HLR or back to board

[SPO]

As of today, my appeal was officially closed.  Overall I won.  I was granted 100% P&T, even after some additional exams.  However they effective date only went back to July 2020 (date of my last c&p),  I originally submitted in November 2018.  So missing close to 2 years of pay.   The supplemental claim which this appeal was based on did grant me a couple items, which were dated all the way back to November 2018.   That decision stated this was because the claim was continuously pursued. My appeal was filed less than a month after the supplemental decision, so in a timely manner. This appeal implementation decision did not use that logic and decided the date of the c&p was the first time they had evidence (I was given 0% rating from November 2018 to July 2020 on most items).  Now the question is do I HLR and try to argue they used 2 different methods to determine effective date based on the same evidence, or take it right back to the board?  one guy at DAV said take it to the board so they don’t mess with anything else, but I’m not sure if there is any truth in that.

[Vync]

@SPOAs with any veterans service organization, it really boils down to the individual and the situation.

I had a well-seasoned DAV rep at one point who was fantastic. I would do my own research and take my draft submission to them for review. However, they ended up retiring. Their replacement appeared to know less about the VA claims process than I did. I went to the VAMC in Montgomery and a different rep there said they would not help me unless I brought them a favorable medical opinion. I explained the a VAMC specialist had surprisingly wrote a positive medical opinion in my progress notes. They read it and said it needed to be on a separate letter, not in my records. I ended up winning that one without DAV's help.

I switched to a different organization before going to an in-person DRO hearing. The rep reviewed my submission and said that if all vets did their homework like I did, then they might be out of a job. 

It really is a mixed bag depending on the person, experience, and willingness to actually help.

[Jake206th]

On 2/23/2022 at 12:54 PM, SPO said:

I did it myself. DAV had been pretty useless in my appeal.

That is great. I have been preparing and filing all of my own claims, appeals, and arguments also for 10 years now, but was using the DAV as my eyes to see into the VBMS system.

 

 

I am not a lawyer, and nothing I have written is legal advice, it is just how things appear to me based on my limited understanding, and therefore may be incorrect.

Edited February 4, 2023 by Jake206th

[Jake206th]

I had so much bad advice and info from DAV VSO's over the years, it was very hard to find someone that was both knowledgeable and competent. And they are getting much more difficult to contact now also.

At one point, I was looking into statutory TDIU, and how to meet the combined portion based on a secondary SC condition that I have which adds up correctly. So I talked to the DAV about it, and they looked at my file and said I don't have any secondary conditions. Which wasn't true, I have the VA decision letter, and it even shows secondary sc for a rated condition in VA.gov or Ebenifits (can't remember which right now).

But I held off on filing for TDIU because I didn't think I could financially survive on it and not work. But it worked out for the best in the end because the appeal that I filed for a different condition ended up getting me statutory 100% P&T.

I talked to the local DAV VSO about appealing the EED on that recent 100% appeal decision, and they didn't even look at it closely, and said I don't have the evidence to support an earlier effective date so they wouldn't help me. So then I contacted the DC appeals DAV VSO, and they tried to tell me the same thing, but after going back and forth with them about it, and they looked at the C&P exam evidence, they said sure enough, I have slam dunk medical record evidence in my VA C&P exam to prove an EED evaluation.

 But then without consulting me they filed a motion for reconsideration, which is a process that doesn't even exist anymore under the AMA. When I found out and asked them to cancel that motion, they filed a 20-0996 without telling me and then cancelled them both. I terminated the DAV immediately.

So then the HLR DRO from the ST Paul RO called the WA Appeals DAV VSO 5 days later after their POA, the Motion, and 0996 had already been cancelled, and proceeded to discuss that appeal with them despite the DAV telling them about the POA termination. The HLR DRO told the DAV that they were prepared to grant the EED based on the DAV arguments that they submitted in the Motion for reconsideration, but there was nothing to act on since everything had been terminated.

I would have just let the HLR ride had I known they filed one. Of course I told the DC DAV that, and they said I could reassign them as POA and a regular non appeals VSO would help with filing the HLR appeal.  So I said they had already told me they couldn't which was why I reached out to the DC Appeals DAV in the first place.

Oh well, I still have the option to file an 0996, and now I studied it and know how to word and present the evidence in the argument. I am just not sure if it's worth the risk of loosing my 100% P&T if they mess around with it, because it would put me into financial hardship. If I go to the Board, it could possibly end up right back at the RO on a remand if the Board doesn't order an EED.

Having the board order an EED would be ideal, cause that would protect that EED evaluation from the RO being able to mess with it as easily, and would get me the 10 year protection level, and half way to the 20.

Anyway, just a rant about the DAV. They were pretty good at looking into the VA system for a while when I could get in contact with them, and could find a competent VSO to talk to.

 

 

I am not a lawyer, and nothing I have written is legal advice, it is just how things appear to me based on my limited understanding, and therefore may be incorrect.

Edited February 4, 2023 by Jake206th

[GBArmy]

Jake Good posting by you. It just shows that training is lacking at most VSO organizations, and the ability (and desire) to spend time in researching correct responses to veterans issues is just about non-existent.  Like you said, use them for looking into your claims file and getting VA paperwork for you. But we have to realize that free isn't really "free" advise if it isn't any good. When something complicated like your situation comes up, I'd either get a lawyer or maybe a Veteran Claims Agent. Unfortunately, it's "you get what you pay for."

[Jake206th]

Thanks.

The reason I was trying to get DAV's advice and help with the EED appeal is because at the time I didn't really understand the AMA HLR and Supplemental claim process very well because I was just learning about it. I was opted in when I filed the 10182. I am glad I did opt in though because of the favorable finding laws application under the AMA.

But I already stumbled into a new problem in the AMA board appeals process with remands.

So in my case the board ordered a remand for a C&P exam due to a duty to assist error. When the RO granted 100% P&T they called it a full and final determination. Since the claim looked complete and favorable, the board didn't check to see if the RO was substantially compliant with the effective date under consideration in the remand order, which they are required to do by law.

And the decision was not substantially compliant with the order it because it deprived me of substantial retroactive benefits which isn't fair adjudication. Not to mention that the RO gave no reasons or basis in their decision for why EED was considered and denied or what evidence I needed to show to prove it, which is also required by law.

So the board didn't do their job to make sure the RO did their job. Both of which are required by law. And no instrument to hold them accountable except back through the same process that didn't work to begin with.

Now under the AMA, I lost my docket number and place in line at the board and cant just tell them, hey, the remand order effective date wasn't considered by the rater, can you get that corrected. So now to appeal to the board for the effective date, it starts from the beginning with a new appeal, a new wait, and new docket number. The VA is causing their own backlog from this kind of nonsense when mine is a very simple correction with all of my findings being favorable, and doesn't need to plug up the system.

And if the new board appeal is remanded and the RO drops the ball again it is back on the hamster wheel. I imagine at some point litigation will have to reign in this aspect of the AMA.

Under the legacy system there were several bottlenecks in a board appeal. Such as the certification process which was litigated and considered to be faulty. But at least when the board did a remand for an exam you could still tell the board if the RO made an incorrect decision after the exam without losing your place on the docket, and the board would either tell the RO to fix it or they would make a decision.

In my opinion, the RO or AOJ should not have the authority of law to file a motion of revision under CUE. Their claim accuracy numbers, and their errors requiring remand proves they are not competent for that purpose.

I would even go so far as to say the RO's decision and actions are largely to blame for the backlog and mess in the process. The CAVC is slowly reigning in the BVA on some of their nonsense.

I shouldn't have to risk losing my 100% P&T I fought for 20 years to get in an HLR for an effective date error to be corrected quickly by the same group that messed it up to begin with, and shouldn't have to wait 2 years to have the board correct an error the RO made that they were supposed to prevent in the first place.

 

This is what I have been thinking lately when people say the VA fixed their process, or when the VA talks about the AMA and VBMS basically fixing all of the problems.

 

 

 

I am not a lawyer, and nothing I have written is legal advice, it is just how things appear to me based on my limited understanding, and therefore may be incorrect.

 

 

Edited February 4, 2023 by Jake206th
mis spelled word correction

[Jake206th]

-

Edited August 15, 2022 by Jake206th
duplicate