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.

[tssnave]

Berta,

I always went the DRO route so know nothing of SOC or SSOCs so I am approaching this blind. Plus, I don't know what your responses look like so this may be something you're already doing but, how about a reply to your latest SSOC that is a one page cover letter with all the supporting documents tabbed and indexed:

Please issue a corrected SSOC with the following corrections to my claim per the citations listed:

(copy of appropriate VA reglation, CFR, VA case law, and submissions by widow attached)

1. REASON FOR CUE: Per my request for CUE consideration submitted on xxx, the reason for my CUE is xxx (yyy, and zzz - not sure how many issues are at stake here).

2. DATE OF CUE: Per regulation xxx, the approriate date of my CUE is xxx, the date I filed the CUE.

3. SMC: Per regulation xxx, I am entitled to SMC on xxx date because medical evidence on xxx, xxx, xxx, and xxx clearly prove that such and such was present since xxxx.

4. ACCRUED BENEFITS: Per the Nehmer Court Order, I am eligible for ALL accrued benefits due the veteran in his lifetime.

5. LIST OF EVIDENCE: I have submitted xxx pieces of evidence to the VA via certified mail with return receipt yet only xxx evidence has ever been addressed in the SSOC. I request that you do a cross reference with the list of evidence I have submitted with the evidence in my claims file to ensure that this claim is being evaluated based on all the evidence of record.

6. RESOLUTION OF CLAIM: Based on the Nehmer Court Order, the CFR, the M21-1MR, VA rules and reglations and the evidence submitted in this claim, I belive the proper resolution of this claim is to award xxx with an effective date of yyy.

Berta, I probably learned this trick from you so it may be really a moot point to suggest it to you but this is what I did with my last appeal. I made a one page cover letter requesting a higher evaluation to 70% based on sx (I highlighted all the 70% sx in yellow), a rating for 100% IU based on the evidence (orange highlight where the C&P and IMO stated I was IU), and P&T based on the evidence (green highlighter for all the P&T remarks). Then I tabbed all the evidence (much of which was the M21-1MR), with an index page, as well wrote a narrative supporting my requests based on the evidence. That way, they knew what I wanted at a glance from the cover letter and if they didn't recognize their own regulations or remembered what their own C&P examiner stated then I provided it to them all in one nice little packet. In your case I would also put the certified number on the evidence list so they can't act like they never got it.

You know, maybe your claim IS so complex that it is confusing the raters and they ARE having a difficult time properly rating your claim and if you spell it out for them in an easy to understand one page cover letter and then give them all the regulations and evidence and such they need to properly rate the claim then they will be able to do so and be glad to be rid of you! ;-)

Also, to your point of doing all you can before you go up the chain of command - a one page cover letter will help anyone who is not a legal expert advocate for you.

If you have already done this nine times over, then all I can say is hang in there. I pray that eventually someone will read the evidence and properly apply the court case, rules and regulations to your claim.

Keep us posted,

TS Snave

Edited November 1, 2009 by tssnave

[Berta]

Thanks TS Snave

I have already made it clear to the VA with legal citations (from the VA itself) many times -what the resolution of this claim should be.

It is all stated on one page and I already sent them copies of all of the citations.

The director's office said I could expect another phone call this coming week-

My claim is not complex at this point.

I want refund of 5 figure offset to FTCA matter as the BVA in a prior decision to me (which they have) said I should get refunded upon succeessful SC death award (which I got in May)

The district counsel and I have already discussed this and he fully comprehended my right to this refund but directed me back to the regional office.

I also sent one page from M21-1 22.07 that states offsets to FTCA cases are not applicable to direct SC awards.

That makes the offset refund a clear cut matter.

They didn't deny they owe the refund-they simply will not recognize that they owe it to me.

The CUE issue- as I explained to VA on a DRO election form and in other correspondence-

has been rendered moot by my recent SC death Award.

The VA now has to prepare a proper rating for the veteran to list and rate all of his SC disabilities and then make a proper accrued SMC award. I can then withdraw the CUE claims.

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

He was 100% SC PTSD, 100% SC CVA due to DM II , and ratings to be deternined for SC fatal heart disease due to DMII as well as SC DMII itself has to be rated and a SMC decision has to be made (and paid)

At the very least they could award 4 Ks and the SMC "S".

I had sent detailed medical evidence that would warrant consider of R-1 however.

Unlike every other veteran I know with 100% SC and then additional SC disabilities at 60 % and over,the VA has ignored my husband's eligibility for SMC.They said in 2004 I think it was that he was not eligible for SMC under any circumstance.

I have M21-1 and all of 38 CFR on my PC and no where do these regulations state that one sole veteran named Rod Simmons is exempt from the provisions of all of these regs or the consideration of eligibility for SMC under any circumstance.

I went through this same BS in the late 1990s and also during the past 6 years my SC DIC took.

I WILL get the money they owe me.VA case law itself says it is mine.

Congressman Filner and Chairman James Terry BVA offered assistance to me in writing when they wrote that I had succeeded in my Direct SC death claim-if I had further problems.

I am attempting to do all I can to get the RO to straighten this out first.

Otherwise I will ask them for help and then submit more testimony to the Sub Committee Investigations/Oversight (the reason I think these men wrote and offered to help me)

as I have prime facie recent evidence again that VA employees do not handle our evidence properly and I even have a recent letter from the district counsel that indicates some of my evidence to him was destroyed before he got my letter) Also one of these recent letters I got from VA has a MAJOR error about DIC regulations in it.

I am sorry for all these long posts- everyone-taking up all this space here- this is my problem and I certainly can take the bull by the horns

and get it corrected.

Every award I every got resulted from a battle anyhow.

And I am sure willing and able to fight.

Edited November 1, 2009 by Berta

[Pete53]

I disagree Stretch as I think the Statement of the Case is very important. It pretty much locks the VA in to defend a position and also shows the claimant exactly what they must do to over come the VA's no. Until you have those weasels on paper they can come up with anything.

Once you have the SOC you refute it point by point.

[john999]

I always get the SOC along with the rating decision. It is basically the rating decision word for word. However, it does lock them into their position and gives you the strong hints as to what you need to knock them down. Now if you can just get them to read your rebuttal and any new evidence.

[LarryJ]

I, like many other veterans on the board, have Berta to thank. If she had not welcomed me so graciously after my very first post on here, I'd probably still be in the dark and still seeking help.

Yes, her posts are sometimes lengthy, but, sometimes you can't get a legal education by watching Sesame Street.

When my claim was denied, denied, etc., etc., and I got to looking at it, it was simply amazing. When I kept telling the VA that I was awarded SSDI for the VERY same thing that I was claiming and they kept sending me SOC's and SSOC's, listing every damn little old doctor's statements, every visit I had to the VAMC, EVERYTHING EXCEPT the SSDI AWARD and the SSA's doctors' reports, EVERYTHING THAT WOULD HAVE BACKED UP MY VA CLAIM, LETTER PER LETTER.........then, THEN, I realized what I was REALLY dealing with. Up until then, I actually BELIEVED what my government was telling me.......................but, I digress:

Anywho, Thanks Berta!

[john999]

Larry

I am thinking that when the VA got your SSDI letter for the same condition you are SC for that may have established an informal claim for benefits with an earlier effective date. If the VA knows you are getting SSDI for a SC condition that should be an inferred, or informal claim for IU. The VA resists that idea because I am sure there are many vets who have been on SSDI for years before they finally claim, or are awarded IU or 100%. This would mean a very large retro liability. When I asked for an EED for IU I based it on my SSDI date. The VA did not grant the EED for the SSDI date. They granted the EED because of the fact I was hospitalized at a VA hospital on the very same date as my SSDI date. That was the official reason for granting the EED, but I think they did not want to admit the EED for the SSDI.

What I think about Berta's sitution is that if the VA can delay Berta's claim for benefits given all she knows, and given the evidence she has submitted what do they do with claims from vets who are fairly ignorant of the process? No wonder vets give up!