Va Does (Often) Does Not Know The Regs As Well As We Do.

[broncovet]

Many of us have spent more time "working our claim" than the very employee working our claim has.

We know our own medical history better than any employee. We have read the applicable regulations, often many times over, and most of us have even read applicable case law.

Many of us have, or have access to the Veterans benefit manual, but I have not seen a single "reasons and bases" cite the VBM yet.

Hadit members generously help others with their time and their opinions on their case.

We can devote our full attention to our case, while VA employees have to deal with many cases, so we can become a "specialist" with our individual claim.

As Berta has pointed out, many, if not most of the time, the decsion maker for our claim has not even read everything, as we repeatedly see decsions which assume our evidence never happened.

I got an email from the director of a regional office. I had told him that 38 CFR 3.103 required a decision on my "Special Handling Request due to shredded evidence". He responded that it was a "request" and not a decision so they were not required to give notice, and did not have to do a written decision.

38 cfr 3.103(f), however, tells a different story completely:

"(f) Notification of decisions. The claimant or beneficiary and his or her representative will be notified in writing of decisions affecting the payment of benefits or granting relief. All notifications will advise the claimant of the reason for the decision; the date the decision will be effective; the right to a hearing subject to paragraph © of this section; the right to initiate an appeal by filing a Notice of Disagreement which will entitle the individual to a Statement of the Case for assistance in perfecting an appeal; and the periods in which an appeal must be initiated and perfected (See part 20 of this chapter, on appeals). Further, any notice that VA has denied a benefit sought will include a summary of the evidence considered."

I dispute the director's interpretation. There is no requirement that it be a "claim" to warrant a decision, but that it only "affects the payment of benefits". I think there is no doubt that my shredded evidence, and the RO's decision to deny special handling absent a written, appealable decision, conflates the regulation above. Over and over Veterans dispute eligibility, character of discharge, etc, and those things affect the payment of benefits, and are entitled to a written decision with a reasons and bases therof.

Im considering a writ of mandamus compelling the RO to give written notice in order to deny my Special handling request, since this affects my benefits effective dates.

Your thoughts?

Edited May 22, 2015 by broncovet

[RSG]

I have found that the VA rarely reads the important stuff in your claim file, even when you point out to them exactly where they have made a mistake..They also very rarely pay attention to any veteran..The VSO's I have used rarely pay attention either...none can read very well or understand...That is why I have a 46 year CUE awarded in my favor..All the evidence was there in black and white and it has never been acknowledged for these 46 years. They never paid attention to what I was trying to show them.. Now that I have won, I am still waiting for the VA to respond to my emails to the director.. No response there either....So that leads me to another question, how long does the VARO have to abide by the BVA decision to award a "maximum benefit" and cut a check for my 46 years of retro pay?? I am a bit impatient after all these years... RSG

Edited May 22, 2015 by RSG

[Berta]

I think a writ is a good idea!

Even if writs are denied by the court they have appeal possibilities in the Federal Circuit.

Also a writ stays on the internet for years and is memorialized....I think that is important....getting our legal problems with illegal VA decisions memorialized on line...

We certainly have memorialized here at hadit, years of deficient RO decisions already.

Broncovet, you made excellent points and they are all valid.

Many get denied because the VA has not handled their claim and evidence properly, but many also get denied because they think the VA is going to understand their claim, and find the evidence they need.....that is sure an illusion. ...An illusion as bad as thinking vet reps will help get the award.

Evidence awards claims.

I have a question for you Broncovet.

I emailed the court (CAVC) and asked:


"Do I understand that the formal petition will be locked,for privacy ,on line as I am naming VA employees in my petition to include, as evidence, emails to and from Under Secretary Hickey, one or 2 to Secretary McDonald, and many to and from Donna Mallia , Director of the Buffalo VARO?


Also, the evidence I am sending, from the VA itself, includes decisions with my C file number on them as well as evidence from an FTCA award I received in 1997.

Do I understand that stuff ,as evidence, does not need to be redacted at all by me....for privacy.....as it is all critical info I feel the Court will need?

Do I need to send the respondents (The Secretary of the VA , and The Buffalo VARO Director,) copies of the evidence ,as well as the Writ?"

A court clerk responded to me thus:

"The petition itself will be locked. For any documents filed after that we ask that you redact any personal identifiers, e.g. SS #, Claims file #. When we open your case, we will notify the Secretary of the VA. Please make sure your petition answers all the questions in the Court's Rules of Practice and Procedure, Rule 21 section (a), numbers 1-5 (the Rules can be found at www.uscourts.cavc.gov). "

Rules 21 , 1-5 is an excellent template for anyone to follow for a writ but I am not sure what the clerk means.here,

....
I assume I must send all of my evidence in with the writ (that all has my C file number on it, and SSA numbers ) to get it all locked into the initial submission.

Do you think that is what they mean? Send it all in with the writ?

With someone working on my house (lots of noise) and still waiting for my new printer, I have not been able to finish my writ but it won't take long to do that.

It is practically doene but I am a perfectionist and might re do it three or four more times.



I am also reading many writs at the court to see how they handled Rule 21 , 1-5.....

My last writ was in 1996 I think...denied, but my first award came not long after that....

I have noticed more vets then ever are filing Writs of Mandamus

[broncovet]

Congratulations, on your 46 year old CUE win!!

The unfortunate part is that VA has "as long as they want to take" to implement a board decision. I got a Board decision in August, 2012, and its still not fully implemented.

I am considering a Writ of Mandamus to compel the RO to implement the decision. I have read cases where Vets have filed writs on this, and the CAVC has ruled, to the effect, "expiditious treatment" means the VARO can drag their feet for at least 2 years.

How long has it been since your board decision? Sometimes these will be implemented right away, within 90 days, or even less.

[Berta]

RSG, I had a hell of a time with my BVA award, in getting them to pay me...it took I think at least 8 more months after the decision came....

what you said is so true....and it echos Broncovets points here....

We are the best vet reps we will ever have and we MUST attack any illegal decision that is based either on incompetence, lack of knowledge of the regs, or the simple fact that some of thiese people seem to be illiterate.

But it all boils down to the fact that many of them DO NOT CARE.

Vet reps and RO employees get paid regardless of how piss poor their work is.

Only the vet lawyers have any incentive at all to really help us.

[RSG]

Well, Like I said, I am a bit impatient after all these years....It has only been 2 months since the decision, as of this week.....Guess I still have no right to complain to about the VA, it's only been 2 months...LOL....RSG

[broncovet]

Berta,

I do know that some CAVC cases are never published. The VBM has lists of "published cases" and unpublicised cases. I guess the judge decides whether or not to make public the case.

I think if you have the case NUMBER, a search will find it, (even if its unpublicised). I think that makes it easier for attorney's. Obviously, if you have the case number, you probably have a "need to know", as the case number is published on your response from the CAVC, at least once you are assigned a judge.

I would simply suggest that you ask the judge to not publish your private information, should you so elect, and I would guess (s)he would honor your privacy request. I think you could ask that the entire case not be publicised, or specific portions, such as sensitive medical records.

I think the judges have law students read over what they say, and even write a decision, waiting for the judge to "ok" it. My guess would be these law students are instructed to not include things in the decision that would be of a sensitve nature. I know in hospitals, privacy is a very, very big issue. A nurse can get fired on the spot for revealing private information about a patient without some sort of release. If you are a mental health patient, the hospital staff often wont even say if you are a patient or not.

I wish I lived closer to you, and we could help each other on each other writs, which I am working on now also. I do think there is some chance I get what I wanted without a writ, but am even considering one anyway. You see, I am very passionate that the VA should be held accountable for shredded evidence and I have documentation of the same. I want VA to issue a decision on my "request for special handling due to shredded evidence" as this affects my benefit payments.