Are adjudicators under a different set of rules when adjucating a claim

[anglersd]

I recieved my denial letter here recently and I was floored by there reasons and bases for denying my claim. They left out relevant facts and twisted everything to fit there narrative for there denial. When I contacted my DAV, NSO he told me the "adjudicators are under a different set of rules". I asked him aren't they suppose to be following the M21 manual and he asked me where I was reading the manual and I told him online at the department of veterans affairs. He says you can't go by that nor do they go by that! What do they have it online for then?
 

relevant facts were left out on the approximate cause of this accident I was in. She turned in front of me. They claim I was legally intoxicated. Upon entrance to the emergency room nurse stated "slight odor of alcohol", 3+ hours later another nurse states "strong odor of alcohol". 93mg/dl according to the blood work but no actual BAC content noted anywhere. they say it was .09%, I don't argue with that except it isn't stated anywhere in my records of the such. This accident was in 83 and under SD law .10% was the limit under HB 1034p. You'll notice in the bill I didn't even rise to the presumptive standards back then. What law do they have to follow.

I was discharged in July of 83 under honorable conditions and it was upgraded in 85 by the ABCMR to honorable. my original release date would have been Oct. of 83, the ABCMR gave me back my original release date. this accident was in sept. of 83. they state in there reasons and basis the outline of my correction of records and basically told me I wasn't under military control at the time. My DD214 says I was active duty at the time per the ABCMR correction. I know they are messing with me on this issue and I'm arguing that in my appeal.

My old DD214 was to be deleted from the file but was left in there by mistake and I'm just now getting this cleared up with congressional assistance. I feel the VA is using my old DD214, that isn't suppose to be there, in order to make and determination of LOD/WM. No LOD/WM was made back then and I know the VA isn't the proper service dept. to make that decision, only the DOA is.

Active duty:

Citing Cahall v Brown,7 Vet.app. 232,237 (1994). "Service department findings are binding on VA purposes of establishing service in the U.S. Armed Forces. "Duro v Derwinski, 2 Vet. App. 530 532 (1992); see also Soria v Brown, 118F.3d 747, 749  (Fed. Cir. 1997) (noting that "VA has long treated the serivcve department's decision on [a claimants verified service] as conclusive and binding," and finding "no error in that judgement").

I understand all the LOD/WM which is relative to Marks v Mcdonald memorandum decision, Thanks to Asknod for that useful gem of information!! Read that decision here! https://asknod.org/2014/09/18/cavc-marks-v-mcdonald-line-of-duty-and-willful-misconduct/

Bottom line, Are adjudictors under a different set of rules for following the law? I don't get it!!

 

Edited June 7, 2019 by anglersd

[broncovet]

Yes.  The VA gets to interpret its own regulation in any manner they please, and change it when they please.  

The reason is the Auer Defence, aka Chevron Deference.  In Chevron, the Supreme Court ruled that the Agency gets to interpret its own regulations.  

Unfortunately, this means the VA gets to interpret its regulation to suit themselves.  

You should see the VA math.  50 percent plus 20 percent equals 60 percent, according to VA.  

.08 BAC = .10 BAC

Presently pending a decision at the Supreme Court, this could change:

https://cck-law.com/news/supreme-court-to-hear-veterans-case-challenging-vas-power-to-interpret-its-own-rules/

[Buck52]

TO HAVE THE DD214 corrected is no easy task

you need to check with the 

ARMY REVIEW BOARDS

251 18th STREET,SOUTH SUITE385

ARLINGTON ,VIRGINIA , 22202-3531

took me 3 years to get mine straighten out and it still is not correct  I got tired of fighting with them.

[Berta]

The VA breaks it's own laws more than we know.

Your VSO is wrong. They are supposed to follow M21-1MR.

Did you receive a DD 215? 

A DD 215 is a corrected DD 214 .

The form for that is here- and at the VA web site - Form DD 149.

You have 60 % now-was this an issue when they granted the 60% or just for the newer claim?

Can you scan and attach their denial as to their reasons and bases and the evidence list.

Cover C file prior to scanning it.

I am dealing with an example of how the VA ignores established VA Case law.

I have 3 CUE claims that are dependent on a General Counsel Opinion of 1997.

The opinion has never been altered, or recinded.

It was developed during the same time frame they dealt with my FTCA case. 

When my case was settled for wrongful death the opinion because precedent law, a few months later.But it had nothing to do with my settelement. It came after the Grdner moratorium I was in. I didnt even know about it until these opinions went on line years ago

My CUEs when properly granted will affect any other veteran or widow whereby the veteran had two 100% P & T ratings- one as SC and the other as separate "as if SC" disability  under 1151. 

 

Do not over look the General Counsel opinions.As well as the CAVC Precedent opinions.

 

[Berta]

https://www.esd.whs.mil/Portals/54/Documents/DD/forms/dd/dd0149.pdf

Be sure you send it to the exact place it tells you to .

US CAVC:

http://www.uscourts.cavc.gov/index.php?fullsite=yes

Office of General Counsel VA 

https://www.va.gov/ogc/    just click on the Precedent Opinion thing on the right hand side

And it always pays to search the BVA site as well:

https://www.bva.va.gov/  click on the search thing for decisions.

You might not find any thing similar to your issue but one never knows.

BVA decisions are not precedent setting , but the BVA will cite VA case law that is precedent.

The pdf you posted here is a good piece of evidence to send along with the DD 149 application. If you refer them to any enclosures or additional statements make sure you put your name and address on all of them.

You do have a very legit gripe with them- but this did not seem to be a cause for the 60% awards??????

Some of these raters can barely even  read.

Maybe we can help more when we see their recent denial.

I am a widow of a veteran. If I had listened to my former VSOs, I would have never succeeded in my claims.

We are the best VSO we will ever have. But it all takes time and persistence.

 

 

 

 

[Berta]

I just went to the BVA link above and under the search area I put "not under military control" and thousands of cases popped up:

https://www.index.va.gov/search/va/bva_search.jsp?QT=not+under+military+control+at+time&EW=&AT=&ET=&RPP=10&DB=2019&DB=2018&DB=2017&DB=2016&DB=2015&DB=2014&DB=2013&DB=2012&DB=2011&DB=2010&DB=2009&DB=2008&DB=2007&DB=2006&DB=2005&DB=2004&DB=2003&DB=2002&DB=2001&DB=2000&DB=1999&DB=1998&DB=1997&DB=1996&DB=1995&DB=1994&DB=1993&DB=1992

If you search under this same search phrase you can narrow the search down with other key words.

I am sure this is not the first time a vet went through what you have experienced with the VA.

In 1992 my husband had no problem getting a DD 215 with all of the decorations etc ,that were never on the original DD 214. This happened a lot to incountry Vietnam vets.He used the form above ( DD 149)

However I dont know if that procedure in the 1980s was the same for corrections of a DD 214.

 

 

[broncovet]

I think you need to keep it in perspective and look at the "big picture".  

A few years ago, I read this from the US Supreme Court, where Roberts (Chief Justice)

said, basically that over 50 percent of the time, the VA takes a position against the VEteran that is "substantially unjustified". 

Knowing this, it means you need to keep fighting VA until you win.  You see, the VA pays EAJA (attorney fees) to claimants attorneys when the Vet wins at CAVC.  And, the VA is paying for, of course, their own attorneys.  

So, why does the VA "fight us"?  The reason is they win, no matter what. 

1.  Often, by delaying it in appeals the Veteran dies and his widow has no clue how or if she should continue the claim.  

2.  The Veteran often gets sick and in too poor of health to keep fighting over the years of fighting. 

3.  EVEN WHEN the VEt wins, the VA gets to keep years and years of "free interest"..at the expense of the Veteran.  There is a "TIME VALUE OF MONEY" AND MONEY LATER IS WORTH LESS THAN MONEY Now.  (always).  So, the VA exchanges "money now" for "money later".  

       This means there is a financial incentive for VA to fight you on your benefits, no matter what, even when its a "bogus" arguement against you.  

       Im at the CAVC NOW.  My attorney "found an error" in the BVA decision.  Basically, they adjuticated TDIU "stand alone".  Well established case law says that TDIU  is not a "stand alone" claim, but part of a claim for INCREASE to include TDIU.

     My attorney thought the Va would consent to a "JMR" (Joint motion for remand) for the reason, above.  On the phone the VA said, "well, we probably will lose, but we still wont consent to a JMR".  

     So, I get delayed for a few more months or years, its highly likely that the judge will stay with precedence, and my attorney will be awarded attorney fees through EAJA.  

I expect the CAVC judge will remand my claim for readjutication as a claim for increase to include tdiu, but, of course, I will lose money in interest because the VA is keeping my money, interest free.  Of course, the VA is "loaning out" my money to other Veterans (in VA home loans) and they get to keep all the interest payments at my expense.