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    You’ve just been rated 100% disabled by the Veterans Affairs. After the excitement of finally having the rating you deserve wears off, you start asking questions. One of the first questions that you might ask is this: It’s a legitimate question – rare is the Veteran that finds themselves sitting on the couch eating bon-bons … Continue reading

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Vync

Weird claim question: Is it open, closed, or what?

Question

This is a weird situation...

Earlier this year I requested claims for Cushing's and heart condition. I recently received a decision letter for the Cushing's (denied due to no diagnosis). I called 1-800 and talked with them about it. I will be sending in a supplemental claim request with evidence and release auth forms on Monday. However, the lady said my heart claim was closed at the same time as my Cushing's claim. She asked if I received the decision letter. I indicated I received it, but it made no mention of anything to do with my heart. She then opened up their copy of the decision letter and confirmed what I saw. She sent an inquiry over to let the team who worked my claim know about it.

=== It is obvious that the presumption of regularity was broken here ===

Is my claim really closed?

Should I send in a Supplemental Claim Request or just a Statement in Support of Claim on Monday?


 

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Vync Maybe I'm all wet but I would go to the RO and see if they can't get you an intelligent answer. That is, if it is fairly close to where you live. I would think that they would be responsive; after all, they are the ones that screwed up, not you. 

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2 hours ago, GBArmy said:

Vync Maybe I'm all wet but I would go to the RO and see if they can't get you an intelligent answer. That is, if it is fairly close to where you live. I would think that they would be responsive; after all, they are the ones that screwed up, not you. 

The RO is about a 90 minute drive. Last time I went about 8 years ago, they were not very helpful. I'm not an expert on the revised claim appeal options, but for the Cushing's claim, I am sending the new Supplemental Claim Request form. For my heart claim, I'm just sending a regular Statement in Support of Claim because the VA stated a decision letter for it was never mailed and did not even exist in the system. I would not be surprised if I hear back from the VA and get asked to file a Supplemental claim also. Typical...

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Best to take positive action than to just get p.o.'d., which sometimes is what they really want us to do. Keep us informed and good luck.

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Posted (edited)

This happens often enough the CAVC has a name for it.  Its called a "deemed denial".  

When you send in your paperwork for Cushing's, I suggest you likewise dispute (file a nod) on the issue of heart disease and allege a deemed denial.  

The case law for deemed denials is rather complex and constantly changing, but the premise is the same:

When the Veteran applies for issues "A" and "B", and the VARO decision addresses only A, then B is deemed denied.  Deemed denials are a travesty of justice, in violation of 38 CFR 3.103.  

You could also file a CUE on this deemed denial citing 38 cfr 3.103, but the problem with it, is trying to prove that "the outcome was manifestly changed" by this deemed denial, since the VA can simply say:

Quote

Ok, we messed up.  We should have adjuticated your heart issue, so here is your denial on that one.  It isnt CUE because its "harmless error" and did not change anything.  

For the above reason,  this is why I suggest you file a nod, reminding you that you "keep" the benefit of the doubt when you file a nod, but you "forfeit" the BOD when you file CUE.  

You want to FORCE a decision by filing a NOD.  Even if its denied, you can appeal and you will have a "reasons and bases" for decision to refute.  

The reasons and bases is a very big deal.  

Some attorney's literally make a living on R and B.  

If the BVA does not give an adequate R and B for decision, its an automatic remand when appealed to the CAVC.  An adequate reasons and bases for decision is required.  

Yours is NOT a grey area as to "adequate" reasons and bases.  There is NO reasons and bases because there was no decision, only a deemed denial.  

This is why I suggest appealing all deemed denials.  

Once you get an actual decision, you can go to work "refuting" their reasons and bases for denial.  Example:

(In the NOD):

    While the VARO decision dated 1-13-2019 stated this condition was not related to service, Dr. J., on 11-13- 2016 stated, "Its at least as likely as not this is related to the Veterans injury in service."  

    See how you "refuted" their reasons and bases?  You simply go through the evidence and cite evidence where their reason was wrong.  

    This forces the VA's hand.  Now, they have to either "craft more reasons and bases for another denial" or award, and, IHMO, this path is problematic for VA as follows:

    (another nod):  While the VARO decision on 1-13-2019 stated this condition was not related to service, the VARO decision dated June 14, 2019 also denied it, and, in so doing, this was in conflict with the reasons and bases for denial of the January decision.  

    You see what is going on here?  The VA cant just keep making up excuses not to award..when they make up "new" reasons and bases for denial, why did they not include THOSE reasons for denial in the earlier decision???  This demonstrates that the reasons and bases are inadequate.  

    When you appeal, I always suggest you refute their reasons for denial.  The reason is simple:

    Ok, you said I couldnt have that benefit for x reason.  I demonstrated that x was incorrect, so now you have to give it to me.  

     You just made it easy for the VA to award, but very tough for VA to deny you again..the burden is on them to "craft" a denial, which is not in conflict with the original decision.  

Edited by broncovet

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@broncovet
I really appreciate the perspective you put on this.

Would filing the new Supplemental Claim request be the same as a NOD?

It was interesting when I called 1-800 the other day. The lady on the phone looked at my original claim and the Cushing's decision. She said the VA based their denial on me never being diagnosed with it and advised I submit records showing I was diagnosed. I have those now and am sending them in.

The non-VA endocrinologist used what might be a magic word: "iatrogenic", which appears to have a nexus built into the definition:

Quote

relating to illness caused by medical examination or treatment.
"drugs may cause side effects which can lead to iatrogenic disease"

This is what she wrote:

Quote

I think he has iatrogenic cushing's from long term steroid use and should be kept on lowest doses of steroids when treating asthma/COPD/DJD due to long term complications of chronic steroid use.

I am including the definition with my response. I had to look it up to see what it meant. I have a feeling the VARO would have no clue either.

 

 

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