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

[deltaj]

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

Yes, he had severe mental health issues. He had about three hospitalizations for this in the Army in 1962 and then had another hospitalization in the Navy in 1965. The V.A. doctor's first report said he denied hallucinations and was evasive about whether he had hallucinations in the past.

[deltaj]

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

Philip, I'm sorry I failed to break my posts in paragraphs and have edited both my posts in this topic to put some paragraph breaks in it. Unfortunately, I fail to do paragraph breaks sometimes when I am tired, frustrated or angry, emotions I feel a lot when I deal with V.A.