submit, and you are left in an impossible situation. This simply does not make sense. This is the situation me and my lawyer are in where a medical opinion stronly in my favor is not listed or mentioned in a decision. We say it is CUE because it is impossible to determine if they reviewed it or not, and it would have altered the outcome of the decision if reviewed.

Ok John just for the sake of discussion....

First I agree the va is required by law to review all of the evidence that is provided and is relevant to a claim.

I was recently award service connection for Sinusitis. It was in the system for over 5 years. I had been denied on the initial claim and de novo review. I moved and the claim never made it to the BVA instead the regional office held on to it. In the meantime I obtained three IMO concerning the fact that the sinusitis was diagnosed and treated on active duty. ( This of course after the doctors reviewed my active duty medical file. ) The three doctors were government employees . On was a civillian allergest working at Fort Hood, another was a civillian work at Augusta VA, and the final one was an active duty LTC working at Fort Gordon.

When I finally received service connection for the sinusitis the letter stated I received the benefit of the doubt because of the IMO submitted from the doctor working at the va hospital in Augusta.

The letter did not make any mention of the other two IMO's which said about the same as the letter from the va doctor. Now I have no way of knowing if these other two IMO were ever considered, do I appeal because they were not listed on the rating decision. I don't think so.

Your arguement is that because a specific piece of medical evidence was not listed there are grounds for an appeal. Your arguement does not consider that perhaps the rater decided the denial based on other facts in which the IMO's may not have played a part. You also say that if the va isn't required to list all the evidence considered that there is no due process. I disagree. Again there may be other factors that rendered something moot. If this is the case why waste time and effort listing evidence that is not going to make a difference in a decision. If this is the case where is the CUE.

I know by not listing all the evidence reviewed that it makes it hard for the veteran, but I just don't think the va is required to list all the evidence unless it actually pertains to the approval or denial of the claim.

Anyway this is my opinion, I have not done any research to prove or disprove tihis.

[Chuck75]

Unless the VA managed to loose the SSA records and who knows what else, the SSA determination (SSDI) is in my C file, as should other medical records that were not mentioned. The whole denial is obviously a case of "cut and paste" as you experienced.

The same reason for denial was cited in denial of several issues, and is not even pertinent.

The "aggravation" aspect was not even addressed.

At least I now have a year to get things together, find a lawyer, obtain more IMO's and go into the fray.

The compensation amount at issue (if retro is cranked in) can easily get into the six figure area.

That sounds like the way they did me concerning my SSDI that I kept sending in to them. I was receiving SSDI for the exact same thing that I had applied for disability.

Anyway, I listed my SSDI award on "the things that VA should get for you" section. And, just to make sure that they received it, I sent them a copy. I received a denial, no listing of SSDI evidence. So, I appealed the denial, etc., BVA, AMC, all the time I'm sending them copies of this SSDI. I wound up sending them Four Copies and they STILL weren't listing it as evidence that they had reviewed (of course, if they HAD listed the SSDI award letter then they would have had to have explained their lack of consideration of the SSDI and all the supporting medical evidence in support thereof).

So, the easy way to deny you your claim is to simply LIE about what they had before them as evidence.

The last time I sent a copy of my SSDI in to them, I had my U.S. Representative's VA Laison Person FAX it to them. Bingo, it shows up as evidence on my 100%'er.

It's hard as hell for them to deny having evidence when a Congressman has FAX'ed it to THEM! Sure cuts down on the VA's wiggle room, don't it?

The little gal that is the VA laison person for my Congressman told me to simply FAX ANYthing that I wanted to make sure the VA received, to her and she would simply FAX it on to the VARO, with the cover sheet from the Congressman's office.

It works.

I'm proof thereof.

[rentalguy1]

From M21-1MR, Part III, Subpart iv, Chapter 6, Section C: 10 Evidence:

In Evidence, clearly and concisely inventory all evidence considered in arriving at the decision. Include the following information:

 applicable dates, such as dates covered by service medical records (SMRs), identifying at least the month and year

 treatment reports

 hospitalizations

 information sources, such as the names of

 Department of Veterans Affairs (VA) and private medical facilities

 private physicians, and

 other information sources, and

 a list of items of evidence requested but not received.

Notes:

 Further reference to evidence not received is not required in the analysis.

 Written or oral testimony is considered evidence.

Then from 38 CFR 4.1:

...It is thus essential, both in the examination and in the evaluation of disability, that each disability be viewed in relation to its history.

what this means is that the evidence MUST be viewed in its entirety, and every piece of evidence MUST be listed on the decision letter. It is the same for the SOC, by the way. If a vet sends in evidence in relation to a claim, and it is not listed in the evidence considered section, then it should be viewed as that evidence was ignored. That rises to the level of a CUE, because a regulation (4.1) was ignored, and the evidence would have had a direct impact of the outcome of the claim.