Recovered lost original STRs

[RangerWife]

Hello helpful Hadit community, 

I am trying to help my husband with some claims he originally submitted in 2009, all of which were denied. He never re-filed until 2019 but asked for an EED d/t missing STRs that appear to have been found in 2018. He did a FOIA for his file in February 2019 to see what was in there before submitting his claims again, and as a result, received copies of records that were previously missing and he had never seen before. Although some of those claims were now recently approved/SC'd they denied the EED's because they said HE sent them the records. They are so confused. I have put together the attached timeline with screenshots of their own records to try to un-confuse them. Would love it if some of the experienced folks could look it over to see if I'm making sense and/or if you think this is sufficient as far as an explanation?

Thank you so much! Recovery of missing records_redacted copy copy.pdf

Edited August 6, 2019 by RangerWife

[Berta]

Boy-sometimes I think I have seen it all- but then again, in my 25 years  as a claimant, I know the VA will LIE!

I think the way you explained this situation is excellent-but that does not mean the VA will get it-

." Although some of those claims were now recently approved/SC'd they denied the EED's because they said HE sent them the records."

Can you scan and attach here that decision? Cover C file #, name prior to scanning it.

It reminds me  of one of many deliberate lies I dealt with- the most recent one is in a VA OIG complaint.

I have been going through my extensive VA files ( I am a survivor of a veteran) and realised that I did not file my FTCA SF95 (wrongful death claim) until March 1995 and the Regional Counsel called me by the end of May 1995 to negotiate a settlement. I had no lawyer or IMO but my medical evidence was impeccable.

When your spouse -who you think is doing better in recovery from many disabilities, suddenly collapses right in front of you and they die as you perform CPR, you cannot accept a death like that (he was 47) until you really understand why he died.

At the time the RC called me he told me he had ordered a Peer review from a VA cardiologist who had confirmed all of my malpractice charges.....Then I learned that the Regional counsel and even the Cardio doctor had retired.I then had to get my FTCA case before the General Counsel in DC and trid to get a copy of the Peer Review report- but VA, at every level I tried to include OMLA, said it had "never" existed- there had been no Peer review.

I had to start at day one with the evidence, at OGC that included an autopsy in my C file, actually it included many copies of it, because they kept "losing" it and considerable other medical evidence.The RO never sent them the autopsy .They never sent them the non existent Peer review-either*

I called GC at DC only to learn what they never got- my most probative evidence, and with a Fax of the autopsy they reversed their initial FTCA denial immediately-and settled with me for wrongful death.... 

then I re opened my claim for direct SC death years later  and ordered my C file.

The Peer review report that had " Never existed "was right at the bottom of my C file.*

I used it for my AO IHD death claim.

This stuff does not happen in a vacuum- sometimes I think ROs deliberately do this crap.

I ask about the decision to see if that would hold basis for a CUE, because as I learned in the past when they owed me money that they had deducted from my DIC illegally- they refused to read my letters on that and when I re opened in 2003 the new RC saw my letters and he ordered them to pay me- I recently posted here somewhere proof of the three monetary errors they made, totalling over 98 thousand bucks.They paid those errors but I realised not only does my VARO have an inability to read , they cant even add,subtract, or multiply correctly.

You might need to file a white House Complaint- but attacking th decision might be a better way to go---but maybe not---I have had so much experience with VA BS and erroneous bull crap over the past 25 years, that I am sure you will get this resolved. 

White House complaints- the last one I filed ,I was not sure if the operator got the point-so I sent the Director of my VARO exactly what it involved as the complaint was against her.

I recently received a letter from her indicating they are looking into the situation.Good. I complained to the IG , the WH, (this situation involved 2 ROs, and two directors got my letters, and am sending District Counsel a letter today as well.

Vets and their survivors find themselves on a true battlefield- the War of the Words - and it is a DISGRACE!

And they MUST fight back!  If I had listened to all the negativity I got from my former POAs, and never fought back early on, I would have never won any of my claims.

 

 

[RangerWife]

Hi Berta, 

I sure am sorry to hear all you've been through. It seems like a never-ending fight. Thank you for taking the time to review and answer my post and all that you do for others here as well! I have attached the rating decision and the rating sheet that we received via FOIA. The rationale addressing the denial of the EED can be found on pages 5 and 11 of the PDF. 

 

Thank you again!20190705 VA Decision & rating sheet_Redacted.pdf

Edited August 7, 2019 by RangerWife

[Berta]

Good for you on the CUE and what they did award.

"6) This documentation shows that these are in fact original service records unavailable at the time of the original decision, that would allow for a retroactive grant of benefits. 38 CFR 3.156(c) "

That is a superb point.

Do you have a copy of the original decision?

what I am looking for ,is proof of  their statement that the records were unavailable at the time of that decision...

You explained this all extremely well, but I just hope they would read all that- 

Perhaps you should start the letter by raising this point:

This is a claim for a proper EED because the VA stated the STRs were "'unavailable" at time of the original decision. and use the # 6 proof

Then  add that this is also  CUE under 38 CFR 4.6---but I need to think about how to word that CUE....-----

Did the recent decision have a cover letter with a alphanumerc code on it? It appears where the date usually does and I have directed some CUEs as Attention to: using that code as it contains the initials of the last person who handled the claim. Those CUES were resolved very fast.
 

My point in my other reply was that the VA never questioned me for sending the Peer Review report that I found in my C file-I think their rationale is ridiculous---plenty of vets send them their SMRs or copies of  excerpts from them to prove their nexus-

I hope others here chime in on this- I am not sure how to word the CUE and what you stated in the download was perfect-maybe they would feel that is exactly what you should send to them.

I just hope it gets to someone who can read.

 

Edited August 7, 2019 by Berta

[RangerWife]

Thank you - we were happy about the tinnitus CUE and the awards he did get. 

Excellent idea to move #6 to the top, I will do that!

I have attached the original decision - it has the statement in there about the memorandum of unavailability of records. 

I have also attached the cover page, but do not see a code of any sort - maybe I'm missing it. 

As far as how to approach this, was thinking of submitting it first as an HLR  - I know I can ask for HLR on a supplemental under AMA and I'm still in the time-frame for that. I thought approaching this way might be faster and still preserve the ability to CUE later if HLR and/or VBA gets nowhere. From what I read on here, the CUE should be last ditch resort because you can only play that card once. I thought I would exhaust other avenues first myself and then if I need to CUE maybe get assistance from an attorney. I'm trying to avoid that though and do this myself. 

 

 

 

20100517 Decision letter_redacted.pdf cover letter copy.pdf

[Berta]

Sometimes they do not put that code on the letter at all...

-" I know I can ask for HLR on a supplemental under AMA and I'm still in the time-frame for that. I thought approaching this way might be faster and still preserve the ability to CUE later if HLR and/or VBA gets nowhere. "

That is a good idea!   You are right.

"From what I read on here, the CUE should be last ditch resort because you can only play that card once. I thought I would exhaust other avenues first myself and then if I need to CUE maybe get assistance from an attorney. I'm trying to avoid that though and do this myself. "

Unfortunately some of the CUE advice here is wrong.It is not a one shot deal. The BVA has made it clear that they often will deny a CUE but without prejudice to re filing it. That means the veteran did not clearly state the legal error, or made some other error that caused the denial, All the veteran has to do is read up more on CUE and then shape it a different way and re-file the CUE.

I suggest anyone here who gives advice on CUE should mention any CUE or CUES they have won.

As a matter of fact, there is a CUE question here today referred to me, but I am going to let others here handle it- that is the only way they will learn of how much a good CUE can alter a veterans, and even their family's future.

Next to my FTCA case, I think my CUEs were the easiest claims I have ever filed. 

 

 

[RangerWife]

Great information on CUEs - thank you for the clarification on that, its an important distinction! 

Again, I appreciate your time and assistance on this - thank you!