Help With Strange Claim

[sailgirlwillis]

Hello and welcome to my mess. Facts first...Filed claim in 1976..with in the one year of discharge..Called and called...they were working on it....fast foward to Dec 1995..Went to see local vet rep...wanted to use dr and hospital....She talked me into filing another claim...I told her these people are slowww....Then I found my orginal claim in my education file...had never been adjudicated...just stamped received..In April 1996 I under went a radical double masetomy..I wrote a letter to the Va stating I was totally disabled and needed assistance now. My original case was adjudicated in Jan 1999 and I was awarded 100% service connected....I was paid back to 1975...But from April 1996 to June 1998 I only received 30%...My question is did the letter(informal claim) wrote in April 1996 stating I was totally disabled and need assistance now ....did the va have to provide me with a new claim form or does the 1976 claim stand up for this...My case was based on clear and unmistakable error...I have asked the va to revisit the case...What I have read is the informal claim must state the benefit seeking...Do you think my letter stated this...The va never said a word about this letter...no statement of case or anything..They had all my medical records at time of adjudication and talked about my 1996 operation in my award letter...In the letter I stated all about the operation..(April1996)Any thoughts or help would be great...Thanks sailgirl

[Hoppy]

Sailgirl,

If the argument is whether or not your general request for assistance was sufficient to start a claim, I would say yes. I went into a VA hospital to have surgery 12 years after my discharge. A DAV representitive walked up to my hospital bed and asked me if I was in the hospital for a service connected condition. I told him I was "0%" for the same knee they were operating on. He told me to write a general letter telling them that I wanted "any benefit available to me at this time".

It worked for me. I eventually got an increase to "10%" for the knee. The time frame this happened was 1982. There might have been some changes since the early eighties. However, without any changes in the law since the eighties it seems to me that at that time a general request was sufficient. I do not see any big difference between "assistance" and "benefit".

The VA loves to split or discect words when arguing claims. However, if you do not give up and fight back you could win. My brother actually got an opinion from a linguist to advise the VA on how to intrepret doctors statements.

[Hoppy]

Would you believe I found the original of the letter from 1982. I actually said "any disability benefit available to me". I explained that I was having surgery. However, there was no specific language linking the surgery to the request.

[Guest jstacy]

That is a very good one. I would check into the following/

A: you were awarded 100 percent back to 1976. ( WOW)

(:P: Original date of 1976 for is protected by the 20 year rule. I dont think the VA can alter a rating after it has essentially been effect for 20 years. It goes to the original claim effective date.

They made a Mistake. Another cue. Are you permanent and total?

[Guest Namvet6567]

jstacy - great pickup on the 20 yr rule. I completely missed it and considered requesting more info. I guess aging is really effecting my mind ;-) With that in mind, I'd appeal the reduction, to 30%, based on a clear and unmistakable error (CUE). Should be an absolute winner and you should get a retro check fairly quickly. Just send the RO a copy of the 20 yr rule with your CUE claim.

[Guest Berta]

WOW- a Great CUE does bring results-

question - did the 100% come from the BVA or did you succeed at the VARO level?

"But from April 1996 to June 1998 I only received 30%...My question is did the letter(informal claim) wrote in April "

If the VA had clear evidence that you were 100% at that time- this would be another CUE- I think-and based on what I understand here- they awarded you 100% back to 1976 (had the evidence)so how did they cure 70% of you for 2 years-April 1996 to June 1998-????

I see what you mean- weird----

Did they formally state this in an audit statement or did you find this error in their math.

Reason I ask-

I found a couple hundred dollars errors in my DIC two years ago and then checking more (the OGC had CUED them and said they took too much offset from my DIC) and they sent me about 28,000 more-

when I went over the audit figures (I had CUED this years ago but the CUE was denied- I certainly should have fought this but it came out OK anyhow)

I found not only was the DIC off by about 400 but the offset refund was wrong.

I sent the VARO a letter stating that I believe they erred in these two areas and that they owed me either 400 bucks or $11,570-or both- as it appeared they forgot a whole year of some DIC in the audit statement and my monthly DIC check was the proper amount but for two years prior on the VA historic comp chart.

I got a check for about $400 and then for the $11,570-Finance had quickly resolved this.

Reason I am telling this is-

a math error can often be resolved very quickly- this one took 3 weeks tops-

if it was a mathemathical error in your award amount (and they often dont even give us a break down so hard to figure out) maybe you could request them to look into it that way-

as a math error goes directly to Finance and saves time- and then if that doesn't work- you could certainly file a CUE.

Edited February 27, 2006 by Berta

[sailgirlwillis]

Thank you all for the info....I did not get 100% back to 1975...Just 30% from 1975 to June 1998...THen 70% until Jan 1999...Then they retro the 100% back to June 1998....The whole file was rated a cue by the varo....I should not nit pick the award but after waiting 24 years and being lied to by phone and in writting...They should have to pay,...The va received my current request on the 17th of Feb and started working on it Fed 21st (this year)....I spent 3 months in a law school library looking up va law...thats the only way I won..The va stated law that could not be found in any cfr...in any year...My rating decisions (all 4 of them) state facts about my operation...I am rated 70% with 30 unemployability...The final rating decision stated I was entittled to unemploy that my service connected ratings ALONE covered this....but it included my cancer operation in the facts..At this point I have stated to them that I hope that the letter I sent them on April 29th 1996 was an oversite, not a failure to assist and not another cue...I am surprised to find out they are working on it so soon...But I don't know about the 20 year rule...could some one tell me what it is....My case was a cue and dated back to 1975.....does that fall into this 20 year rule?Thanks all again....If they give me a hard time, next will be reasonable doult...3.102...3.105a....revisit due to cue and anything else I can state to them....After what they did to me the first time...I will not lose...I intent to be heard on this matter...Vicki