Does The Fight Never End With Va...what To Do?

[ferris7060]

I got my packet today after learning I got 100% 2 days ago. Which I am very grateful for...HOWEVER... I asked for a reconsideration on a claim started August 2010. I got the denial of that decision in August 2011. Asked for a reconsideration on that decision within 2 weeks. Sent them only old information that they should have already had as NEW evidence. They approved the claim within 2 months. NO BACKPAY WHAT SO EVER! They opened a new claim the same day I asked for a reconsideration of the crap decision. The *new* evidence I sent was an OLD decision from 2008 that listed 12 different appts. where migraines were complained of. How do they get away with this stuff? The decision maker for the reconsideration called me himself to ask what it was I wanted "reconsidered". I said the entire IU claim. And now all of a sudden its a new claim for increase. I am so tired of this battle I could scream. Also, I feel so grateful for someone finally admitting that I can't work, that I HATE to get into this again. But, give up $20,000? Everytime I called the 1-800# during this reconsideration they could all clearly see that I had opened a reconsideration not a new claim.

[jbasser]

Nod the effective date and appeal it.

J

[Berta]

This shows that a Reconsider Request -when properly worded- as yours was- can result in a very fast decision (if the VA takes the time to read it)

However- I can see why you are ticked off.

I suggest that there could be a way to ask them to CUE themselves here as to the proper EED.

I have gotten fast responses from them by doing that. You could tell them they violated the Evidence requirements in 38 CFR, 38 USC and in M21-1MR.

I used 38 CFR 4.3 and 4.6 to do that.

"How do they get away with this stuff?"

Because sometimes veterans allow them too because they don't fight back.

If you ask them to CUE themselves, they might respond fast - but if they dont- watch for the NOD deadline.

PS- Do you get SSDI solely for any of your SCs?

If the SSA award EED preceded the VA award EED by at least a year you could potentially recover a more year of retro.

I explained that here many times already.

[Berta]

What I mean is top use perhaps 38 CFR and word the rCUE request to show that this affected a proper EED by their failure to consider these regs properly:

§4.6  Evaluation of evidence. 

      The element of the weight to be accorded the character of the veteran’s service is but one factor entering into the considerations of the rating boards in arriving at determinations of the evaluation of disability. Every element in any way affecting the probative value to be assigned to the evidence in each individual claim must be thoroughly and conscientiously studied by each member of the rating board in the light of the established policies of the Department of Veterans Affairs to the end that decisions will be equitable and just as contemplated by the requirements of the law.

“b.  Review of Evidence.  Concisely cite and evaluate all evidence that is relevant and necessary to the determination.  Rating decisions must evaluate all the evidence, including oral testimony given under oath and certified statements submitted by claimants, and must clearly explain why that evidence is found to be persuasive or unpersuasive.  Decisions must address all pertinent evidence and all of the claimant's contentions. “

Source: September 23, 2004 M21-1, Part VI

            Change 118

______________________________________________________________________________

CHAPTER I--DEPARTMENT OF VETERANS AFFAIRS

PART 3_ADJUDICATION--Table of Contents

Subpart A_Pension, Compensation, and Dependency and Indemnity

Compensation

Sec. 3.159 Department of Veterans Affairs assistance in developing

claims.

(a) Definitions. For purposes of this section, the following

definitions apply:

(1) Competent medical evidence means evidence provided by a person

who is qualified through education, training, or experience to offer

medical diagnoses, statements, or opinions. Competent medical evidence

may also mean statements conveying sound medical principles found in

medical treatises. It would also include statements contained in

authoritative writings such as medical and scientific articles and

research reports or analyses.

(2) Competent lay evidence means any evidence not requiring that the

proponent have specialized education, training, or experience. Lay

evidence is competent if it is provided by a person who has knowledge of

facts or circumstances and conveys matters that can be observed and

described by a lay person.

_________________

Not knowing exactly what the decision said-this might not be the appropriate citations to use.

By all means peruse M21-1MR under their EED info.

I have used their own M21-1MR manual against them multiple times.

38 USC is the law

38 CFR is the VA's interpretation of that law.

M21-1MR is the VA Handbook on how the laws in 38 USC are to be applied.