ptsd Corrected Award Letter

[Berta]

The VA made clearly erroneous statements in my May 2009 award letter and I asked for correction on that basis.

I just got the 'correction'-it is worse than the one I wanted corrected. The director's office (of course I called them immediately) had a VSO call me yesterday but he didn't have a clue- another call to the director's office promised someone else would call me back on Monday-I asked for someone to call me this time who actually knows VA regs and case law.

Since I dont expect them to find anyone who actually has that ability at the Buffalo VARO - I am also preparing letter to someone at VA in DC who offered to help on this matter-but I wanted to make sure I took as many steps I could first to get this straightened out meself.

I also got with this letter another SSOC-this is the fourth one on my CUE claims.I have responded to them all and now they want me to respond again.

If any of you read my testimony to the Sub Committee Investigations/Oversight- the 53 submissions I made that VARO had ignored are building up into well over 60 submissions that have been ignored.SOme are read and acted on but other submissions are ignored.

These are stall tactics.

They have given the wrong date of the CUed decision and are consistently using the date I filed the CUE claim as the date of the CUE.The CUE occurred in 1996 and 1997 decisions.

The issue was re characterized as completely different from the original CUE claim.

What gets me- since this is the 4th SSOC- exactly like the prior ones and I responded fully with VA legal citations-referring them back to the actual CUE claims-

is that they failed to comprehend my last response to this same SSOC.

My CUEs are based on lack of any SMC consideration in prior VA decision that determined the veteran was 100% Sec 1151 and 100% PTSD SC.

When I got my direct SC death award-I wrote to them and stated ( as well as on prior SSOC response) that these issues have been rendered moot because the VA now has to make a SMC determination as to direct SC conditions my husband had at death- 100% SC PTSD, 100% Sec 1151 stroke, and 60 % or greater, for 1151 heart disease, as well as a proper DMII rating because the award makes the CVA 100% direct SC, the CAD direct SC and the DMII as direct SC.This stuff all has to be rated.

Under the Nehmer court Order I also stated I am eligible for ALL accrued benefits due the veteran in his lifetime ( as he obviously had these conditions in his lifetime as proven by medical evidence) and SMC is an inferred issue when the medical evidence warrants SMC.The point of my CUE claims in the first place.

Question-I used to get many SSOCS, and my responses eventually awarded those claims.

Is anyone else here getting duplicate SSOCs like this?

Oddly enough they keep extending my time limits by sending these SSOcs-I respond and they dont mention the response or evidence but send another SSOC (same wording) with another time limit.

Not a single piece of my evidence has ever been read on this.

I wrote as part of response on the last response form that they cannot send this case to the BVA because they have made so many legal errors in the processing of these 2 CUE claims.

Maybe that is why I got another SSOC-

any thoughts?

This crap will take up my time next week-and of course maybe time to write to the Sub Committee H VAC again-

The response I get from the Director's office next week will determine the form that letter takes.

The letter I received on my award is written in very poor English and makes a statement regarding VA DIC case law that simply isn't a fact at all and has no legal basis.The actual question I asked that generated this new award letter was not even mentioned at all.

Sorry for this rant-I am angry that the VA employees illiterates and something has to be done about it.

[Berta]

I used 2 General COunsel Pres Ops and considerable other Legal evidence from 38 USC and M21-1 to support my CUE claims.

However those claims have been rendered moot by my AO award.

What supports the CUES as well as a new SMC award is an odd fact:

Rod was awarded SSA for a major CVA. (Now under AO award 100% disabling)

But I challenged the award.

A SSA lawyer would not help us on that.

We filed Reconsideration anyhow.

$ months later I called the SSA lawyer and told him he passed up over 4 thousand bucks.

New SSA award solely for PTSD SC by VA in 1997-EED 1991)

So 2 SSA findings of 100% for two conditions-the first being 1151 (they erred in SMC on that)

and obviously with the reecent decision- 60 % at least for fatal CAD, SC due to AO.

I know this is hard to follow-

This is the important part.

Section 1151 awards are supposed to generate the same SMC consideration as direct SC disabilities.

This is clearly spelled out by the OGC as well as M21-1 and 38 CFR.

They have a vet who was about 300% disabled under Section 1151 (documented in the FTCA report)

who was just found over 300% directly SC disabled due to the recent SC death award from the BVA.

SMC is an inferred issue when the medical evidence warrants it.M21-1

The VA stated to me years ago that my husband was "not eligible for special monthly compensation under any circumstance."

I have perused the regs,the General Counsel opinions on SMC, and M21-1 carefully and he is not specifically excluded by name anywhere in it.

Nehmer says I get all accrued for SMC.I have similiar widow's case here.

They refuse to consider my legal evidence.

However the issue I have before the General Counsel might force them to realize-these CUE claims can become moot with a proper AO SMC award.

It is really a very simple matter now due to the new AO award.

But no mention whatsoever was made in the 2 new award letters as to SMC.If they had denied SMC I could have Nodded it.It was part of reason I aksed them to CUE these awards. They are legally incorrect in many ways.

I told them to keep the obvious S award and make a decision as to the R-2 level of SMC.

They could awards S with 4 Ks but I would NOD that.

Edited November 8, 2009 by Berta

[broncovet]

Berta..

My 2 cents worth is to "Hit em where it hurts". The VA has a big, big embarrassing situation which they really want to "go away". I think it is Dunne himself (one of the VA very high ups) who is personally embarrased by the shredder situation, and vows to fix it. So, I say, hit them THERE..it worked for me.

File a "Special Handling Request" at your RO, due to evidence not considered, so it must have been mishandled, right? Remember the VA is required to consider all evidence, in Roberson, so if they didnt consider your evidence, then file a SHR.

I can save you the trouble, as it is likely that your RO will ignore your SHR. Give em a few months, the send an IRIS email as to what happened to your SHR. Your IRIS email will be given to a special team that investigates SHR's. This team will then put pressure on your RO to resolve the SHR.

Then file a VAOIG complaint and tell them your SHR must have been shredded also, because the VA did not respond it it at all. They will be getting pressure from 3 places..the VAOIG, the investigation team, and you. Its a lot, and the Va does not like to get calls from these people as to why they didnt respond. Its JMHO and Experience.

You already know to file the SHR before Nov. 19, tho I think it is a joke the VA can actually enforce that deadline. Dont give them any excuses to deny.

As I have said before, dont lie to anyone, but, I do think it is a fair assumption, given the extent of shreddergate, that if your evidence was not considered, then it was mishandled. Remember mishandling is much more that shredding, tho certainly shredding is mishandling. YOur evidence could well have been mishandled and is one of the many piles of evidence they found stuffed into drawers and hidden, that is, mishandled. That is, you are assuming the VA follows regulations, and you should be able to assume they follow regs, even when we know they dont.

Edited November 8, 2009 by broncovet

[sixthscents]

broncovet I cant help but feel that you are just saying "lie" in another way here... sure you cognizantly justify you actions you reccomend, yet the actions themselves should need no justification if they were correct.

again... to me it just sounds like justifying saying something that is either not true, or cannot be proven true.. and to me thats really the definition of "lie"

so... in a word (or a few) I disagree with you, and feel you are advocating that a person lie

however my feeling on this is just that.. MINE, so I am not taking any action (I feel that is "fair"),but I would like you to not try and advocate this line of thought again please.

[Chuck75]

It seems that there is a law that an application for one (SSDI) is also an application for the other. SSA (or the VA) whoever gets the original application is required by the law to at least notify the other. The original submission date is supposedly the actual date of application regardless of which agency got the application. Usually, the SSA notifies and sends records to the VA, not the other way around, unless VA medical records come into play as part of the SSA determination.

If you looked in my "C" file, you should find VA and SSA determination records, as well as military and conventional medical records. In the case of "TDIU", a determination by SSA can preempt that of the VA in a true court of law, since the SSA determination is and meets the legal definition of totally disabled. This forces the VA to try and say that the cause is not services connected, or pay for TDIU. Even worse, the VA is supposedly required to consider TDIU as inferred when a veteran's claim is for the same conditions that resulted in an SSDI award determination. SSDI is "all or nothing"

To answer your question, I'll need to look up the legal reference (again) Originally, I ran across it when I was involved with both claims at the same time. The VA often regards itself as "above the law" when it comes to such things.

Chuck an you elaborate on this 'SSA application law that 'can' establish the claim date please?

Berta does SSDI come into effect at all in your case?

As far as the duplication of SSOC - maybe I read somewhere and sure don't know where - that whenever new evidence is submitted a new SSOC is released. Releasing a new cycle from that automated paperwork dinosaur? Anythings possible, but in re-reading all the paperwork from a decade ago, thanks to Hadit, THANK YOU, I've recieved a new lease on life. I am concerned enough that I re-read everything for a week or so with pauses between. Because time flies especially for the claimant to file an appeal if its either 60 days for a SOC or a year for SSOC!!

A'yup, I read and RE-read these posts - found parts of it may just apply to me. Thanks Berta and Chuck.

Best to ya,

Cg'up2009!

Edited November 8, 2009 by Chuck75

[sixthscents]

Chuck Id really appreciate if you could fine it (the reference). I'd like to read it. Thank you for your effort here.

Bob Smith

[Berta]

stunning update on my claim-

NVLSP just told me they believe I am definitely owed 5 figure award in my DIC back to 1994 under Nehmer Court Order -which I knew

AND full refund of a five figure FTCA wrongful death offset! I thought one or the other.But not both.

It only hit me yesterday that there could be 2 legal refunds but then again- this case is so unusual there is nothing like it I can refer to.

I have blind spots with my own claims sometimes.

I quess I need to find a FTCA lawyer who can assess this and who can get the FTCA money.Doug Brandshaw (OGC) says the RO in Buffalo has to award it. But as I told NVLSP and the OGC -no one there at Buffalo can read.

My files will be sent to VACO as soon as they get my recent Retro Review request- I only hope the retro program is still in force.

And then if that is straightened out I can try to get the FTCA money.

I wish this was over. 6 years going into 7 years soon- awarded but no proper retro or refund-

Maybe the amount they owe me is what the stall is all about.I have received 2 award letters from RO that defy the BVA award and are the most poorly p[repared award letters I have ever seen.

The good part is they opened the door fo0r me to gripe some more to VACO about how deficient the Buffalo VARO truly is.