Cue House Of Mirrors

[WYnWn]

Hi, (new here)

I was separated from service (USN) in 1979 with MEB ratings of 10% on each knee for injuries incurred while on active duty. Upon application at University of Northern Colorado for educational benefits, I was denied, assigned a new rating of 0% (Sheesh, then why did I have to get out?). There was no physical examination and the rater basically copied verbatim the Pre-Enlistment physical (only injury that had ever occurred was to right knee that was certified as fully healed and qualified for service) with no referrence or apparent consideration of medical records. During almost five years, my medical record documented new injuries to each knee.

During the same year (1979), I filed a letter of disagreement, but was told quite emphatically (my being female) that I needn't bother. I recently refiled under CUE regulations. The VA concurred on the CUE on the left, set the effective date as 1979, but stayed with the 0% rating, and despite clear evidence in med. records, denied the right knee as pre-existing despite injury dates and treatment info in record, concentrating to the exclusion of other info, on a single part of the total diagnosis. I appealed both. The next "decision" confirmed 'service related', restored 10% rating, not for the documented injuries, but for aggravation of a condition that never existed prior to injury, but changing the effective date to the date of the recent VA exam. This decision effectively takes away 31 years of denied eligability for benefits, while preserving the VA's right to be 'paid back' for their separation award of $6000 (apprx), so my "benefits" would not effectively begin until November of 2014.

No decision as of yet on re-injury of right knee appeal.

I am working with a VA rep, (Tx. Senator's Office not VA employed).

I would appreciate any suggestion, information that any of you can offer.

Thanks.

[broncovet]

Remember, the finality of a decision after a year goes both ways. You cant appeal it, except for CUE, but the VA cant either. So, your 10 percent became final, and they need to try to CUE themselves to reduce it.

I think this is an error that may possibly get fixed easily, if you point it out. The VA should have awarded 10% back to 1979, not 0percent. Try making it sound like a typo...try sending an IRIS.

[WYnWn]

You see, by switching gears, you go on the offensive. Then, its the VA who has to try to prove they followed reduction procedures.

You are no longer the one trying to prove the very difficult "CUE" standard, but instead, the VA must justify their actions demonstrating that they either complied with reduction procedures, or that yours was somehow "exempt".

Dont just sit and let the VA hit you with a reduction..hit em back, and hard.

Thanks. All suggestions gratefully received. With all of their smoke and mirrors, I am more than willing to lock and load. How do I go back at their inappropriate actions other than the Form 9? I tried to hit them with everything I could think of, including accusing the first board of fraud, which, in fact, it was. I'm really put out that in this last gambit, they went back to square one. I expect to get a letter any day informing me that I've now been dropped from group 3. I've thought about who I could write to for help (I'm sure I'm not the first) Any and everything I can do, I will do.

What other steps can I take?

What do I need to do to send an IRIS? I found the website and will read through it in the morning when I'm not so tired. Looks like another of those wade through the words things, so I need to be a little more alert.

[WYnWn]

3:30 am, one nice cup of coffee into the morning, It's nice to have an internal alarm clock. I'm ready to go!

you said: "10% to 0% amounts to a reduction in rating". Thank you, that's what I've been saying all along.

Another major concern to me is the copying/misrepresentation of records. Before I started this process, I first obtained my med. recs. which included the pre-enl physical. The Colorado denial (from 1979) is copied from that document which amounts to fraudulent use of the information, plus the fact that no phys. exam. was performed for the determination. Is there a way to challenge that more directly/blatantly?

[broncovet]

Your form 9 has a place where you basically write why you are appealing. I would include language similar to:

1. Since the net result of this decision was that the Veteran went from a 10% evaluation to a 0% evaluation, along with a decrease in compensation, this decision amounts to a reduction in rating. Since the Veteran has neither recieved the required 60 day notice for reductions in rating, nor has the VA complied with other requirements for a reduction, the Veteran contends that the rating should be reverted back to 10%, while keeping the 1979 effective date.

2. Additionally, since the Veteran was seeking an increase in rating, the decision did not address this issue, but instead lowered the rating. The Veteran continues to appeal for an increase, and protests this "deemed denial" of his requested increase. He is further entitled to a decision on the increase, along with a "reasons and bases" as to why the increase has been denied. The medical exam on ........date shows a worsening of the conditions, and, an increase is warranted.

...something like this...you can cut, paste, or modify or discard these exact words, if you like. I wrote them to help a Vet.

[WYnWn]

Good morning,

I've already sent in the form 9. I did, however, write the arguments, instead of relying on my VA rep to compose them. It's probably too long to try to copy onto here, but I hit each argument, disagreement, complaint, etc. separately with relevant regs, laws, etc. and cited precedent court cases.

What I'd like to address, somewhere, with some entity, is the fact that the pre.enl physical language was copied into the 1979 denial as if it were current information instead of 5 years old and the present dialogue keeps that in play instead of the MEB/PEB language and medical records. That was fraud. The problem I see is that you can't make chicken salad out of chicken manure. The copied material has played prevalently into every aspect of the current disagreements, etc. I don't know how to get the incorrect data bounced.

Your suggestion about the procedural error, no notification for reduction/serv. con. severence, etc. seems to be most valid. I'm a little disappointed that I've requested the c-file before without response. I'm thinking I will call my rep this morning and find out if obtaining it can be expedited, or if he can provide it faster.

[Capt.]

Hello Wyn, I am wondering what happened also as you went from "0" to 10% and can only assume you must have NOD it thru DRO or maybe you appealed it. If you can remember the particulars it would help and if this is right you are SC for it. It is no surprise that as long as you are at the Regional Office , then you are going to have to deal with the process there. That will include outright lies, denials , even if you have the evidence to properly propel a favorable decision, stalling, and even loosing evidence, maybe even shuffling it to another VARO. It is the general nature of the beast. They will use every minor statement in your C file and Progress, Medical notes to deny you. I mean everything and anything. Even it is so tiny, so miniscule, so apparantly insignificant. They will use terms like your doctors reports , nexus "are not probative," and even things like " the evidence you submitted concerning...... are not open for discussion". REMEMBER , you are at the VARO and it is not a grant your claim arena ,,,,,it is a denial PIT. They are counting on you to not have the fortitude or willpower or guts to carry on after your denial...They have the numbers to support this and they know it works.

Ahhhhhhhhhhhhhh but there are some Veterans that will not take no for any answer and this group moves their claim to the next step ...... oh yes I am at a DRO review right now, but realize we are heading to the BVA and form 9 completion, but it is to your benefit to get your claim OUT OF VARO and move it on to the next level and that is the BVA. Now at the BVA your evidence is not going to get the ILLEGAL treatment that went on at VARO as evidence must be weighed and treated as such. The "are not probative" clause the VARO uses will not hold up in most cases at the BVA and they will have to follow the law more closely than the VARO. Yes they probably are going to note your pointing out the mistakes that the VARO made and remands back to the VARO from BVA is what has all Veterans here at Hadit , fuming mad because of the time it takes to correct and move on to the next phase of developement. Many Veterans don't make it because of how sick they are and "time is of the essence" actually gets ignored in most cases and the Veteran looses by subjection to his condition. The VARO knows this too and uses it , in my opinion illegally to the point of a silent murder on the Veteran.

You have mentioned you want to propel your claim with your VSO and I would caution you that it seems your claim has many years on it and you are not getting any younger. The law has changed in 2007 and to your benefit you can hire a lawyer to prepare and help you move your claim into the BVA/Form 9 phase. I would not consider taking on the VA without one at this critical point. John999 pointed it out well. Hes right. You need a lawyer and this keeps the VARO in check because , I can assure you the VARO Dept of Justice lawyers are telling the VA employees what to do in some cases. It is pushing you aside if they can ,,,,,but if your lawyer sees any type of questionable action on the VA's part you will at least have an ADVOCATE who will stop it. I can tell you that I have done what you've done. It is so taxing on the Veteran , it causes you to have to fight with the VA using all of your time and resources and you still may not be propelling your claim properly and or maybe incorrectly. You and other Veterans like myself cannot afford any mistakes or leave something out at this stage of the battle. I know that you want to try and do this on your own but you can still put together all of the information, evidence necessary and let your lawyer try to put it together or to trim out things not important and majoring on things that are.

It boils down to time, correctly applied information/evidence presented to the BVA. You mentioned legal precedence but it has no place at the VARO because they do not have to be kept under the laws or court cases until you get to the BVA or really CAVA or higher. Legal Precedence is what you will win with but not at the VARO level. This is where the lawyer will help at the BVA and higher courts to REMIND them that Precedence does count in your favor.

You have problems with the "0" rating going to "10" then back to "0" which is another example of the VARO doing whatever they want and using more time on your lifeclock. I think Bronco may be right and it probably was not done correctly. I find another statement you made , that you have not gotten your Cfile as a major , major problem. They have evidence you don't and if you don't know what they are talking about then any further discussions or filing form 9's or appeals will be a waste of time. I will tell you that they tried this on me and I enlisted my Congressman and Senator and got it fairly quickly. Your time clock is ticking and deadlines have to be made but you will still have a chance to submit your material as it comes in.

There are many fine lawyers that handle VA law. Some are discussed here on Hadit and you can ask for recommendations from other Vets here. I would contact one and not risk any more loss of time on your claim that could result in another denial. Once again, the VARO will do whatever they want , illegal , fraudulent but it is the next steps that you do which can point it out to them and change it legally. I hope your correspondance has been done by certified mail with the VARO having to sign for it.They will always loose or did not receive anything sent by regular mail. I also do not like IRIS or any phone conversations concerning status situations on claims. They will lie and tell you one thing and it will be totally different the next phone call. You can read all about these fiascos here at Hadit. For every one they get right there are 10 that are not even close. Sometimes the award conversations may get a little better but I would even be somewhat cautious of that too. I will tell you that it sounds like you are a scrapper and ready to carry the fight on with the VARO and it is going to be a fight , so if you can just remember my closing motto to every post.......... NEVER GIVE UP. God Bless, C.C.

Edited June 4, 2011 by Capt.Contaminate