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'd let your wife take over.  She'll have a better chance if you appoint her as a conservator because of your mental state via the VA social worker.  That will give reason for tolling the SOL on your BVA appeal.

[Lemuel]

You are right about the DUTY TO ASSIST regulations being relatively new.  I just noticed that when I tried to find them in old 38 CFR chapter 3.  1990 and earlier.

Did you have a TBI?  That may explain your effort of trying but not accomplishing the minimal effort.  Even if the TBI was post service.

[Lemuel]

She is right.  But that doesn't leave out CUE which is evident by not referencing you military Medical Discharge Board in the Rating Decision.

If necessary don't cloud the issue with anything more.  Keep it simple and let your wife do it.  Sounds like she may have a better handle on things.

I was surprised to not find duty to assist in earlier versions of 38 CFR.  I think they are there but not specifically designated as such.  Perhaps in Chapter 4 in the requirements "to investigate."

[ardodd]

5 hours ago, Lemuel said:

I was surprised to not find duty to assist in earlier versions of 38 CFR.  I think they are there but not specifically designated as such.  Perhaps in Chapter 4 in the requirements "to investigate."

@Lemuel 

This is just one Case that has affected the overall view towards the "VA's Duty to Assist" that were a part of a "Veteran's Procedural Right" prior to the 2000 Law.

Quote

 

The VA has substantively defined its obligation to obtain SMRs in its VA Adjudication Procedure Manual M21-1. The VA has recognized that the duty to assist is not satisfied where records are not obtained after one request and therefore requires RO adjudicators to make a supplemental request.   See VA Adjudication Procedure Manual M21-1, Part VI, ¶ 6.04(b) (1972) (“When partial records only are received and the missing records are required for adjudication of a case, a supplemental request rather than a follow[-]up should be prepared ․ acknowledging the records received and specifying the additional records required”).   Furthermore, “if the information received from the service department in reply to the initial and supplemental VA Forms [07]-3101 is insufficient to complete adjudication of the claim, a letter setting forth in detail the information or further evidence needed will be addressed [to the appropriate agency].”   Id. at ¶ 6.04(1) (emphasis added).   These requirements for obtaining records and evaluation of the complete medical history of the veteran's condition operate to protect a claimant against adverse decisions based on an incomplete, or inaccurate, record and to enable the VA to make a more precise evaluation of the level of the disability and of any changes in the condition.

 The duty to assist does not end upon the RO's submission of requests for records.   Where the record does not adequately reveal the current state of a veteran's disability and the claim is well-grounded, fulfillment of the statutory duty to assist requires a thorough and contemporaneous medical examination.   See Shipwash v. Brown, 8 Vet.App. 218, 222 (1995);  Lineberger v. Brown, 5 Vet.App. 367, 369 (1993) (citing 38 C.F.R. § 3.326 (effective Aug. 6, 1971)).   When a veteran's SMRs are unavailable, the VA's duty to assist and the Board's duty to provide reasons for its findings and conclusions are heightened, see Milostan v. Brown, 4 Vet.App. 250, 252 (1993), because “[t]he veteran's possession of [SMRs] is a decidedly abnormal situation.   The veteran cannot reasonably be expected to have such records.”   Department of Veterans Benefits, Veterans Administration, DVB Circular 21-83-5, Procedures for Claims Involving Delayed Receipt of Service Medical Records (Mar. 18, 1983).   The Court of Appeals for Veterans Claims has interpreted the statutory duty to assist to require the VA either to “obtain the records before deciding the case or to explain[ ][the] failure to do so.”  Schafrath, 1 Vet.App. at 593.   Consequently, inherent in the duty to assist is a requirement for the Secretary to notify the claimant if the VA is unable to obtain pertinent SMRs specifically requested by the veteran so that the claimant may know the basis for the denial of his or her claim;  may independently attempt to obtain the SMRs;  may submit alternative evidence and/or timely appeal.   Indeed, the Court of Appeals for Veterans Claims has also held that the duty to assist requires the VA to notify the veteran of the existence of newly discovered SMRs and to assist him or her in recovering those records.   See Jolley v. Derwinski, 1 Vet.App. 37, 39 (1990).

http://caselaw.findlaw.com/us-federal-circuit/1279435.html

 

most notably is: 

Quote

The Court of Appeals for Veterans Claims has interpreted the statutory duty to assist to require the VA either to “obtain the records before deciding the case or to explain[ ][the] failure to do so.”  Schafrath, 1 Vet.App. at 593.

http://caselaw.findlaw.com/us-federal-circuit/1279435.html

In the 1999 Claim for Compensation: 

SMR's were submitted as copies from myself. As the C-file evidence did not contain them. I have the copies that showed they were Certified True Copies from my SMR. And none of them contain a Time Stamp or Xerox Time Stamp from Arlington, Virginia.

1999 Claim for Compensation was Denied and the VA Form 4107 "Right to Appeal" with Denial Decision dated 12 July 1999

@Lemuel, @Berta, @asknod, 

Again I must ask if my Rights to a Fair and Impartial Claim were Violated?

I am adding this part to help clarify the options that are/are not available when it comes to Submitting a CUE as a last resort.

Quote

Where so much of the evidence in VA adjudications is circumstantial at best, notice explaining the failure to obtain pertinent and specifically requested SMRs is critical to ensuring a proper award for benefits and an effective right to judicial review.   If a veteran, who is later able to obtain counsel or serendipitously discovers a breach of the duty to assist, has no remedy, then the duty to assist becomes a hollow obligation.   In such a case, the veteran is trapped in an impossible situation, a Catch-22 in which judicial review is not available because the VA refuses to obtain the pertinent SMRs specifically requested by the claimant, and the Court of Appeals for Veterans Claims refuses to require it because the claimant cannot prove that the missing SMRs would manifestly change the outcome of his or her case.   We therefore hold that where there is a breach of the duty to assist in which the VA failed to obtain pertinent SMRs specifically requested by the claimant and failed to provide the claimant with notice explaining the deficiency, the claim does not become final for purposes of appeal.

http://caselaw.findlaw.com/us-federal-circuit/1279435.html

 

Edited December 4, 2017 by ardodd
clarifications of CUE vs. Appeal

[ardodd]

Quote

It is already well established by the Court of Appeals for Veterans Claims that breaches of the duty to assist on direct appeal require a remand to permit the AOJ the opportunity to make a reasonable attempt to fulfill the duty to assist, that is, to gather the relevant evidence and documents, to consider the governing statutes, regulations and case law and to perform a critical examination of the justification for the decision.   See Schafrath, 1 Vet.App. at 596 (stating where Board failed to assist the appellant in obtaining requested VA medical records, the decision is normally vacated and the matter remanded to the Board for further development of the record);  Moore v. Derwinski, 1 Vet.App. 401, 406 (1991) (holding where Secretary breached the duty to assist veteran in ensuring examination report was as complete and thorough as possible, remand was required to enable the Board to assist claimant in developing the facts of his case);  Littke, 1 Vet.App. at 90-91 (holding where VA breached its statutory duty to assist veteran in developing claim, remand was required to AOJ with instructions to assist the veteran by obtaining the medical records).   According to the Court of Appeals for Veterans Claims, following the fulfillment of the duty to assist, the case is reviewed to determine whether the additional evidence, together with the evidence that was previously of record, supports the allowance of all benefits sought on appeal.   See Fletcher v. Derwinski, 1 Vet.App. 394, 397 (1991) (“The [Court of Appeals for Veterans Claims] expects that the [Board] will reexamine the evidence of record, seek any other evidence the Board feels is necessary, and issue a timely, well-supported decision in this case.”).  “On remand, the [claimant] will be free to submit additional evidence and argument” on the remanded claim.  Quarles v. Derwinski, 3 Vet.App. 129, 141 (1992).   Thus, in this case, if the Court of Appeals for Veterans Claims finds that the RO breached the duty to assist in 1972, then the 1972 RO decision is not final for purposes of direct appeal.   In such a case, the Court of Appeals for Veterans Claims would need to remand the case to permit the AOJ the opportunity to fulfill the duty to assist and to review the case to determine whether the additional evidence, together with the evidence that was previously of record, supports the allowance of benefits sought on appeal.

http://caselaw.findlaw.com/us-federal-circuit/1279435.html

@Lemuel, @Berta, @asknod

In my case is it better to Appeal the Decision or the lack of Procedural Rights Violated?

When seeking to have a previously Denied Claim Remanded what is the proper steps that need to be taken?

To answer the question of has there been a Rating Decision that has Granted a Service-Connected Disability relating to this Denial?

YES

2015 VA Claim for Compensation Granted

10% Service-Connection for "Traumatic Arthritis" previously Denied as "Bilateral Patellofemoral Syndrome" for Left Knee

10% Service-Connection for "Traumatic Arthritis" previously Denied as "Bilateral Patellofemoral Syndrome" for Right Knee

2017 Appeal 

Denied for missing Deadline to File VA Form - 9

Can I send in a NOD for the 2017 Appeal? 

Grounds for NOD: Mental Competency and Memory Loss 

this is ardodd's wife and i am the person behind helping him. as he is not fully competent to understand what he is doing or what the VA is doing to him. he may be mentally aware one day and not know what or where he is the next day. 

[Berta]

I am glad you are helping your husband.

I wont be  revisiting  the posts I made here about the 1999 decision.(CUE potential)..I am trying to narrow this down to what needs to have priority.

In the other thread it states that VA awarded 50% for depressive disorder.(EED 2/26/2016)

Did your husband appeal that decision?

If so has he been set for a C & P exam on Depressive Disorder?

And if so, I think that should be the focus ,at this point, of your help.

Does he have any other issue on appeal that might have been set for a C & P exam?

That disability as well should be the focus of your help at this time.

For the depressive disorder , the C & P will have to determine if he meets a higher rating criteria than the 50% they gave him. That would be found in his medical records, and within their 2016 rationale as to why they awarded 50% and not higher.

Is he employed now? If not he should apply for SSDI if he fits into their SSDI criteria . Their criteria for SSDI is at their  SSDI web site.

There is no time limit on filing a CUE. I gave all the info I could think of on that, but many questions I asked here went unanswered in the threads, so I still believe there was a CUE in that decision, but I do not have the time to add any more to that issue.

With all the info here and the many downloads , in my opinion ,there is much info still  missing.... regarding any CUE potential.

But my point is, the focus should be on having medical evidence for any claim  pending now, at the regional office level,  that might be set for any C & P exam.

A successful out come might provide a little more retro compensation that ,as I mentioned before, might be needed to obtain an IME with on the Bilateral Patellofemoral Syndrome awards for each knee

that VA re characterized to 

"Traumatic Arthritis". That diagnose might even be wrong.

Most secondarys need a strong medical opinion anyhow,often from a doctor , who does Not work for the VA ( info in our IMO forum)

Also was that specific award  regarding the Trauma Arthritis appealed in time?

If so what is that status of that specific appeal? 

 

 

 

 

 

 

Edited December 4, 2017 by Berta