diabetes Nigtmare

[dobent4]

Hi Folks,

I have a bunch of diagnosis, the short story being that my condition is terminal, heart attacks on active duty, peripheral neuropathy, peripheral vascular disease, inoperable coronary artery disease, diabetes..(no, not due to obesity :) ).

Here's what I don't understand .

My claim was denied because of one reason , Incompetence.

My claim was denied after 23 months. VA AGREED with every diagnosis and when it was diagnosed.

The incompetence referred to is this- Each diagnosis VA denied they wrote that when it happened I was a reservist, not on Active Duty. They called it what is a a non-existent status, in VA's words "Active Guard Reserve". They obviously focused on the 'Reserve' in AGR ,and further with my future,and home for my family in their hands, were incompetent.

Each and every day during the 2005-2011 time period I was on Active Guard and Reserve duty, title 32. My 214 stated that so clearly, in "tricky" areas on the 214 like 'AD this period') which clearly showed this was entirely and completely an Active Duty period.

This is black and white, just like the documentation I provided was, but it was shabbily dismissed. For someone with so much responsibility, why is that not incompetence ?

So. Terminal health, I waited 23 months for this ? I'm losing my home, and the best VA can do is say to file a disagreement and wait months more ?

You know what ? When I was serving them I never did a half assed job like they have done to me and thousands others . When I screwed up it was fixed immediately.

But the VA ? Oh no. File a disagreement , ad nauseum, wait for months or worse, just so finally someone can say "oh, he's right".

From what I see you couldn't possibly care less. Guess I better get the lawyer, I'll read up on that here.

Un freakin' believable.

You'd think they'd have a 'quicky' review to discuss obvious errors, but common sense is in shortage status. As is integrity. Shame.

Doug

[71M10]

John,

I agree, just because it is a stark error does not mean it will be a speedy correction. However, I can just about guarantee that if he takes no initiative to get a VA staffer to sit at a table and explain the decision and why they think he wasn't active duty, it will be about 18-24 months before anything happens. Hiring a lawyer will increase the probability that his appeal/reconsideraton will be worked in regular order which will just about set that time-line in stone.

I think I made it fairly clear in my suggestion that it was a long shot!

The advantage of the lawyer route would be that it should be less stressful for the Doug since he wouldn't have to worry as much about deadlines and decoding what the VA is sending him.

Best regards,

Edited December 3, 2013 by 71M10

[john999]

71M10

I see your point. If Doug can get someone with power to fix this error to listen to him that would be great. I know the frustration of trying to correct an obvious error. How would he go about getting a VA staffer to sit down with him so he could explain this error. I am curious since I never had much luck at this. I see that Doug's real enemy is time. Maybe he could ask the VA to call a CUE on themselves. Berta is an expert on this. I actually sent an email to the VA Secretary once that Pete53 gave me. It worked one time.

John

[71M10]

He could go the DRO route ask for a hearing. I have had a DRO hearing within 90 days of filing the appeal, in that hearing one of my three contentions that I expressed actually was corrected that afternoon and mailed out (10% cervical rating, they SC with a 0%). That is no where near the norm and I did not relate it in my earlier response (did not want to instill unrealistic expectations). He could simply go to his local VARO and ask for a VSR to help him understand the decision(no guarantee but a possibility). He could ask to review his file, they will have someone in the room with him, he could point out that the record clearly shows him active duty, point it out to the monitor, ask that someone explain to him why the decision states he wasn't active duty. With that strategy he is already in the door, behind the counter.

Since the VA is not compelled to act within a certain time frame, it would be important to finesse the one-on-one communications. Most people dislike confrontation, most people when it comes down to it want to help others.

[john999]

Asking to review his file and then pointing out the error is not a bad idea. I did this when I asked to view my file and found out that the VARO had disregarded my request for a DRO Hearing and were set to send my appeal to the BVA. I stopped them just in time and won my claim via the DRO. It took about a year, however, so it was not fast. He could ask for a "Reconsideration" based on this obvious error. These things can take time. In my RO everything takes at least a year. I am in St Pete VARO, and there are hundreds of thousands of vets in this RO.

I had a claim for increase denied because the C&P doctor said since I had a college degree in psychology it was obvious I was faking my emotional disorder. It took two years to get a new exam.

John

[JT24usn]

Active duty definitions, thought this might help

http://www.benefits.va.gov/WARMS/docs/admin21/m21_1/mr/part3/subptii/ch06/M21-1MRIII_ii_6.doc

http://www.law.cornell.edu/uscode/text/32/chapter-5

Edited December 4, 2013 by T8r

[JT24usn]

AGR

3. Duty Status and Eligibility of Personnel in the National Guard Service, Continued

PRIVATE INFOTYPE="CONCEPT"

b. Qualifying Service Under 10 U.S.C.

If a Guard unit, or an individual member, is activated under the authority of 10 U.S.C., the members who report for active duty, which is characterized as Federal Active Duty, have qualifying service for 38 U.S.C. purposes until deactivated.

In some cases, a member may be ordered to active duty for training under the authority of 10 U.S.C. 672(d). This does constitute active duty for training for 38 U.S.C. purposes. If an individuals orders specify activation to temporary duty under 10 U.S.C., further development regarding the purpose of the activation is not needed unless there is evidence in the file showing that the purpose of the activation was to train the individual.

The order to active duty must state that service is under 10 U.S.C. This fact is frequently reflected on the DD Form 214.

PRIVATE INFOTYPE="CONCEPT"

c. Qualifying Service Under 32 U.S.C.

Full-time National Guard service is considered active duty for training under 38 U.S.C. 101(22)© if performed under 32 U.S.C. 316, or 32 U.S.C. 502, 503, 504, or 505. This is true regardless of whether the member is

performing operational duty, or

undergoing training.

National Guard service does not meet the definition of active military, naval, or air service under 38 U.S.C. 101(22) unless the member or former member is disabled during service and, therefore, subject to an exception outlined in 38 U.S.C. 101(24) or 38 U.S.C. 106(b)(3).

Notes:

Operational duty includes Active Guard Reserve (AGR) and Active Duty Support (ADS), which apply to Guard personnel as well as to Reservists serving in these capacities.

Since 1964, there has been authority, under 32 U.S.C. 502(f), to assign to full-time operational duty National Guard members who provide full-time support to the Guard components, even though they are not activated.