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Legacy, RAMP, AMP? where do I fit?


GeekySquid

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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 (see edit history)
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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 (see edit history)
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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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25 minutes ago, GBArmy said:

why not call the White House number. I think they will respond then.

@GBArmy

That is a good idea but what exactly to I tell the White House number? VAMC New Orleans refuses FOIA request for blah blah blah? having never called them I want to know what to expect and what I need to provide them.

Thanks

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This may help you about the NOD Filling.

A Notice of Disagreement (NOD) is filed when a Veteran receives a rating decision (RD) that they do not agree with. The rating can be either a denial, a continuation of a current rating, or a rating that the Veteran does not feel is high enough.  The NOD contains specific language that tells the VA what the Veteran disagrees with and why.  The specific parts of the NOD that are required by the VA are:

The Rating Decision date that the Veteran is responding to;

The specific issues the Veteran disagrees with;

The Veteran may file an NOD to all or some of the issues in the rating decision, it is not required to file an NOD to all of the issues listed if only one or some are being contested

What is the area of disagreement (are you stating the issue should be:

Service-connected

Have a different Effective Date

Have a different Rating Level (evaluation of disability)

Or “other” issue

What is the percentage (%) of rating the Veteran is seeking

An explanation of why the Veteran feels that the VA incorrectly decided their claim (lack of evidence, did not review private records, etc.)

How do I file an NOD?

Because of inconsistencies in the past, laws regarding what needs to be included in the NOD form have been passed to ensure that Veteran’s are not misunderstood and that claims are not dropped when the Veteran was trying to file an NOD but did not include all the correct information. In an effort to reduce the amount of errors and lack of correct information often found on NODs; the VA has now made it mandatory to use the correct NOD Standard Form to file your Notice of Disagreement to any rating decision a Veteran may receive.

Streamlining processes is something the VA has been working on for a while to try to decrease the backlog and time Veterans have to wait for claims to be processed. By utilizing the standard form, the VA is able to decrease the time it takes to process an NOD and reduce errors considerable, thus reducing the time it takes for an NOD to be processed for the Veteran.

Why Should I File an NOD?

You don’t have to file an NOD when you receive a rating decision. If you feel that the rating decision you have received is fair based on your condition, then you can certainly accept it and close your claim. However, if you do not feel that the rating decision is correct based on your situation, then filing an NOD lets the VA know that you want them to review your situation again. This can be done several ways.  First, after filing the Standard Form 958 , the Veteran has to choose how his or her claim is to be reviewed. There are two main options; either the traditional appeal process or the Decision Review Officer process.

Traditional Appeal Process entails the person who originally reviewed the claim to re-review the claim.

Decision Review Officer (DRO) review moves the claim to a higher level within the regional office for review by the DRO.

You may also choose to have a hearing to state your case to the review officer. Once the hearing is held, the DRO will make a decision on the claim and either grant the appeal in full, in part, or issue a Statement of the Case (SOC) on the issues that were not granted.

When Should I File an NOD?

NODs are very time sensitive and ensuring that you file one on time will ensure that y our original effective date is secure. You will have one (1) year from the date of the rating decision to file your NOD. Make sure that when you file the NOD you receive confirmation from the VA that they have received it by written correspondence. This ensures that your effective date is secured and your appeal is safe. Also, if you have filed and NOD and received a new decision with an SOC, you then have 60 days to file an appeal, a VA Form 21-9, a Substantive Appeal, to keep your appeal going. This will take the appeal to the Board of Veteran Affairs for review. If either of these deadlines is missed, the decision becomes final. Then, in order to reopen the claim, new evidence not already reviewed must be submitted and the original effective date will be lost, decreasing the potential for retroactive benefits. Time is money……

:Source; Hill & Ponton Disability Attorneys

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Here are the Lanes Veterans can choose which way they go with the New RAMP Process. see which one is right one for you.

Higher-Level Review: This lane is the most frightening lane to our VA disability lawyers. Once you are in this lane, you cannot submit new evidence. That means you cannot obtain new doctors reports, lay statements, reports from psychologists, reports from vocational experts, or any another other new evidence. You will be tying your hands and will not be able to develop your claim any further.

Supplemental Claim Lane: This review will be done by the same people that either denied your claim or rated you too low. You can submit evidence, but the claim will be decided by the people who didn’t believe your claim in the first place. You won’t get an impartial judge like you will with the Board of Veterans Appeals. If you trust VA bureaucrats, then by all means, opt-in to this lane.

Appeal Lane for Appeals to the Board: This lane will exist, but we don’t know enough about it yet to tell you any information. There may be a couple of different options here, but no one really understands the process yet.

Edited by Buck52 (see edit history)
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Just make sure you send in 21-0958 ..as long as your Appeals are in its time limit  so the claim or claims won't be closed.

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You call the White House and tell them you have tried 2 FIOA attempts and no response. If you have the dates you did them, all the better. Guaranteed they will respond as soon as they are called out on it. FIOA's are not to be taken lightly; they have to respond. They won't like it at the White House because the VA is actually breaking the law.

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6 minutes ago, Buck52 said:

Appeal Lane for Appeals to the Board: This lane will exist, but we don’t know enough about it yet to tell you any information. There may be a couple of different options here, but no one really understands the process yet. 

@Buck52

Thanks the response. In relation to my 2018 SC for hearing loss, when I get that award letter (it is like 20 days since it was supposed to be mailed) I will NOD that for an EDD back to 2013. I think I will use the Appeal Lane to the Board just to see. The facts around it are really a CUE IMO. The doctor did not use my entire medical record in her review. I am going to hold the cue in reserve at this point, as this particular claim will not generate any back pay.

In that same 2018 award letter it will include my Vertigo claim that they approved at 30%. In 2013, the Audiologist C&P and the PTSD C&P were told of my vertigo, and the VA had sent me for the MRI and VNG tests (which they subsequently lost) and the rater knew that they had happened.

The rating decision for the 2013 claim contained no mention of either test or vertigo. They should have had a duty to Infer and I think that should have triggered a Duty to Assist Letter and/or a Duty to Notify.  The hearing loss SC is relevant in that The audiology department sent me for the VNG and MRI in relation to my Hearing loss claim. This is not typical for hearing loss testing and evaluation. It seems to indicate they should have been aware of it when the C&P was done and the rater reviewed my record.

It is this one of the two I am most torn on as to the process. Do I NOD to the Board, citing Duty to Assist, Duty to Infer, and give them the chance to fix it? holding the CUE in reserve? or do I go the Supplemental Claim Lane process, which just seems to be a monkey-f'ing-the-football route?

 

any opinion Buck?

 

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13 minutes ago, Buck52 said:

send in 21-0958

I don't know the form numbers, is this the "new" AMA form or the "old' legacy form?

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3 minutes ago, GBArmy said:

call the White House and tell them you have tried 2 FIOA attempts and no response.

Thanks GBArmy. I will be doing that when I dig up the fax confirmations.

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1 hour ago, GeekySquid said:

I don't know the form numbers, is this the "new" AMA form or the "old' legacy form?

As for as I know this is the only way to send in a disagreement   it is the Notice of Disagreement form.  To Appeal  if its changed I am not aware?

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GeekySuid

You might  ask about the RAMP process  to Elder member broncovet  he has read up on RAMP fairly Well.... I am still researching this RAMP.

If It was me I would choose the traditional process (if you have all the evidence of record and its relevant to your case.....obviously it will be.

  but from what I gather  all claims will be in the RAMP as of Feb 19 th 2019  Filed after that date  so you can choose the traditional process, you may want to hire an attorney to help you with all these contentions /Appeals  especially to get your Correct  EED  On all your claims/Appeals simply because your claim/claims are some what complicated or Unique .

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11 minutes ago, Buck52 said:

because your claim/claims are some what complicated or Unique .

 

@Buck52

definitely complicated.

Yeah as of Feb 19, 2019 RAMP is dead, at least for new claims. I understand that some in the pipeline will stay ramp.

The new system is called AMA, and per my previous question to you, it does have new forms, making some of the old ones obsolete.

According to ASKNOD at this link, https://asknod.org/2019/02/24/ramp-screw-me-twice-shame-on-me/,

The AMA system uses the following forms

As an initial supplemental claim we have to use

526EZ as an Initial Supplemental Claim

NOD's are now in the Supplemental Claim path.

New forms are VAFs 20-0995, the 20-0996 and the 10182.

20-0995 is the supplemental claim form for NOD's etc

20-0996 is Higher Level Review

10182 is the BVA NOD form to use.

 

Asknod states:

The Transition From Old NOD to New NOD 

If you aren’t lost yet, hold on. If you are still in the old, original Legacy system, and recently  got a decision but have not yet filed a NOD, you will continue to use the old VAF 21-0958. You will have to wait for a grant or a denial and the issuance of a SOC or SSOC  in order to opt into the new AMA system. At that time you would logically choose the Board of Veterans Appeals option and get the hell out of your local Funhouse.

This is part of my confusion. I filed the claims in question in Aug 2018. I had not received an award until Last month, May 2019. I am fairly certain I have to use the 21-0959 to NOD the awards for that claim. I am just not 100% sure I am reading him right.

I asked Tbird early to create a new AMA forum and she did. I hope one of the moderators will make a sticky at the top of it to notify people of the new AMA forms.

 

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