Falsley accused of Refussing C&P!

[TaborsDad]

Make a long story short 2014 rated 10% TBI for memory loss 30%Migraine headaches.  Filed a appeal on the headaches.  
2015 Had Neurologic exam done at the request of my Psychiatrist and showed signs of memory loss.
2018 Received my claim back from BVA on Migraine Headaches raiting granted at 50% so I won.   
Then I put in a increase for my TBI because now I have the Neurological testing to show memory loss.  Go to my C&P and psychiatrist for QTC request a C&P for headaches.  QTC calls me and says we need to schedule an exam, I ask them for what?  They say headaches, I say I'm already service connected for headaches I just got a decision back from the BVA is there a need for me to do another C&P they say yes I say ok.  Then an hour later I get a call and the lady says she's QTC manager and she went thru my record and noted that I'm already rated for Headaches there no need to make me drive 88 miles to a C&P.  I say wow that's great thanks so much.  Then I get a notice in the mail for a C&P for headaches.  So I call QTC back they tell me no need to show up because they sent my claim to the VA because I refused the C&P for headaches.  My DAV rep told me to call the VA and have them note that on my claim.  I would just like to ask if anyone else has any different advice?  I'm floored, I never would refuse a C&P and I just fought and won my Migraine Headache increase from the BVA.  So are they going to try and decrease my Migraine raiting????  God only knows QTC lying assholes.

[Berta]

Did you actually start to get the 50% ?

Call the White House Hot Line at 1-855-948-2311 and tell them what happened.

[TaborsDad]

Yes I did start getting the 50%.  My claim is in pending decision approval.  We will see how they do it!

[vetquest]

I wish you luck on this.  Migraines are a separate beast as far as the VA is concerned.  To get to 50% you need to have severe events productive of severe economic inadaptability.  Any other disability that was that severe would most likely be 70% or more.  I have been through one attempt to sever my migraines from my disability.  The VA plays hardball.

[flores97]

TaborsDad,  I agree with Ms Berta, I would call the WH Hotline and let them know what happened to have a record of it. I know that you also called the VA to have it noted on your claim but it doesn't hurt to have a backup plan. If you don't want to call the Hotline at the very least I would contact your local congressperson and tell them what happened. They will have you fill out a privacy form, and they WILL follow up on it. That should help keep QTC honest, by any chance do you remember the name of the manager from QTC that called you, or have her phone number? Make sure to include that when you tell whomever you choose to contact what happened, and don't lose the name and number if you still have them.  Good Luck to you

[GeekySquid]

On 10/24/2018 at 6:53 PM, TaborsDad said:

I get a call and the lady says she's QTC manager and she went thru my record and noted that I'm already rated for Headaches there no need to make me drive 88 miles to a C&P.

 

First and foremost, do what Berta said, call the Whitehouse as well as the VA to make a record of this, and  I would go further and call my congress person and senators, too.

The second thing I would suggest is to install an application on your cell phone that automatically records all calls in and out.

I don't care what state you are in, and some do have two party consent laws that recording conversations might violate, but do it anyway.

There is a concept under the law known as exigent circumstances. Typically it is used to justify something like cops entering a house without a warrant, but it is actually much broader than that.

In addition, unless you broadcast the recordings no one will know you made them. In a case like you described, having that recording saved to a permanent storage device (an external hard drive, drop box, etc) will provide you proof if you need it to dispute a claim of refusal. You will have time date and persons name and what they said verbatim.

You must keep in mind that for the VA to "punish you" or in any way try to reduce your rating, they have high hurdles to cross and must notify you in writing and give you time to respond, gather evidence, etc. It is a process and not an easy one for them unless they have evidence you committed fraud.

In the event some clown at the RO does try and start that process, that recording would prove your case at the RO level, in a DRO conference or at the BVA as none of them are a court and the rules of evidence for the VA are not the same as they are for a Civil or Criminal Court.

The legalese may seem a bit wonky but the short version is a recording a  person, in a two party state, only affects the second person who did not know they were being recorded. The right to privacy is the persons not their company's, not the VA, not the RO, the DRO or the BVA. Therefore only that person would have legal standing to object. Since she will not be in any of those conversations or hearings, she won't be able to object and no one can do it for her.

Furthermore, let's assume the VA heard the recording and decided to investigate. Assume they told her you specifically recorded her without her knowledge. Assume she went to the Cops or feds and filed a wiretapping charge against you. Assume the prosecutor accepts the case and presses the charges.

Doing all that will make the recording evidence, which makes it hearable by the Court and unless the court seals it, the public will hear it too. The court would hear the statement and directions to you and then you would present the evidence that she told the VA something different. She would then have to explain not just lying to the VA and intentionally harming you, she would have to explain to the court why she should be allowed to shield her intentional act behind the law. Courts typically don't like defendants who shout "you can't use that proof to convict me with my own words". They take a very dim view of that type behavior. The court in this case will probably accept a very liberal expansion of the exigent circumstances doctrine as you knew you were likely to be harmed, you rightly knew the defendant would lie about their actions and blame you. You would have no other way, besides making the recording, to protect yourself from a real and reasonable belief that harm was imminent.

In all likelihood you would win that case and then you can sue her for intentional infliction of emotional distress for acts already admitted to in court. Plus about 8 more things I can think of.

As I said it is a little wonky but the reality is that is the trajectory of using a recording to prove a functionary employed by the VA (or vendor) is screwing over a veteran. The vendor will probably change course real quick once they learn a tape exists and proves their person lied.

Good luck and definitely call the VA and White House.