Improper handling of 1999 VA Compensation Claim

[ardodd]

Improper handling of 1999 VA Compensation Claim

I will do my best to present this in a short and respectful manner. I will do my best to truthfully represent all facts and evidence as it was presented in 1999 VA Claim. It is therefore I am seeking help in identifying any missing documents, missing evidence, non compliance of VA Regulations, etc...

I will post the photo copies of the record on my C-file which I received in 2015. I will present the Claim as it was filed through the local VSO in Farmerville, Louisiana County/Parish: Union

 

Subject:

VA Compensation Claim for Albert Dodd

Dated: 15 June, 1999 

Copy of Claim Submission: ** ( All files are in PDF format and saved to my Google Drive ) ** ( View Only ) **

https://drive.google.com/open?id=1d9HHYJHe3fgLuItJ6INugPqWLAZDg1am

VA Claim submitted on: 15 June 1999

VA Claim Received on: 18 June 1999 ( Dept of Veterans Affairs New Orleans, LA )

ATTACHMENTS:

VA Form 21-526 Pg. 7

https://drive.google.com/open?id=1bHb95IPMv6DGTVftK2qLeoYo-rv1miAv

VA Form 21-526 Pg. 8

https://drive.google.com/open?id=1cWw-3sJygTIhnCgrRZFl4B7XSXC0nnE-

VA Form 21-526 Pg. 9

https://drive.google.com/open?id=1P8tgJ0rcUz8MJoInHEMLuv06raHckdZK

VA Form 21-526 Pg. 10

https://drive.google.com/open?id=15P1YoMfREici-kHFHgbz1TttyuzCMLim

Authorization and Consent Included: 

VA Form 21-4142 Pg. 1

https://drive.google.com/open?id=1YXTaDasjAdrfXN8abclQX9a_8v7kM5G4

VA Form 21-4142 Pg.2

https://drive.google.com/open?id=1Ux9UvrEplp2tTkKc6xrZsMCkUSi2e0z4

 

** ( Notes of Interest ) **

Supporting Evidence Attachments:

1) Certified copy of DD 214

2) Copy of Discharge Account Summary ( Severance Pay ) ** ( My Certified True Copy from SMR ) ** 

3) Copy of Findings of the Physical Evaluation Board ** ( My Certified True Copy from SMR ) **

4) Copy of SMR's to support S/C Claim

 

** Physical Evaluation Board Decision **

Pg. 1

https://drive.google.com/file/d/1Ius0W2ZDp-Ls1_fiQxoqfxRWBSor_viU/view

Pg. 2

https://drive.google.com/file/d/1fYqy9fh6kjD0-cXAfK_T6KGoyszVeJNP/view

Pg. 3

https://drive.google.com/file/d/1DsAwqqLecFc6C_HsZghIaZ7D33E37Qf6/view

Pg. 4

https://drive.google.com/file/d/1UJOIGk1DJuNKNR-RRgfXIswVjWLex_jF/view

Pg. 5

https://drive.google.com/file/d/1h6GgoGlDbJ9sEOT7V1CXorWXEKB5rxG4/view

 

All Evidence and Supporting documents where sent in along with the Authorization and Consent ( VA Form 21-4142 ) for Release of Medical Records on June 15, 1999

 

**** Dept of Veterans Affairs New Orleans, LA ****

Intake of Evidence for VA Claim for Compensation for Albert Dodd

Dated: 18 June 1999

**** Timeline for Review of Evidence and Decision ****

June 18, 1999 VA Claim Received

 

June 25, 1999 VA Claim Reviewed

https://drive.google.com/open?id=1LaYkJdHDmZ9ofzA8CJD7ZTCNwOqzVX9N

 

July 08, 1999 Rating Decision ( R.M. LaCOMBRE, Rating Specialist )

Rating Decision Pg. 1

https://drive.google.com/file/d/16cS_DJ6QCut61LVj-jbzolQghHh4StDF/view

Rating Decision Pg. 2

https://drive.google.com/file/d/1MfG-kcASP_2lruDY22eSMGCgKbI6x-_b/view

Rating Decision Pg. 3

https://drive.google.com/file/d/1pUJXAHT_Zguk0WR2R4xTEi8c0EAXLgHs/view

 

July 10, 1999 Compensation and Pension Award **( VA Form 21-8947 ) ** Signed into record

https://drive.google.com/file/d/1JP-MXHlCsjsGlL9M9qP09XSK_OJJC14P/view

 

July 12, 1999 Notice of Decision mailed out  **( Cover Sheet ) **

https://drive.google.com/file/d/1OG7fNoJWMzF79NQ1AI04Z-wz5QrspY7g/view

 

**** Questions for CUE ****

1) Duty to assist **( Did not attempt to help get copies of Hospital stay )**

2) Duty to assist **( Failure to assist by not scheduling a medical exam for current medical condition(s) )**

3) No Development Letter **( Failure to Notify Veteran of any further evidence needed to substantiate Claim )**

 

I Albert Dodd do swear that all information is correct and included. If you or someone you know has information that would help me in getting the VA to correct this wrongful Decision please post your comments. 

 

 

[Andyman73]

ardodd, I’ve been reading along, but haven’t chimed in as my own experience is more along the lines of yours, than not.  I just wanted to let you know that I support you. 

[Berta]

There certainly successful CUEs at the BVA regarding NWG claims.

This is just one of them: 

https://www.va.gov/vetapp16/files4/1627639.txt

You might have a valid CUE. But that depends ,as I understand the whole thread and the other one, on some questions I have already asked you here-------- that have gone unanswered.

"Surgeries in 2001 - 2005 - 2010 - 2017 would of greatly affect the overall disability rating and back pay."

"But with this Claim Decision being held up since it is finalized i feel completely drained."

There is no time limit on filing a CUE claim. You have a pending issue. If they have not sent a 5103 waiver yet, make sure you respond to it and if you send them more evidence, list it on the waiver as enclosed and also I recommend listing briefly all past submissions and dates you sent it all right on the waiver.

The decision you expect to receive might hold enough info to validate a CUE on the 1999 decision. ..if it regards the same disability in the older denial.

If the C & Ps are done at a VAMC and not farmed out, you can request the results from the Records Access Officer at the VAMC.

[Lemuel]

This tinnitus decision mimics mine but the decision you cite, Berta,  doesn't grant according to the "liberalization date" of 3/16/1976?  I've filed an NOA to the CAVA on a tinnitus revision date.  When I filed I didn't know about "liberalization dates".  I never filed for tinnitus specifically.  Only for hearing loss.  And I was granted 10% for tinnitus from December of 1989 in a decision dated 1/22/1992.

i)    38 CFR 3.114(a) “…or a liberalizing VA issue approved by the Secretary or by the Secretary's direction, the effective date of such award or increase shall be fixed in accordance with the facts found, but shall not be earlier than the effective date of the act or administrative issue.”

ii)   1974 38 CFR § 3.114 Change of law or Veterans Administration issue.

(1) “(a) Effective date of awards. Where pension, compensation, or dependency and indemnity compensation is awarded or increased pursuant to a liberalizing law or a liberalizing Veterans Administration issue, approved by the Administrator or by his direction, the effective date of such award or increase shall be fixed in accordance with the facts found, but shall not be earlier than the effective date of the act or administrative Issue.”

My tinnitus is recorded in my military health record on an EENT consult in 1965, 9 years before my finale discharge from the Navy.  I never filed a claim for tinnitus because I didn't know there was a separate rating for it and none of my representatives over the years did either.  My first rating decision was 2/25/1976, almost a month before the liberalization date.

I will argue, CUE, that I should have been rated at 0% for tinnitus in the first rating decision and then upgraded to 10% as of the date of liberalization.

Hearing is a system.  There are several reasons for "hearing loss" when it exists and tinnitus is one which can exist in combination with others or by itself.  Since my 1965 "hearing loss" complaint was "tinnitus" and on audiological examination the noise induced high frequency hearing loss was noted and a hearing aide issued by the Navy it should follow that tinnitus was a major factor in my hearing loss.

I suspect the same was the case in the case you cite, Berta.

And I see the case you cite at the BVA as the reason the BVA Judge didn't grant a revision to the liberalization date.

I'll have to argue a CUE of a rating at 0% on 2/25/1976 and a failure to liberalize when the liberalization occurred.  Similar to the TBI liberalization that many of us received letters from the VA on in 2008 and 2009.

I plan to go to the CAFC on the liberalization dates under the general clauses of trying to make the veteran as whole as possible and rate under the closest rating code if a specific one doesn't exist.

I question even the validity of limiting "liberalization" to the date Congress grants it.  Congress has already granted compensation under the general clause.  The VA just hasn't followed the general clause at all and is only granting under specific diagnostic codes and related sections of 38 CFR. 

The general clauses have essentially been written out of the Code.  Those of us that have disabilities that have been liberalized should be able to collect compensation from the date of record or discharge from the service, which ever is later. (some SC conditions don't manifest until after release from the service.)

Sec (4)(d) of the 14th Amendment has had allowances given to the Congress that are not given in the rest of the 14th Amendment.  I believe that is because of Section (5) calling on Congress to implement the 14th is in such proximity to Section (4)(d) that it seems to have been only applied to Section (4)(d).  When I filed my first court case in 1988, prior to the CAVA, the 14th Amendment had to volumes of case listings but not one case under Sec (4)(d).  The Appeals Courts had essentially written Sec (4)(d) out of the 14th Amendment until the CAVC was established.

Edited December 3, 2017 by Lemuel
correct an error

[ardodd]

3 hours ago, Andyman73 said:

ardodd, I’ve been reading along, but haven’t chimed in as my own experience is more along the lines of yours, than not.  I just wanted to let you know that I support you. 

Thank you @Andyman73 I hope maybe in someway that both of us will be able to identify certain parts of our that we do not understand and get help.

 

2 hours ago, Berta said:

You might have a valid CUE. But that depends ,as I understand the whole thread and the other one, on some questions I have already asked you here-------- that have gone unanswered.

@Berta your wisdom and knowledge is greatly appreciated. I do apologize for not answering your questions regarding other decisions. I feel like with so many different aspects of a claim going on, it might be better to start a thread that would be helpful to discuss each one, instead of a super long thread.

I am setting here with roughly 5000-6000 pages of me C-file and letters from the VA regarding issues's or pending issue's. To update you on all issue's for my Claim I did file a Appeal. The problem was that my deadline to file the VA Form 9 was too close to the deadline to file after waiting so long for it. I tried to get the help of the local VSO a couple of times and they were over busy to help. But by the time I was able to get help with it the deadline had passed. And ultimately the Appeal was Denied in march of 2017.

3 hours ago, Berta said:

There is no time limit on filing a CUE claim. You have a pending issue. If they have not sent a 5103 waiver yet

I have not received a VA Form 5103 that I can remember. 

I want to file a NOD for the Denial of the Appeal. My battle is a uphill challenge as to why it should be reopened. I can challenge the conditions as they have become worser.  If I have read things correctly I can not challenge the weight given to the evidence. meaning if they did not consider my private medical doctor's opinion I can not challenge it. Say the RO claims he read the doctors notes and later on he finds where on one of the VA doctors or **( Nurse Practitioners )** wrote that I did not walk with a limp or needed a devise to aid in walking. Then he/she will take what the VA employee says as having more weight.

 

2 hours ago, Lemuel said:

i)    38 CFR 3.114(a) “…or a liberalizing VA issue approved by the Secretary or by the Secretary's direction, the effective date of such award or increase shall be fixed in accordance with the facts found, but shall not be earlier than the effective date of the act or administrative issue.”

ii)   1974 38 CFR § 3.114 Change of law or Veterans Administration issue.

(1) “(a) Effective date of awards. Where pension, compensation, or dependency and indemnity compensation is awarded or increased pursuant to a liberalizing law or a liberalizing Veterans Administration issue, approved by the Administrator or by his direction, the effective date of such award or increase shall be fixed in accordance with the facts found, but shall not be earlier than the effective date of the act or administrative Issue.”

@Lamuel thank you so much. I did not know this existed. I will have to go back and read up more on this. 

[ardodd]

How would i get the VA to go back and look over this Claim themselves. Yes I could set here and complain day after day and get no more.

Is there some Form or process that I can fill out and request that they Review the Claim?

There was No Development Letter sent out for this Claim, only the Decision. Can I ask for Review of the Claim and the Process?

[ardodd]

On 12/2/2017 at 8:12 AM, ardodd said:

July 08, 1999 Rating Decision ( R.M. LaCOMBRE, Rating Specialist )

Rating Decision Pg. 1

https://drive.google.com/file/d/16cS_DJ6QCut61LVj-jbzolQghHh4StDF/view

Rating Decision Pg. 2

https://drive.google.com/file/d/1MfG-kcASP_2lruDY22eSMGCgKbI6x-_b/view

Rating Decision Pg. 3

https://drive.google.com/file/d/1pUJXAHT_Zguk0WR2R4xTEi8c0EAXLgHs/view

My complaint is that the VA refused to help with medical records or a exam. And the biggest complaint is that they refused my right to a development stage which would of been atleast 60-90 days after receiving my Claim.

But to make a Final Decision in 23 days is obsurd and violates all VA Regulations for Processing a claim.