Can You Spot The Problem

[toddt]

Have attached my decision letter, there is a problem with it. What should I do, file a NOD?

Decision.pdf

[Berta]

Buck asked:
I am not to familiar with your claim that your having problems with and you was denied? & you Appealed



I am not sure what the VA wants you to present to them? are they are not allowing your evidence? and improperly using the M21- Provisions? within your case?"

I think at this point VA wants someone to present to them a Certificate of my Death.


The VA has refused to read my evidence. I have been through these many times over the past 20 years.

Those claims were all resolved, but by extreme measures in some cases.

I will download my writ here after I file it with the court.

I did not have to prove Permanent status when they awarded posthumously in 1997 for 100% SC P & T PTSC.

The veteran was dead and the 100% disability rated lasted in his lifetime.

They gave me no R & B in the decision for why the "payment will remain unchanged"

They owe me an accrued award for 16 months at 100% plus SMC , 2 dependents, just like the accriud award fo initial 6 months that they did pay in 2012.

This should not even be an issue in my claim, nor in any survivors claim .
The P & T status causes VA money---CHAMPVA and Chap 35.

They awarded additional 16 months, under 1151,100% plus SMC, for 2 dependents.

The CUE was in the residual ratings for stroke....100% for 6 months and then rate the residuals.

My husbands C & P for residuals after the initial 6 months, was done by a VA Neuro. She rated him at 100% P & T due to the stroke, That evidence and everything else I sent has been ignored.

The director told me his stroke was total but "temporary" .I asked her how the VA Cured this stroke right before he died. If I had a tape of her calls to me, I would also have her job.

He had brain damage (due to VA-1151 documented by VACO for FTCA) in 7 places , that was irreversible.
He had been declared P & T by numerous entities to include a letter from a former VA Secretary.

Absurd.

This tactic can have ramifications for anyone with a Permanent status, who VA can deny Chap 35 and CHAMPVA to their dependents.

1151s do not have those benefits,.I get mine under the 100& P & T 1997 award.

Also any survivor with a valid accrued claim for a direct SC will not get the accrued amount nor the above benefits under the P & T status if the VA can tell them the veteran died with 100% SC and it was Total but not Permanent.

Death makes 100% disabilities Permanent because they have lasted the veteran's lifetime.

I guess they can take Permanent status from anyone here if they have that.

And then fail to even consider any evidence the veteran has of Permanency...to include even IMOs.

They put me into the backlog for over 6 years i for my AO DMII claim because they refused to read my IMOs and all other evidence I sent to them.

My written testimony to the H VAC, still available on line, during Shreddergate is also a piece of my Writ evidence.As well as numerous other decisions I have receivd that show the RO refused to read my evidence (even when I had a former POA hand it to them) and the BVA was the first entity VA has that finally read it all.

As my H VAC testimony shows, I had tracking slips enclosed involving 53 pieces of evidence at that point (forget when) that Buffalo VARO refused to read.

They committed 4 CUEs in my March 1151 HBP decision and reversed the denial to an award.

They refuse to pay me in that case, but that payment would be moot anyhow, when they pay me the proper accrud amount for my pending Claim for which in last few weeks I have filed 6 CUEs on, all reversing the initial denial, and granting the main part of the CUE.........yet they say they don't owe me any accrued benefits and VA case law says they are wrong.

BTW I am in great health and hardly cost them much for CHAMPVA.

My degree from American Military University however, did cost them quite a bit under DEA.

That was because of the `1997 100% P & T award for my husband for SC PTSD after he died.

And there is the FTCA matter...my entire offset had to refunded, first situation they ever had like that....

So maybe that is their problem....but .I am making my whole situation their problem..... before they start to pull this on other 100% vets or survivors saying Permanent status for a living vet or a dead one,

really means

Temporary.

Think of the cash they could save on the ancillary DEA and CHAMPVA benefits alone.

And Never believe what they say on the phone.

What the director told me buy phone as to their Reasons and Bases was so outrageous that this is why they didn't put it into the decision.

I have no documentation of that but believe me I have told plenty of people at VACO.

And what Jeff Henderson

Chief, Quality Review and Consistency (214C)

Compensation Service

told me by phone ( that they had already paid me the entire 22 months per the PC he looked at ,caused me to email the IG Hotline immediately.

I didnt get that payment...someone else did...

The IG got them to drop the bogus DIC claim they opened under my name last year (and then they did) so maybe the IG will look into this complaint I sent as well.

I will succeed on this claim. Because of their own regs and the evidence.

But so far, even after asking Ms Hickey a simple request in February, and more subsequent emails that they apply 38 CFR 4.6 to my evidence, not one person so far at VACO , OGC, or my VARO seems able to even read the reg and tell me why they refuse to read my evidence.

..
,

Edited June 4, 2015 by Berta

[Berta]

Ps I hope no one here is discouraged by all that...I have succeeded in every claim I have ever filed.

I got 2 decisions for my husband in his lifetime and also one for my daughter;s DEA initial decision reversed right away due to legal error.

except one long ago.....

I raised 3 issues for my husband's death. The claim went to the BVA, in 1996 I think.

I forget if they denied or rendered the appeal moot because I had in the meantime , won DIC under one of the theories at the RO level and had no reason to continue that appeal.

I guess the DAV (useless) who repped me then forgot to advise the BVA and I didnt know I could withdraw the appeal.

Edited June 4, 2015 by Berta

[broncovet]

Berta

I really think I can say, "I understand".

I recently got an email from the RO director. I told him I was entitled to a decision on my "Special Handling request (SHR) due to shredded evidence".

(This was denied in an internal memo which found its way into my RBA) I exlplained under 38 cfr 3.103 it states,

"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."

I told him I wanted a written decision on the denial of the SHR. He responded it was a "request" and not a "claim" and VA did not have to give me a written decision.

However, 38 CFR 3.103 (f) says otherwise:

(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.

Im gonna ask the CAVC in a Writ, if they think the "effective date of my claim" affects my payment of benefits, since this SHR request is "all about" the effective date because they shredded my evidence. We know the "effective date of claim" affects our "payment of benefits".

I know for certain its a lose/lose for VA to issue a written decision on my SHR and they want to avoid it at all costs. If they deny it, then they know I will have a bases to appeal and its more bad publicity for them..documented by the court. If they award it, then the same thing can happen.

Im really looking forward to you posting your writ..and even waiting on it to prepare mine.

I will add that I know my claim will succeed when I get someone to read it that knows how to read, also.

I recently had a C and P exam for hearing loss. The audio said I had 58 decibel (CNC average) loss in left ear, and 59 decibel loss in the right, with 88% speech discrimination. If you plug these numbers into the chart, you get a 50 percent rating. Add (or combine) that with 10% for tinnitus and you get 60 percent. So I have 100 plus 60 for SMC S, and they have tried several times to deny that, too.

Edited June 4, 2015 by broncovet

[Andyman73]

I must use this info to find out why they awarded me 2 additional 10%, but not bilaterally, even tho they are, and no change in current payment, even tho, by their own chart I should be bumped to 70% with or with out the bilateral factored in.

[Berta]

Broncovet....I certainly think you should file the writ.as soon as you can ....you probably don't have anything as extensive as mine...and my situation is different from yours.

I have followed their Rules and Procedures at the CAVC web site to the letter,regarding writs..

All I am doing now is to give time for some emails I sent to the General Counsel, the IG, and an IRIS complaint, to be responded to, in hard copy emails responses. A lack of response ( I will give them a little more time) will also be used as evidence.

I already have quite a slew of emails already that will show the court I have done everything I can to get this resolved myself.

I am asking the court for one thing, the same request I made from my VARO and in emails to and from Ms. Hickey.and the Secretary.

I guess Sec Bob doesn't respond to widows who email him.

Please dont wait for my writ , to file yours.....I am quite content to hold out a little longer for more responses or lack thereof, from the VA.

Also today I have to get some photo shots of my caller ID on my DirectV call queue to prove the calls I got from the Buffalo VARO (and VACO)

I am preparing to file with the Federal Circuit court as well if the writ is denied and also I am an Honor graduate from AMU and cannot go against the training I got there from the Marine Corps and the other branches as well.

Perfection on my work was the expectation. ( I remind I was the only civilian there, and my initial professor tried to make my life Hell )

And giving 150%. was his expectation

because sometimes even 100% isn't good enough.

The rules for a CAVC writ I think I posted here already.

They are your template.

Make a War Plan. I have done that for every claim I have had since going to AMU.

I put a photo scan of my VARO in the middle of the page and then surround the en (ooops VA) with every tactic I can legally use to get resolve.

I still have a few more tactics I have not used yet.

Then I expand to another page or more and list every piece if evidence I have.to support my war plan.

That includes , as evidence, all regulations such as what you quoted above to support the case.

It is actually a lot of fun but very time consuming. But it helps clear our minds to focus solely on what we want the court to do and why they should do it.

Someone here posted a link to writ templates...I have not found it yet. But the CAVC web site usually has a few recent writs there every day.

I got an award shortly after filing my last writ. maybe in 1996?....the writ was denied because I had not exhausted all means available to get a proper resolve .

In those days we did not have a COVA web site and I had to call the court and promise to send them a few bucks for each case they would fax to me. I sure didnt have a clue as to what the court (COVA then) really wanted but in any event , the VARO got a copy of it (you have to serve all mentioned in the writ header yourself, with a copy of the writ) and as I said, that claim was resolved very fast.

I dont want anyone waiting on me to do anything.

I am burned out as it is and might take a long break from hadit soon..

Besides the more I draw out the VA, as past experience has proven to me many times, the more documented evidence I will have for the writ...evidence that will support it.

I work on that tactic everyday.and check my war plan daily to see if I have overlooked contacting anyone at VACO or the VBA, to find someone at VA who ,as you say, can read. and comprehend basic VA case law.

There might even be similar writs as the basis of your at the CAVC web site.that you could use as a template for yours.

[Berta]

Of course there is extensive info on writs at Asknod's site:

https://asknod.wordpress.com/2012/02/26/cavc-erspamer-v-derwinski-writ-of-mandamus/

I called Espamer many many years ago. I considered him a Hero ......

nothing is impossible....