38 Usc 7104 (a) This Might Help Someone

[Guest Berta]

In all the claims I have worked on over the years I have only had to spell these regs out to VA in a claim when they violated this reg in my claims many years ago

(1995)

In the recent SOC I received the DRO failed to perform the DRO's job description as within M21-1MR Part 5, Section C, and under that Part 11, et all-

DRO Duties and Responsibilities.

Also she violated 38 USC 5107 (a).

My SOC was the first one in all this time that I ever had to use 38 USC 5107 (a) for-

I want you all to realise that this reg covers your right to a full consideration of all of the evidence of record by the VA. These are points in this reg-

Only when that evidence is fully considered by VA (meaning they actually have to read it) does the balance of proof kick in.

Meaning- if the evidence is a preponderance for the veteran- the decision should reflect that. And be favorable to the veteran-

If it is equal in merit to and against, the Relative Equipoise Doctrine should kick in.

None of these things can happen unless the VA reads all of your evidence. If they dont read it all-and in my case they have read NOTHING in over 2 and a half years

as I have never received any statement regarding any of it, thy are violating the provisions of 38 5107.

This part of 38 USC 5107 also states that:

the VA "shall make reasonable efforts to assist a claimant in obtaining evidence necessary to substantiate the claimant's claim for a benefit under a law administrated by the Secretary." (38 USC 5107 (a) added by Pub L. No. 106-475, part 3)

In my case- and maybe for many out there- I am stating to VARO that the "reasonable effort" in my case involving the DRO taking the time to actually open the c file and READ the evidence. She copied verbatim the decision I received in March 2004. SHe only added the dates of the subsequent submissions of evidence, added a Contact Report thing ( which I still dont understand)

and then copied everything that I received in 2004. It took ten minutes tops for my so- called DRO De Novo- De Sameo Sameo Review.

The amendment to 38 5107 (a) -aka the VCAA , elaborates on the Duty to Assist in supporting that if the veteran has provided a preponderance of evidence, the veteran has succeeded. It is as simple as that.

I need to add here that by evidence- I mean Medical evidence is always the most probative and compelling, buddy statements and anything else should be supportive but it is secondary to medical evidence.- in my case I used prior VA medical reports, the entire medical VA record,statements in SOCs, and also an EEOC case which they had at the VARO for many years, my 2 IMOS and also reference to an additional IMO they could obtain from one of their doctors right at the VAMC down the street from them who I have conferred with.

Also I mean that YOU have to read their decisions carefully and also see how they applied your evidence to the decision. The worse thing you can do as a claimant is repeat their failure to read it all.

Friday I emailed the VARO director at the VA query page a complaint as to how the DRO violated my rights and somebody better find my $2,000 IMO and the freeby one from Dr. Rabiee

I forgot I had their actually RO email addy-

Yesterday I got email confirmation that this was being re-routed to the VA Central Office-which is great because they know how to read there.

Then I realised in the listing of evidence the IMO receipt was listed but it was called under Evidence, with the other medical submissions as "letters with and without attachments"- so it was right there all along in the c file, and not misplaced by the MF (Mysterious force) who I know from prior experience.

this is the same type of 'letters and attachments' that got me a nice monetary settlement from the VA General counsel and caused me to succeed in all of my numerous past claims and issues with the VARO. There are many good decision here in my files.

It was my 'letters and attachments' that caused the VA to realise that they killed my husband who is probably spinning in his grave over this.

He always feared they would discriminate against me on claims if he died.

I am pretty alarmed that YOUR evidence to include all IMOs you have paid for can be simply written off as "letters with and without attachments"

what the f___ is that- they could deny every single claim on that basis.

Do we have to mail them the actual Doctors themselves?

My long point here is- I am preparing my Response to my SOC but I expect that I wont even need to send it as I got on my Reps rear end at the highest level there (something went real wrong -he was in and out of the DROS office many times-

who was he helping while he was forgetting me?)

I found the Buffalo email addy and past experience with them means if you get real tough, and I do mean real tough, no idle threats like I will tell my congressman etc-no- you have to take action that affects them immediately,and then they usually start doing their jobs.

I am thinking that many of you might well need to either copy the 5107 regs and add to your claims or spel them out within the claims itself if they are failing in this

significant and really their most important duty to fulfill to adequately resolve your claim.

It might benefit some of you to re state the entire provision of 38 USC 5107 and apply each point specifically to your denial, by referencing their words and actions, in order to get a proper and maybe a faster decision on a SOC.

What is also startling to me is that it appears that the DRO is also the VSM now at the VARO- there was a shuffle recently due to retirements.

So I have a DRO who cant read and doesnt know VA law as well as a VSM-and I cannot tell if they are one in the same.

I have lots of vets claims email- I start school officially on monday-

I am in a parallel war with both VA and also NYSDVA.

When I win the VA war and the DVA war , it might well affect vets in NYS western area for the best. It is top priority for me this week to deal with my own problems here, not to mention my homework.

I can only respond to hadit emails when I get more time.

Edited September 18, 2005 by Berta

[Hoppy]

In all the claims I have worked on over the years I have only had to spell these regs out to VA in a claim when they violated this reg in my claims many years ago

(1995)

In the recent SOC I received the DRO failed to perform the DRO's job description as within  M21-1MR Part 5, Section C, and under that Part 11, et all-

DRO Duties and Responsibilities.

Also she violated 38 USC 5107 (a).

My SOC was the first one in all this time that I ever had to use 38 USC 5107 (a) for-

I want you all to realise that this reg covers your right to a full consideration of all of the evidence of record by the VA. These are points in this reg-

Only when that evidence is fully considered by VA (meaning they actually have to read it) does the balance of proof kick in.

Meaning- if the evidence is a preponderance for the veteran- the decision should reflect that. And be favorable to the veteran-

If it is equal in merit to and against, the Relative Equipoise Doctrine should kick in.

None of these things can happen unless the VA reads all of your evidence. If they dont read it all-and in my case they have read NOTHING in over 2 and a half years

as I have never received any statement regarding any of it, thy are violating the provisions of 38 5107.

This part of 38 USC 5107 also states that:

the VA "shall make reasonable efforts to assist a claimant in obtaining evidence necessary to substantiate the claimant's claim for a benefit under a law administrated by the Secretary." (38 USC 5107 (a) added by Pub L. No. 106-475, part 3)

In my case- and maybe for many out there- I am stating to VARO that the "reasonable effort" in my case involving the DRO taking the time to actually open the c file and READ the evidence. She copied verbatim the decision I received in March 2004. SHe only added the dates of the subsequent submissions of evidence, added a Contact Report thing ( which I still dont understand)

and then copied everything that I received in 2004. It took ten minutes tops for my so- called DRO De Novo- De Sameo Sameo Review.

The amendment to 38 5107 (a) -aka the VCAA , elaborates on the Duty to Assist in supporting that if the veteran has provided a preponderance of evidence, the veteran has succeeded. It is as simple as that.

I need to add here that by evidence- I mean Medical evidence is always the most probative and compelling, buddy statements and anything else should be supportive but it is secondary to medical evidence.- in my case I used prior VA medical reports, the entire medical VA record,statements in SOCs, and also an EEOC case which they had at the VARO for many years, my 2 IMOS and also reference to an additional IMO they could obtain from one of their doctors right at the VAMC down the street from them who I have conferred with.

Also I mean that YOU have to read their decisions carefully and also see how they applied your evidence to the decision. The worse thing you can do as a claimant is repeat their failure to read it all.

Friday I emailed the VARO director at the VA query page a complaint as to how the DRO violated my rights and somebody better find my $2,000 IMO and the freeby one from Dr. Rabiee

I forgot I had their actually RO email addy-

Yesterday I got email confirmation that this was being re-routed to the VA Central Office-which is great because they know how to read there.

Then I realised in the listing of evidence the IMO receipt was listed but it was called under Evidence, with the other medical submissions as "letters with and without attachments"- so it was right there all along in the c file, and not misplaced by the MF (Mysterious force) who I know from prior experience.

this is the same type of 'letters and attachments' that got me a nice monetary settlement from the VA General counsel and caused me to succeed in all of my numerous past claims and issues with the VARO. There are many good decision here in my files.

It was my 'letters and attachments' that caused the VA to realise that they killed my husband who is probably spinning in his grave over this.

He always feared they would discriminate against me on claims if he died.

I am pretty alarmed that YOUR evidence to include all IMOs you have paid for can be simply written off as "letters with and without attachments"

what the f___ is that- they could deny every single claim on that basis.

Do we have to mail them the actual  Doctors themselves?

My long point here is- I am preparing my Response to my SOC but I expect that I wont even need to send it as I got on my Reps rear end at the highest level there (something went real wrong -he was in and out of the DROS office many times-

who was he helping while he was forgetting me?)

I found the Buffalo email addy and past experience with them means if you get real tough, and I do mean real tough, no idle threats  like I will tell my congressman etc-no- you have to take action that affects them immediately,and then  they usually  start doing their jobs.

I am thinking that many of you might well need to either copy the 5107 regs and add to your claims or spel them out within the claims itself if they are failing in this

significant and really their most important duty to fulfill to adequately resolve your claim.

It might benefit some of you to re state the entire provision of 38 USC 5107 and apply each point specifically to your denial, by referencing their words and actions, in order to get a proper and maybe a faster decision on a SOC.

What is also startling to me is that it appears that the DRO is also the VSM now at the VARO- there was a shuffle recently due to retirements.

So I have a DRO who cant read and doesnt know VA law as well as a VSM-and I cannot tell if they are one in the same.

I have lots of vets claims email- I start school officially on monday-

I am in a parallel war with both VA and also NYSDVA.

When I win the VA war and the DVA war , it might well affect vets in NYS western area for the best. It is top priority for me this week to deal with my own problems here, not to mention my homework.

I can only  respond to hadit emails when I get more time.

<{POST_SNAPBACK}>

Berta,

I took several years off the board because I did not have a computer. Prior to my absence there was the rating concept of "well grounded". I have not heard this term recently. They were supposed to have dropped the requirement of establishing a well grounded claim. If your file got tagged as "not well Grounded" they did not read anything you submitted unless it was new medical evidence in support of the claim.

I am sure this preoceedure caused lengthly delays in my claim. I would send them letters explaining that their determination that I was not treated inservice was wrong and that they needed to schedule a C&P exam to develop the claim. I waited years for the C&P exam. Then it sunk in that they probaply did not even read my letters because they were not medical reports. This was a big problem becuase I went to the allergy clinic where I had been treated and asked them to write a letter the allergy doctors to write a letter on my behalf. They said their job was to treat patients not write letters to the RO.

A year later the congress put a lot of pressure on the VA and they made it a requirement that a primary care doctor had to write letters if you were being treated at a VA hospital. Would'nt you know it my primary care doctor did even listen to what I said, he would not even read my SMR.

I moved to another area and decided to deal with them again because they passed yet a new law and had established forms to use. I took the forms to the customer relations dept. at my new hospital. The guy told me to go to the allergy clinic. I told him they would not write letters. I asked him to schedul;e an appointment with my primary doctor. We had this argument because he was totally of the opinion that the correct proceedure was to go to the allergy clinic because he had sent people there before.

Would'nt you know it the allergy clinic welcomed me with open arms. They took great pride in making this type of evaluation and assisted me immediately. They wrote a slam dunk favorable report. As it turned out each hospital director had the authority to prohibit doctors from writing letters. The new hospital had allowed doctorsto write letters for decades.

I ran around for years trying to figure out how to do something that would have been solved by one C&P exam that the RO refused to schedule. From what I hear they have changed the laws that will keep this type of run around from happening. Maybe they learned from my claim or other people who were going through the same run around. Maybe they will learn something from you. I had a contact at my local Senators office. And sent him letters every once in a while. Maybe that helped to change the laws.

Hoppy

100% for Angioedema with secondary conditions.

[Guest Berta]

Hoppy- I got a runaround in 1995-96 and 1997 and did some pretty bizarre stuff at one point to get someone to read my evidence. It suddenly

immediately changed- but I dont know what the defining moment was.

I do recall going into the shrinks office and telling him what I needed as the VA was ignoring everything else they had from him.He immediatley sent them a letter. That was on one claim in 1997-They had a wealth of medical evidence already on it but wouldnt read it.

The other one- I called the GC in Wash and rattled off what the VARO was doing on my Sec 1151 claim and he called them and I guess that is what changed that.

But these were two just 2 steps in numerous steps and actions I took -

oh yeah it could have been the Administrative Review I filed in Wash.DC

I keep forgetting that. it helped a LOT!

I do not advise that aspect unless you have a legal background -only because you will have to rattle off 38 et al with lawyers there.

Neil Richland called me days after I sent them the AR and what a great conversation we had- 38 CFR etc- what I live for!

They got so few ARs in those days and never got one from a claimant before, they usually are filed by SOs or VARO employees,that he asked me what it was they were supposed to do with it.

I forget what I said or what they did.

There are other avenues of approaches to claims decisions- and they are all within the VBM-actually even though I am going through a rigamorale- I still believe the DRO process is excellent and a VA highlight of proper claims resolve.

When the DRO reads her own job description I sent her(and all my email complaints to VACO) I do expect her to CUE the old decision and restart the proper resolve of my claim.I have volunteered to help the VARO on my claim. (But I am still pissed off too)

[Magoo_Mr.]

Berta:

Just do what YOU need to do for yourself FIRST and let the other things wait.

Others will just have to understand.

Good luck and I am sure that you will win your battle with the VA.

Magoo B) .. aka ... Bill

[halos2]

Berta, back then was giving rebuttal information to VETS and it is an excellent reading/related material to show the inconsistencies the VA had and continues to use to disallow a claim.

This is pathetic we continue to be abused and although we have the documentation available, and clearly presented, we are shoved to the back of the line with Deny...Deny.

In all the claims I have worked on over the years I have only had to spell these regs out to VA in a claim when they violated this reg in my claims many years ago

(1995)

In the recent SOC I received the DRO failed to perform the DRO's job description as within M21-1MR Part 5, Section C, and under that Part 11, et all-

DRO Duties and Responsibilities.

Also she violated 38 USC 5107 (a).

My SOC was the first one in all this time that I ever had to use 38 USC 5107 (a) for-

I want you all to realise that this reg covers your right to a full consideration of all of the evidence of record by the VA. These are points in this reg-

Only when that evidence is fully considered by VA (meaning they actually have to read it) does the balance of proof kick in.

Meaning- if the evidence is a preponderance for the veteran- the decision should reflect that. And be favorable to the veteran-

If it is equal in merit to and against, the Relative Equipoise Doctrine should kick in.

None of these things can happen unless the VA reads all of your evidence. If they dont read it all-and in my case they have read NOTHING in over 2 and a half years

as I have never received any statement regarding any of it, thy are violating the provisions of 38 5107.

This part of 38 USC 5107 also states that:

the VA "shall make reasonable efforts to assist a claimant in obtaining evidence necessary to substantiate the claimant's claim for a benefit under a law administrated by the Secretary." (38 USC 5107 (a) added by Pub L. No. 106-475, part 3)

In my case- and maybe for many out there- I am stating to VARO that the "reasonable effort" in my case involving the DRO taking the time to actually open the c file and READ the evidence. She copied verbatim the decision I received in March 2004. SHe only added the dates of the subsequent submissions of evidence, added a Contact Report thing ( which I still dont understand)

and then copied everything that I received in 2004. It took ten minutes tops for my so- called DRO De Novo- De Sameo Sameo Review.

The amendment to 38 5107 (a) -aka the VCAA , elaborates on the Duty to Assist in supporting that if the veteran has provided a preponderance of evidence, the veteran has succeeded. It is as simple as that.

I need to add here that by evidence- I mean Medical evidence is always the most probative and compelling, buddy statements and anything else should be supportive but it is secondary to medical evidence.- in my case I used prior VA medical reports, the entire medical VA record,statements in SOCs, and also an EEOC case which they had at the VARO for many years, my 2 IMOS and also reference to an additional IMO they could obtain from one of their doctors right at the VAMC down the street from them who I have conferred with.

Also I mean that YOU have to read their decisions carefully and also see how they applied your evidence to the decision. The worse thing you can do as a claimant is repeat their failure to read it all.

Friday I emailed the VARO director at the VA query page a complaint as to how the DRO violated my rights and somebody better find my $2,000 IMO and the freeby one from Dr. Rabiee

I forgot I had their actually RO email addy-

Yesterday I got email confirmation that this was being re-routed to the VA Central Office-which is great because they know how to read there.

Then I realised in the listing of evidence the IMO receipt was listed but it was called under Evidence, with the other medical submissions as "letters with and without attachments"- so it was right there all along in the c file, and not misplaced by the MF (Mysterious force) who I know from prior experience.

this is the same type of 'letters and attachments' that got me a nice monetary settlement from the VA General counsel and caused me to succeed in all of my numerous past claims and issues with the VARO. There are many good decision here in my files.

It was my 'letters and attachments' that caused the VA to realise that they killed my husband who is probably spinning in his grave over this.

He always feared they would discriminate against me on claims if he died.

I am pretty alarmed that YOUR evidence to include all IMOs you have paid for can be simply written off as "letters with and without attachments"

what the f___ is that- they could deny every single claim on that basis.

Do we have to mail them the actual Doctors themselves?

My long point here is- I am preparing my Response to my SOC but I expect that I wont even need to send it as I got on my Reps rear end at the highest level there (something went real wrong -he was in and out of the DROS office many times-

who was he helping while he was forgetting me?)

I found the Buffalo email addy and past experience with them means if you get real tough, and I do mean real tough, no idle threats like I will tell my congressman etc-no- you have to take action that affects them immediately,and then they usually start doing their jobs.

I am thinking that many of you might well need to either copy the 5107 regs and add to your claims or spel them out within the claims itself if they are failing in this

significant and really their most important duty to fulfill to adequately resolve your claim.

It might benefit some of you to re state the entire provision of 38 USC 5107 and apply each point specifically to your denial, by referencing their words and actions, in order to get a proper and maybe a faster decision on a SOC.

What is also startling to me is that it appears that the DRO is also the VSM now at the VARO- there was a shuffle recently due to retirements.

So I have a DRO who cant read and doesnt know VA law as well as a VSM-and I cannot tell if they are one in the same.

I have lots of vets claims email- I start school officially on monday-

I am in a parallel war with both VA and also NYSDVA.

When I win the VA war and the DVA war , it might well affect vets in NYS western area for the best. It is top priority for me this week to deal with my own problems here, not to mention my homework.

I can only respond to hadit emails when I get more time.