ptsd Help With Understanding Remanding From Appeals Back To Ro

[Mil T]

Hello,

I am a Vet advocate in my small town. I help as many as I can with their claims and following them along the process. I am not associated with any organization. We don't have any organized VSO's in our town so I try to take up the slack where I can.

I have an issue that I need to get some understanding of.

One of the Vets I'm helping has had claims in for several years and under appeal. When he came to me his claims were very convaluted and all had been denied because no one had helped him with the processes. He even had an attorney that advised him to file for agent orange but the vet is a blue water and was never qualified for agent orange. I was able to get most of it straightned out by dropping the agent orange presumptive illness claims that were never going to be awarded.

We turned in new evidence for the rest of the claims of PTSD, Hearing and tinnitus. Also unemployability because he has parkinsons and he is in a wheel chair due to his SC Knees that he was discharged from service for with a 0% award and asked to be reopened based on new evidence that I helped him acquire. We also asked to have the claims in appeals remanded back to the RO based on the new evidence. This was in October of 2011. We've been following this on E-benfits and never saw any changes. We visit the RO in Phoenix often and were told the claims were back in RO. Yesterday we visited again and this time the Service Officer finally went and got his file after seeing on his computor that all of his claims were still in appeal. When we inspected the file, the 4138 where we requested the remand of claims was there but there was never any action taken. The SO noted this and said he would take it up to appeals and make them aware of the 4138 request.

Today the Veteran was called by the appeals dept. and was told that if they remand the claims that his initiation date of all the claims would revert to todays date and all of his back pay would be lost.

Can someone clarify for me why that would happen? I've always been of the understanding per the VA website and on the e-benefits website that the appeals board should always automatically remand claims with new evidence back to the RO in the first place. I don't understand why he would loose his origional date for the filing of the claim. Some of the dates go back to 2007.

Any help would be appreciated.

[carlie]

carlie, on 22 March 2012 - 09:15 PM, said:

Something I have been a bit concerned with is that you post that you made a request for the BVA

to "remand" everything back to the VARO. I just don't feel that this would be a correct process as BVA

is the ones to determine if a "remand" needs to be done and there are even rules for this procedure,

I don't know if a rep or claimant can even actually request the BVA to remand.

I would contact the BVA Ombudsmans Office and see if they have physical custody of the claims file

and if so, find out exactly what issues are shown in the appeal, that are under their jurisdiction.

If they have physical custody of the file I would ask them to withdraw the request to send everything

back to the VARO.

As said in earlier post that we physically saw the claims file ( 3 seperate folders) at the phoenix RO. the VA service representative went up stairs in the Appeals section and pulled them for us to see and for him to look at.

Mil T - I would still call the BVA and ask these specific questions - regardless of seeing 3 separate folders at the RO.

I would tell them you are sending some new evidence to factor in during consideration,

directly to them along with a signed waiver of RO consideration.

I would also verify that you are the rep for the claimant - I believe you already did a 21-22a.

Be sure they DO NOT have that attorney listed as the rep.

We turned in a 21-085 authorizing me as a third party to have the private information disclosed to me. The 21-22A did not allow me to do that since I am not a formal Veteran Organization VSO or attorney. We were told that with the 21-22A that it would go to sensative filing. Well it seems that it is any way

because they must think the Attorney is still handling it. Yes we have the letter that the attorney actually wrote and filed with the VA and the Vets file that he is no longer the representative.

Mil T - I do not know where you are getting the above information from BUT,

if you want to be the recognized individual representative of this claimant - then a completed and signed 21-22a must be of record for both levels,

VARO and BVA.

The BVA has very specific rules regarding representatives and very specific rules in any change of representative and specific timelines in regards to this issue of representation.

IMO - you just having a copy of "the letter that the attorney

actually wrote and filed with the VA and the Vets file that he is no longer the representative" does not suffice in this discombobulated situation. I can easily see, even the basic issue of acknowledgment of representative, to be a reason for additional problem and remand back to to VARO again.

I would clarify with the BVA exactly WHO is the representative of record. If a 21-22a is not of record then you WILL NOT be the representative for this claimant.

The 21-22a also DOES PROVIDE AUTHORIZATION DISCLOSURE OF RECORDS !

http://www.veteranai...docs/21-22a.pdf

APPOINTMENT OF INDIVIDUAL AS CLAIMANT'S REPRESENTATIVE

RESPONDENT BURDEN: We need this information to recognize the individuals appointed by claimants to act on their behalf in the preparation, presentation, and prosecution of claims for

VA benefits (38 U.S.C. 5902, 5903, and 5904) and for those individuals to accept appointment. We will also use the information to verify consent for disclosure of VA records to the appointed

representative (38 U.S.C. 5701(b) and 7332) Title 38, United States Code, allows us to ask for this information

I, the claimant named in Item 2, hereby appoint the individual named in Item 7A as my representative to prepare,present, and prosecute my claims for any and all benefits from the Department of Veterans Affairs (VA) based on the service of the veteran named in Item 4. If the individual named in Item 7A is an accredited agent or attorney, the scope of representation provided before VA may be limited by the agent or attorney as indicated below in Item 15.

If the individual indicated in Item 7A is providing representation under 14.630, such representation is limited to a particular claim only. I authorize VA to release any and all of my records (other than as provided in Items

9 and 10) to that individual appointed as my representative, and if the individual in Item 7A is an accredited agent or attorney, this authorization includes the following individually named administrative employees of my representative:

A 21-085 ONLY PROVIDES AUTHORIZATION to disclose information to a third party -

A 21-085 DOES NOT PROVIDE AUTHORIZATION for you to represent the claimant.

Be sue to get the name of who you talk to and a contact or reply # to send the above info to.

JMHO. I will do that.

http://www.bva.va.go...omerService.asp

Our mailing address is:

Board of Veterans’ Appeals

810 Vermont Avenue, North West

Washington, DC 20420

For your convenience the Board of Veterans' Appeals has a FAX line. FAX: 1 202 343 1889

We may be reached by our phone number (202)-632-4623 Monday-Friday 9:00am-4:30pm (Eastern time zone).

For an Email status report on your claim before the Board of Veterans’ Appeals, please state your name, file number and request, click hereBVAOmbudsman@mail.VA.Gov

Wording of 4138 turned into the Phoenix VARO on 10/11/2011:

I would like to remand all of my claims in appeal status back to the Phoenix RO for adjudication based on the new evidence I have submitted over the past 6 months and doctor exams that were conducted for the claims.

I wish to have the claims re-opened with the new evidence that I have submitted regarding PTSD, HEARING LOSS, TINNITUS, and MY SC KNEES.

Second request sent 11/7/2011 with small change in wording and also sent to Phoenix VARO:

I am requesting that all of my claims in appeal status be moved back to the Phoenix RO for adjudication based on the new evidence I have submitted over the past 8 months and doctor exams that were conducted for those claims.

I wish to have the claims re-opened with the new evidence that I have submitted regarding PTSD, HEARING LOSS, TINNITUS, and MY SC KNEES.

Mil T - IMO - the submission of these 21-4138's above, is a huge FUBAR !

In everything you have posted so far - the claimant had filed various claims for several issues.

The issues were denied - a substantive appeal was filed and the claimants issues (claim) were transferred to the BVA's jurisdiction. I believe that you have chosen to use the wording "re-opened" by application of the following:

3.160 Status of claims.

(e)Reopened claim. Any application for a benefit received after final disallowance of an earlier claim, or any application based on additional evidence or a request for a personal hearing submitted more than 90 days following notification to the appellant of the certification of an appeal and transfer of applicable records to the Board of Veterans Appeals which was not considered by the Board in its decision and was referred to the agency of original jurisdiction for consideration as provided in §20.1304(b)(1) of this chapter.

Now to be truthful I am not familiar with this pathway to "re-open" claims/issues.

The circumstances I am familiar with to Reopen a claim/issues, is when

any decision has become final:

(d) Finally adjudicated claim. An application, formal or informal, which has been allowed or disallowed by the agency of original jurisdiction, the action having become final by the expiration of 1 year after the date of notice of an award or disallowance, or by denial on appellate review, whichever is the earlier. (See §§20.1103 and 20.1104 of this chapter.)

and the claimant/representative, request the claim/issues to be Reopened - based on the submission of NEW and MATERIAL EVIDENCE.

38 CFR - 3.156 New and material evidence.

(a) General. A claimant may reopen a finally adjudicated claim by submitting new and material evidence.

New evidence means existing evidence not previously submitted to agency decisionmakers.

Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim.

New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim.

(Authority: 38 U.S.C. 501, 5103A(f), 5108)

(b) Pending claim.

New and material evidence received prior to the expiration of the appeal period, or prior to the appellate decision if a timely appeal has been filed (including evidence received prior to an appellate decision and referred to the agency of original jurisdiction by the Board of Veterans Appeals without consideration in that decision in accordance with the provisions of §20.1304(b)(1) of this chapter), will be considered as having been filed in connection with the claim which was pending at the beginning of the appeal period.

(Authority: 38 U.S.C. 501)

This reg above regarding PENDING CLAIMS - is what I would cite in my attempt to maintain

the earlier effect date.

I believe the additional evidence will absolutely have to meet the definition in the regs for both

N&M inorder to accomplish this.

Can you post the most relevant portions - of the additional "new" evidence that has been submitted?

I hope some other chime in on this thread.

Edited March 23, 2012 by carlie
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[Mil T]

Carlie.

I do understand everything that you said in this response and agree with most with ? on some. I am taking the advise of the Veteran Service Rep that I see when I go to the RO. I always see the same one so I don't have to re-explain everything about a case to another VSR.

Regarding the 22A form. That is what I did at first. When I went down to check one time on this claim, I was told it was in the Sensative File section. I asked what and why it was in that. I was told that when claims are handled by attorneys that only privledged, cleared personel are allowed to handle the file. That if I wanted to ask questions or review the file that I would have to fill out a 0845 form so that as a third person I could do what I'm doing. So I did what they advised. My mistake. I did not understand why they were suggesting this as I did read and understand the 22A and saw no restrictions for a regular person to represent a Veteran with their claims. I will follow up with a 22A again and with the questions that you suggested.

The word remand was always a concern of mine as well. However I was of the understanding that when N&M evidence is submitted for a claim and the claim is in appeals that it would come back to the RO anyway. My thoughts, because it has taken so long for these claims and this Vet to get any resolution that bringing it back to the RO would initiate a faster decision than an appeal. As explained to myself and the Vet by the VSR that I use at the RO that a regular claim is approx. 12-18 months, an NOD with a DRO or the appeal section of the RO usually takes 18 to 36 months and a regular BVA appeal is 36 to 10+ years.

The previous attempts for these particular claims had all been denied, mainly by mishandling by Service Orgs VSO's and Attorney. I have been trying to get some since of these claims since I took over. I have a good handle so that the Vet and myself understand what has happened. The problem is never knowing, until this last visit, and that has been blown out of the water now, as to exactly where the claims are at. I will be calling the BVA OMBudsman Monday. I hope you can understand that when we get the RO service rep telling us in person to do what we have been doing and then the someone from the RO Appeals dept, calling the vet the next day with different information and then someone from Minnesota the next and giving all different information it is frustrating to say the least.

Regarding the point of filing the waiver. I'm a bit confused. The waiver is for the BVA to NOT have the N&M evidence remanded back to the RO for review and a decision made if appropriate. The N&M evidence that we have turned in are doctors reports showing PTSD diagnosed, Knees worsening, Stressor letters that were never written explaining the incidents that caused PTSD while in service aboard the Enterprise. Noise trauma proof and studies by the Navy that showed the Decibals of the job this Vet did and the ultimate damage it caused. Deck records to show the incidents actually took place that were described etc. Plus on going progress reports from Doctors.that continually show lack of improvement for this veterans claimed illnesses. We also have the C&P doctor exams and each of those doctors have said he is not capable of any fullfilling activites or gainful employment due to his illnesses. Non of this had been turned in until the Veteran came to me. I found a lot of infomation in the files that the Vet had received from the Attorney when he was let go. None of this information was ever turned in. One of the other things that happened and has been a questionable practice in my opinion was that when the Veteran left St. Louis, he requested, in writing, that his case be kept there for adjudication based on the DRO hearing that had just been done. The DRO hearing officer agreed and was working the claim when his supervisor came up to him and took the file and told him that he was not to work on it any longer and that he was sending it to Phoenix. This supervisor and the vets attorney were friends and when nothing was happening and the Vet released the attorney for service, all of this happened. The Veteran talked to the DRO that heard the case and recieved this information straight from him. We requested a copy of the hearing through the Phoenix RO and we received a letter from St. Louis that said the recording machine had malfunctioned and nothing was available. Go figure. So you can see that there has been some unconventional handling of this claim. Also at that time the Vet was still being reviewed for AO presumptives which I explained before he was not qualified for and he finally dropped.

I know this is a discombobulated situation. Thats the reason I am here in the first place. I have been pretty successful with many other claims etc. and representing other Veterans but his one came all messed up and has taken some time to try and get it sorted out but as you have read, it has been very difficult to get straight and accurate information from the VA.

Undoing the damage that people that are supposed to be in the know have done is difficult when it's an amature trying to straighten it up.

I do appreciate your help very much. Your disclaimer is pretty much the same as myself. I am not an export, or attorney or a trained VSO but I do this to help my fellow Veterans in a town that no one is available from any organization or the VA itself.

To show you how messed up it can get in this town for us veterans, I have been a member of a combat vet counceling group that meets every other Thursday for 5 years. The council came from the Mesa Vet Center 100 miles away. This past Dec. the coucelor from the vet center came in to the meeting and announced the Vet Center would not be sending anyone up to do counceling any longer and that was the last meeting. Needless to say everyone was pretty much shocked and for a predomanetly Vietnam Veteran group of Grunts, it did not set to well. We have completely felt abadoned. The group has approx 23 vets that participated. The Vet Center has said they are working on a solution but so far nothing has transpired. I don't have faith that anything will happen. We continue to meet because we are all close and know each others problems and are there to help each other when necessary. We have definitly come to learn that the VA is not our advocate but our advisary just like when we came home from war.

carlie, on 22 March 2012 - 09:15 PM, said:

Something I have been a bit concerned with is that you post that you made a request for the BVA

to "remand" everything back to the VARO. I just don't feel that this would be a correct process as BVA

is the ones to determine if a "remand" needs to be done and there are even rules for this procedure,

I don't know if a rep or claimant can even actually request the BVA to remand.

I would contact the BVA Ombudsmans Office and see if they have physical custody of the claims file

and if so, find out exactly what issues are shown in the appeal, that are under their jurisdiction.

If they have physical custody of the file I would ask them to withdraw the request to send everything

back to the VARO.

As said in earlier post that we physically saw the claims file ( 3 seperate folders) at the phoenix RO. the VA service representative went up stairs in the Appeals section and pulled them for us to see and for him to look at.

Mil T - I would still call the BVA and ask these specific questions - regardless of seeing 3 separate folders at the RO.

I would tell them you are sending some new evidence to factor in during consideration,

directly to them along with a signed waiver of RO consideration.

I would also verify that you are the rep for the claimant - I believe you already did a 21-22a.

Be sure they DO NOT have that attorney listed as the rep.

We turned in a 21-085 authorizing me as a third party to have the private information disclosed to me. The 21-22A did not allow me to do that since I am not a formal Veteran Organization VSO or attorney. We were told that with the 21-22A that it would go to sensative filing. Well it seems that it is any way

because they must think the Attorney is still handling it. Yes we have the letter that the attorney actually wrote and filed with the VA and the Vets file that he is no longer the representative.

Mil T - I do not know where you are getting the above information from BUT,

if you want to be the recognized individual representative of this claimant - then a completed and signed 21-22a must be of record for both levels,

VARO and BVA.

The BVA has very specific rules regarding representatives and very specific rules in any change of representative and specific timelines in regards to this issue of representation.

IMO - you just having a copy of "the letter that the attorney

actually wrote and filed with the VA and the Vets file that he is no longer the representative" does not suffice in this discombobulated situation. I can easily see, even the basic issue of acknowledgment of representative, to be a reason for additional problem and remand back to to VARO again.

I would clarify with the BVA exactly WHO is the representative of record. If a 21-22a is not of record then you WILL NOT be the representative for this claimant.

The 21-22a also DOES PROVIDE AUTHORIZATION DISCLOSURE OF RECORDS !

http://www.veteranai...docs/21-22a.pdf

APPOINTMENT OF INDIVIDUAL AS CLAIMANT'S REPRESENTATIVE

RESPONDENT BURDEN: We need this information to recognize the individuals appointed by claimants to act on their behalf in the preparation, presentation, and prosecution of claims for

VA benefits (38 U.S.C. 5902, 5903, and 5904) and for those individuals to accept appointment. We will also use the information to verify consent for disclosure of VA records to the appointed

representative (38 U.S.C. 5701(b) and 7332) Title 38, United States Code, allows us to ask for this information

I, the claimant named in Item 2, hereby appoint the individual named in Item 7A as my representative to prepare,present, and prosecute my claims for any and all benefits from the Department of Veterans Affairs (VA) based on the service of the veteran named in Item 4. If the individual named in Item 7A is an accredited agent or attorney, the scope of representation provided before VA may be limited by the agent or attorney as indicated below in Item 15.

If the individual indicated in Item 7A is providing representation under 14.630, such representation is limited to a particular claim only. I authorize VA to release any and all of my records (other than as provided in Items

9 and 10) to that individual appointed as my representative, and if the individual in Item 7A is an accredited agent or attorney, this authorization includes the following individually named administrative employees of my representative:

A 21-085 ONLY PROVIDES AUTHORIZATION to disclose information to a third party -

A 21-085 DOES NOT PROVIDE AUTHORIZATION for you to represent the claimant.

Be sue to get the name of who you talk to and a contact or reply # to send the above info to.

JMHO. I will do that.

http://www.bva.va.go...omerService.asp

Our mailing address is:

Board of Veterans’ Appeals

810 Vermont Avenue, North West

Washington, DC 20420

For your convenience the Board of Veterans' Appeals has a FAX line. FAX: 1 202 343 1889

We may be reached by our phone number (202)-632-4623 Monday-Friday 9:00am-4:30pm (Eastern time zone).

For an Email status report on your claim before the Board of Veterans’ Appeals, please state your name, file number and request, click hereBVAOmbudsman@mail.VA.Gov

Wording of 4138 turned into the Phoenix VARO on 10/11/2011:

I would like to remand all of my claims in appeal status back to the Phoenix RO for adjudication based on the new evidence I have submitted over the past 6 months and doctor exams that were conducted for the claims.

I wish to have the claims re-opened with the new evidence that I have submitted regarding PTSD, HEARING LOSS, TINNITUS, and MY SC KNEES.

Second request sent 11/7/2011 with small change in wording and also sent to Phoenix VARO:

I am requesting that all of my claims in appeal status be moved back to the Phoenix RO for adjudication based on the new evidence I have submitted over the past 8 months and doctor exams that were conducted for those claims.

I wish to have the claims re-opened with the new evidence that I have submitted regarding PTSD, HEARING LOSS, TINNITUS, and MY SC KNEES.

Mil T - IMO - the submission of these 21-4138's above, is a huge FUBAR !

In everything you have posted so far - the claimant had filed various claims for several issues.

The issues were denied - a substantive appeal was filed and the claimants issues (claim) were transferred to the BVA's jurisdiction. I believe that you have chosen to use the wording "re-opened" by application of the following:

3.160 Status of claims.

(e)Reopened claim. Any application for a benefit received after final disallowance of an earlier claim, or any application based on additional evidence or a request for a personal hearing submitted more than 90 days following notification to the appellant of the certification of an appeal and transfer of applicable records to the Board of Veterans Appeals which was not considered by the Board in its decision and was referred to the agency of original jurisdiction for consideration as provided in §20.1304(b)(1) of this chapter.

Now to be truthful I am not familiar with this pathway to "re-open" claims/issues.

The circumstances I am familiar with to Reopen a claim/issues, is when

any decision has become final:

(d) Finally adjudicated claim. An application, formal or informal, which has been allowed or disallowed by the agency of original jurisdiction, the action having become final by the expiration of 1 year after the date of notice of an award or disallowance, or by denial on appellate review, whichever is the earlier. (See §§20.1103 and 20.1104 of this chapter.)

and the claimant/representative, request the claim/issues to be Reopened - based on the submission of NEW and MATERIAL EVIDENCE.

38 CFR - 3.156 New and material evidence.

(a) General. A claimant may reopen a finally adjudicated claim by submitting new and material evidence.

New evidence means existing evidence not previously submitted to agency decisionmakers.

Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim.

New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim.

(Authority: 38 U.S.C. 501, 5103A(f), 5108)

(b) Pending claim.

New and material evidence received prior to the expiration of the appeal period, or prior to the appellate decision if a timely appeal has been filed (including evidence received prior to an appellate decision and referred to the agency of original jurisdiction by the Board of Veterans Appeals without consideration in that decision in accordance with the provisions of §20.1304(b)(1) of this chapter), will be considered as having been filed in connection with the claim which was pending at the beginning of the appeal period.

(Authority: 38 U.S.C. 501)

This reg above regarding PENDING CLAIMS - is what I would cite in my attempt to maintain

the earlier effect date.

I believe the additional evidence will absolutely have to meet the definition in the regs for both

N&M inorder to accomplish this.

Can you post the most relevant portions - of the additional "new" evidence that has been submitted?

I hope some other chime in on this thread.

[Berta]

Carlie said: “Mil T - IMO - the submission of these 21-4138's above, is a huge FUBAR”

I sure agree.

A claimant can ask for a BVA remand but I DONT recommend it unless the claimant knows VA 101 in and out.

In my 2008 BVA remand, it states something to the effect that 'the widow requested BVA remand' and she is correct.

I was afraid the BVA could possibly gloss over major errors in the decision I appealed, one being a VCAA violation, so I made sure they remanded the claim. Otherwise, if BVA had not caught the errors and I didnt inform them, the claim would have taken even longer than it did.

The evidence you mentioned as 'new'-did you send it,under the vet's BVA docket number directly to the BVA?

GeezI just read this-

"She also told him that all the claims are at the Washington DC management of Appeals.

Now mind you, yesterday he received the call from the Phoenix RO Appeals that if he remanded his appeals that he would loose his retro dates. We also viewed the file ourselves on Tuesday at the phoenix RO. So the quesion th... ....)

I am lost already.

Does he actually have a BVA docket number ? "or is te apeal at the AMC????

Remanded appeals do not lose their retro dates.

Can this vet join hadit and give us more info?

[deanbrt]

The way it has been stated to me BVA does not like to get reversed at CAVC and you will have attorneys at BVA reviewing everything with that in mind. If you are denied at BVA and file at CAVC I can attest personally that once your docket number appears on their calendar you will have an army of lawyers contacting you since CAVC pays their expenses with any kind of remand (which was my case). Your docket number stays with you all the way through it.

This is the challenge I see. You have to sift through differing opinions as a veteran and make the decision that is right for you.

[carlie]

Carlie.

I do understand everything that you said in this response and agree with most with ? on some. I am taking the advise of the Veteran Service Rep that I see when I go to the RO. I always see the same one so I don't have to re-explain everything about a case to another VSR.

Regarding the 22A form. That is what I did at first. When I went down to check one time on this claim, I was told it was in the Sensative File section. I asked what and why it was in that. I was told that when claims are handled by attorneys that only privledged, cleared personel are allowed to handle the file. That if I wanted to ask questions or review the file that I would have to fill out a 0845 form so that as a third person I could do what I'm doing. So I did what they advised. My mistake. I did not understand why they were suggesting this as I did read and understand the 22A and saw no restrictions for a regular person to represent a Veteran with their claims. I will follow up with a 22A again and with the questions that you suggested.

Mil T -

Apparently this vet already had the attorney listed as their acknowledged representative by way of submitting

a 21-22a for the attorney to rep them. They don't allow for more than one rep of record, at a time.

Although this can be, for a law firm - or service organization that has several VSO's.

In other words - they are not going to allow both a lawyer and an individual to be acknowledged as the representative -

at the same time. This is why they wouldn't allow for your 21-22a while the lawyer was still the appointed rep.

In regards to Sensitive 7 - there are several reasons for a claim to be flagged as Sensitive 7, as you posted above

or it can even be that the claimant is a VA employee- but Sensitive 7 doesn't really have much bearing or impact

on a claim one way or the other.

The 21-22a, provides for records to be released to the appointee.

carlie

The word remand was always a concern of mine as well. However I was of the understanding that when N&M evidence is submitted for a claim and the claim is in appeals that it would come back to the RO anyway. My thoughts, because it has taken so long for these claims and this Vet to get any resolution that bringing it back to the RO would initiate a faster decision than an appeal. As explained to myself and the Vet by the VSR that I use at the RO that a regular claim is approx. 12-18 months, an NOD with a DRO or the appeal section of the RO usually takes 18 to 36 months and a regular BVA appeal is 36 to 10+ years.

Mil T -

I understand your thought process above - BUT - if the claims file was already transferred and under BVA's

jurisdiction - most of the waiting time has already passed. The Waiver, I feel would have bee the best route.

carlie

The previous attempts for these particular claims had all been denied, mainly by mishandling by Service Orgs VSO's and Attorney. I have been trying to get some since of these claims since I took over. I have a good handle so that the Vet and myself understand what has happened. The problem is never knowing, until this last visit, and that has been blown out of the water now, as to exactly where the claims are at. I will be calling the BVA OMBudsman Monday. I hope you can understand that when we get the RO service rep telling us in person to do what we have been doing and then the someone from the RO Appeals dept, calling the vet the next day with different information and then someone from Minnesota the next and giving all different information it is frustrating to say the least.

Mil T - I know this is very frustrating and sure doesn't seem at all fair to the vet . - carlie

Regarding the point of filing the waiver. I'm a bit confused. The waiver is for the BVA to NOT have the N&M evidence remanded back to the RO for review and a decision made if appropriate. Mil T - YES - this is correct. carlie

The N&M evidence that we have turned in are doctors reports showing PTSD diagnosed,

Mil T - good to at least have the PTSD diagnosis - but be sure the doc's (with the right pedigree in Mental Health)

also link the PTSD to the active duty stressor. It would also save time if the doc addressed current level

of disability due to PTSD, especially in regards of Occupational and Social functioning.

All of this is to be factored into the "Development" process of claims. - carlie

Knees worsening,

Mil T - you posted the "knees" are already SC'd, so this issues would be for an increase of SC'd evaluation percentage

of the "knees".

All that is needed for this is medical evidence showing, current medical findings as related to the criteria shown

in the Diagnostic Code (DC the vet is rated under for this disability) in 38 CFR - Part 4. - carlie

http://ecfr.gpoaccess.gov/cgi/t/text/text-idx?c=ecfr&sid=55d5280d2bae0fbc41825278506b7a74&tpl=/ecfrbrowse/Title38/38cfr4_main_02.tpl

Stressor letters that were never written explaining the incidents that caused PTSD while in service aboard the Enterprise.

Mil T -

This is what the VA would use to verify the stressor and the C&P examiner would use to

support the link to active duty with full medical rationale. Again, this is in the "Development" of the claims process.- carlie

Noise trauma proof and studies by the Navy that showed the Decibals of the job this Vet did and the ultimate damage it caused.

Mil T -

Same as above for the hearing loss and Tinnitus but needs to be done by licensed Audiologist.

Also, there is a list somewhere that lends/provides support for a grant of SC, for Hearing Loss and Tinnitus for

specific MOS job titles. - carlie

Deck records to show the incidents actually took place that were described etc.

Mil T - This goes with the Verifying Stressor & Mental Health & Development. - carlie

Plus on going progress reports from Doctors.that continually show lack of improvement for this veterans claimed illnesses.

We also have the C&P doctor exams and each of those doctors have said he is not capable of any fullfilling activites or gainful employment due to his illnesses.

Mil T - Since all of the issues involved, relate to claim's for Compensation versus Pension -

UNTIL THE ISSUES ARE ADJUDICATED AS SERVICE CONNECTED,

it point blank won't matter a rat's behind that "each of those doctors have said he is not capable of any fullfilling activites or gainful employment due to his illnesses".

The first step is getting SC granted.

Now - I will add that as a downstream issue -

if the medical issues are warranted to be SC, and VA adjudicates effective dates with

the application of staged staged ratings, to the medical evidence of record at the time of the various dates -

I feel that - if a claim for IU or a statement from the vet/rep, stating something to the effect of,

I feel that the disabilities/medical conditions I have, are related to/a result of my active duty service and these conditions

prevent me from being employed/ being able to hold employment -

then the statements above from the C&P doctor/s, will be supportive as an earlier effective date for IU -

IF IU were to be granted. As I posted - this would be a downstream issue.

Non of this had been turned in until the Veteran came to me. I found a lot of infomation in the files that the Vet had received from the Attorney when he was let go. None of this information was ever turned in.

Mil T -

It is clearly the position of the VA, that the ultimate responsibility of prosecuting claim issues, lays with the claimant.

It's also good to keep in mind (for your own well being) that this veteran currently feels he has pretty much

been screwed over / claims mishandled, not only by the VA - BUT ALSO by the Service Orgs / VSO's and the attorney.

One day (hopefully not) he might just add you to his list, if things don't turn out satisfactorily to him.

Who knows - perhaps he can have some recourse down the road regarding improper representation,

but I wouldn't count on this very much. - carlie

One of the other things that happened and has been a questionable practice in my opinion was that when the Veteran left St. Louis, he requested, in writing, that his case be kept there for adjudication based on the DRO hearing that had just been done. The DRO hearing officer agreed and was working the claim when his supervisor came up to him and took the file and told him that he was not to work on it any longer and that he was sending it to Phoenix. This supervisor and the vets attorney were friends and when nothing was happening and the Vet released the attorney for service, all of this happened. The Veteran talked to the DRO that heard the case and recieved this information straight from him. We requested a copy of the hearing through the Phoenix RO and we received a letter from St. Louis that said the recording machine had malfunctioned and nothing was available. Go figure. So you can see that there has been some unconventional handling of this claim. Also at that time the Vet was still being reviewed for AO presumptives which I explained before he was not qualified for and he finally dropped.

Mil T,

Whether the attorney and the supervisor were in co-hoots, is hard to prove, even if this was accomplished

it would also need to be shown that this was detrimental to the claimants issues.

What were the results of this DRO Hearing - a Rating Decision - a SOC or SSOC ?

I call BS on VA stating no transcripts on the DRO Hearing - without transcripts to go over -

I'd sure want to see what the results were from this Hearing and what those results were based on. - carlie

I know this is a discombobulated situation. Thats the reason I am here in the first place. I have been pretty successful with many other claims etc. and representing other Veterans but his one came all messed up and has taken some time to try and get it sorted out but as you have read, it has been very difficult to get straight and accurate information from the VA.

Undoing the damage that people that are supposed to be in the know have done is difficult when it's an amature trying to straighten it up.

Mil T -

Ask them to provide the information in writing. - carlie

I do appreciate your help very much. Your disclaimer is pretty much the same as myself. I am not an export, or attorney or a trained VSO but I do this to help my fellow Veterans in a town that no one is available from any organization or the VA itself.

Mil T - Remember getting SC granted is step # 1.

A claim (if needed) for earlier effective date/s can be supported by :

38 CFR - 3.156

(b) Pending claim.

New and material evidence received prior to the expiration of the appeal period, or prior to the appellate decision if a timely appeal has been filed (including evidence received prior to an appellate decision and referred to the agency of original jurisdiction by the Board of Veterans Appeals without consideration in that decision in accordance with the provisions of §20.1304(b)(1) of this chapter), will be considered as having been filed in connection with the claim which was pending at the beginning of the appeal period.

(Authority: 38 U.S.C. 501)

To show you how messed up it can get in this town for us veterans, I have been a member of a combat vet counceling group that meets every other Thursday for 5 years. The council came from the Mesa Vet Center 100 miles away. This past Dec. the coucelor from the vet center came in to the meeting and announced the Vet Center would not be sending anyone up to do counceling any longer and that was the last meeting. Needless to say everyone was pretty much shocked and for a predomanetly Vietnam Veteran group of Grunts, it did not set to well. We have completely felt abadoned. The group has approx 23 vets that participated. The Vet Center has said they are working on a solution but so far nothing has transpired. I don't have faith that anything will happen. We continue to meet because we are all close and know each others problems and are there to help each other when necessary. We have definitly come to learn that the VA is not our advocate but our advisary just like when we came home from war.

Mil T -

Here's some links for information that the VAMC / Vet Center MIGHT be able to implement to help your group. - carlie

VA Launches Telemed Pilot Project

http://www.informationweek.com/news/healthcare/mobile-wireless/231902871

The VA's Take on Telemedicine :

http://www.governing.com/topics/technology/VA-Telemedicine.html

VA's telehealth programs bring care closer to home

http://www.columbiatribune.com/news/2012/mar/24/vas-telehealth-programs-bring-care-closer-to-home/

Guide To Mental Health Services :

http://www.dmh.ca.gov/services_and_programs/VeteransResources/docs/Guide_to_VA_Mental_Health_Svcs.pdf

[Mil T]

I went to Phoenix RO today to discuss this Veterans case with the same rep I have always talked to and that knows this Veterans case completely.

He told me that he went up with the file after we left our meeting with him last Tuesday. He talked with the Appeals dept at the RO and they were the ones that advised that the word remand could not be used by the Veteran. But that what they were reading into it was that the Vet wanted his claim retracted from appeals and that would close the claims and a new one would be started with the new evidence which would stop the original dates of the claims in appeal and the new claims would start new dates. That made since to me so now I understand how that can happen. The VA rep advised them that this was not the original intent and that all we were trying to do is to have a re-evaluation of the evidence for the claims with the new evidence. So the appeals person is the one that called the Vet and let him know this and that they would not send it back or close the appeals claims and that they would continue it in appeals. They were protecting the Vets original dates of claims which we do appreciate. So that was cleared up.

The other part is that the claims have not been sent to the BVA. They are still in the appeals dept. of the RO. Now that confused me because I was of the understanding that there is only one appeals dept. Apparently not and I was made clear of that today. It's like there are 2 depts. The RO appeals process which is triggered by the NOD and DRO's and review of new evidence etc. Then a decision is completed one way or the other in the RO appeals dept. When a decision is made and If you disagree with that decision then you have the right to send it to the BVA where the docket # etc. is established and the long process starts of appeal in the Washington arena of the BVA.

So right now his files are in Phoenix RO. There is no Docket # and all is being handled in Phoenix.

Whoever called from Minnesota named Cheryl does not show up on the Vets online file so whoever called and gave all the confusing information and saying it was being handled through the Washington Appeals Management cntr just totally confused the Vet with bad information.

We are in good shape for now and will continue with waiting and monitoring.

The attorney is not representative of record. I am, with the origional 21-22A form that was filled out the same time he fired the attorney.

Now here's the kicker. While I was waiting to see the va rep to discuss this issue, I got a phone call from the Veteran. He was at an Ortho appointment in Prescott VA med cntr that was set up by his VA GP for his knees. The Vet has been told that he was a candidate for knee replacement for his 0% SC knees which is why he was discharged for in 1972 from the Navy. Documented by VA doctors that his knees suffer from severe deg arth. The Vet carried all the other doctor's C&P exam notes and other progress notes and diagnosis to this ortho doctor for the appointment. This doctor told the Vet that the problem with his knees was caused by his Parkinson's. The Vet had to call me to tell me he almost blew it. He could not believe what this doctor had just told him and then excused himself from the appointment telling the doctor he was nuts. I could not believe what he told me. I'm telling you that if this vet didn't have bad luck he wouldn't have any luck at all, which for him may be a better alternative.

I advised the Vet to talk to the Ortho Dept Head and tell him what was said and also his GP in order to get a 2nd opinion.

At least I was able to set his mind at ease about his claims.

and that he was not going to loose his original dates for the claims. I told the VA rep what had happened and he also was as confused and dumb founded as I was to hear what the ortho doctor said. Go figure.

So with all of this dialogue, I have been educated more and I do appreciate the time you have spent with me on this. I hope that by some degree that someone else may benefit from this dialog as well

Thank you Carlise for your help.

Mil T.