2nd Rejection - How to proceed?

[USAF-Vet]

Historical context: Filed with AMVETS Oct. 2014. File received by Oakland VARO Nov. 2014. Claim closed due to "no evidence of service connection" March 2015.

Filed NOD with DAV June 2015 - VARO VSR called me and suggested I submit Reconsideration. Withdrew NOD end June 2015 for Reconsideration.

Filed Congressional complaint July 2015 to help obtain Service and Dependent medical records from VA Archives. Service records scanned/uploaded to VBMS July 30, 2015. Rest of Dependent medical records and additional Service medical records received Oct. 2015 from VA Archives. Everything scanned into VBMS.

Dec. 8, 2015 - received 2nd rejection for service connection from Reconsideration. Still claiming "No evidence that the disabilities occurred while you were on active duty" even though they have nearly 1,000 pages of medical documentation and I also uploaded specific copies to EBenefits for each claimed condition so they didn't have to go looking for it.

Letter states I have 3 options:

1) submit new evidence (which I already did).

2) File an appeal (NOD) which I did in June but was advised by VARO not to do it.

3) Identify a clear and unmistakable error in prior decision.

The initial Processor NEVER REQUESTED my medical records from the VA Archive...that is why I had to do a Congressional. Because the VARO never requested the records, they closed my claim without allowing me to have a C&P exam.

Personally, I feel as if I am being discriminated against because I am a FEMALE who was on Active duty and then became a dependent. My DAV Rep. said he has had communication with the VARO questioning why it took me all these years to file a VA Claim, why did I wait until after my husband filed his in 2010 when he retired....because I wasn't even aware I was eligible until 2 years ago when I became employed by VHA and the Veteran's I worked with encouraged me to file. I wasn't even willing to acknowledge I was a Veteran until 2 years ago because of the hostile work environment I dealt with when I was on active duty. When our base closed in 1992, my husband wanted to drive down the road to the Engine shop where I worked and I had a panic attack, told him to turn around. I have physical and emotional scars from my Active duty service which I have been dealing with on my own suffering in silence. Now I'm being beat up again by the VBA over my service. What is the problem? Do people not realize there are Women Veteran's and many of them such as myself were completely unaware we were eligible all this time because we never received any exit briefings regarding VA benefits? I believed all these years that benefits were only for Retired Veteran's such as my husband until 2 years ago when I learned otherwise.

Please advise. I will be calling my congressional staffer and DAV rep. today. I am so upset I'm considering contacting a couple of Senators. I might contact BOB as well.

[Guest]

I work in a Non-medical section of VHA along with a large number of other Veterans. Most of which have had problems getting their claims done as well. Just because I'm an employee doesn't mean I'm treated any different than anyone else.

The point that I was trying to make is that you should be able to understand what veterans go through by talking to other veterans that you work with.  Don't look at this as a discrimination because VA does this to a lot of veterans, because they know they (VA) can get away with it.  There is no accountability with VA.  You can't rely on anyone except yourself.  You have to make sure VA has all the documents they need to grant your claim.  Always keep in mind with VA it is a numbers game.  Some veterans will/would just give up.  Some veterans will/would get so p*ssed that they put their decision down and don't pick it up again until after a year and then they have to start over.  Some veterans will/would file an appeal.  Believe it or not  a lot of veterans just give up. I had an issue in the military that VA denied, VA said my condition was acute and not chronic.  My claim went to BVA (Board of Veterans Appeal) and BVA remanded my claim twice trying to get my local VARO to grant my claim and when they refused, BVA turned around and denied my claim.  I got so p*ssed I got a law dawg and appealed my claim to CAVC (Court of Appeals For Veterans Claims)  and the CAVC remanded my claim and then the BVA granted my claim.  If I had given up I would have been out of thousands of dollars.

 

[Gastone]

Feelings, hard to do but try to set them aside, they hurt; not help your claim. Will often cloud your judgment. It's all about Evidence of Record confirming a Medical Nexus to your Active Duty Service.

I see (8) medical conditions listed above, your SMR's have corroborating evidence covering treatment  for all (8) conditions?

The VA has a "Duty to Assist," regarding obtaining your medical evidence, but in the end, it"s up to you to be sure they get it. No one, VA Employee, your VSO or it's Rep, will ever be as dedicated to compiling your evidence and successfully prosecuting your claim, as you.

You indicate your 1st claim filed 10/14 and "Closed" 03/15 due to lack of evidence, right. Thats pretty quick, did your DAV file an FDC with no evidence attached, big mistake or did you fail to provide evidence when requested by RO upon receipt of your Reg claim? If I have this right, you have Med Records from your active duty indicating treatment for a MH condition and 6 of the above physical conditions.

The Hearing Impairment and Tinnitus are usually cumulative over time, rarely DX'd in service unless there is a trauma involved causing an immediate hearing loss and ringing in the ears. Did your MOS support the noise exposure required for an SC? You were required to wear hearing protection, right? Have you been DX'd with a hearing impairment?

Your recently RE-Filed NOD only covers the original issues claimed and Denied. Your MH condition and Tinnitus were not listed on the original claim, file a New FDC with the appropriate Evidence attached.

Semper Fi

[lotzaspotz]

There's been a lot of discussion here on hadit about the fact that there is no such thing as a reconsideration request process without new and material evidence provided after the initial denial.  When you file your formal Notice of Disagreement with the Rating Decision, that in and of itself is supposed to trigger a review of the denial, that is, a reconsideration, especially if you provide new and material evidence not previously submitted, or -- and this is very important-- evidence that was submitted was never adequately addressed and rebutted by the Regional Office in its Rating Decision letter to you.  You can wave the red flag on that, as well, because that has the potential to convince the RO to reconsider the denial.  That's why you have to make sure the evidence listed in the Rating Decision includes everything they had in their possession at the time, and also that it was actually weighed and to what extent under reasons and bases.  Scrutinize the Statement of the Case letter you get after you file your NOD for the same reasons.  But to my understanding, an NOD accomplishes the same purpose as a reconsideration request, without exposing the veteran to the possible loss of the veteran's NOD rights by letting the clock run out on that one year appeal deadline.

Berta's right, the only thing waiting around for a response to your "reconsideration request" does is eat up time taken from the one year deadline from the decision date to file your Notice of Disagreement.  Any VSO who doesn't tell you that is doing you a disservice.

Edited December 13, 2015 by lotzaspotz

[broncovet]

Ok, please understand the VA denies about 85% of the first time claimants, so dont feel like the lone ranger.  You need to file a NOD, if your decision is within a year, regardless if you filed for reconsideration or not, file the NOD.  

You need to persist in locating your SMR's.  Dont count on VA to do that, they obviously dropped the ball.  How long ago was your service?  Was it stateside?

You may simply be able to go to the clinic where you were treated, or call them if its too far away, and request your medical records.  

Once you get your records, by whatever means, then 38 CFR 3.156 allows you to reopen with "new and material evidence", but get your records first.  Whatever it takes you need to get your records.  Did you request them with NPRSC?

YOu just have to keep fighting, most of us have done just that to get our benefits.  I have been fighting for 13 years, Alex fought for 20, and some even longer.  Never give up.  Yes, I got my benefits, and now I am fighting for SMC and an earlier date.   

Edited December 14, 2015 by broncovet

[Gastone]

What NOD Appeals path did you choose, DRO Review. DRO Hearing or BVA Hearing? Have you filed the "NEW FDC" or Rag Axx claim, for your MH condition?

Semper Fi

[USAF-Vet]

Thank you for the replies and suggestions. I will speak with my DVA rep. about the suggestions for his input.

1. VBMS = Computer program that contains service medical records. When you submit your documents to the VARO or through EBenefits, these records are entered into VBMS. The VARO VSR's have access to all of your records via this program on their Desktop. All of my records both Service and Dependent have been retrieved from the VA Archive caves at MY Request and entered into VBMS. The final dependent records were added early October 2015.
2. The VARO has insisted since my initial claim was closed March 2015 that I do not have any evidence of service connection. They stated they were unable to locate any medical records. The initial denial letter listed the VA Archives 4th. The 1st place they checked was the VA Medical center in Martinez CA. They would only have found my occupational health clearance as a new employee since all of my medical care is done at AD Military Medical facilities or via TRI-CARE providers. Has been this way for 29 years, which they were told when my initial claim was filed by AMVETS Oct. 2014.
3. I had to change VSO's because my AMVET representative was hired as a VSR so when my claim was closed I had no representation to assist me. I was directed by other Vets. to contact DAV for assistance since they have an office in the same building as the VARO Oakland.
4. Since my first DAV Rep. filed the NOD, he transferred to North Carolina and then I had another one do the Reconsideration. I was unable to make contact with him for weeks at a time so I now am on my 3rd rep. He is trying to sort out all the missteps that have occurred with the Rep. transitions.
5. I e-mailed my current DAV rep. and Congressional aide when I initiated this message. My DAV rep. said he put in an NOD (Don't know which type of NOD, will ask). I also e-mailed (2nd time) the VARO director, AD and office manager. The first time I e-mailed them last June, one of the VSR's called me 3 weeks later.

So to summarize, all of my medical records: Active, Reserve and Dependent are electronic. They are fully accessible to any VSR at any VARO from their desktop.

I uploaded individual named/dated medical evidence to Ebenefits in October 2015 prior to this latest rejection letter even though I knew the VARO already had all of my records.

I have asked my DAV rep. about starting a new claim for the Anxiety/Depression but he told me to wait until this first one is resolved. When I started my initial claim, all I wanted was 10% for my nasal fracture (2 surgeries to date - 1st active duty 11/87, 2nd 2/15), unfortunately this "simple" request has turned into a war of sorts.