What Next

[Scott D]

I kind of got myself into a little jam. I need advice on what to do next.

I had a decision in 2005 where I was rated 0% for migraines. Information that the decision was based on was incorrect. The QTC group reporting the C&P stated incorrectly 3-4 per year instead on 3-4 per month. After an appeal the rating was increased to 10%, which I believe to be in error, an additional appeal was made that requested the whole slew of symptoms to be considered prostrating in nature and thus be rated 30%. An IMO stated that the attacks are prostrating in nature.

The decision came back denied in early 2007. I then filed a form 9 looking to take this to the BVA. After waiting awhile for information I called my VSO who stated if I had not heard anything, the process was still in the works. He confirmed this on multiple occasions.

Today I called the VA looking for a status and they state a form 9 was never filed, and the decision is now closed. I have passed the deadline for appeals.

What can be done?

I hope my information makes sense. I still do not have a complete grasp of the terms and conditions that go along with the VA appeals process.

Edited January 12, 2009 by Scott D

[Berta]

I agree with the advise here but I strongly suggest using the "October Incident" as J Basser stated.

As VA Watchdog says- (they broke shreddergate story) even if the date of your I-9 doesnt fall within the dates they used in their VA Fast letter- still raise this issue with them and tell them what the Rep said.

I also feel that you should re-open and even file the CUE claim too-which could produce the proper EED for the retro-

their legal error-from what I see here is-

(assuming they used all pertinent evidence)is probably their failure to give you the proper diagnostic code- and

certainly they failed to apply the correct rating schedule.

Of course if they find the I-9 or allow you to re-submit it- that would make filing a CUE claim moot then-I think?

[Jim 501st]

I had the same thing happen to me. I made an appointment with my rep. who's office is in the Huntington RO building. He had my C-FILE on his desk when I arrived. You guessed it. the computer said I had not filed a form 9. The c-file said other wise. So I recovered my eed of two years on meniere's. As Pete said on another post you can make an appointment to see a counselor at the RO and it may be in your c-file. If so it can be corrected quickly.

[tssnave]

Here's a hypothetical question for this thread that may or may not apply in this situaiton -

When I was working my claim I sent everything to the DAV who put a cover letter on it and sent it to the VA. It wasn't until well in the process that I knew I could ask for a copy of what they sent to the VA. Some of the vet reps I used were happy to send me a copy and others acted like I was asking for something I didn't need.

What if a vet sends evidence (or in this case the I-9) to his vet rep with the understanding that they will get it to VA but the vet rep fails to do so?

What recourse does the veteran have with the VA in this case where it is the fault of his vet rep organization that failed to deliver the evidence and not the veteran himself?

Do the vet reps have any true accountability? Does the VA suspend deadlines if the vet acted in good faith and it was the vet rep who failed to deliver the evidence to the VA or is the vet hung out on a limb?

Thanks,

TS Snave

[jbasser]

TS, Berta can give you some interesting insight on the accountability of a Veterans Service officer.

They are accountable if they have accepted your POA.

You can sue them.

J

[tssnave]

J - Thanks! - TS

[Berta]

About a year ago I posted a story here that was at VA Watchdog-

A vet rep had failed to send the VA something critical to a vet's claim.

It cost the veteran thousands in retroactive benefits.

The vet sued the rep and recovered his losses.

If a vet rep errs in such a way that a veteran has lost compensation due to their error- they can be sued.

The bad part is that the monetary damages have to be proven as due and payable to the veteran.

I didnt sue my former reps because I believe that my claim will succeed on the evidence in spite of their errors.

I dropped pursuing a lawsuit I had against a DAV rep because I won those years years ago-during the suit process-

therefore I had no monetary damages.

A lawsuit of this type must be filed in a state court and there must be proof that compensation or any other VA benefit was lost solely to the rep's negligence.

The vet I mentioned above apparently received much less retro that he thought he would due to the rep's error.

His medical evidence showed he was eligible for more comp.

I think this involved a TDIU form that the rep failed to send to VA-the TDIU form (since the vet did get TDIU)probably had a much more favorable filing date then the decision had determined.

If a rep costs a vet compensation-it is compensation that they must have been fully eligible for-so that there is an actual amount of proven damages before filing a lawsuit.