Pending HLR, Pending Supp Claim, Closed Supp Claim. Should I call or file IRIS

[JKWilliamsSr]

I am trying to decide if I should call the white house line of file an IRIS claim myself.   I am leaning towards filing the IRIS claim because my understanding is that is what happens when you call the white house line anyway.  So here are where my claims stand.

1.  In September my supplemental for Sleep Apnea and 1 other was closed.   I still have not received a letter or any other type of notification about this other than it is what shows on va.gov.   I am certain they are required to send me notification and by not doing so is a clear violation of 38 CFR 3.103

2. The remaining claims on that supplemental claim are still pending.  I have called them twice already on this for the status.  This is the exam where I had the bad C&P exam but there still should have been some kind of movement.  I had the C&P exam on November 5th and 30 days later I called to request the status and was told they were waiting for exam results.  Called them out on that and they said it was because of backlog.  I called a couple weeks later and they were not gave me any additional information.  Just stated it was still pending.    I personally believe this exam should be in the hands of a rater because it is not an appeal but reopened claims with new evidence.  Unlike new claims or increases I cannot request a decision because I do not have additional evidence like you can on ebenefits.

3. I also have an HLR pending for denials I received an October.   Right now the status is "A senior rater is taking a new look at your case".  It has been sitting in that phase for the last 3 weeks and since no evidence  can be submitted it should not take a rater this long to be looking at this.  I could be wrong but I have seen way too many HLR's being completed within a week or so of a senior rater looking at it.   Maybe it is a good sign maybe not.

Here is what I think is happening.  I have several different types of claims going and I think it is just being swept away.   The last time I called I asked about both my HLR and Supplemental claim and the person I spoke to was clueless and could not give me any information because in my opinion they did not know what the hell they were doing.  I think with an IRIS complaint I can detail all of my concerns and have it listed where it cannot be ignored.  Sure it may not make a difference but it will be on record and can be used in my appeal.

[63Charlie]

On 1/27/2020 at 4:19 PM, GBArmy said:

Makes sense; that is what the next step would be with a lawyer. H&P are good at what they do, so if they do take your case, I think you have a reasonable chance of winning.

I spoke to one of the partners in the firm you referenced prior to my obtaining a law firm.

He quoted they would represent me for 33% attorney's fees.

I asked him, "Why so much when other law firms are charging 20%?"

The attorney replied, "We are worth it."

I hired a different law firm.

[GBArmy]

That's got to give you some degree of confidence. You spoke to 2 firms that liked your chances enough that they were willing to take your case. It means that they also believe you have a better than average chance to win out. Best of luck to you.

[JKWilliamsSr]

18 hours ago, vetquest said:

At this point I would go straight to the BVA if your HLR does not consider the IME.  There comes a time when enough is enough.  The decision you need to make at that point is whether to go with or without a lawyer.  Some people have won at the BVA without a lawyer but the lawyer has a better inside track to the BVA.  You lose 20% of your award but that comes with the fact of a lawyer.  When I did my first BVA claim you were not allowed to hire a lawyer and were fully at the mercy of the Board without anyone to make sure that the laws were abided by.  

I am still on the fence if I should hire an attorney or appeal to the BVA Pro Se.  When I do file I am going to go for a direct decision because I do not think I will need a hearing.  To be honest I felt my claim should have been a slam dunk.  Most of the item I submitted an IME for things that were already in my SMR's.  It was more for confirmation that my issues are still continuing but service connection should have easily been a given.  As far as case law and the 38 CFR  goes I have done a ton of research on a couple of projects and have a very good working knowledge where the raters made their mistakes.  For lack of better word it is possible they were just lazy because I did submit a lot of evidence with my claims and most of it was ignored.   

Some things that may have me lean toward hiring an attorney. 

1.  I intend on challenging the qualifications of the C&P Examiners.  I have had 3 C&P exams for my recent claims, one was from an LHI Contractor who was a Nurse Practitioner and two were completed by the same VA C&P Examiner who was a Physician Assistant (PA). Doing this will force the VA to explain why they chose to accept the report from their examiners as opposed to my independent examiner.   My IME was completed by an actual MD who is a Fellow on the American Board of Disability Analysts.   He is Board Certified in Family Medicine and Environmental Medicine.  In my opinion his Curriculum Vitae is beyond reproach. 

2. The other issue is for an EED for both my feet and back.  I originally filed my claims back in 2002 for my feet and back and they were both denied without an exam being scheduled.   The reason back then was it was not a well grounded claim.  They sent me letters requesting evidence to support my claim but I had nothing to send.  At the time I had no idea they were not going over my SMR.  So fast forward to 2009 when I file again and was again denied without an exam. This time in the denial they say it was because they stated for my feet there were no record of complaints in my SMR.  For my back they said because even though there were complaints of issues in service there are no diagnosis.   Fast forward to 2018 and I get a copy of my C-File and find all the ignore evidence that was actually in my SMR.  So I submitted supplemental claims based on 38 CFR 3.156 (c) (1) to have it reopened and submitted the "missing" SMR's.  I am going to request retroactive pay based on 38 CFR 3.156 (c)(4).  The beauty behind this is that I will not have to prove the VA had the records the entire time thanks to the recent decision of Stowers v. Shinseki (2014)

[vetquest]

First off I have heard that an EED needs a lawyer due to the intricacies of such an appeal.  Second; if the VA is not following the 38 CFR's I would see about a lawyer.  In my last appeal to the BVA the VA was playing fast and loose with the regulations and I decided I wanted a lawyer to call them on it at the BVA.  They have a relationship with the BVA that we could never have.  They can bend the ear of the board in our favor. 

Sometimes I believe the RO mistakes are not really mistakes but attempts to circumvent the regulations.  They forget to read evidence and do not follow the CFR's.  It seems that the mistakes never go in the veteran's benefit either.

It sounds like you are looking at getting a lawyer so do your research and contact a few and do not pay more than 20%.  NOVA has a list of lawyers that are certified by them.

[JKWilliamsSr]

6 minutes ago, vetquest said:

First off I have heard that an EED needs a lawyer due to the intricacies of such an appeal.  Second; if the VA is not following the 38 CFR's I would see about a lawyer.  In my last appeal to the BVA the VA was playing fast and loose with the regulations and I decided I wanted a lawyer to call them on it at the BVA.  They have a relationship with the BVA that we could never have.  They can bend the ear of the board in our favor. 

Sometimes I believe the RO mistakes are not really mistakes but attempts to circumvent the regulations.  They forget to read evidence and do not follow the CFR's.  It seems that the mistakes never go in the veteran's benefit either.

It sounds like you are looking at getting a lawyer so do your research and contact a few and do not pay more than 20%.  NOVA has a list of lawyers that are certified by them.

Yeah I have been doing research on lawyers.  I am leaning towards Hill and Ponton.   While I know they charge more from my research they are very, very good at what they do.  My second choice is Chisolm, Chisolm and Kilpatrick

Edited February 28, 2020 by JKWilliamsSr

[vetquest]

Good Luck.