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

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JKWilliamsSr

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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.

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16 hours ago, Vync said:

For the back, they would have considered the secondary radiculopathy if SC was granted. That might be why they didn't mention it. However, radiculopathy is a nerve issue and they should have at least mentioned that.

It appears that they only adjudicated claims that were previously denied and that does not make any sense.  Initially I filed everything under Ebenefits including all the reopens.  When the site updated the left a bunch of my claims off and that was when I realized that they had to be filed as a supplemental because of the new AMA rules.  So what I did was took all the claims that they removed from the Ebenefits claim and filed them under the supplemental claim. In any case they can't ignore the claim.  They have to adjudicate it in some way even if it is a flat denial. 

16 hours ago, Vync said:

Did you challenge the C&P via a letter or did you file for a correction of medical records using the designated form? With how form-happy the VA is nowadays, it wouldn't surprise me if you get a letter eventually about it. I'm not sure if it would even appear as a claim on va.gov, but then again, I have not yet tried to request a correction.

The first thing I did was called the 800 number and complained there.  They "supposedly" were going to forward it but of course I don't trust the VA so I followed that up with a memorandum.  As far as I know there isn't a form to challenge a C&P exam. 

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Does anyone know if you can hire an attorney to take over your pending Higher Level Review?

Here is my situation.  My supplemental claim is complete (2/27) and I just got my letter for that.  I want to hire an attorney to handle that for me.    I also have pending Higher Level Review from my earlier decision (October 16th)    I was wondering if I get an attorney to appeal my supplemental claim can I also get them to take on my HLR of should I wait for the HLR to be completed?

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22 hours ago, JKWilliamsSr said:

It appears that they only adjudicated claims that were previously denied and that does not make any sense.  Initially I filed everything under Ebenefits including all the reopens.  When the site updated the left a bunch of my claims off and that was when I realized that they had to be filed as a supplemental because of the new AMA rules.  So what I did was took all the claims that they removed from the Ebenefits claim and filed them under the supplemental claim. In any case they can't ignore the claim.  They have to adjudicate it in some way even if it is a flat denial. 

Last year I learned how anal retentive the new process is. I filed a for heart attack using the new claim form. They sent me a letter saying it needed to be filed using supplemental because I had filed for a different heart condition years ago. I did the same thing you did and filed it as secondary. In your case, they should have at least told you to file using a different form.

22 hours ago, JKWilliamsSr said:

The first thing I did was called the 800 number and complained there.  They "supposedly" were going to forward it but of course I don't trust the VA so I followed that up with a memorandum.  As far as I know there isn't a form to challenge a C&P exam. 

If you don't trust 1-800, just file an IRIS claim. At least you can ensure the request is placed using your own wording and not have to worry about someone at the call center watering it down.

20 hours ago, JKWilliamsSr said:

Does anyone know if you can hire an attorney to take over your pending Higher Level Review?

Here is my situation.  My supplemental claim is complete (2/27) and I just got my letter for that.  I want to hire an attorney to handle that for me.    I also have pending Higher Level Review from my earlier decision (October 16th)    I was wondering if I get an attorney to appeal my supplemental claim can I also get them to take on my HLR of should I wait for the HLR to be completed?

Sure, but good luck in finding an attorney who would do that. Almost every attorney's office I contacted either focuses on very specific claim types or on BVA denials. I am sure that there must be some attorney out there that would take your request, but it might be tricky to find them. I tried Attig, Bergman & Moore, and CCK before I decided just to try out my CUE by myself.

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6 hours ago, Vync said:

Last year I learned how anal retentive the new process is. I filed a for heart attack using the new claim form. They sent me a letter saying it needed to be filed using supplemental because I had filed for a different heart condition years ago. I did the same thing you did and filed it as secondary. In your case, they should have at least told you to file using a different form.

That is the thing.  They did send me a letter but I already realized my mistake and had my supplemental claim filed.   When I saw that they did not add a good number of the claims for reopening I found out that supplemental claims could only be mailed in or faxed.  So what I did was took the missing disabilities and filed them as supplemental.   The thing is I believe that they still did some of the things incorrectly.  Now some of my new claims were secondary claims to previous denied disabilities.  So instead of removing them they should have deferred them until my supplemental claim was complete and then they should have adjudicated the other claims.   For example....I claimed sciatica secondary to my low back but of course that could not have been adjudicated until my back claim came back.  So it should just been deferred but instead they completely removed it so I wound up including it in my supplemental claim. 

6 hours ago, Vync said:

If you don't trust 1-800, just file an IRIS claim. At least you can ensure the request is placed using your own wording and not have to worry about someone at the call center watering it down.

I don't trust them either and my mistrust is actually well founded.  When doing my research on how to challenge a C&P exam I found info that said you should call and report the bad exam but you would also need to do it in writing.  So I called the 800 number and discussed my concerns with the exam.  I was told on the call that it would be sent up and someone would reach out to me in a few weeks.  I never believed that.   I had every intention of sending in a memorandum about the bad exam and I did so a couple days after the call.  When I called a month later to follow up about my claims the person I talked to said there was nothing listed about my C&P exam complaints.  The did see that a fax was sent in because the cover sheet was titled "Bad C&P exam"

 

6 hours ago, Vync said:

Sure, but good luck in finding an attorney who would do that. Almost every attorney's office I contacted either focuses on very specific claim types or on BVA denials. I am sure that there must be some attorney out there that would take your request, but it might be tricky to find them. I tried Attig, Bergman & Moore, and CCK before I decided just to try out my CUE by myself

It is all moot now because I checked today and my HLR was closed as of yesterday.  I checked Ebenefits and there was no increase in my rating so I am sure it is safe to assume to my HLR was denied.  I am going to attach it here so people can see what I sent.  Now the HLR is long and that is intentional because I am of the opinion anything sent to the VA for a claim should be done as if it was being sent to the BVA. 

I reached out to CCK and they responded and asked me to call to do an intake on my claims.  I did some research and I know they do a lot of BVA appeals.  I do remember a time where you could only hire an attorney for CAVC appeals but that changed in 2007 so now you can hire an attorney during any part of the process.   I had reached out in the past and I know most will not consider your case until after you have been denied for benefits and have a letter.  It just makes no sense for an attorney to take a case if there isn't any way for them to make money. 

For me an attorney is important because I am looking a substantial amount of back pay.  When I finally got my C-File I realize the VA pretty much screwed me royally.  In 2002 I filed a claim in part for my feet, knees and back.  Circumstances prevented me from making my appointment and the VA would not allow me to reschedule.  Even went so far as to tell me that if I did not show for the appointment I would not be eligible for any benefits and can't apply again.  I have a witness to this call and statement supporting it.   What I did not know at the time was that I was only scheduled an appointment for my knees.  They never schedule an appointment for my feet and back.   They said it was not a "well grounded" claim.   

I would learn in 2009 by talking to a friend that what I was told about not being eligible was inaccurate and he encouraged me to file again.  This led to my 2009 claim.  This claim led to my getting 30% (10% left knee, 10% right knee and 10% Bronchitis). Now keep in mind I was now given service connection for the disabilities I missed the appointment for in 2002.  There was no mention of my feet and back on the decision letter.  I filed a NOD for this claim and they addressed the feet and back claims in the Statement of Case.   They stated there was no complaints in service for my feet and for my back while I was seen for some issues there were no actual diagnosis. 

In 2018 I got a copy of my medical records from the VA.  In these records my entrance physical show normal feet.  There is complaints of foot issues where I have X-Rays showing flat feet and also a diagnosis for Plantar Fasciitis. My Exit Physical has a diagnosis of Moderate Pes Planus. I found a number of back visits and 2 of them have a diagnosis of a Lumbar Strain.   So I filed an ITF in December and then made a request for my C-File. 

In April 2019 I got a copy of my C-File and in it I have proof that the VA never schedule any appointments for my feet and back claims.  When I filed my supplemental claim to reopen I cited 38 CFR 3.156 (c) (1).  Now when I did my claim I did not mention anything about EED because my mindset was to get service connection first with a rating and then file for an EED citing 38 CFR 3.156 (c)(3)  and/or 38 CFR 3.156 (c) (4) not sure which one would apply but I have heard many people say that the best way to fight the EED battle is to hire an attorney.   Considering the VA stated I never had these issues back in 2002 we could be looking at a substantial amount of back pay.   I believe that I should have at a minimum been given 60% back then (50% for Feet and 20% for back)  we are looking more than $200k in back pay.  Even if they lowballed me and gave me 30% for feet and 20% for back (44% rounding to 40%)  we are still looking at $170K  and to be honest all those numbers can go up or down by a good bit in any direction.  However in the end any backpay from that many years would be a good amount.

 

HLR - No Personal Info.docx

Edited by JKWilliamsSr
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23 hours ago, JKWilliamsSr said:

I found out that supplemental claims could only be mailed in or faxed. 

That doesn't sound right. I have been told numerous times that any claim can be submitted online or dropped off in person. Who knows, maybe they changed something. Would not surprise me.

I have filed direct (spine) and secondary (radiculopathy) claims simultaneously. Back in 2008 or 2009, I submitted the claims. I received a letter acknowledging the claims and detailing each. Of course, the direct SC items were denied. They listed out every item. I kept the appeal alive and eventually saw a DRO in 2013 who granted all claims.

Based on what you indicated, they probably relied solely on the initial submission. When you sent the supplemental, they must have completely overlooked it. If you have proof that you submitted a claim (return receipt, fax confirmation, date stamped if submitted to VARO), it remains open until resolved.

23 hours ago, JKWilliamsSr said:

I don't trust them either and my mistrust is actually well founded.  When doing my research on how to challenge a C&P exam I found info that said you should call and report the bad exam but you would also need to do it in writing.  So I called the 800 number and discussed my concerns with the exam.  I was told on the call that it would be sent up and someone would reach out to me in a few weeks.  I never believed that.   I had every intention of sending in a memorandum about the bad exam and I did so a couple days after the call.  When I called a month later to follow up about my claims the person I talked to said there was nothing listed about my C&P exam complaints.  The did see that a fax was sent in because the cover sheet was titled "Bad C&P exam"

I think I have filed a total of 10 IRIS claims. Only got responses from three of them.

When you sent the C&P complaint memo, it likely went to the Evidence Intake Center in Jaynesville. Those folks sat on one of my claims for weeks. It was scanned in, but never assigned to the national work queue until a few days after I called to check the status. I assume the C&P clinic would not see it until it is in the system.

Broncovet has posted a number of times about filing to correct medical records. C&P exams are medical records. I assume you can challenge the findings in that way, too.
 

23 hours ago, JKWilliamsSr said:

Circumstances prevented me from making my appointment and the VA would not allow me to reschedule.  Even went so far as to tell me that if I did not show for the appointment I would not be eligible for any benefits and can't apply again.  I have a witness to this call and statement supporting it.   What I did not know at the time was that I was only scheduled an appointment for my knees.  They never schedule an appointment for my feet and back.   They said it was not a "well grounded" claim.   

I have heard some crazy things, but being told you could not reschedule takes the cake. When I get told things like this, I usually call a neighboring VAMC or call a different VSO to get a second opinion.

I remember the days when the VA would use the "not well grounded" excuse. They did that a lot before the VCAA of 2000 went into effect. They do a quick skim of your STRs, often carelessly. Nearly all my STRs were handwritten and almost impossible to read some pages. If they don't find anything there and you don't have evidence of treatment within a year after service, they use the NWG excuse to deny. There's no telling how many other vets have been scammed like this. 

The crazy part about how the VA considers evidence is they treat STRs like ancient history. You could get a diagnosis two days before leaving the service, get out of the service, file a claim the next day, but because you are no longer in the service, they want you to have a current diagnosis.

I think you have a good plan. I hope the lawyers accept your case. That's considerable retro at stake, not counting and potential secondary claims that would also have to be considered.

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UPDATE: 

So there is more confusion for my claim I guess.   My HLR was closed last week and since there was has not been any updates my rating in Ebenefits my assumption is everything was denied.  Everything listed that I do not have a rating for states it is "Not Service Connected".

So I am sure you can imagine my surprise when I got notified today via email and text message that I have an appointment next week for a C&P exam with LHI for my diabetes claim.   I double checked ebenefits and the claim shows as not service connected and not deferred and on top of that the HLR was closed. 

 

EDIT:  Just checked the VA website and my HLR moved back to the pending stage.   It stated that "Veterans Benefits Administration is correcting an error".  Which is probably  why I received a C&P exam. 

Edited by JKWilliamsSr
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