Wow - Va Calls A Cue During My Administrative Review

[carlie]

Happy Birthday to me : - )

An administrative review was done on my BVA decision from Oct 2011.

DECISION

The effective date of assigned for grant of Special Monthly Compensation

is a clear and unmistakable error. The effective date is changed from

October 29,2008 to March 23,2004.

EVIDENCE

Rating Decision, and all evidence contained therein, dated October 26, 2011.

The deposit has already been made and it's a really great birthday present.

I'm glad THEY caught THEIR error.

[carlie]

UPDATE -

I just checked ebenefits and my administrative review now shows closed.

My CUE claim that still remains now shows PREPARATION FOR NOTIFICATION.

[Shyne-I]

Good Luck Carlie and Congratulations!!!

[Navy04]

Great news, you truly deserve the best!

[broncovet]

Congrats Carlie. This is a good example of why the VSO's are full of it when they tell Vets to fear asking for more benefits, that they will reduce you instead.

The VA cannot reduce you on a whim..they have to allow you a hearing to explain why you should not be reduced, if you request it. And, they have to give you notice, and follow the other rules for reduction.

As Katrina Eagle pointed out, they cant just reduce you because you dont meet the criteria. They have to show you improved, because stare decisis prevents them from "changing their mind" about whether or not you meet the criteria. Its like having a man who was acquitted for a crime have to go through the trial again. You can appeal a conviction, but when you get acquitted, it stands.

For one thing, the criteria is "flexible". For example the mental health rating criteria says "such symptoms as...." This does not mean you have to have the symptoms listed to meet the criteria. It means, in the judgement of the honchos in charge, you met the criteria. Absent CUE, they cant reduce you because someone else thinks you should be 40 percent not 70 percent. Instead, they have to show you "actually improved" since your last rating decision that continued your rating. If they continue your rating, the VA is admitting you did NOT "actually improve", even if you have had some temporary episodes of improvement. Most of us have good days and bad days, and dont feel like crap every day. This does not mean you actually improved, because you have a good day on the C and P exam. However, like everything else, you have to fight the VA tooth and nail every step of the way.

[Berta]

Great points Broncovet!

I just posted this same BVA decision here for the vet with NAFL that could have been caused by NSAIDS.

The VA had tried to sever his 1151 comp:

“Notably, the severance was not based on either a change in 
diagnosis or on a change in the law.  See Venterulla, supra.  
It was based on interpretation of the facts by a subsequent 
reviewing physician.  The fact that liver disease may have 
pre-existed VA's prescription of simvastatin does not 
preclude a finding that such prescription may have aggravated 
the liver disease.”
The veteran's comp under 1151 was restored by the BVA.
http://www.index.va.gov/search/va/view.jsp?FV=http://www.va.gov/vetapp08/Files4/0832813.txt

You said:
“The VA cannot reduce you on a whim “
That is RIGHT. 

Those clowns tried to reduce my husband in 1988 (the same year they began to misdiagnose
 his heart disease.)
I know I rattled this off here before many times but I still get pissed at what they tried
 to do.
They said his 30% SC (at that time) was being reduced to 10% because of his attainment 
of two reasons 

1. substantial employment 
(substantial my ass, he had been a Nuke=nuclear power plant equipment operator)
and 2. he got a part time crap job at the VA (he got this job only  because they 
violated his rights 
on a full time VA fireman's job,because they hired a relative of a fireman instead
 and the director 
didn't want him to file an EEOC case...They fired the Personnel Manager however 
I made a big stink
 over this..nepotism was rampart in those days at this VA.

And in addition to that stupid logic ,they also used his one semester 
of Voc Rehab to infer he had 
somehow become a rocket scientist,in one semester of college.
The VA reversed right away when they got the scathing NOD I wrote for him.
The regulations themselves as well as simple common sense can alleviate
 some of these proposed reductions
 but a hearing is the best bet.


Monday I went to this same VA because my husband's anniversary of his death was Monday
 and he is buried in
a beautiful national cemetery there.Some of the best people I have met in NY work at or
 are retired from this same VAMC.Things change with time.

But I couldnt help but realize that he sure went through multiple problems with the VA,
 regarding employment issues, getting his proper ratings, and then of course the fact
 that he is dead due to piss poor 
VA health Care.


 

But with all of those travails he had with VA, it did give his death meaning because it gave both him and me hands on medical and legal experience with so many nuances of VA case law. Our denials alone were an education in VA 101.

I feel my dead husband has helped many many vets who come here and see how he went from 30% PTSD SC to 100% plus SMC and had 3 separate awards ,generated by his untimely death.

He never lived to see those awards . They all ,except for the 30% SC PTSD, were posthumous awards.I sure wish I could call him up sometimes and tell him the VA finally took down the billboard.

(He used to say the Buffalo VARO must have had a billboard across the street from their building and it said "F--k with Rod Simmons"

Then they put my name on it instead in 1995 and in 2005 they put my veteran daughter's name on it.for 3 weeks and then ,last year I think they took it down....I know this billboard stuff sounds nuts. But our family went through a lot with VA .

But it has helped others.)

Edited October 16, 2013 by Berta

[carlie]

But with all of those travails he had with VA, it did give his death meaning because it gave both him and me hands on medical and legal experience with so many nuances of VA case law. Our denials alone were an education in VA 101.

I feel my dead husband has helped many many vets who come here and see how he went from 30% PTSD SC to 100% plus SMC and had 3 separate awards ,generated by his untimely death.

(He used to say the Buffalo VARO must have had a billboard across the street from their building and it said "F--k with Rod Simmons"

Then they put my name on it instead in 1995 and in 2005 they put my veteran daughter's name on it.for 3 weeks and then ,last year I think they took it down....I know this billboard stuff sounds nuts. But our family went through a lot with VA .

But it has helped others.)

Berta,

You are soooooo right - there is a tons to be learned from denials !

Rod's military and civilian life story has taught and inspired many, many members here and also

the lurkers that just read.

I always wonder if Rod really knew what a little tiger he married and how fierce you would have

to get, in order for VBA to do right by both him and you.

Several decades ago, an employer of mine told me I was one tenacious little blitch -

and I took that as a real put down. Then I realized that through me being that tenacious

little blitch - I had made them one heck of alot of money.

Then with dealing with VBA for myself and others, I have realized that my tenacity is

actually a plus in character as I will always stand fast until I see justice prevail.

Without my tenacity, I would have been dead several years ago.

You and many other's here have that same tenacity and in dealing with VBA -

it is a MUST !

I missed something along the year's here because I did not realize they had F'd with your

daughter too.

What happened there - you can fill me in - in private if you feel up to it.