ptsd Is This A Common Error With The Vba And How Can This Info Help Me, And Finally What Do I Do Now?

[Tommywvivid]

Ive posted before about finding my STR's, but please read as i am seeking answers.. thank-you all........at that time the soldiers started coming gone from iraq and afganistan with tbi and PTSD...i had the same symptoms, and i realized that i needed help.not only filing for my claim, but locating my records so in2012i once again filed, but this time, i foind some of my buddy's with whom i served with and they wrote Statements as to what the remember all-out that day. I also had included the MRI AND letters from my doctors... And i sent 3 requests to NPRC, NARA,, WHICH I have as proof and according to my VA caseworker i had all the correct evidence...and once again i ws denied...the buddy statements i submitted were deemed to be, "not credible ", according to the VA...

.now here's the best part.

.i wrote a letter to my congressman Scott Peterson, and his assistant, Sarah March, has stepped in to help me. I demanded to see my STR's at the VA regional office here in mission valley, san diego, ca...as I'm sstarinatg the VA officer s computer he cclickons my STR's and i immediately,flipp out...these werent even my records they were a veteran by the name Raymond Swear...in the in 1953...i immediately call congressman peters office, that was Dec. 8, 2014...i opened an appeal in Aug.and it hasnt been looked at since then...then on Dec. 10 2014, Raymond Swear entire medical records were delived to me...major breach of patient confidentiality, just for starters...i could go on, but when u view my file, i hope ufeel as frustrated as i am i continue to live alone, except for my service dog, i look forward to hearing from u soon.. I have made copies of my case, and its backed up on USB.., HERE IS MY INFO

[broncovet]

Im in somewhat similar circumstances...I had evidence shredded from 2002-2012 and it appears to continue. I emailed Robert Mc Donald a week ago, and have not received a response yet. I think I will wait another week before emailing Allison. We should be able to email our VARO director, directly, so that he/she can look into it personally. While I love that Alison and Robert are moving forward, I think this needs to be expanded with the VARO director held responsible. We should be able to email the director and, only then, go to the big boss. Its called "chain of command" and most of us learned this quite well, while in the military. You ask your boss first, and, only if he does not adequately respond do you go up the chain of command. It does make sense..why email the president of the United states, if your immediate supervisor does not even know your problem exists??

I will say, given what I posted above, I should have emailied Allison first, before Robert, as I have already tried dozens of times to get this resolved at the RO level. In that, I guess I have no one to blame but myself.

Edited February 15, 2015 by broncovet

[Tommywvivid]

Heres an update on my appeal denying sc disability for my TBI, Fri feb 20 I turned in all the new evidence I collected including all emails from Allison Hickey the VA Regional office director and copies of trying to locate my medical records from 2012 and 2014, i also , on Facebook received 2 more buddy statements from eyewitnesses, for a total of 4. so i have a few questions... Since I was denied first in 2004, stating that there was no evidence in my STR's for TBI, Im assuming they were missing at that time as they are now is the exit exam and also the ER report from the Army hosp. I ve been trying to locate my records since 2007 i just got them when I originally emailed Allison, they were mixed up in my file with another veterans file which was sent to me...So, is this a CUE? and Do I wait for the decision to see when they will start the rating? should it be 2004 because of the VA's mistake? Thank-you any advice helps!

[broncovet]

Tommy

We actually do not/would not know if there was CUE unless we read the entire file. However, "losing a cfile" or even "mixing it up with another Veterans file" is not CUE, because you have to show this is a MATERIAL error, that is, it is "Outcome determinative".

Importantly, even if (I should use when) the VA commits error, CUE is normally used to win retro benefits..it does not lead to granting benefits. You see, when VA shreds a document or mixes up your file, that does not document your disability. You still have to have 3 things:

1. A currently diagnosed condition.

2. Evidence of inservice event or that your disability worsened while in service.

3. A nexus or link between your current diagnosis, and your in service event.

In 2008, Dr Peake was VASEC during "shreddergate". He published a statement that "employees will be held accountable" and that Veteran's account of when they applied will be 'trusted". The VA decided that only applied to evidence shredded in a very narrow time frame of about 15-18 months from about Nov. 2007 thru 2008. (if this is important I can find the Shredding "presumptive dates" for you).

In other words, if you had evidence shredded WITHIN THE PRESUMPTIVE TIME FRAME, then the VA has to accept your word BUT ONLY if you requested "special handling due to mishandled evidence" within this presumptive time period. If your evidence was mishandled at any other time, you are out of luck.

[Tommywvivid]

HMM, Well, I guess I wouldn't know if it was mishandled since the VA are the ones that a) Put another veterans records in my file then mailed his entire c-file to me, then separated the 2 files and then , and only then they were finally mailed too me, 20 years and 7 requests from NARA, NRPC, minus the exit exam which would , with the entrance physical show that when I entered the Army I had no Scars on my head but when I left I did, How conveniently for that document to go away, also any report from the hospital where i was treated is also gone,mmmmm soo now the same folks that did this is going to look at my case again? I would think the 4 buddy statements, all eyewitnesses would prove that I sustained the TBI in service...guess Ill just have to wait for the outcome!, Thanks

[Berta]

"So, is this a CUE? and Do I wait for the decision to see when they will start the rating? should it be 2004 because of the VA's mistake? Thank-you any advice helps!"


VA , if "newly discovered service records" turn up SHOULD apply 38 3.156 © to your claim for the proper EED.



"Posted 26 April 2012 - 06:55 AM
We briefly discussed 38 CFR 3.156 on last night's SVR show.


38 C.F.R. § 3.156© provides that “if the VA receives or associates with the claims file relevant service department records at any time after the VA first decides the claim, the VA will reconsider the claim, including the issue of awarding an effective date back to filing of the original claim”.

This can become a powerful tool for any vet who querstions their EED.


As I mentioned at SVR I would give some examples of how this important regulation works as to the significance of part 'C' of 3.156" :


I gave one example in the above link:

"As service records which were not of record at the time of the
November 1995 rating decision were, at least in part, the basis
of the award of service connection for PTSD in the February 2004
rating decision, the governing regulation makes clear that the
award of service connection should be effective on the date
entitlement arose or on the date VA received the previously
decided claim, whichever is later. 38 C.F.R. § 3.156©.




For all the foregoing reasons, the Board concludes that an
effective date of September 27, 1995, but no earlier, for the
award of service connection for PTSD, is warranted."

15 years more retro


http://www.va.gov/ve...es3/1026694.txt"

More discussion here:



Personally, I would make sure they VA gets those records you have sent in, (they should appear on ebenefits I think)and I would send them an additional letter asking them to search the other veteran's files and if they find your missing inservice records, they should fully consider the above regulation, 38 CFR 3.156.
in the application of the earliest date of entitlement for your claim..

Actually I would send them a copy of the regulation too and cite Vigil V. Peake.US CAVC , # 05-3246

Then again they sure might do it correctly when they get these records, and you might just need to await their decision,

Ms. Hickey's emails , like mine to and from, are probably already in your C file, So they probably will do it right now.

I got yesterday, the letter my RO wanted me to respond to.

The VA guy who called me verified every piece of my evidence that they had, for each claim I have pending.

Still I think they need my signature saying they have all they need to decide the claim ( I got the impression they had been technically decided the day the RO man called me.

I mention this because he said all of the emails to and from Ms Hickey were in my C file and those emails

clearly defined the problem and that I had been waiting too long for a VARO response.(claims filed about 2 1/2 years ago...no correspondence from the VARO at all.

Until yesterday.

In additional to the response letter

they also sent me the " we have received your claim" etc.......letter. due to me for over 2 years.

Maybe best to just try to wait for that decision.

Edited February 23, 2015 by Berta

[Tommywvivid]

Thank you Berta....I think the VA is doing me wrong and here whys couple of months ago when when i got in contact w hickey about this whole TBI thing it was looked at immediately but , 2 weeks ago I was advised ,sort of, the ro said we are going to open a new claim for 100% UI for increased PTSD and new Diagnosis for Sleep Apnea, yesterday I had a C&P exam for that 100% which I believe went well, Saw my RO who said it should be granted since I m 50% PTSD service connected and the Sleep Apnea is 60% and depending on the C&P exam should total to 100%....But they filed that claim on Feb. 13 '15 what about the appeal? The whole mixed up STRS? Is that appeal null and void now? I calculated like from 2005 ttill now back Pay should be bout $350K....instead they're just kinda forgetting about that and giving me 100% now whick would have started Feb. 13th right? thinking that will solve the problem...Im ready to write Allison Hickey on this... this is BUL-S--T!