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Bell V Derwinski


Berta

Question

Terry- I have a CUE that I had to support under the Constructive Rule of Bell V. Derwinski.

I sure appreciate your past insight regarding that case.

This is regarding documents in VA's possession in 1995.

Internal Documents that VARO claimed had never existed.

(But they were in my c file -much to my astonishment---and I have them here).

It seems that the VA is asking the regional counsel to support this evidence,as this is where the documents were requested and then went-in 1995. This was an internal Peer review report on my husband's VA medical care and it supported my Sec 1151 /FTCA claim.

But the RO denied knowledge of this report and both the VA counsel and the doctor who wrote it retired that summer (1995).

I asked the VA to subpeona former counsel and the doctor or at least their records -if needed- but then again I have a copy of this internal report that was prepared on a VA computer so- if it did not exist-how did I get it?

I am still shocked that 2 years ago I ordered a copy of my c file and it was right on the bottom of the file (with the other missing stuff right on top)

I saw a potential way out for VA on this CUE- because the VARO could have said their initial accrued benefit decision did not include a decision on SMC because they were unaware of the malpractice at that point.

I received an accrued award for 100% SC PTSD due Rod at time of death.(less what he had received in the last 2 years of his life.) dated July 18,1997. It did not include any SMC consideration.

The VA Central Office report stating VA caused his death was dated July 24,1997.

Heart disease, improper meds and strokes were found as misdiagnosed and as causing his death.

They denied my DIC under Sec 1151 again-even with this evidence and strung that out until the award came in 1998-still no SMC accrued award.

VA could have said that the evidence was not in their possession to render the SMC at 100% accrued under Sec 1151 (for 6 days in 1997 )but

The Bell criteria holds that "regardless of whether the medical records" were before the adjudicator at time of decision,this would still regard records in the VA's "possession".

The May 1995 report which I found 2 years ago clearly supported that, in fact, the VA had in their posession -even at the regional office- evidence of Sec 1151 disabilties-in 1995.

But they fought with me for over 2 more years on this claim.I had the doctor's word and counsel's word that the RO had this report but like a DOPE I never checked the c file myself!

I guess my long point here is-

the VA had to award SMC for Rod's Sec 1151 disabilties totally over 100%.

They didnt.

Those final decisions were cued under M21-1 Part 6,3.09 (a) and 38 USC 1114.

I was afraid of a possible landmine over the 6 day period between two decisions-

therefore I added as evidence this 1995 medical report that supported the Sec 1151 charges , under the constructive notice of Bell and an additional letter that the VA had sent to CHAMPVA that the veteran's disabilities were 100% under Sec 1151.

(They denied my CHAMPVA for about a week-but that got squared away fast-and was clarified by the RO that the veteran had 100% Sec 1151 plus 100% direct SC disabilities Permanent and Total.)

It was a stressful week but it produced the first acknowledgement I ever received that the veteran had 100% Sec 1151 disabilities,since 1992, that fully rendered him eligible for SMC -which he never got and neither did I , as accrued benefit.

Thus it was a CUE.

(Thanks for anyone who read this all- sometimes I write stuff that makes sense and then I think it does not make any sense at all.

That is called VA -induced PTSD I think-

I just looked at lots of denials I got from 1995 to 1998. I won those claims- Still those denials still bother me and none of them were based on medical fact.

Everytime I got a denial I thought I would go nuts because they never made sense.

Then I wondered if my rebuttals to the SSOCs made sense. But the award letters show I did.

Still denials can really dent one's confidence,especially when it involves socalled VA "expert' medical opinions-- BUT we all HAVE TO keep going with the claim and knock down those "expert' opinions with documented medical facts from the clinical record.

Some of their docs will say anything to deny a claim.)

Edited by Berta (see edit history)
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I certainly see your point-

and veterans have overcome Bell limits in CUE claims.

It doesn't make any sense to have a decision that was not based on all evidence available at the time of decision-because it clearly is an error.

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Berta. have you posted the Bell decision before on Hadit, I thought Tbird added it to the legal links. I tried a search of Veterans Court but all I get is cases with references to Bell. I have a very similar situation as you do and I need to study the case.

Thanks

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All I have is the M21-1 interpretation of Bell:

http://72.14.209.104/search?q=cache:e5BHtn...=6&ie=UTF-8

and this General COunsel Pres Op which highlights what Bell means:

http://www1.va.gov/OGC/page.cfm?pg=22

It is Pres Op 12-95

Also the VBM discusses Bell.

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