NOD denied and errors to boot! Need opinions

[Navy4life]

I posted this in my other ongoing thread but I want this brought to the forefront.  I was recently denied by WACO DRO Steve Wilbur and I believe I was retaliated because I simply asked Robert McDonald in an email to step in after 6 months of waiting for a decision when the DRO told me in the informal hearing to give him 60 days.  My hearing was 45 minutes long and I was well prepared.  The DRO Steve Wilbur has a very bad reputation at WACO for denials.  I received a call from DRO Wilbur on August 18th, 2016 stating he received my request for a decision.  He told me he would be deciding it within the week but in fact he had already decided it that day!  Now I have yet to received the SOC but I have a Women's Outreach Coordinator in St. Petersburg VBA who is a very close friend of mine and happened to see the denial in my records.  This idiot DRO failed to put a cover letter with my SOC and no date on my SOC.  He simply submitted it to Evidence Intake and never mailed it to me!  If it wasn't for my connection I would still not know and would not be within the 60 days to file the Form 9.  I emailed Robert McDonald earlier this week, firing off my distaste for this DRO and my local congressman.  I plan to further put him on front street when I do file the Form 9.

As for my NOD, I filed it back in 2014 for right foot (5th metatarsal fracture), right ankle condition, and left toe condition.  I am attaching a lot of documents and I know we all have busy lives and I have helped a lot on here and now I need help please!  I need your opinions on this situation.

Original denial for toe condition was on decision letter in June 2014.  They put the denial of the toe condition on the wrong foot!  It was noted on the right foot when it should have been the left foot.  I pointed this out since my right ankle and right fracture had yet to be decided on.  November 2014 received denial for right foot/right ankle and toe condition noted on left toe continued to be denied.  This was after I had a C&P exam July 2013 where I provided TWO DBQ's from my current outside podiatrist stating my injuries to my feet/ankles/toe was all in-service injuries and I was still affected by them to this day.  That was 2013.  I was s/c in June 2014 and was able to start getting treatment by the VA.  My primary had X-rays completed and in 2014 it showed an old fracture to my right foot, the 5th metatarsal.  The C&P examiner made a rationale that stated he noted diagnoses in the C&P exam.  He felt comfortable with the DBQ's from what I gathered.  November 2014, a medical opinion by some doctor I never saw but supposedly reviewed my records determined either I was healed and no further treatment or that I had in-service injuries but no loner had issues.  So I filed NOD November 2014 citing the errors and why I felt the denial was incorrect.  Fast forward to February 2016, I had my informal hearing with DRO Wilbur.  I had submitted a Nexus letter dated February 12th, 2016 from my podiatrist indicating he reviewed all my SMR's and my current conditions were all related to in-service injuries.  During the hearing, DRO Wilbur even stated that a fracture in s/c with no further residuals is at least 0%.  He further went on to review the Nexus letter noting that my Podiatrist stated all three contentions were in fact in-service, continuity continued.  DRO Wilbur told me 60 days to decided.  DAV rep was present.  I felt good......WELL, then I was denied last week.

Here is the evidence I submitted to the DRO for review.  I am just lost for words on this!

 

DBQ ankle conditions_Redacted.pdf

DBQ foot conditions_Redacted.pdf

medical opinion w-o exam_Redacted.pdf

Timeline for NOD hearing.pdf

Nexus letter-redacted .pdf

NOD - Denial Letter .pdf

NOD evidence notes.pdf

[broncovet]

I know there is a temptation to go after bad VA employees, and what they did wrong to you, but its better to focus your "Big 3"...Get it service connected, get a fair disability percentage rating, and get a good effective date, always in that order.  

I also know its tempting to call out a VA employee who lies to you.  But that employee has friends, and some of those friends probably owe some favors.    

The denial letter you got looks like its from the RO, a DRO review with SOC.  This is not a suprise, most DRO's are denied.   You need to proceed on by filing the I9, within 60 days.

In your I9 (appeal to the BVA), you should clearly and concisely explain how the denial is in error and, especially, how it is in conflict with the evidence.  Point out they used the wrong foot.  

The VA has a procedure for errors/inaccuracies in your records, dont try to fix these inaccuracies in your appeal, but use this instead:

1.579 Amendment of records.

(a) Any individual may request amendment of any Department of Veterans Affairs recordpertaining to him or her. Not later than 10 days (excluding Saturdays, Sundays, and legal public holidays) after the date or receipt of such request, the Department of Veterans Affairs will acknowledge in writing such receipt. The Department of Veterans Affairs will complete the review to amend or correct a record as soon as reasonably possible, normally within 30 days from the receipt of the request (excluding Saturdays, Sundays, and legal public holidays) unless unusual circumstances preclude completing action within that time. The Department of Veterans Affairs will promptly either:

(1) Correct any part thereof which the individual believes is not accurate, relevant, timely or complete; or

(2) Inform the individual of the Department of Veterans Affairs refusal to amend therecord in accordance with his or her request, the reason for the refusal, the procedures by which the individual may request a review of that refusal by the Secretary or designee, and the name and address of such official.

(Authority: 5 U.S.C. 552a(d)(2))

(b) The administration or staff office having jurisdiction over the records involved will establish procedures for reviewing a request from an individual concerning the amendment of any record or information pertaining to the individual, for making a determination on therequest, for an appeal within the Department of Veterans Affairs of an initial adverse Department of Veterans Affairs determination, and for whatever additional means may be necessary for each individual to be able to exercise fully, his or her right under 5 U.S.C. 552a.

(1) Headquarters officials designated as responsible for the amendment of records or information located in Central Office and under their jurisdiction include, but are not limited to: Secretary; Deputy Secretary, as well as other appropriate individualsresponsible for the conduct of business within the various Department of Veterans Affairs administrations and staff offices. These officials will determine and advise the requesterof the identifying information required to relate the request to the appropriate record, evaluate and grant or deny requests to amend, review initial adverse determinations upon request, and assist requesters desiring to amend or appeal initial adverse determinations or learn further of the provisions for judicial review.

(2) The following field officials are designated as responsible for the amendment ofrecords or information located in facilities under their jurisdiction, as appropriate: The Director of each Center, Domiciliary, Medical Center, Outpatient Clinic, Regional Office, Supply Depot, and Regional Counsels. These officials will function in the same manner at field facilities as that specified in the preceding subparagraph for headquarters officials in Central Office.

(Authority: 5 U.S.C. 552a(f)(4))

(c) Any individual who disagrees with the Department of Veterans Affairs refusal to amend his or her record may request a review of such refusal. The Department of Veterans Affairs will complete such review not later than 30 days (excluding Saturdays, Sundays, and legal public holidays) from the date on which the individual request such review and make a final determination unless, for good cause shown, the Secretary extends such 30-day period. If, after review, the Secretary or designee also refuses to amend the record in accordance with the request the individual will be advised of the right to file with the Department of Veterans Affairs a concise statement setting forth the reasons for his or her disagreement with the Department of Veterans Affairs refusal and also advise of the provisions for judicial review of the reviewing official's determination. (5 U.S.C. 552a(g)(1)(A))

(d) In any disclosure, containing information about which the individual has filed a statement of disagreement, occurring after the filing of the statement under paragraph (c)of this section, the Department of Veterans Affairs will clearly note any part of the recordwhich is disputed and provide copies of the statement (and, if the Department of Veterans Affairs deems it appropriate, copies of a concise statement of the Department of Veterans Affairs reasons for not making the amendments requested) to persons or other agencies to whom the disputed record has been disclosed. (5 U.S.C. 552a(d)(4)) (38 U.S.C. 501)

  

 

If you are not in a good mental state, such as you are very angry, or, if you lack some advance (college level) writing skills, then you should get someone to help you write out the I9.    You should read what they wrote, and sign it if you agree.  

Even tho I do have a college degree and advanced level writing skills, like yourself, I became angry at the denials, and had to get some help in presenting my case concisely and clearly.  I typed up my NOD's and I9's and ran them by Alex Graham before I submitted them.  

We can do that here, also.  

[broncovet]

To summarize:

1.  Get your records fixed.

2.  File the I9, timely even if you can not get the records fixed in time.  If the VA has not responded to your request to amend records, per 3.1579, then so state in your I9.     Later, if the VA does amend the records (or if they refuse), then submit that as new and material evidence, per 38 cfr 3.156.  

3.  Get help as you may be too emotionally involved in the outcome.  Even lawyers get lawyers.  "A lawyer who represents himself has a fool as a client.".  Alex could probably fix this mess for you, probably John Dorle could also, but you have a short time fuse, so file the I9 in 60 days no matter what, even if you have to amend it later.  

[john999]

I agree with Bronco on this.  You want to focus on winning your claim.  If you lost at the DRO level you should proceed in a timely manner to file your BVA appeal.   Now if you were to get yourself a lawyer who knows  you might even be able to get a second DRO.  I did that with my CUE claim.  I was denied at the VARO level and had a DRO by myself where I was again denied which I expected.  Then I hired a lawyer and the VA was ready to talk to him and decide at the VARO level.  I went with my lawyer to another DRO Hearing and we were so close to getting the CUE, but higher ups put a halt to that I am sure because my CUE had big implications for about a million other vets regarding EED and the way evidence was handled before the 1990's.

So I say again to  do as Bronco has said and focus on your claim and file an appeal with BVA or  do both but hire a lawyer first.   How much potential retro and future compensation are we talking about if you win or lose?  Does the outcome of your claim have implications for other vets?  BVA decisions are not used as precedents as are Court of Veteran Appeals, but they do take time.  I would ask for a traveling Board BVA hearing.  If this decision is going to make the difference between a 100%/TDIU rating and staying at 70% then I would think hard about getting a lawyer.  They take their money out of the retro and you may have decent amount of retro because you filed your claims in 2012-13 and if you have to go to the BVA for a decision it will be 2017-18 before you get a decision.  Also the lawyer will be shaping your claim to go to Court of Vet Appeals.  If they are any good that is what they should be doing when they take your claim because the best thing a lawyer can do for you at  the BVA is to write a brief for you.  I have been there with a lawyer at St. Petersburg office and the BVA Hearing was just sort of an intake hearing so in this sense I have no idea what the hearing was supposed to do that just having the lawyer write a brief for you would not do, but the lawyers always want to go face-to-face and I don't blame them.  If you do hire a lawyer you must read the contract very closely. I would post it here at Hadit  so were can all evaluate the fees and see if they are fair.   I think they are supposed to take only 20% plus expenses if you win.  Some of these lawyers will try and make side deal with you to get more money by telling you they can win your claim but they need more money.  This is all BS.

 

[Buck52]

broncovet

I understand what your meaning here about being careful to retaliate against VA Employees, but if she gets to the BVA and sees a judge  I think she should point out the DRO predetermine to deny her when in fact he said give it 60 days for a decision&MADE THAT DENIAL THAT DAY..that is a flat out flagrant  lie in my opinion and should be mention in this case. All  VA employees should be healed accountable.

Ironic  but I did this at a DRO Hearing about a VA C&P Examiner  making a pre determination on my case.

Yes I agree for her to file the I9 ASAP  & Request the amendment./ReQuest C-File ASAP/ReQuest Transcript of the DRO Hearing ASAP

gather evidence of record, even tho this was a non formal  DRO hearing there should be a transcript of the complete hearing , she should get that when she gets SOC...but I doubt it, just from what navy4 mention how the DRO sent off the SOC  without a date on it and only to the claims intake center & she never received one.(yet) The transcript should be in C-FILE.

With so many errors in this case and her case being under prosecution for so long  I think she can win at the BVA.

Those BVA judges don't like it when a DRO screws up  like this one has.

Hang in there Navy4life  I think you have a good chance here.  its just going to take a longer time now for the Appeals process to work.  and I believe the outcome will be in your favor

Alex Graham (asknod) is very busy but as broncovet mention I bet he can help you on this.

 broncovet,she talk with John Dorle on hadit radio show and has his email...Navy4life  if Alex is to busy right now to help you (IDK?) Email John Dorle  he will be glad to help you  and you can discuss his fees.

sorry to hear your having to go through this mess.

jmo

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

[Berta]

 Broncovet said:

"If the VA has not responded to your request to amend records, per 3.1579, then so state in your I9.     Later, if the VA does amend the records (or if they refuse), then submit that as new and material evidence, per 38 cfr 3.156." I agree but also asking them to CUE the SOC might work too.

It looked to me that they might have listed the SMRs as evidence but completely overlooked any SMR entrees. 

The CUE would be a violation of 38 CFR 4.6. You could attach copies of the SMRs with the probative parts highlighted with a magic marker, to support the CUE claim.

 

[john999]

I say if these claims put money in your pocket then you can spend money to pursue them.  If you are going to be sitting at 90% after you win your claims then it is worth it.  You will never get to 100% unless you win more than 60%.  I have 70%, 60%, 20% and four 10% ratings.  This puts me at 90%. For me to get 100% I need another 50% because half of 10% is 5% and that is all I get if I win another 50%.  This is VA math.  You are better off financially getting TDIU and then getting P&T and "S".    However, if you like your job then you just want to keep plugging away but you need huge % win to get to 100%. Filing claims you deserve is good but if they do not put money in your pocket I would not spend money to pursue them.  Filing a claim does increase stress.  Just going through corrupt system and dealing with DRO's and others who just think every vet is a fraud and lazy to boot is not that much fun.  Nothing ever happens to these DRO thugs or the other thugs that call themselves federal employees.  They only get in trouble for stealing from their masters or giving too much to vets.