OTH 112A Following Combat Deployment- PTSD claim Denied 8 years ago-CoD Honorable for VA, New Records Discovered, and more...

[tfymradsan]

This one is a doozy...

 

Below are recently written summaries of my situation that I have sent to various VSOs and firms doing pro-bono work.

I have already applied to the NLSVP for help with my discharge upgrade through the Navy, but that is likely to take a year or more before I will even hear back from them. I also just applied to the Yale NVCLR after running across their recent success with the Army discharge review boards. I have decided to go with the DAV for my VSO, but I want to be as thorough with this as I possibly can.

 

Questions that I have-

 

1. How do I proceed without screwing myself? I have been unemployed for a year now and while I would love for every single avenue to be explored, at this point 9+ years later I just any help I can get.
2. What is the best way to collect and present character statements? I plan on contact anyone I can on social media from my unit to vouch for both my time in service and my time post discharge, but I don't want to put too much effort in a potential "small" category of importance.
3. I know of others in my unit who were also ADSEPd following our deployment for misconduct in similar circumstances, many with differing outcomes- Are these potentially relevant to my case if I can get permission to cite their discharges?
4. What would be the potential bars from getting backpay on my original 2012 claim that was closed? I missed my C&P exams, but I never knew they were scheduled in the first place.- Also, in light of the recent Federal circuit decision , to what degree was the VA obligated to notify me of the new evidence they received in 2014 at my new address? In order to register an account on e-benefits, I had to fill out a survey that included a soft credit check and questions regarding my past addresses. They knew, or were able to on demand pull and verify, every single address I've lived at since getting out, but up until two weeks ago my mail was going to the WRONG address I enlisted from? Hell, even the email addresses listed on my VA profile were my parents! None of the contact information in the VA systems I've come across has been even remotely accurate...

 

This is a lot, but I feel as if there are a lot of things at play in my situation. I can post redacted copies of what I have or clarify further on anything needed. Thank you in advance for reading.

 

-tfy

 

 

 

 

 

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START HERE FOR BACKGROUND INFO

 

 

Subject: New Service Records Discovered by VA- 2012 Claim

 

 

Good Afternoon Mr. XXXX,

 

I was ADSEP'd (Administratively Separated) with an OTH (General-Under Other Than Honorable Conditions) in 2012 for smoking marijuana to self-treat PTSD following a combat deployment. SARPs (on base Substance Abuse Rehab Program) diagnosed me with Adjustment Disorder w/Depressed mood and Alcohol dependency, but I completed the program and fought the ADSEP by taking a board review. While the board recommended to retain me suspend the discharge recommendation with a conditional OTH in the event of further misconduct, my unit deployed before the board could convene and contrary to everything I had been told up until that moment, I received a 10-day letter with ~5 days left on it informing me that the reviewing authority upheld the boards characterization of service but rejected their retention recommendation.

 

It demolished me and I have seemingly never recovered. Thankfully, my parents pushed me to file a claim through the American Legion in XXXXXX when I initially got home, but I moved all around in the interim, was told it was a fat chance in hell to overturn drug pop discharges (2012) and that I was by default ineligible by my command/others. Unable to stay at home because of my PTSD, I moved out of state and never received any further correspondence from the VA which led to missing C&P exams.

 

The initial compensation claim was filed on X-XX-2012 and I was granted service connection for treatment purposes only for Adjustment Disorder w/Depressed Mood, which I did NOT claim. I did claim PTSD, left knee, right knee, back problems- all of which were denied service connection.

 

Under REASONS FOR DECISION for Service Connection for PTSD, my decision letter states that they conceded my stressor (Combat Action Ribbon), but that my service records do not contain complaints, treatment, or diagnosis for that condition, and I did not attend my VA examination- as well as “Therefore, medical evidence that could have been useful to support your claim was not available to us.” In addition to my SARPs diagnosis of Adj Disorder w/depressed mood (an ACUTE disorder), there are records of me being seen at the Naval hospital on Lejeune for night sweats, a PTSD symptom, but I am unsure if that was included in the original compensation decision evidence.

 

Fast forward to a few months ago and I discover I can be seen for free at a Vet Center, where treatment leads me to eventually contacting a VSO with the XXXXXXX. The VSO found a few files in my record that I have never seen in my life. After days of making calls to the VBA and VHA, I go from being emphatically told by the VBA eligibility department I am ineligible due to my Discharge Characterization- to registered with free VA healthcare on the same phone call earlier this month.

 

Fast forward to last week, I receive a letter from VHA Member Services informing me that they have determined I am ineligible to enroll in VA healthcare due to the VBA determination letter I’ve copied/pasted below. THIS DIRECTLY CONFLICTS WITH THE 2013 VBA DETERMINATION LETTER CITED AS EVIDENCE.

 

I made a million calls to the VA, and eventually get a call back and am told yesterday that my Characterization of Service Review claim was pulled by the VA XXXXXXX Regional Office and that there appear to be a few issues with my claims.

 

• The VA received more records from the service branch in 2014, a year after my original claims were Closed, but the claims were never reopened/examined, and nothing was done. The records were service records and medical records mixed together.
• The wording of the 2012 VBA decision letter (made by a different Regional Office than I currently reside in) are “conflicting” and confusing the VA Reviewers, which was the reason given to me why the XXXXXX office “has” my characterization of service claim.

 

Today, I received a letter from the DVA Evidence Intake Center informing me that I have 60 days to provide evidence that helps with their decision concerning my eligibility for VA benefits. I do not even know where to begin. I have been in a pretty bad spot mentally, physically, and spiritually essentially since deployment, so to discover that I could have been getting help all this time is both infuriating and crushing. The VA Reviewer I spoke to at XXXXXXX said they would mail me a copy of the files the VA received from DoD in 2014 and that I need to go through everything with a fine-tooth comb and possibly consider getting representation. (I just got these yesterday, they seem to be similar to records I have from e-benefits and some that I kept from time in the service, but I cannot confirm 100% as they will not disclose to me what the newly discovered medical records pertain to)

 

See the 2013 Character of discharge determinations copy/pasted below, I’ve XX’d out dates but can provide them as well as scanned copies of what I’ve received along with my original ADSEP package that I got a copy of before being discharged (potential conflict from my commands processing, they crossed through a required field on my ADSEP checklist for a CO’s letter of referral to the VA and wrote NA- told me I was SOL in no uncertain terms).

 

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Updates-

 

"While the board recommended to retain me with a conditional OTH in the event of further misconduct, my unit deployed before the board could convene and contrary to everything I had been told up until that moment, I received a 10-day letter with ~5 days left on it informing me that the reviewing authority upheld the boards characterization of service but rejected their retention recommendation."

• I called the Administrative Law section at the LSSS-E (covers Camp Lejeune, where I was ADSEP'd) today and learned that my OTH was actually Suspended, which is different than a recommendation to retain.
• DID find supporting documents in my "milconnectrecordpull" that were also present in the newly discovered records that the VA did not previously consider (they received them in 2014, a year after my original claims were CLOSED)
• These included my ADSEP package and board findings, INCLUDING a Minority Report filed by a board member in support of a higher characterization of service on the grounds that it was an isolated incident- THIS WAS NOT considered in my original claims, but I was still previously granted Honorable for VA purposes (in 2013)
• ALSO included the order from the CO of my Units Remain Behind Element recommending that I be retained in response to the boards finding to suspend my discharge, a recommendation that was IGNORED- resulting in my discharge with an OTH.

 

 

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The linked album contains a redacted copy of the 2013 rating decision on my 2012 claim that was closed.

 

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Character of Discharge letters from 2012 CoD

 

 

 

ISSUE: Character of discharge.

 

 

ADMINISTRATIVE DECISION EVIDENCE:

 

DD Form 214

 

Facts and Circumstances from the Service Department

 

 

DECISION:

 

The claimant's service from XXXXXX to XXXXXX was under other than honorable conditions.

 

The claimant is entitled to receive VA benefits based upon this period of service.

 

The claimant is eligible for health care and, related benefits authorized under Chapter 17 of Title 38, United States Code, for any disability or disabilities incurred or aggravated in line of duty during active service.

 

 

REASONS AND BASES:

 

38'USC §101(2); 38 CFR 3.12(a)

 

38 CFR 3.12(d)

 

38 CFR 3.360

 

The claimant entered active duty in the U.S. XXXXXXX. The Facts and circumstances furnished by the service department show that after the Veteran returned from his tour station in Afghanistan, the claimant tested positive for TCH 35 (marijuana) and subsequently charged with misconduct due illegal drug use. It also states that despite the Veteran's good conduct (awarded Good Conduct medal in XXXX), favorable character appraisal by his command, involvement in highly dangerous combat activities such as Mojave Viper and lack of evidence showing pattern of misconduct the board decided to appoint the claimant an other than honorable discharge:

 

This appears to have been an isolated incident. The Facts and Circumstances state that the Veteran was made the poor choice of turning to an illegal drug and alcohol to cope with his mental health issues derived after his tour in Afghanistan. Prior to this incident the claimant had not used any illegal substance or had any pattern of behavioral health issues. Furthermore, there is no pattern of misconduct that can be established With out restoring to mere speculation. With several mental health studies being done that have linked alcoholism & drug use as a coping mechanism to deal with untreated mental health issues such as anxiety, adjustment disorder & PTSD the claimant's testimony is considered probable. In view of the evidence of record it is determined that this offense does not constitute willful and persistent misconduct.

 

(Signed as Concurred and Approved on 8/21/2013)

 

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As well as this letter

 

 

 

Dear XXXXXX,

 

We made a decision regarding your discharge from military service. Every effort was made to see that your claim received complete consideration.

 

This letter tells you what we decided, how we reached our decision and what evidence we used to reach our decision. We have also included information on what you can do if you don't agree with our decision, and who to contact if you have questions or need assistance.

 

 

What We Decided

 

We decided that your military service for the period XXXXX  through XXXXX is honorable for VA purposes. You and your dependents are eligible for any VA benefits for this period of military service.

 

 

How Did We Make Our Decision?

 

The evidence shows that your service from XXXXX to XXXX was under other than honorable conditions.

 

You are entitled to receive VA benefits based upon this period of service.

 

You are eligible for health care and related benefits authorized under Chapter 17 of Title 38, United States Code, for any disability or disabilities incurred or aggravated in line of duty during active service.

 

 

Evidence Used to Decide Your Claim

 

 In making our decision, we used the following evidence:

 

• DD Form 214
• Facts and Circumstances from the Service Department

 

 

 

Edited April 30, 2021 by tfymradsan
added context and redacted determination letter

[Berta]

The good part is you have this evidence and I hope you have sent it to the VARO already or will soon.

"I called the Administrative Law section at the LSSS-E (covers Camp Lejeune, where I was ADSEP'd) today and learned that my OTH was actually Suspended, which is different than a recommendation to retain.

DID find supporting documents in my "milconnectrecordpull" that were also present in the newly discovered records that the VA did not previously consider (they received them in 2014, a year after my original claims were CLOSED)

These included my ADSEP package and board findings, INCLUDING a Minority Report filed by a board member in support of a higher characterization of service on the grounds that it was an isolated incident- THIS WAS NOT considered in my original claims, but I was still previously granted Honorable for VA purposes (in 2013)

ALSO included the order from the CO of my Units Remain Behind Element recommending that I be retained in response to the boards finding to suspend my discharge, a recommendation that was IGNORED- resulting in my discharge with an OTH."

The bad part is the VAROs have employees who cannot READ!!!!!

" Unable to stay at home because of my PTSD, I moved out of state and never received any further correspondence from the VA which led to missing C&P exams."

Do you have a copy of your C file? Your VSO should know what is in it on his PC (I hope)

"I have already applied to the NLSVP for help with my discharge upgrade through the Navy, but that is likely to take a year or more before I will even hear back from them. I also just applied to the Yale NVCLR after running across their recent success with the Army discharge review boards. I have decided to go with the DAV for my VSO, but I want to be as thorough with this as I possibly can."

GREAT!!!! NVLSP and Yale lawyers  can read! I did one or two radio show podcasts with them (the Yale lawyers) available in our radio show archives.And have had a long relationship with NVLSP- they are wonderful too.

I am having access problems -- I live at a high elevation and strong wind affects my satellite dish- did you say you have the CAR? Is it on your DD 214? 

Others should certainly read this thread and opine on it- I thought I saw everything with decades of dealing with the VAROs but this sure takes the cake.

I am so glad you are fighting this issue- I had a remark on the PTSD but will post it later- ....when wind calms down.

 

 

[tfymradsan]

"The good part is you have this evidence and I hope you have sent it to the VARO already or will soon. "

I plan on doing so ASAP, but have come across information that makes me reluctant out of fear I am wasting potential procedural opportunities to introduce evidence/argue my circumstances. According to credentialed presenters at a Veterans Law CLE held at University of Montana in 2019, DVA Character of Discharge determinations hold a significant amount of evidentiary weight in Naval Discharge Review Boards and Boards for Correction of Naval Records. None of the VSOs I've spoken to so far have been confident in their recommendation as to my first "action" here. Could I waste an opportunity to get some facts on the record by sending in evidence to the VA that they already have? How do I concretely discover what evidence they do or do not have in the next 60 days I have to submit evidence?

AFAIK, the VA is aware of the evidence (described as "a mix of personnel and service treatment records from the DoD" that were not previously considered, as well as the previous Character of Discharge determination. I jotted down some of the terms I thought stood out from the phone call in my notes- Quality Review, Error, File Review, and Conflicting decision letters. The VA representative that I spoke to was fairly direct in stating that the VA did make a mistake when they missed the personnel files from the DoD in 2014.

"Do you have a copy of your C file? Your VSO should know what is in it on his PC (I hope)"

I do not, the VSO and organization I started working with in the beginning of last month reluctantly sent me a few of the letters in my file, but that was the extent of their willingness to help (outside of recommending I get representation from an attorney). I've had more success getting VA employees to send me records from my file via secured email or even through the postal service than I have with VSOs from my state and city organizations. I submitted the paperwork to have the DAV represent me moving forward as of last week, so I'm optimistic they will be a greater help.

 

"I am having access problems -- I live at a high elevation and strong wind affects my satellite dish- did you say you have the CAR? Is it on your DD 214? 

Others should certainly read this thread and opine on it- I thought I saw everything with decades of dealing with the VAROs but this sure takes the cake.

I am so glad you are fighting this issue- I had a remark on the PTSD but will post it later- ....when wind calms down."

 

I do have a CAR and it is listed on my DD214. I also have a current PTSD diagnosis which I believe was misdiagnosed as Adjustment Disorder/Depressed Mood & Alcohol Dependency while I was in.

A good portion of the people I've spoken to about my situation seem to think this one is at the very least interesting in complexity/potential. At this point, I have no choice but to fight this as hard as I can, so I am endlessly grateful for your time and help! Thank you!

[broncovet]

Congratulations on your discharge upgrade, and eligibility for benefits.  

1.  My intuitive opinion is that you should send the "new service records" into VA (if you have not done so already), and pry it back open under 38 CFR 3.156 C.  (New and material service records.)

2.  If you have low income, it may be a good idea to apply for pension.  Its a short term solution until you are awarded compensation.  Pension qualifications are usually fairly easy to meet if you have the required period of service, and have low income.  

4.  Other Vets have missed a c and p exam based on not being notified.  However, if you did not or have not kept your address current, the VA may have mailed you a notice to go to a c and p exam to "your last known address".  

     Other than what Berta said, that is all I have to add.  

[Berta]

You should certainly re open under 38 CFR 3.156(c) as Broncovet said.

 

You said :

"The VA representative that I spoke to was fairly direct in stating that the VA did make a mistake when they missed the personnel files from the DoD in 2014."

Your VSO should help with that and also consider a CUE claim as well if they do not give you the proper EED:

 

https://hadit.com/3-156-va-error-cue-instead-1992-eed/

 

The veteran succeeded under 3.156 C , but the VA gave him the wrong EED.

 

More here regarding that decision:

 

[Berta]

Here is another Beauty-

The VA seems to be hooked sometimes on a traditional re-opened claim, that would provide the date of the re -open for the EED.

If the claimant pursued CUE as to the EED they can often succeed.

But a 3.156 (c) claim is far different.

 

 

[broncovet]

As far as the "apply for pension" part, my doctor recommended this to me.  He explained that "it takes VA forever" to grant your SC, so at least have a little coming in to take care of bills in the interim.  Pension applications are faster and easier to prove..you dont have to prove service connection, its needs based, so if you have low income, and served in time of war, you should qualify.  

It was great advice, I could have kept my home if my VSO would have told me that earlier.  I had no idea what pension was, nor if I was eligible.  

That 1200 a month or so, would have meant I could have kept up my house payments (barely).  

I did get pension, but it was too little to late, and I lost my home to foreclosure in 2006.  Since I had applied in 2002, why did neither my VARO nor my VSO know to "apply for pension".  They knew I was about to become homeless.  GRRRRRR.  

While its true you would eventually pay the penision back, out of retro when you finally get SC, still, that 1200 a month or so would have been more useful NOW than 7 years later, when I finally got my 100 percent in 2009.  I could imagine it would take 7 years and multiple appeals, my VSO indicated I may have something in 90-120 days.  Ha!  

Edited May 3, 2021 by broncovet