Okay . . . Looking For Suggestions On How To Expedite My Nod

[Philip Rogers]

I'm at a loss. How should I appeal this denial for 100+60 SMC? I'm half tempted to contact the VSC manager and then if no satisfaction, try the VA secretary. It is absolutely outragous that they continue to deny, even after I explained how the additional 60% is supposed to be added. No one can be that STUPID!!!!!!!!!!! I just want to Scream - Ahhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhh!!!!!!!!!!!!!!!!!!!!

Sorry!

pr

[carlie]

I'm at a loss. How should I appeal this denial for 100+60 SMC?

I'm half tempted to contact the VSC manager and then if no satisfaction, try the VA secretary.

It is absolutely outragous that they continue to deny, even after I explained how the additional 60% is supposed to be added.

No one can be that STUPID!!!!!!!!!!! I just want to Scream - Ahhhhh!!!!!!!!!!!!!

Sorry!

pr

pr,

There should be a contact point for the VSM in your VBM, I think you probably have

the 2010 edition which should have an up to date contact.

Hell - I sure would give it a try.

Looking at this from the VBA's view I'd probably TRY to continue to deny also

just to keep the cash in the VBA's account - lol, you know that's what they want !

Come on now - I KNOW you haven't forgotten - they are not stupid and they can read,

the selfish B@*%@%!$ just don't want to have to pay out - they can wait out you having

to go to BVA or the Court level - as you said - no interest - doesn't cost them any more

in the long run and maybe you'll go ahead and die off saving them some moo-lah !

BTW - walk outside and scream your lungs out - it does feel good, grab a broom and beat a tree up

with it - that feels good too and allows you to release the physical frustrations and anger that

builds up - (just hit the brom straw and not the stick handle)

cuss the tree to hell and back at the top of your lungs - I don't think your neighbors

are close enough to hear - besides that -

you've been officially "certified" for your 20 years of protection - ha-ha- ha !

[broncovet]

If it has been a year or more since you applied, then you should consider filing a Writ of Mandamus. I did.

It did get my claim "moving" again, and kept me from going crazy.

I think a Writ is more effective than contacting your congress critters in getting it moving.

If you are going to file a writ, PR, it is recommended you send a "Notice of Intent to File a Writ" about one to 2 months ahead of time.

A writ is the remedy when nothing else works. It is not for a "regular" appeal.

[Philip Rogers]

Thanks, carlie!!! I really needed to scream. What they've done is combine the 2 SMC claims - the 20 yr old one and the recent CUE claim. The recent CUE was so simple. I walked them thru it, quoting the regs and explaining them as I proceeded thru it. Now I need to separate the two again, in the new CUE I'll be filing. The 20 yo claim will be headed back to the BVA but I'm trying to get the current SMC claim corrected so they'll start paying me. Grrrrrrrrrr!!!

pr

pr,

There should be a contact point for the VSM in your VBM, I think you probably have

the 2010 edition which should have an up to date contact.

Hell - I sure would give it a try.

Looking at this from the VBA's view I'd probably TRY to continue to deny also

just to keep the cash in the VBA's account - lol, you know that's what they want !

Come on now - I KNOW you haven't forgotten - they are not stupid and they can read,

the selfish B@*%@%!$ just don't want to have to pay out - they can wait out you having

to go to BVA or the Court level - as you said - no interest - doesn't cost them any more

in the long run and maybe you'll go ahead and die off saving them some moo-lah !

BTW - walk outside and scream your lungs out - it does feel good, grab a broom and beat a tree up

with it - that feels good too and allows you to release the physical frustrations and anger that

builds up - (just hit the brom straw and not the stick handle)

cuss the tree to hell and back at the top of your lungs - I don't think your neighbors

are close enough to hear - besides that -

you've been officially "certified" for your 20 years of protection - ha-ha- ha !

[WAC-Vet75]

Philip:

You know, and we know you are right, plus the letter of the law is on your side. Carlie is correct, if they didn't deny you, they would have to call CUE on ALL of their prior SMC 100%+ cases. How many times has the BVA called a CUE on something of this magnitude? They have to hope that another remedy can come about (more disabilities) so that it can't go through to the Court system. Unfortunately for the VA and BVA, it will eventually have to go to the Court. In the meantime, Veterans and their eligible dependents will die off, saving the VA from having to right the injustice. You already know how they work, but I understand your frustration, totally!

You submitted the information around the 25th of Feb., and received your response in a relatively short amount of time, as they already knew what they HAD to do to "protect their money". They did NOT address the issue at all! They simply stated law/regulation, and did NOT address the issue of adding, as oppose to combining, the additional disabilities. I, personally, see that as a win. Now, had they expressly addressed the issue, they would have had to state the law/regulation referencing using the combined rating schedule for disabilities over 100%. They didn't, BECAUSE they CAN NOT!

Though I filed my CUE, I have a feeling they may approve my other issues, which would make my CUE moot (date of entitlement may allow me to still go CUE). Using their combined rating, I would be at 100% plus 54%, so any rating they give me, other than 0%, would put me at their combined 60%.

Get some screaming out, because they are withholding your money, but see this for what it really is, a win, as they didn't properly adjudicate the claim!!!

PS: I would file the claim as an unadjudicated claim, as they never addressed the issue.

I just reviewed 38 USC 3.2600

"(d) The reviewer may grant a benefit sought in the claim notwithstanding §3.105(b), but, except as provided in paragraph (e) of this section, may not revise the decision in a manner that is less advantageous to the claimant than the decision under review. A review decision made under this section will include a summary of the evidence, a citation to pertinent laws, a discussion of how those laws affect the decision, and a summary of the reasons for the decision."

38 USC 3.105 "(b) Difference of opinion. Whenever an adjudicative agency is of the opinion that a revision or an amendment of a previous decision is warranted, a difference of opinion being involved rather than a clear and unmistakable error, the proposed revision will be recommended to Central Office. However, a decision may be revised under §3.2600 without being recommended to Central Office"

Going further 38 USC 3.2600

(e) Notwithstanding any other provisions of this section, the reviewer may reverse or revise (even if disadvantageous to the claimant) prior decisions of an agency of original jurisdiction (including the decision being reviewed or any prior decision that has become final due to failure to timely appeal) on the grounds of clear and unmistakable error (see §3.105(a)).

38 USC 3.105 "(a) Error. Previous determinations which are final and binding, including decisions of service connection, degree of disability, age, marriage, relationship, service, dependency, line of duty, and other issues, will be accepted as correct in the absence of clear and unmistakable error. Where evidence establishes such error, the prior decision will be reversed or amended. For the purpose of authorizing benefits, the rating or other adjudicative decision which constitutes a reversal of a prior decision on the grounds of clear and unmistakable error has the same effect as if the corrected decision had been made on the date of the reversed decision. Except as provided in paragraphs (d) and (e) of this section where an award is reduced or discontinued because of administrative error or error in judgment, the provisions of §3.500(b)(2) will apply"

I see a slam dunk... they HAVE to state the law/regulation granting them the right to combine ratings over 100%! From what I was reading you have 60 days to file under 3.2600

Edited March 14, 2011 by WAC-Vet75

[Philip Rogers]

Thanks "K"!!! Both you & I (and them) know it's a slam dunk and that's what's so troubling, cuz they can do whatever they want and there's really no recourse. Thanks for the research!! I'll be sure to weave it into my response. My screaming is over. Grrr! Oops, well most of it is. Now it's time for work. Ya know this is the same thing they did to me and many others, quoting 38 CFR 4.16(a.) but not 4.16(b.), leading us to believe we weren't TDIU and, for many, to abandon their TDIU claims. I almost fell for it. I know my 20yo claim will go back to the BVA and maybe even the court but I should be able to get them to pay the $320 a month on this, the 100+60, now. Thanks again!!!

pr

Philip:

You know, and we know you are right, plus the letter of the law is on your side. Carlie is correct, if they didn't deny you, they would have to call CUE on ALL of their prior SMC 100%+ cases. How many times has the BVA called a CUE on something of this magnitude? They have to hope that another remedy can come about (more disabilities) so that it can't go through to the Court system. Unfortunately for the VA and BVA, it will eventually have to go to the Court. In the meantime, Veterans and their eligible dependents will die off, saving the VA from having to right the injustice. You already know how they work, but I understand your frustration, totally!

You submitted the information around the 25th of Feb., and received your response in a relatively short amount of time, as they already knew what they HAD to do to "protect their money". They did NOT address the issue at all! They simply stated law/regulation, and did NOT address the issue of adding, as oppose to combining, the additional disabilities. I, personally, see that as a win. Now, had they expressly addressed the issue, they would have had to state the law/regulation referencing using the combined rating schedule for disabilities over 100%. They didn't, BECAUSE they CAN NOT!

Though I filed my CUE, I have a feeling they may approve my other issues, which would make my CUE moot (date of entitlement may allow me to still go CUE). Using their combined rating, I would be at 100% plus 54%, so any rating they give me, other than 0%, would put me at their combined 60%.

Get some screaming out, because they are withholding your money, but see this for what it really is, a win, as they didn't properly adjudicate the claim!!!

PS: I would file the claim as an unadjudicated claim, as they never addressed the issue.

I just reviewed 38 USC 3.2600

"(d) The reviewer may grant a benefit sought in the claim notwithstanding §3.105(b), but, except as provided in paragraph (e) of this section, may not revise the decision in a manner that is less advantageous to the claimant than the decision under review. A review decision made under this section will include a summary of the evidence, a citation to pertinent laws, a discussion of how those laws affect the decision, and a summary of the reasons for the decision."

38 USC 3.105 "(b) Difference of opinion. Whenever an adjudicative agency is of the opinion that a revision or an amendment of a previous decision is warranted, a difference of opinion being involved rather than a clear and unmistakable error, the proposed revision will be recommended to Central Office. However, a decision may be revised under §3.2600 without being recommended to Central Office"

Going further 38 USC 3.2600

(e) Notwithstanding any other provisions of this section, the reviewer may reverse or revise (even if disadvantageous to the claimant) prior decisions of an agency of original jurisdiction (including the decision being reviewed or any prior decision that has become final due to failure to timely appeal) on the grounds of clear and unmistakable error (see §3.105(a)).

38 USC 3.105 "(a) Error. Previous determinations which are final and binding, including decisions of service connection, degree of disability, age, marriage, relationship, service, dependency, line of duty, and other issues, will be accepted as correct in the absence of clear and unmistakable error. Where evidence establishes such error, the prior decision will be reversed or amended. For the purpose of authorizing benefits, the rating or other adjudicative decision which constitutes a reversal of a prior decision on the grounds of clear and unmistakable error has the same effect as if the corrected decision had been made on the date of the reversed decision. Except as provided in paragraphs (d) and (e) of this section where an award is reduced or discontinued because of administrative error or error in judgment, the provisions of §3.500(b)(2) will apply"

I see a slam dunk... they HAVE to state the law/regulation granting them the right to combine ratings over 100%! From what I was reading you have 60 days to file under 3.2600

[Berta]

"I'm at a loss. How should I appeal this denial for 100+60 SMC? I'm half tempted to contact the VSC manager and then if no satisfaction, try the VA secretary. It is absolutely outragous that they continue to deny, even after I explained how the additional 60% is supposed to be added. No one can be that STUPID!!!!!!!!!!! I just want to Scream - Ahhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhh!!!!!!!!!!!!!!!!!!!!

Sorry!

Philip- You could tell them they made a CUE in the recent decision and tell them why.

I would direct any correspondence at this point as Attention to and then put the initials of the rater that appear with the RO numeric code in the upper right and corner of the decision letter.A CC to the RO Director and VSM would be a nice touch too.

I had to do this three times regarding my SC direct death due to AO award letter.The VA responded fast enough but they didn't know how to read the regulations regarding FTCA offsets and sent me 3 BS letters suggesting I was wrong in my interpretation of the law.

I went over their heads to the OGC and the lawyers there could read and ordered them to pay me . I got my money.

But all this took from April 2009 (my BVA award) until Feb 2010 to get the money they owed me.

It seemed to me it was ridiculous to have to file a NOD on a decision based on their inability to read so I figured I had one year from the award letter in which to do all I could to resolve my issue without resorting to a NOD.

I understand your anger quite well.Asking the VA to CUE itself regarding a recent decision also helped me get my daughter's CHap 35 straightened out and I used this tactic a few other times in the past.

Some of us need to attempt anything possible to get their attention.

What was their rationale this time for denying the S award?

"No one can be that STUPID!!!!!!!!!!! "

I have said the same thing many times during the 7 years my last claim took.

They aren't all that stupid. This crap is absolutely deliberate in many situations.

I even Nodded my last award letter recently (I got a few that they had to change but this one did have the correct offset refund due to the letter they got from the OGC) although it properly granted payment of my money.

I don't know how they will handle a NOD that does involve a proper monetary decision.

The rater made false legal statements with no basis in VA case law or fact as to the ancillary regulations and couldn't even get my husband's date of death correct. They made misleading references to the clinical record as well and got the SSA awards wrong.

There has got to be accountability for this crap.

These people would not even have jobs if it was not for all of you disabled veterans.