Creepy V.a. Claims Person

[deltaj]

I had my husband complete a records request recently for copies of some V.A. basis records on a claim. Yesterday we got a call from a local V.A. official in Ft. Harrison, Montana.

Back in 1995 my husband had sent V.A. some additional Navy service medical records which he obtained from the National Personnel Records Center and when my husband got his C file I discovered that when V.A. made a request for records in 1998 from the National Personnel Records Center they only used his Army service number on the records request. A rating decision in 1998 which was in his C file was not sent to him. That rating decision stated that the veteran told V.A. that he was entitled to an effective date of 100% in April 1966 [at the time of the first rating decision] because the Naval Medical Evaluation Board found him unfit for duty. He doesn't remember writing this. The Naval Medical Evaluation Board report from November 1965 was not of record at the time of the April 1966 decision.

Yesterday on the telephone I explained to this V.A. official that my husband wanted to reopen his December 1965 claim under 38 CFR 3.156 ( c ) using newly acquired service records. During the telephone conversation yesterday, I asked the claims assistant whether V.A. had ever requested additional service records from the U.S. Navy in about 1998. He told me, "We are not going there" and would not answer the question. He had already answered some other questions about whether documents missing from the file at BVA were in the local claims folder like a May 1991 BVA hearing transcript, the July 1990 rating decision and notification letter, etc. I am extremely angry that V.A. is simply pretending this November 1965 report of the Naval Medical Board was in the file at the time of April 1966 rating decision. That medical evaluation board report shows some very severe symptoms of this veteran's service-connected condition and was not received by V.A. until 1995 when my husband sent it to them. Furthermore, I had sent a recent request for records from a V.A. outpatient clinic in Sacramento which had reviewed medical records from Livermore and denied my husband vocational rehabilitation because of the severity of his service-connected condition. That facility didn't bother to try to get its file back. It just forwarded my request for complete medical records to VARO Ft. Harrison. I explained to this guy that my husband wanted those records because an earlier claim was still pending because of a wrong zip code on the notification letter and mentioned Huack v. Brown. He said, "Well, we can't try to get the records unless we have some evidence they exist." I told him about the March 1989 letter in the file and he said he'd look for it in the file. I don't expect him to do anything because BVA determined my husband had abandoned his earlier claims. This vet rep also told me the records from Livermore might be archived. I told him that sooner or later my husband was going to file a NOD with the April 1971 rating decision but he wasn't going to do it until I got some stronger evidence.

Right after the conversation with this V.A. official, I called my husband's rep at Montana Dept of Veterans Affairs for my husband. During that conversation I told him the name of a hospital outside V.A. where he had been hospitalized and told that rep, "I've seen enough examples of cases online to know that if my husband files a NOD under Huack v. Brown he'd better be able to show what evidence he would have submitted had he been notified of the decision." I told him the evidence if it still exists is an informal claim under 38 CFR 3.155 and 38 CFR 3.157 (b) and that the evidence was records of treatment at a hospital within the presumptive period of 38 CFR 3.309 after his Army service which was within one year prior to the date that he filed his V.A. claim for a service connected condition. I am unsure whether this would be considered a unformed services hospital. V.A. may have paid for this hospitalization under V.A. fee basis.

These kind of shenanigans by V.A. are why I volunteer at hadit. I want to prevent this kind of suffering by other veterans and their families. I believe that knowledge of V.A. laws and regulations is one of the few weapons that veterans have to fight creepy V.A. officials with.

Edited January 13, 2011 by deltaj

[jbasser]

Delta. I commend you. Keep on plugging away at them.

J

[broncovet]

Dont forget about the "constructive notice" rule under Bell. I think this means that even if they did not have your records, the VA is assumed to have them, and when they omit stuff, it constitutes CUE, possibly getting you an EED. I assume that your goal is an eed, correct?

[deltaj]

Dont forget about the "constructive notice" rule under Bell. I think this means that even if they did not have your records, the VA is assumed to have them, and when they omit stuff, it constitutes CUE, possibly getting you an EED. I assume that your goal is an eed, correct?

After doing some reading, I have some doubts the constructive notice rule in Bell is applicable to decisions made before the date Bell was rendered. See a case at the U.S. Court of Veterans Appeals entitled 95-1100 Gary Lynch v. Hershel Gober. I do appreciate your advice, however and am appreciative you posted details on the Bell case. Now I need some advice on another aspect of the case.

I married my husband in 1989. He admits he was very sick when he was discharged from the Navy in November 1965. On his December 1965 claim he was asked about hospitalizations and he wrote USNH San Diego and then next to that entry listed his dates of service in the Navy from May 1965 to November 1965. A V.A. examiner listed this same information about the U.S. Naval Hospital in San Diego on a records request in 1965. In early 1966 just after his first V.A. exam V.A. received Navy records showing the date in October 1965 that he was transferred to the U.S. Naval Hospital in October 1965 but failed to make another records request asking for those hospital records with the correct beginning date of hospitalization.

In 1995 my husbajd managed to get one report of the naval medical evaluation board from the National Personnel Records Center. That October 1965 report mentioning his hospitalization at the U.S. Naval Hospital in San Diego in October and November 1965 and described severe symptoms. That report gave the date he was discharged from the Naval Hospital. That is the service medical record V.A. pretended in the March 1998 decision was there at the time of the April 1966 rating decision.

I guess I could type letter to the National Personnel Records Center in San Diego using the correct dates of hospitalization at USNH San Diego with my husband's signature on it and try to get complete medical records on that inpatient hospitalization. I think I could submit those as newly discovered service medical records under 38 CFR 3.156 ( c ). The rule in 38 CFR 3.156 ( c ) (2) states that it does not apply to service records for which a veteran did not provide sufficient information for V.A. to locate. Does anybody have any thoughts on this idea?

Edited January 13, 2011 by deltaj

[Philip Rogers]

deltaj - would it be possible to break your posts into smaller paragraphs, thus making it easier to read?? I know, for me, it would be easier. Thanks!!

pr

[broncovet]

Delta

When you say hubby was "very sick", do you mean he had mental health issues? You are very good at "finding things" but I recall reading a case where the applicability of the "liberal interpretation of Veterans filings" doctrine stated in Robinson and reiterated and expanded in Comer, is "particulary acute" when the Veteran has mental health issues.

In other words, if your hubby was experiencing an "active phase" of mental issues, then the court must be "especially liberal" in interpreting the Vetrans filings, or else the VA would be taking advantage of his disability in denying his benefits. I would assume that would mean that the court would not require that he was precise about those dates, and allow you to expand them to encompass getting all the appropriate medical records.

I do not think the intent of congress was for the VA to use 38 CFR 3.156 C (2) to deny your hubby benefits because he was unable to remember his dates of service, especially if hubby was "very sick". Instead, I think a liberal interpretation of the Veterans filings, along with the VA's "duty to asist" would "cover" any mistakes hubby may have made in recalling those dates.

This may well invoke the "benefit of the doubt" rule, because it does seem plausable that your hubby may not recall those dates in his illness, and it would seem reasonable that the VCAA would require assistance to the Veteran in "developing his claim to the optimum". JMHO

[broncovet]

Delta

Also, I would generally comment that Professor Linda Bilmes suggested that Veterans benefits "are eventually awarded to the Veteran anyway", so why not just give them to the Veteran upfront? Time and time again, we have seen a Veteran persue benefits that others thought would just "not fly" and they persisted and persisted, through many appeals and eventually won, tho they may not have "won" their "point". In other words the VA may have well awarded benefits for different reasons than the legal theory the Veteran was relying upon.

For me, it does not matter one bit if the VA awards my benefits for totally different reasons than the ones that I have proposed. When I go buy a gallon of milk, the clerk is unlikely to say, "Are you paying for this milk with money from the VA based on a legal theory you did not know or understand?"

I think the clerk will gladly take my milk money regardless of which theory advance my Veterans benefits. The only issue to me is that I be honest...I am entitled to "legal theories" that others may find baseless, and still be able to win my benefits, sometimes based upon VA law that I never even considered.