Va Made In Cue In Granting Service Connection For Als

[CALS]

My husband was granted disability in 2009 for ALS. The VA now says they made a CUE in granting his service connection, due to his active duty being for training, and are proposing to cut ALL benefits. HELP!!!

[broncovet]

Cals

After reading about this, I think PR, Berta, Carlie, myself and Katrina Eagle all agree that you should ASK FOR A HEARING. We concur that your VSO gave you bad advice recommending you skip the hearing. I would humbly joke that it is not often that Berta, Carlie, PR, and myself agree on anything, but I think we agree you should ask for a predetermination hearing. Its your best shot, and buys you some needed time. You could even try this: Ask for the hearing, and then just put the money in the bank..dont spend it "just in case" they theoretically ask for it back (even tho I think that the VA does not have a legal basis to ask for this money back...)

I can PERSONALLY ATTEST that I received benefits that the VA said I was not entitled to, and expected me to repay. I asked for a waiver based (in part) on the fact that I did nothing wrong...I supplied the VA with the required information and it was not my fault it took the VA 2 years to act on it, and all this time they sent me the "higher" benefit. They granted my waiver and I did not have to pay back a penny.

Frankly, I am upset that this VSO throws his weight around telling you to skip a reduction hearing, when the former President of NVLSP, Katrina Eagle, publicly recommends otherwise.

Remember, when Katrina Eagle publicly gives advice, she exposes her self to some liability for people who act on that advice, since this advice was made in the context of her being a Veterans lawyer.

I do think the VA, and sometimes VSO's use "fear tactics" to try to control Veterans. You see, they want YOU to fear having to pay that money back, so you skip the hearing and the reduction happens. Even if it is not true that you have to pay the money back, the "fear" can motivate you into making an unsound decison making it far easier for the VA to deny you.

I see VSO's sometimes using fear to keep Veterans from filing an increase, or from seeking an eed with things like.."Gee keep what you got..you could lose what you have".

If you handed me a $10 and I gave you a five and two ones as change...I could tell you to stop complaining about the rest of your change or I will keep the five and two ones also. They could try fear tactics. Howver, this is America. We Vets fought for our rights...freedom of speech, freedom of press...and due process. You are free to make the VA jump through all the hoops to prove you are not eligible for benefits. The burden is on them, but if you waive your right to a hearing, they can just shred your selected evidence and say..."Gee...we didnt get any documentation of that".

But..if you go to a hearing...you can tell the judge, "Oh, yes, I have a copy of that documention right here". The VA is famous for shredding evidence and then denying benefits. Dont let them.

[john999]

I sure would ask for the hearing. Maybe get yourself a lawyer to go there with you. I am sure the VA has made some errors in this whole mess.

[Berta]

Katrina Eagle was and maybe still is Vice Pres of NOVA but I am completely unaware of her ever having worked for NVLSP.

Having said that she is a SUPERB veteran's attorney.

Someone here recently mentioned a reduction hearing that took 7 months to occur.As I understand the regs, the VA had to continue to pay comp for those 7 months.

This is an unfortunate situation and I agree with what Broncovet said as to VSOs not doing their jobs properly.

He took the correct steps here:

"can PERSONALLY ATTEST that I received benefits that the VA said I was not entitled to, and expected me to repay. I asked for a waiver based (in part) on the fact that I did nothing wrong...I supplied the VA with the required information and it was not my fault it took the VA 2 years to act on it, and all this time they sent me the "higher" benefit. They granted my waiver and I did not have to pay back a penny."

If the VA committed a CUE that erroneously awarded a benefit ,then the VA is cause of the overpayment-not the vet- but a waiver MUST be requested and a Hearing should always be requested too.

In some cases at the BVA the VA found that the vet (or widow) had actual knowledge of the overpayment themselves yet didnt take steps to have it corrected.

This happened to some widows prior to the newer remarriage regs, who remarried and were supposed to lose their DIC but they never told VA they remarried and the VA caught the overpayment and they were charged for it because the VA sent out notices from time to time to widows on DIC asking them if they still were the surviving spouse of the vet.

I got a question notice like this when I reopened in 2003.

[Berta]

I just wanted to add

"With certain enumerated disorders, such as sensorineural

hearing loss and ALS, service incurrence may be presumed if

the disease is manifested to a degree of 10 percent or more

within one year after the date of separation from service.

38 U.S.C.A. §§ 1101, 1112, 1137 (West 2002); 38 C.F.R. §§

3.307, 3.309 (2007)."

and

Lets not forget this:

http://www.usatoday.com/news/nation/2009-08-24-veterans-misdiagnoses_N.htm

1800 vets got letters from the VA saying they had ALS but they didnt have it.

Also as I mntioned ALS can be misdiagnosed:

"A Philadelphia Common Pleas Court recently awarded a 60-year-old $10 million after it was determined that a doctor specializing in ALS misdiagnosed the man. The medical malpractice lawsuit stemmed from a misdiagnosis that ended up leading to the man's permanent leg paralysis.

According to the lawsuit, the man had been misdiagnosed in 2003 with ALS, which is also known as Lou Gehrig's disease. At the time, the doctor gave the 60-year-old man anywhere between 18 months and three years to live.

However, even though the doctor is considered an expert in ALS, and is even the medical director at the ALS Association Center at the hospital that is at the University of Pennsylvania, according to the lawsuit the diagnosis was incorrect. Instead the man was really suffering from a spinal cord compression.”

http://www.medicalmalpracticeattorneyphiladelphiapa.com/2011/04/pennsylvania-doctors-misdiagnosis-leads-to-paralysis.shtml

Hopefully this vet is eligible for Medicaid and can get a real doctor now to properly assess his condition because - as I know only too well-

the VA might have made error in his ALS diagnosis and/or his treatment.If so that could open the window for a Section 1151 claim.

But this is my last post in this topic and I fully appreciate the wife being willing to fight for him.Best way to begin that fight is with the hearing.

[CALS]

Thanks all. Berta, we do go to one of the top ALS clinics in the US. My husband does have ALS. His original DX was done outside the VA. ALSA was who told us it was covered because he was a Veteran. I had read Katrina's advise before coming on here. I have talked with Jim Strickland about this.He was the one who told me about waivers. We are seeing our VSO tomorrow. The reason we had decided not to put in for an appeal is because with no new evidence, once the hearing concludes, and a decision is reached, benefits stop immediately. Doing the 60 days, we will get benefits until 2 months after final decision, which means till Oct, which saving this money will allow us to keep our home. There is No way the hearing will not be held in July or Aug, meaning we would lose benefits 2 months earlier. The only way to prevail is to get Congress to change the law, or have the VA change his DD 214. We will see a lawyer this week also, however, finding one to take this on will be another challenge. They originally said he had active duty for the period when he was at Ft Lee for his MOS training. They missed where it said it was for training. I discovered the info about ADSW while doing research, and had hoped it was under Title 10, but it is most likely under 32, if it was ADSW at all. It is listed on his DD214 as inactive duty service.

Edited June 26, 2011 by CALS

[Philip Rogers]

JMO but once you miss that hearing request deadline you're screwed. What makes you think they'll be able to do the hearing that quickly? Also, once he testifies, under oath, (which is new evidence)that he was on active duty, besides the active duty for training, and that the government has the records, I believe it becomes the VA's responsibility to locate those records and until they are located, I don't believe the VA can sever SC.

Jim Strickland is good but not perfect. As I see it, and as stated in the VBM, Section 5.10.7, pgs #379-382, the VA cannot make the decision until the first 60 day notice has expired, no matter when the hearing is,(unless the claimant signs a waiver, waiving that 60 day period, it's called due process) and then the new 60 day period begins. Just sayin' . . .

If you don't submit the request for the hearing, tomorrow, you won't be able to stop or delay the severance.

End of my comments.

pr