Claim Basics:

[broncovet]

I have seen quite a few new people, and decided to make sure, if you are a new claimant, that your claim contains these

3 things, as you wont be getting benefits without them, and you will be forced to a very long appeal:

1. Documentation of an inservice event or aggravation. It is not enough to have an inservice event, it has to be documented, and, that documentation has to be in your C file. Its not enough that your hospital or military branch has it, you need to see to it that VA has it. (If you have not ordered a copy of your cfile, you need to do so now)

2. Current diagnosis. You need to have a doc diagnose the malady you seek as benefits, and, again, this has to be documented and placed in your cfile, or it did not happen.

3. Nexus. Contrary to what your VSO tells you, A "nexus" is not a car similar to the Camry. A nexus must be very specific, it must be documented, and VA must have it, or you will be denied. Your nexus is a link between #1 and number #2 and needs to be worded very close to "The Veterans xxx (diagnosed condition) is at least as likely as not due to yyyy event in the Veterans military service.

There are few things certain in life, but, absent one or more of the above, you can be assured your claim will be denied.

[Buck52]

Ain't that the truth ,

If they would just read most of it and not avoid the medical evidence or lose it or shred it....I think the backlog with claims most claims anyway is they just don't take the time to read all of our evidence they just scan or speed read and = ...denied.

jmo

..............Buck

[Berta]

You are right.

Broncovet mentioned a Mandamus writ this AM....

I am thinking of filing one, that would order the VA regional offcies ,to reopen immediately, under formal request from the claimant or their POA, any claim they (VA) has denied ,that obviously violated 38 CFR 4.6.,with proof of the mailing of the evidence from the claimant, and a decision that contains no mention of or proper consideration of some or all of the evidence.

I dont have my PC yet with a new printer scanner etc so I haven't really prepared this writ yet.

Also since they had to revise their lack of proper BOD consideration , that too will be part of the writ.

But it probably would do no good anyhow...

If a thousand vets however, or maybe even a hundred, filed a similar writ at the same time, with proof they were victimized by violation of 38 CFR 4.,6, that MIGHT do some good.

For example I looked at my evidence , which I had proof of mailing for and had listed it all on my recent 5103 for my CUE claim pending.( all legal evidence as medical evidence has been established and validated by the VA) I went over the evidence they had, that was verified by a man from my RO who called me about it.

But The denial I got about a week ago on that claim revealed they had not used a single piece of my legal evidence at all.

The director acted like so what....

So I raised another legal ruckus and expect them to do what they did for my other denied claim that I got award letter on yesterday....

Violations of 38 CFR 4.6 are causing a major part of the backlog.

Buck52 is correct.

If your evidence is probative to your claim and they do not consider it, you can be sure the BVA will, but how many years from now will that take?

Edited April 8, 2015 by Berta

[broncovet]

Yes, Berta, Im considering a Writ of Mandamus. This will be my second Writ.

However, I would love to see yours, if you would be inclined to post it.

My writ involves:

1) Failure of RO to implement board decision (2012)

2.) RO failure to comply with 38 CFR 3.103, failure to give written notice of decision. I allege the VARO denied my "Request for special handling due to shredded evidence" WITHOUT a written decision. (My denial was buried in the RBA and was a note the VARO said that my request was denied because "it was outside of the presumptive period" which I dispute). I contend, as below, that I am entiltled to a written decision on the special request denial as it affects my benefit claims in regard to the effective date. 38CFR3.103 says:

3.103 Procedural due process and appellate rights.

(a) Statement of policy. Every claimant has the right to written notice of the decision made on his or her claim, the right to a hearing, and the right of representation. Proceedings before VA are ex parte in nature, and it is the obligation of VA to assist a claimant in developing the facts pertinent to the claim and to render a decision which grants every benefit that can be supported in law while protecting the interests of the Government. The provisions of this section apply to all claims for benefits and relief, and decisions thereon, within the purview of this part3.

(b) The right to notice—

(1) General. Claimants and their representatives are entitled to notice of any decision made by VA affecting the payment of benefits or the granting of relief. Such notice shall clearly set forth the decision made, any applicable effective date, the reason(s) for the decision, the right to a hearing on any issue involved in the claim, the right of representation and the right, as well as the necessary procedures and time limits, to initiate an appeal of the decision.

[Buck52]

bronconvet,

I agree with you on most everything but

How do/can you prove shredded evidence?

.............Buck

[vern2]

Hey, had a phone call from VA today. Tacit admission that they made a mistake in not considering evidence I submitted via VBMS in 2013. I have filed a CUE in regards to VA not considering all available evidence in making their decision. CUE was received ny VARO on 7 April, and I know it was just a coincidence that they called me today! Kelvin from VA admitted that they had problems in 2013. Hell, nothing new, they still have problems.

[broncovet]

Buck...its not easy to prove shredded evidence, but this helps:

1. VAOIG report, sent specifically to me, shows evidence of shredding.

2. VARO essentially admitted to shredding, but denied my request because shredding was "outside" of presumptive period.

3. On evidence I resubmitted, I marked it with stuff on my handwriting. So, VA can not say that they did not shred it, it was just misplaced, because, the only copy they have has my handrwiting on it.

4. In the "evidence" list, with decisions, it shows my applicable evidence, but the VA "did not have that" until I resubmitted it.

5 I sent IRIS emails and requested if they have xxx document. They did not so I resubmitted.

6. I have a paper trail from 2002-2015, including my 2008 "special handling request". By the way, the 2008 SHR was ALSO shredded!!!

If I possibly have breath left, Im not gonna allow VA to get away with this. I know for a fact they shredded my 2002 claim to move it from a triple issue claim to a "single issue" claim and can document same. I have emailed Allison, and, if I dont get results, its on to a writ of mandamus.