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GeekySquid

Legacy, RAMP, AMP? where do I fit?

Question

Hey all I have been out of here for a while dealing with issues and am now in a wheelchair from leg surgery which just happens to coincide with my latest C&P results finally showing up. Before this latest I was at 100% plus  few miscellaneous 10 and 0 %'s.

The situation is complicated and I need to figure out my options in light of the changes between the legacy system, ramp and AMP (?).

The first hurdle, is my original award in 2013 did not show evidence they evaluated my OSA even though it was documented, diagnosed in May 2013 and should have been in my medical records by the time they did the award. VAMC New Orleans claims to have "lost" those records but Tulane Hospital has provided them to me and I have notes in my record that I had one, that the records were annotated in my file (supposedly in my file) and that a CPAP was issued.

I was never notified this was a compensable condition or that a C&P should be requested. I did not find this out until Aug 2018.

There is also my tests done for Vertigo, including being waterboarded through the ear and having MRI's performed to find out if I had tumors causing the vertigo. VAMC New Orleans says they don't have these records but the same issue arises as with the OSA. I have the MRI, and my record has notes that the VNG was done. The award letter is silent on this issue.

I have sent the VAMC FOIA requests on both issues multiple times and they don't even bother to answer me. When I call they just say there are no records and hang up on me.

How can I reopen that original claim, and would it keep the original dates?

To add complexity the original award denied me for hearing loss. The C&P examiner failed to look at my entire service record, instead she only looked at my first enlistment. I informed her of the Vertigo also but she made no mention of it in the report. On this particular issue, and the vertigo, the VA just rated me for 30% on vertigo and 0 for hearing loss. The dates for both were August 2108. At a minimum I want the hearing loss to be corrected back to the original date. It would also set up the argument for failing in their Duty  to Assist and Notify on the Vertigo.

I have my c-file and the notes and exams from external providers (sleep study and MRI).

I believe this all constitutes New and Relevant (I guess that is the new term) Information.

I just need to know how I process this under the new system? Is it a supplemental claim? will I get an EED?

 

Other Factors:

I will be filing a NOD on the recent 30% rating for Vertigo, the award letter has not yet arrived, it is over due, but the C&P doc was incompetent and my medical file shows that I am more in line with a rating of 60 or 100% for Meniures. I have VA treatment records recording my "drunk gait", nystagmus, and passing out from the vertigo. In 2013 time frame I would experience this 3 to 4 times a month in the worst months. Now it is 4 to 6 times a week, every time I roll over quickly or have any type of rapid head movement.

So on the NOD, since it was for the August, 2018 claim,  am I supposed to just file a typical NOD?

can I ask for backdate (EED) based on the previous VNG and MRI from 2013 where they lost the records and failed to Notify or Assist me in filing a claim? My Vertigo has gone untreated and unassisted by the VA until 2018. It has grown significantly worse. This seems to constitute harm to me from their negligence.

I want to note again in the decision about the August 2018 claim they did grant me SC for the hearing loss. Their error is clear and unmistakable. It is also tied to the Vertigo so the EED hearing would also seem to affect that; The VA does not send us for MRI's and VNG's (waterboarding) just for hearing loss, so they knew and started the process, they just dropped the ball in getting that info to the raters.

Thanks for any help on the new processes.

 

 

 

 

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Hey Geekysquid: First thing that jumps out is you have a CUE situation, where you have the documentation in your file and they completely ignore it. Ms Berta and some of the elders can address this a a lot better than I can, but if you CUE it, my understanding is the VA can see how much it is screwed up and just might clean up several of these loose ends quickly. Then you can go after some of the others. I don't know either if you can have an open CUE and also have other NOD's working at the same time. And, you also have to make sure you don't loose track of how much time you have left to disagree. A lot of balls to juggle at the same time. Good luck brother.

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 ...also with CUE  you lose a lot of your rights   no duty to assist is out .(but I would not rule out CUE)

As long as you NOD  in a timely manner   your safe   so make sure you understand the VA NOD procedure  on any claim.

Most importantly 

Remember the power of CFR 4.6

https://www.hadit.com/power-38-cfr-4-6/

 you may even want to go straight to the BVA   If you have  the evidence to back you up  why not?

Address all your contentions to include EED.'s

did they send you letter with  what we decided? and evidence used in the decsion? it should be in your Award Letter.

Edited by Buck52

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2 minutes ago, Buck52 said:

stay in supplemental lane,

This is part of what I am trying to figure out. As I read all the posts here, on VLB, and the VA website, I cannot really tell if all parts of my contentions belong in the "new AMA process" or if I will have to file different NOD's in different processes.

I also believe I do have a CUE on the Hearing Loss SC (should be an EED of 2013), I think I have a CUE on the Vertigo and OSA but since they did not mention either in the 2013 award, I believe I have to reopen them first...but I could be wrong. The challenges are many, including that the VAMC refuses to even respond to my FOIA's asking for those records and only fragments are in my C-File. I had to get the other records from the outside providers after I learned the VA did not have them. The VA paid for those exams, mention them in the notes, but have "lost" the actual records. This seems to make it New and Material evidence.

Problems as  I see them:

 in 2013 they denied my hearing loss was SC. in the latest 2018 claim they allowed SC but gave me a 2018 Effective Date. I want/need the EED to be 2013 as it affects the Vertigo claim (which is also wrongly decided based on the evidence in my file). Do I NOD this specific item under the supplemental lane of the "new" AMA process? do I go straight to the BVA?

If I NOD it under the new AMA supplemental process, how do I get them to reopen my 2013 award on the grounds they did not notify me or assist me on the issues of OSA and Vertigo?

Further I have/had an intent to file off of my 2018 ED award for SMC. They told me I have a claim for Voiding. I held off filing that because they were screwing with the other Claim for Vertigo and I did not want to tie them all up together, but I did put in the Intent to file.

As I understand it that Intent to File is now dead, so what do I do about that?

As you can see it is convoluted and complex.

I am still waiting on the BBE, which is now 20 days out from when the decision was made. Being in a wheelchair right now, and living on a steep hill with no car at the moment, I cannot get to the local VBA office in Seattle to get the records from my file with FOIA. So I don't know exactly what the most recent award says other than it granted the Hearing loss as SC and Vertigo at 30%.

I am so confused at this moment.

 

 

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5 hours ago, GBArmy said:

CUE situation,

@GBArmy

I agree with the potential for CUE, but how many and how to effectively use them.

What I see is that the Hearing loss SC date should be 2013 based on CUE. The doctor clearly did not look at my entire record in 2013. She also knew about the Vertigo testing (VNG) and the MRI they sent me for concerning the Vertigo. I am going to question her competence and training in whatever path I take.

The Vertigo should have been mentioned in the 2013 award but was not even though they should have had the evidence. Since it is not mentioned in the Award, I don't think I can CUE that part at this time.

The 2018 award for Vertigo is wrong based on the medical evidence in my file and the C&P doctor was incompetent. He literally did not know why I was there. Had no computer in his office. Did not have a printed DBQ in front of him. Told me his wife does all his computer work at their home from what he tells her. His only action was to look in my nose and ears and say that the problem was 'between my ears', further explaining the vertigo was not a physical problem he could see in the office. Since I have not yet received the BBE I cannot tell what the VA rationalization is, just that my documented conditions are aligned with Meniere;s at least 60% but more closely to 100%. I will also question his competence in whatever steps I have to take.

The 2013 award also failed to mention my OSA and CPAP and fall exactly as the Vertigo does. The VA now claims to have lost those files and the absence of comment seems to be a Duty to Assist/Duty to Notify issue. I think I have to get that reopened before I can CUE or take other actions. I have had the sleep study and the tech literally states I stopped breathing so long they woke me early from the test and did so again in the second part of the study. I only sleep about 4 hours a night anyway so I never went back to sleep after they woke me the second time.

For both Vertigo and OSA there are fragments in my C-file that show the VA was going to upload my test results. They now claim via voice call that those records are lost. They refuse to respond to faxed in FOIA requests (4 of them since Aug 2018) on each of these issues.

so which of these do I cue? in what lane, the new AMA or would it be the legacy system?

Which do I NOD? in what lane? in the New AMA process or the Legacy system?

 

I am so confused.

 

Edited by GeekySquid

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GeekySquid

If they won't answer several attempts on the FOIA, why not call the White House number. I think they will respond then.

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