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. 

 

 

[Lemuel]

I think you have to sit down with the medical records the VA had access to, which includes any military inpatient records that were not in the C&P file on the date of the decision and work out any CUE claims possible.

I have claimed a failure in the "duty to assist" plus CUE on each item.  I don't know what correspondence is in the file that would indicate a failure in "duty to assist" by the VA in getting your civilian hospital inpatient records.

For me, the created a CUE (I think) by using the wrong dates from the record so St. Josephs Hospital in Stockton where I was initially treated for my TBI before being transferred to Oakland, CA will work.  1969, 48 years later I don't know if they could find them.  But at least I pointed it out in my "motion to correct the RBA."

An item Berta also referenced shows that I cannot bring that before the CAVC the issue of malpractice or CUE related to the TBI.  Only to tinnitus which was denied.  But I can ask for a judgement if the Agency of Original Jurisdiction doesn't act promptly on the remand.

I'm attaching a CAVC Clerk's decision that is very helpful to me.  I don't know if it will apply to the TBI related issues including the secondary back claim because it doesn't spell it out clearly but it doesn't rule them out.  I have noted in the motion to correct the record that only a few items were directly related to the current issue, Tinnitus date revision, and the rest are issues that will probably come before the Court because they are missing from the RBA and therefore presumably not available to the AOJ although they are in the custody of the VA Medical Division and presumably archived by the VA Records Management Center.

The Clerk's decision just makes the GC have to respond to the Court every 15 days.  If the GC doesn't I'll ask for a CAVC decision on all of the issues because of the AOJs current and past failures to move.  1992 to 2017, also a 25 year claim.

20171201 Clerk Order re RBA correction.pdf

[ardodd]

22 minutes ago, Lemuel said:

I think you have to sit down with the medical records the VA had access to, which includes any military inpatient records that were not in the C&P file on the date of the decision and work out any CUE claims possible.

@Lemuel 

No C/P exam **(VA said they do not have to grant a C/P exam if no medical was submitted)**

No request for medical treatment records **(It takes atleast 60 days to 90 days and the claim was decided in 23 days)**

No Development Stage **(VA did not notify me of what was needed to support my claim)**

I was not given any help or opinions to get my claim approved.

[Lemuel]

5 hours ago, ardodd said:

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?

As I understand it there are 4 avenues of redoing a Rating decision.  CUE back to original claim.  New evidence from date new evidence is supplied.  "Duty to assist" complaint.  (I only know this exists because it was mentioned in my BVA Decision) and Medical Malpractice to the date of incident.

I don't know of any other ways.  You need to quote the 38 CFR sections that apply.  I don't have time at the moment to drag them out of my files.

[Lemuel]

VA's duty to assist spelled out:

§ 21.1032 VA has a duty to assist claimants in obtaining evidence.

(a)VA's duty to assist begins when VA receives a complete or substantially complete application.

(1) Except as provided in paragraph (d) of this section, upon receipt of a complete or substantially complete application for educational assistance under subpart C, D, G, H, K, L, or P of this part, VA will -

(i) Make reasonable efforts to help a claimant obtain evidence necessary to substantiate the claim; and

(ii) Give the assistance described in paragraphs (b) and (c) of this section to an individual attempting to reopen a finally decided claim.

(2) VA will not pay any fees a custodian of records may charge to provide the records VA requests.

(Authority: 38 U.S.C. 5103A)

(b)Obtaining records not in the custody of a Federal department or agency.

(1) VA will make reasonable efforts to obtain relevant records not in the custody of a Federal department or agency. These records include relevant records from:

(i) State or local governments;

(ii) Private medical care providers;

(iii) Current or former employers; and

(iv) Other non-Federal governmental sources.

(2) The reasonable efforts described in paragraph (b)(1) of this section will generally consist of an initial request for the records and, if VA does not receive the records, at least one follow-up request. The following are exceptions to this provision concerning the number of requests that VA generally will make:

(i) VA will not make a follow-up request if a response to the initial request indicates that the records sought do not exist or that a follow-up request for the records would be futile.

(ii) If VA receives information showing that subsequent requests to the initial or another custodian could result in obtaining the records sought, reasonable efforts will include an initial request and, if VA does not receive the records, at least one follow-up request to the new source or an additional request to the original source.

(3) The claimant must cooperate fully with VA's reasonable efforts to obtain relevant records from non-Federal agency or department custodians. The claimant must provide enough information to identify and locate the existing records, including -

(i) The person, company, agency, or other custodian holding the records;

(ii) The approximate time frame covered by the records; and

(iii) In the case of medical treatment records, the condition for which treatment was provided.

(4) If necessary, the claimant must authorize the release of existing records in a form acceptable to the person, company, agency, or other custodian holding the records.

(Authority: 38 U.S.C. 5103A)

(c)Obtaining records in the custody of a Federal department or agency.

(1) VA will make as many requests as are necessary to obtain relevant records from a Federal department or agency. These records include but are not limited to:

(i) Military records;

(ii) Medical and other records from VA medical facilities;

(iii) Records from non-VA facilities providing examination or treatment at VA expense; and

(iv) Records from other Federal agencies.

(2) VA will end its efforts to obtain records from a Federal department or agency only if VA concludes that the records sought do not exist or that further efforts to obtain those records would be futile. Cases in which VA may conclude that no further efforts are required include cases in which the Federal department or agency advises VA that the requested records do not exist or that the custodian of such records does not have them.

(3) The claimant must cooperate fully with VA's reasonable efforts to obtain relevant records from Federal department or agency custodians. At VA's request, the claimant must provide enough information to identify and locate the existing records, including -

(i) The custodian or agency holding the records;

(ii) The approximate time frame covered by the records; and

(iii) In the case of medical treatment records, the condition for which treatment was provided.

(4) If necessary, the claimant must authorize the release of existing records in a form acceptable to the custodian or agency holding the records.

(Authority: 38 U.S.C. 5103A)

(d)Circumstances where VA will refrain from or discontinue providing assistance. VA will refrain from providing assistance in obtaining evidence for a claim if the substantially complete or complete application for benefits indicates that there is no reasonable possibility that any assistance VA would provide to the claimant would substantiate the claim. VA will discontinue providing assistance in obtaining evidence for a claim if the evidence obtained indicates that there is no reasonable possibility that further assistance would substantiate the claim. Circumstances in which VA will refrain from or discontinue providing assistance in obtaining evidence include, but are not limited to:

(1) The claimant's ineligibility for the benefit sought because of lack of qualifying service, lack of veteran status, or other lack of legal eligibility;

(2) Claims that are inherently not credible or clearly lack merit; and

(3) An application requesting a benefit to which the claimant is not entitled as a matter of law.

(Authority: 38 U.S.C. 5103A)

(e)Duty to notify claimant of inability to obtain records.

(1) VA will notify the claimant either orally or in writing when VA:

(i) Makes reasonable efforts to obtain relevant non-Federal records, but is unable to obtain them; or

(ii) After continued efforts to obtain Federal records, concludes that it is reasonably certain they do not exist or that further efforts to obtain them would be futile.

(2) For non-Federal records requests, VA may provide the notice to the claimant at the same time it makes its final attempt to obtain the relevant records.

(3) VA will make a record of any oral notice conveyed under paragraph (e) of this section to the claimant.

(4) The notice to the claimant must contain the following information:

(i) The identity of the records VA was unable to obtain;

(ii) An explanation of the efforts VA made to obtain the records;

(iii) The fact described in paragraph (e)(1)(i) or (e)(1)(ii) of this section;

(iv) A description of any further action VA will take regarding the claim, including, but not limited to, notice that VA will decide the claim based on the evidence of record unless the claimant submits the records VA was unable to obtain; and

(v) A notice that the claimant is ultimately responsible for obtaining the evidence.

(5) If VA becomes aware of the existence of relevant records before deciding the claim, VA will notify the claimant of the existence of such records and ask that the claimant provide a release for the records. If the claimant does not provide any necessary release of the relevant records that VA is unable to obtain, VA will ask that the claimant obtain the records and provide them to VA.

(6) For the purpose of this section, if VA must notify the claimant, VA will provide notice to:

(i) The claimant;

(ii) His or her fiduciary, if any; and

(iii) His or her representative, if any.

(Authority: 38 U.S.C. 5102(b), 5103(a), 5103A)

[ 72 FR 16965, Apr. 5, 2007, as amended at 74 FR 14665, Mar. 31, 2009]

 

[ardodd]

4 minutes ago, Lemuel said:

I don't know of any other ways.  You need to quote the 38 CFR sections that apply.  I don't have time at the moment to drag them out of my files.

I have never had an attorney or a credited veteran service representative. I have only gone through the local VSO's office to reply or send more supporting documents from.

My wife recently joined me with the DAV online and just contacted the President of the Local Chapter. They are having a monthly meeting on this Tuesday. He told me to bring my copies of the Claim's and the Service Rep would set down and look over my Claims. He said the Service Rep would even come to my house if needed to go through them.

I am trying but my mental competence is starting to fail. I am forgetting things and not able to understand simple things. My wife and family are seeking to take over as my brain is beginning to not work. 

[ardodd]

@Lemuel my wife asked if that is before 2000?

She said that a lot of the things I quoted did not apply as the claim was before the 2000 regulation change. And the VA knows this so that is part of why they keep blocking my plead to review the claim in 1999.