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    When a Veteran starts considering whether or not to file a VA Disability Claim, there are a lot of questions that he or she tends to ask. Over the last 10 years, the following are the 14 most common basic questions I am asked about ...
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  • Can a 100 percent Disabled Veteran Work and Earn an Income?

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    You’ve just been rated 100% disabled by the Veterans Affairs. After the excitement of finally having the rating you deserve wears off, you start asking questions. One of the first questions that you might ask is this: It’s a legitimate question – rare is the Veteran that finds themselves sitting on the couch eating bon-bons … Continue reading

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    • So, my lawyer sent an IME w/ IMO and filed a supplemental claim solely for IU on March 20.

      It was closed on March 25, and va.gov just states claim closed and nothing more.

      Hopefully, I get good news.
    • Thanks for the responses. I am filing a new claim but will continue pushing the NOD. My new question is it stated in law or statute that if during the claims process the VA finds conditions that could possibly rate service connection that was not originally filed for, the VA will “invite” the veteran to file the claim on the claims form. Reason I ask is that my private DBQs, NEXUS letter, and even the VA nurse examiner's DBQs lists bilateral upper radiculopathy as present. If it is written in statute or official guidance it might qualify as a CUE. Just looking at all angles. 
    • Everyone needs to read our stories so they can try to avoid these screws by the va...
      Thank you, everyone contributes, good or bad, all of our stories will help others, and yes, they have been stated by others for ages, over and over, but we just get depressed, and the time turns into years as they screw us..

      Welcome to the department of Veterans Affairs!  I can honestly say, "been there, done that".  

      Even after winning my tdiu in 2017, it was back to the drawing board as VA hornswaggeld my effective date.  (but of course).  

      I finally won my tdiu effective date in Feb. 2020, 18 years after I first applied!!!  

      Here is how they managed to drag mine out 18 years:

      1.  They never adjuticated my decison until 2009, where they called it "moot".  

      2.  I appealed, said it was not moot because it could result in an earlier effective date and SMC S under Bradley vs Peake.  The judge agreed with me, and ordered VARO consider me for extra schedular TDIU, under 4.16 b.  

      3.  The VARO piddles with  the remand for 3 years, and hoped I wouldnt notice.  I noticed and raised cane until they adjuticated it.  (denied of course).  

      4.  Finally, after the baord denied again, I hired a lawyer, in 2014, and appealed to CAVC.   

      5.  The lawyer won a remand, got an IMO and I won tdiu in 2017.  But at the wrong effective date, even after 15 years.  

      6.  I hired another lawyer, Chris Attig, and appealed the effective date, and he won a remand for effective date.  Trip 2 to CAVC.  

      7.  Mr. Attig won a remand, and advised me to get another IMO.  

      8.  The board awarded my earlier effective date in Feb. 2020.  

           So, I do have advice fighting VA for TDIU, they fought and fought and I hung in there and won it all.  

      ADVICE:  Dont count on VA, they could easily throw your fax in the trash.  Follow up!  
    • "Keep in mind that due to the nature of the digestive system, VA would most likely combined your conditions and pay you at the higher rate to avoid pyramiding".    That is one of my main gripes.  They are only listing the GERD with hiatal hernia and ignoring the rest of my gastric issues such as the gastritis which I also had in service.  I included it in my 2007 request for increase and again in 2019.  The info from the civilian dr that stated I had the gastritis with H pylori was not even provided to the examiner in 2007, nor did he have my VA health records. The 2019 request was based on an EGD I had AT THE VA in Jan 2019.   I filed for an increase 6 Mar and they did an ACE on 27 Mar and downgraded to noncompensable on that date.  The only reason I was thinking CUE:  38 CFR § 3.326 - Under Examinations  it states (c) Provided that it is otherwise adequate for rating purposes, a statement from a private physician may be accepted for rating a claim without further examination".  
    • Enough has been said on this topic. This forum is not the proper forum for an attorney and former client to hash out their problems. Please take this offline
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rootbeer22

Attempted Strategy to Get C-File-NOW

Question

Vets:

Unfortunately, I had to file my first NOD this week without the benefit of having my C-file after almost 11  months waiting for it? As you know, that puts us Vets at a distinct disadvantage because we cannot see the contractor CP Exams to see  and question the opinions? At one point in my life, I was a FOIA Officer and know the rules very well. The government has 20 business days to fulfill a request for FOIA but can ask for another 10 days if they have cause and inform the requester? Ironically, I used the new form to request the FOIA/C-File so there's no issue there? But in my case, the e-benefits status this week says that it will be at least  2 more years before I may see my claims files for a total of 3 years from the initial request? In contrast, a Vet only has one year to file a NOD so this does not add up or it is not fair? The FOIA Laws also say that it's not a valid excuse that an agency is too busy or has a large case load which excuses the agency from fulfilling the law?

Anyway, I sent a letter to the Director, Office of Government Information Services (OGIS), to appeal the wait for my C-File? Their primary federal responsibility is to monitor other Government FOIA Agency Programs for Compliance, Operations and Training.  I also sent a copy of that same letter to the VA General Counsel, Leigh Bradley, VA National FOIA Office Team and Director of  the VA Intake Center in Janesville, WI. to advise them that I have asked for help from the OGIS. I was careful not to send a letter directly to the VA Secretary yet because like I told all of these VA Staffs that I've been trying to resolve this at the lowest level possible? However, there's something very wrong with a system that should have  provided records in about three weeks that is now taking upwards of three years? Besides, from a legal perspective, an agency can't just ignore the FOIA  regulations and if they need more resources then perhaps their senior leadership  should be notified? At this point, I've tried to exhaust all of my administrative actions to obtain my C-file before I get to the point were I may have to eventually have to  take legal action.

Right now, too many Vets are in the same predicament as I am in and some kind of overall resolution needs to be happen soon? Overall, It's probably just means that the VA Intake Center needs more staff and that may fix it? Consequently, yesterday I watched a congressional hearing about VBA records issues and a senior VBA representative said now that 98% of veterans records are now digitized, so they should be able to just make a disk and send the C-files right out?

Anyway, I'll report back to hadit.com what happens? Who knows, I could be pleasantly surprised in a few days or maybe nothing may happen at all -but at least I'm trying something?

 

Godspeed Rootbeer22

 

 

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2 hours ago, rootbeer22 said:

Unfortunately, I had to file my first NOD this week without the benefit of having my C-file after almost 11  months waiting for it

I am not a lawyer, but If this is not a violation of due process then I don't know what is.

Quote

The United States Court of Appeals for Veterans Claims (Court) has held that "there is a presumption of regularity which holds that government officials are presumed to have properly discharged their official duties."  Ashley v. Derwinski, 2 Vet. App. 307, 308-09 (1992) (quoting United States v. Chemical Foundation, Inc., 272 U.S. 1, 14-15, 71 (1926)).  The presumption of regularity attaches to "all manner of VA processes and procedures."  See Woods v. Gober, 14 Vet. App. 214, 220 (2000).  Thus, it follows that the presumption is applicable to VA employees' theoretical handling of a NOD filed by the Veteran.  Absent clear evidence to the contrary, VA is entitled to the presumption that a VA employee would have properly handled the Veteran's NOD had it been filed in a timely manner.  In addition, as government employees, employees of the United States Postal System are also entitled to the presumption of regularity in handling and delivering mail, to include any mail sent by the Veteran to VA.

In your case, and in many others, the VA totally failed to follow the "presumption of regularity" (which is a lot of hogwash).

Like other VA-related rules, laws, and policies, the NOD window was designed without reality in mind and is clearly outdated. Yeah, 12 months is easy to calculate on a calendar and the the VA loves to use it against veterans. But when the VA itself is the barrier, they should not hold it against you.

In my opinion, it is impossible for you to file a fully developed NOD under given your current circumstances. I personally think the NOD clock should be frozen the moment a veteran requests a copy of their c-file, C&P exam results, or any other correspondence from the VA. I have heard from other veterans that they have received their evidence from the VA at the 11th hour and had to scramble to respond. If common sense changes were enacted, the clock should then resume running once the veteran notifies the VA that they have received the documentation (sending via return receipt w/signature, etc...).

 

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3 hours ago, rootbeer22 said:

Vets:

Unfortunately, I had to file my first NOD this week without the benefit of having my C-file after almost 11  months waiting for it? As you know, that puts us Vets at a distinct disadvantage because we cannot see the contractor CP Exams to see  and question the opinions? At one point in my life, I was a FOIA Officer and know the rules very well. The government has 20 business days to fulfill a request for FOIA but can ask for another 10 days if they have cause and inform the requester? Ironically, I used the new form to request the FOIA/C-File so there's no issue there? But in my case, the e-benefits status this week says that it will be at least  2 more years before I may see my claims files for a total of 3 years from the initial request? In contrast, a Vet only has one year to file a NOD so this does not add up or it is not fair? The FOIA Laws also say that it's not a valid excuse that an agency is too busy or has a large case load which excuses the agency from fulfilling the law?

Anyway, I sent a letter to the Director, Office of Government Information Services (OGIS), to appeal the wait for my C-File? Their primary federal responsibility is to monitor other Government FOIA Agency Programs for Compliance, Operations and Training.  I also sent a copy of that same letter to the VA General Counsel, Leigh Bradley, VA National FOIA Office Team and Director of  the VA Intake Center in Janesville, WI. to advise them that I have asked for help from the OGIS. I was careful not to send a letter directly to the VA Secretary yet because like I told all of these VA Staffs that I've been trying to resolve this at the lowest level possible? However, there's something very wrong with a system that should have  provided records in about three weeks that is now taking upwards of three years? Besides, from a legal perspective, an agency can't just ignore the FOIA  regulations and if they need more resources then perhaps their senior leadership  should be notified? At this point, I've tried to exhaust all of my administrative actions to obtain my C-file before I get to the point were I may have to eventually have to  take legal action.

Right now, too many Vets are in the same predicament as I am in and some kind of overall resolution needs to be happen soon? Overall, It's probably just means that the VA Intake Center needs more staff and that may fix it? Consequently, yesterday I watched a congressional hearing about VBA records issues and a senior VBA representative said now that 98% of veterans records are now digitized, so they should be able to just make a disk and send the C-files right out?

Anyway, I'll report back to hadit.com what happens? Who knows, I could be pleasantly surprised in a few days or maybe nothing may happen at all -but at least I'm trying something?

 

Godspeed Rootbeer22

 

 

One of the problems with the digitization is that the original paper files seem to become inaccessible. In the process of preparing for the effort, The VA (around 2008) supposedly went through the files, and removed (redacted) extraneous information. No one knows what was actually removed.  Earlier this year, I was told that my VARO still had the paper files. Last year they were supposedly not available for a BVA traveling board hearing ?? Copies the VA has sent in the past contained some blank pages, and some older claims records mysteriously vanished.  It may be that a Writ will be the only way.

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Try e-mailing   MaryAnn.Wentzel1@va.gov. 

Just a short note should work.

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Rootbeer

I had a QTC PTSD  C&P on 1-6-16...I got my c&p exam Report 3 weeks after the exam...I went to the BVA and seen a  VSO and Requested my  report ...He made copy of it for me....2 weeks later I got my decision.

..........Buck

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Who is MaryAnn.Wentzel 1@va.gov   ?

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    • So, my lawyer sent an IME w/ IMO and filed a supplemental claim solely for IU on March 20.

      It was closed on March 25, and va.gov just states claim closed and nothing more.

      Hopefully, I get good news.
    • Thanks for the responses. I am filing a new claim but will continue pushing the NOD. My new question is it stated in law or statute that if during the claims process the VA finds conditions that could possibly rate service connection that was not originally filed for, the VA will “invite” the veteran to file the claim on the claims form. Reason I ask is that my private DBQs, NEXUS letter, and even the VA nurse examiner's DBQs lists bilateral upper radiculopathy as present. If it is written in statute or official guidance it might qualify as a CUE. Just looking at all angles. 
    • Everyone needs to read our stories so they can try to avoid these screws by the va...
      Thank you, everyone contributes, good or bad, all of our stories will help others, and yes, they have been stated by others for ages, over and over, but we just get depressed, and the time turns into years as they screw us..

      Welcome to the department of Veterans Affairs!  I can honestly say, "been there, done that".  

      Even after winning my tdiu in 2017, it was back to the drawing board as VA hornswaggeld my effective date.  (but of course).  

      I finally won my tdiu effective date in Feb. 2020, 18 years after I first applied!!!  

      Here is how they managed to drag mine out 18 years:

      1.  They never adjuticated my decison until 2009, where they called it "moot".  

      2.  I appealed, said it was not moot because it could result in an earlier effective date and SMC S under Bradley vs Peake.  The judge agreed with me, and ordered VARO consider me for extra schedular TDIU, under 4.16 b.  

      3.  The VARO piddles with  the remand for 3 years, and hoped I wouldnt notice.  I noticed and raised cane until they adjuticated it.  (denied of course).  

      4.  Finally, after the baord denied again, I hired a lawyer, in 2014, and appealed to CAVC.   

      5.  The lawyer won a remand, got an IMO and I won tdiu in 2017.  But at the wrong effective date, even after 15 years.  

      6.  I hired another lawyer, Chris Attig, and appealed the effective date, and he won a remand for effective date.  Trip 2 to CAVC.  

      7.  Mr. Attig won a remand, and advised me to get another IMO.  

      8.  The board awarded my earlier effective date in Feb. 2020.  

           So, I do have advice fighting VA for TDIU, they fought and fought and I hung in there and won it all.  

      ADVICE:  Dont count on VA, they could easily throw your fax in the trash.  Follow up!  
    • "Keep in mind that due to the nature of the digestive system, VA would most likely combined your conditions and pay you at the higher rate to avoid pyramiding".    That is one of my main gripes.  They are only listing the GERD with hiatal hernia and ignoring the rest of my gastric issues such as the gastritis which I also had in service.  I included it in my 2007 request for increase and again in 2019.  The info from the civilian dr that stated I had the gastritis with H pylori was not even provided to the examiner in 2007, nor did he have my VA health records. The 2019 request was based on an EGD I had AT THE VA in Jan 2019.   I filed for an increase 6 Mar and they did an ACE on 27 Mar and downgraded to noncompensable on that date.  The only reason I was thinking CUE:  38 CFR § 3.326 - Under Examinations  it states (c) Provided that it is otherwise adequate for rating purposes, a statement from a private physician may be accepted for rating a claim without further examination".  
    • Enough has been said on this topic. This forum is not the proper forum for an attorney and former client to hash out their problems. Please take this offline
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