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Newbie request to review CUE write up

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Texas-NativeATX

Question

I am brand new to this group and been researching CUE and found this group today. An old post suggested that anyone considering a CUE post their write up here to receive critiques and suggestions from experience members of the forum.  So here goes:

I trust you will be brutally honest, it is my understanding that this is a one shot deal and if I do a poor job I cannot try again.

 

To: Department of Veterans Affairs

 

Subj: Motion for Review for Clear and Unmistakable Error ICO <my name>

 

I <my name>  the claimant in VA File Number <my file number> Rating Decision dated 12 August 2014, move, pro se, that the VA made a Clear and Unmistakable Error in the denial of service connection for mental health condition to include irritability, avoidance, and loss of interest. The examiner made undebatable errors in fact and the adjudicator made an unmistakable error in law resulting in an outcome that would have been different if the errors had not occurred. I am requesting a revision of decision in accordance with CFR 38 3.105, to grant service connection for PTSD with an evaluation of 70% effective February, 1, 2014.

 

When my claim was filed in February 2014 VA Form 21-0960P-4 dated Dec 2010 required a qualified PTSD examiner to answer a series of questions during an examination. On 15 Nov 2013, Psychiatrist Timothy K Tse, hereafter referred to as ‘the examiner’, conducted a C&P PTSD Initial Examination and made several Clear and Unmistakable Errors that “manifestly changed the outcome” of my disability claim.  Based on entries made by ‘the examiner’ these CUEs stemmed from ‘the examiner’s’ lack of access my VBMS and my C-File and due to ‘the examiner’s’ poor correlation of information and haphazard documenting of information that he gathered during the examination.

 

The Clear and Unmistakable Errors in fact made during my 15 Nov 2013 examination include:

 

1.     The examiner’s notes for VA Form 21-0960P-4  Section II Clinical Findings Paragraph 2 History sub-section a) Family History neglected to include the marital problems ‘the examiner’ noted later in the Section II Paragraph 8 Remarks. These details should have been listed as symptoms and contributed to an evaluation % greater than 0%.

2.     The examiner’s notes for VA Form 21-0960P-4  Section II Clinical Findings Paragraph 2 History sub-section b) Relevant Occupational History neglected to include 20 months spent in combat zones in support of OIF that was alluded to later in the form but not identified as a Stressor. These details would have justified more detailed reading of Service Records or asking interview questions to confirm combat experience and exposure to Stressors.

3.     The examiner indicated in VA Form 21-0960P-4  Section II Clinical Findings Paragraph 3 Stressors as “Not Applicable”, despite my C-File containing 2 Post Deployment questionnaires documenting Stressors ‘seeing dead bodies’, my Military Service Record containing a 2007 Navy Commendation Medal summary, documentation of exposure to multiple in-direct fire IDF attacks and the examiner’s written statement about combat deployment that clearly met the criteria listed on the form “For VA purposes, "fear of hostile military or terrorist activity" means that a veteran experienced, witnessed, or was confronted with an event or circumstance that involved actual or threatened death or serious injury, or a threat to the physical integrity of the veteran or others, such as from an actual or potential improvised explosive device; vehicle-imbedded explosive device; incoming artillery, rocket, or mortar fire; grenade; small arms fire, including suspected sniper fire; or attack upon friendly military aircraft, and the veteran's response to the event or circumstance involved a psychological or psycho-physiological state of fear, helplessness, or horror ” By answering Not Applicable to Paragraph 3 Stressors, the evaluation form led ‘the examiner’ to not ask probative questions for the subsequent diagnostic criteria section and occupational and social impact section of the form.

4.     The examiner indicated in VA Form 21-0960P-4  Section II Clinical Finding Paragraph 4 Diagnostic Criteria sub-section a) Criteria A: “No exposure to a traumatic event”, despite VA Form 21-0960P-4 definition Veteran experienced, witnessed or was confronted with an event that involved actual or threatened death or serious injury, or a threat to the physical integrity of self or others  as a symptom and the C-File containing evidence of multiple occurrences of such events, including Post Deployment Questionaries of encountering hostile fire and seeing dead and injured coalition forces. My service record also contained a 2007 Navy Commendation Medal summary for my actions during an attack an Al Qaim forward operating base, Iraq.

5.     The examiner indicated in VA Form 21-0960P-4  Section II Clinical Finding Paragraph 4 Diagnostic Criteria sub-section a) Criteria B: “The traumatic event is not persistently reexperienced”, despite f VA Form 21-0960P-4  listing Recurrent distressing dreams of the event as a symptom and the C-File containing evidence documenting such symptoms that came out of a Sleep Apnea DBQ diagnosis statement stating “sleep problems were most likely insomnia and psych related.” 

6.     The examiner indicated in VA Form 21-0960P-4  Section II Clinical Finding Paragraph 4 Diagnostic Criteria sub-section a” Criteria C:  “No persistent avoidance of stimuli associated with the trauma or numbing of general responsiveness” despite VA Form 21-0960P-4 definition Markedly diminished interest or participation in significant activities, Feeling of detachment or estrangement from others, Restricted range of affect (e.g., unable to have loving feelings), and Efforts to avoid thoughts, feelings or conversations associated with the trauma as symptoms and the C-file containing evidence of these symptoms to include documentation of marital problems with counseling and ‘the examiner’’s notes stating a “decrease in mood.”  

7.     The examiner indicated in VA Form 21-0960P-4  Section II Clinical Finding Paragraph 4 Diagnostic Criteria sub-section a) Criteria D:  “No response provided” despite VA Form 21-0960P-4 listing Difficulty falling or staying asleep, and Irritability or outbursts of anger as symptoms and the C-File containing evidence of problems staying asleep and an alcohol related incident that occurred after return from combat deployment.

8.      Clear and Unmistakable errors in the Diagnostic Criteria section resulted in erroneous or skipped assessments in VA Form 21-0960P-4  Section IV Stressor, VA Form 21-0960P-4  Section V Symptoms, and Section VI Occupational and Social Impairment.

9.     The examiners closing remarks included the following sentences “The veteran's two deployments in 04 and 07 did not expose him to traumatic events or he has any PTSD symptoms. But he did have some decrease in motivation and problems with relationship with his wife. He denied any vegetative symptoms of depression. He denied any anxiety issues.” Despite ‘the examiner’ having answered “Not Applicable” to VA Form 21-0960P-4  Section II Clinical Finding Paragraph 5 Symptoms that asked about Disturbances of motivation and mood, Difficulty in establishing and maintaining effective work and social relationships, and Inability to establish and maintain effective relationships.

 

 

Year 2001 – Title 38 U.S. Code § 1154.b directs “In the case of any veteran who engaged in combat with the enemy in active service with a military, naval, air, or space organization of the United States during a period of war, campaign, or expedition, the Secretary shall accept as sufficient proof of service-connection of any disease or injury alleged to have been incurred in or aggravated by such service satisfactory lay or other evidence of service incurrence or aggravation of such injury or disease, if consistent with the circumstances, conditions, or hardships of such service, notwithstanding the fact that there is no official record of such incurrence or aggravation in such service, and, to that end, shall resolve every reasonable doubt in favor of the veteran. Service-connection of such injury or disease may be rebutted by clear and convincing evidence to the contrary. The reasons for granting or denying service-connection in each case shall be recorded in full.” 

 

The VA Schedule for Rating Disabilities-Mental Disorders and Definition of Psychosis for Certain VA Purposes was amended via interim final rule on 4 August 2014 and was in force at time of the 12 August 2014 rating decision. The interim final rule directed the following: 

“The new diagnostic criteria for PTSD no longer include the subjective reaction to the traumatic event (Criterion A2), such as experiencing fear, helplessness, or horror, but the revised stressor criterion (Criterion A) includes a more explicit definition for stressors as exposure to actual or threatened death, serious injury or sexual violation.”

 

This change to the Schedule for rating made it imperative that ‘the examiner’ be aware of exposures listed in C-File and Service Record. The examiner clearly did not conduct my examine in accordance with VA policies that were in force at the time of the rating decision, it was incumbent on the Ratings Board to identify this discrepancy and adjudicate my claim accordingly as required by O.G.C.Precedent 9-94 for claims “still open.” 

 

The Clear and Unmistakable Errors in law made by adjudicators include:

 

1.     The adjudicator failed to uphold their responsibility to interpret reports of examination in the light of the whole recorded history, reconciling the various reports into a consistent picture note as required in CFR 38 4.2. The examination notes indicated that ‘the examiner’ did not review my records in VBMS nor any other records that were available to the VA at the time of the examination, yet the adjudicator failed to interpret the examination report along side the C-File and not the discrepancies.

2.     The Rating Board failed to uphold their responsibility to conscientiously study every element in any way affecting the probative value to be assigned to the evidence are required by CFR 38 4.6. The Ratings Board had access to all assembled facts yet did not identify the record contained 20 months of combat deployments, 2 Post Deployment Questionaries, and a Personal Award for actions in Iraq while ‘the examiner’ found no stressors.

3.     The Rating Board failed to uphold their responsibility to apply reasonable doubt after careful consideration of all procurable and assembled data as required by CFR 38.102 when they affirmed the examiner’s diagnosis despite the C-File containing significant information about combat deployments and changes in behavior after the combat deployment.

 

CFR 38 3.102 Addresses Reasonable Doubt and states ‘When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding service origin, the degree of disability, or any other point, such doubt will be resolved in favor of the claimant.’

 

CFR 38 § 4.2 Interpretation of examination reports.

Different examiners, at different times, will not describe the same disability in the same language. Features of the disability which must have persisted unchanged may be overlooked or a change for the better or worse may not be accurately appreciated or described. It is the responsibility of the rating specialist to interpret reports of examination in the light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability present. Each disability must be considered from the point of view of the veteran working or seeking work. If a diagnosis is not supported by the findings on the examination report or if the report does not contain sufficient detail, it is incumbent upon the rating board to return the report as inadequate for evaluation purposes.

CFR 38 § 4.6 Evaluation of evidence.

The element of the weight to be accorded the character of the veteran's service is but one factor entering into the considerations of the rating boards in arriving at determinations of the evaluation of disability. Every element in any way affecting the probative value to be assigned to the evidence in each individual claim must be thoroughly and conscientiously studied by each member of the rating board in the light of the established policies of the Department of Veterans Affairs to the end that decisions will be equitable and just as contemplated by the requirements of the law.

Closing argument

 

The initial Clear and Unmistakable Error occurred when ‘the examiner’ failed to comply with CFR 38.102 by not exercising careful consideration of all procurable documents and when ‘the examiner’ failed to list facts discovered during the examination in all the appropriate sections of the DBQ. The fact that VBMS was down on the day of the appointment did not mean the information in the C-File was not procurable. The examiner not identifying the C-File documented stressors lead to a cascade of errors that ultimately resulted in an inadequate medical diagnosis that should be assigned little probative value. The examiner’s failure to review the available facts prior to making a diagnosis should have led the Rating Specialist to comply with CFR 38 4.2 and return the report as inadequate for evaluation purposes due to failure to ‘interpret reports of examination in light of the whole recorded history.’ Additionally the Adjudicator should have complied with CFR 38 4.6 to ensure ‘every element in any way affecting the probative value to be assigned to evidence in each individual claim .. be thoroughly and consistently studied by each member of the rating board.’ 

 

The following elements must be met in order to justify reversal of the final decision:

 

            Element #1 – The Claim decision must be final. 

Element #2 – The correct facts were not before the adjudicator at the time of decision. 

Element #3 – The error is undebatable.

Element #4 – The outcome would have been different if not for the error.   

 

This document provides information that fully meets the criteria established in 38 U.S.C. § 7111(a) and now having been called to your attention compels a conclusion, to which reasonable minds cannot differ, that the result would have been manifestly different but for the error. The evidentiary record available to the VA at the time of examination clearly indicated that a stressor occurred during combat deployment and that symptoms consistent with PTSD were present at the time of examination, but the adjudicator did not have all the facts because of the Clear Errors made in the PTSD Examination. The record at the time of examination contained several symptoms that justified a service connection for Mental Health Condition which is a manifestly different outcome. 

 

I have clearly shown that the correct facts were not before the adjudicator at the time of the decision, the errors made are undebatable departures from VA regulations and applicable law, and the outcome would have been different if not for the errors. Therefore, I submit that the appropriate corrective action is to reverse the 2014 denial decision for Mental Health Condition and set the Effective Date for 70% PTSD to February 1, 2014. 

 

 

Respectfully Submitted,

<my name>

 

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I only read a small part of your very long post. It is my understanding and from my own pro se experience filing and appealing a CUE claim all the way to the U.S. CAVC court in 2003 that a C&P exam/examiner's opinion can never be considered CUE under 38 CFR 3.105 (TRUE CUE as opposed to just serious error) according to knowledgeable others.  You must confine IMHO your CUE contentions to the VARO adjudicator's decision and not the examiner's negative opinion again according to other's advice.  Here is some background on my CUE claim where I did win a satisfying victory of sorts. Read on.

I filed the CUE claim under 38 CFR 3.105 that actually contained 4 separate CUE contentions 1. VARO committed CUE in assignment of level of initial PTSD rating. 2. VARO committed CUE in reducing my PTSD rating. 3. VARO committed CUE in terminating my PTSD rating and most important. 4. VARO committed CUE in failing to adjudicated me for both a requested and implied PTSD TDIU rating under 38 CFR. 4.16 (?).

As expected I received fairly quick denials of my CUE claim from both VARO and BVA and then I appealed this on my own to the U.S. CAVC court in 2003.  After several months of very contentious motions, counter motions, briefs, supplemental ROAs, etc. with hateful and mean minded VA lawyers the judge Harold Greene issued a single judge 9 page decision that said although there was no CUE errors committed the VARO and BVA did commit a serious Due Process Error in failing to adjudicate me for a PTSD TDIU claim and his remand instructions ordered the VARO to do so.  However, VARO before the court favorable decision had already granted me P&T TDIU with 5 years back pay due to other claims and procedures I brought against the VA.  So there it is.

Both the Fed Appeals Circuit court and CAVC has long ago issued rulings that pro se vets representing themselves in appeals including CUE and TDIU appeals are to be given a sympathetic reading and consideration in their statements, contentions, briefs, motions before the BVA and court.  The judge said BVA failed to do that in my case under Roberson v. Principi.

In all the pre decision conflicts between me and the VA General Counsel lawyers over the ROA, motions, briefs, etc. the Judge took my side against them and they were clearly frustrated because they of course are elitist from Yale, Harvard, Georgetown, etc. **** them.

The BVA and court will almost always say that your CUE error claim was not CUE but merely a difference of opinion in the weighing of evidence by the VARO adjudicator and not CUE.  Many vets believe that all errors are CUE but they are flat out wrong even though they may have won an appeal of a non CUE error in rating by the VARO.

I have read many many dozens of CUE court decisions before and after my CUE court appeal and like me you have a long haul to win a TRUE CUE claim under 3.105. 

You may have better luck in filing a standard appeal or new or supplemental claim instead and save a tremendous of time but I understand your desire for CUE due to amount of compensation to be gained from the earlier decision denial years ago.  Your choice. My CUE claim was around 15 pages as I recall.  Good luck going forward.

There are others on this forum with REAL CUE claims and Appeal experience.

My comment is not legal advice as I am not a lawyer, paralegal or VSO so do not contact me for more information folks.

 

Edited by Dustoff 11
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  • Content Curator/HadIt.com Elder

@Dustoff 11CUE can work in rare cases to contest a C&P opinion, but it depends on the details. In my case, it wasn't a difference of opinion or how the evidence was weighed, but instead a complete absence of an opinion by the VA examiner. I won the CUE because the C&P examiner failed to opine on the claimed condition. Because their examiner had already filled out the DBQ and I had also submitted a separate strongly favorable IMO from a non-VA specialist (which they ignored), the DRO granted based on my "more than likely" IMO and had sufficient info to assign a rating percentage, too. It wasn't relative equipoise either. It was a case where they disregarded all of the solid Caluza elements I had in place. It truly was odd though. Well, I guess taking 18 months to win a heart attack claim is a good thing in the end because I won. 

"If it's stupid but works, then it isn't stupid."
- From Murphy's Laws of Combat

Disclaimer: I am not a legal expert, so use at own risk and/or consult a qualified professional representative. Please refer to existing VA laws, regulations, and policies for the most up to date information.

 

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2 hours ago, Dustoff 11 said:

I only read a small part of your very long post. It is my understanding and from my own pro se experience filing and appealing a CUE claim all the way to the U.S. CAVC court in 2003 that a C&P exam/examiner's opinion can never be considered CUE under 38 CFR 3.105 (TRUE CUE as opposed to just serious error) according to knowledgeable others.  You must confine IMHO your CUE contentions to the VARO adjudicator's decision and not the examiner's negative opinion again according to other's advice.  Here is some background on my CUE claim where I did win a satisfying victory of sorts. Read on.

I filed the CUE claim under 38 CFR 3.105 that actually contained 4 separate CUE contentions 1. VARO committed CUE in assignment of level of initial PTSD rating. 2. VARO committed CUE in reducing my PTSD rating. 3. VARO committed CUE in terminating my PTSD rating and most important. 4. VARO committed CUE in failing to adjudicated me for both a requested and implied PTSD TDIU rating under 38 CFR. 4.16 (?).

As expected I received fairly quick denials of my CUE claim from both VARO and BVA and then I appealed this on my own to the U.S. CAVC court in 2003.  After several months of very contentious motions, counter motions, briefs, supplemental ROAs, etc. with hateful and mean minded VA lawyers the judge Harold Greene issued a single judge 9 page decision that said although there was no CUE errors committed the VARO and BVA did commit a serious Due Process Error in failing to adjudicate me for a PTSD TDIU claim and his remand instructions ordered the VARO to do so.  However, VARO before the court favorable decision had already granted me P&T TDIU with 5 years back pay due to other claims and procedures I brought against the VA.  So there it is.

Both the Fed Appeals Circuit court and CAVC has long ago issued rulings that pro se vets representing themselves in appeals including CUE and TDIU appeals are to be given a sympathetic reading and consideration in their statements, contentions, briefs, motions before the BVA and court.  The judge said BVA failed to do that in my case under Roberson v. Principi.

In all the pre decision conflicts between me and the VA General Counsel lawyers over the ROA, motions, briefs, etc. the Judge took my side against them and they were clearly frustrated because they of course are elitist from Yale, Harvard, Georgetown, etc. **** them.

The BVA and court will almost always say that your CUE error claim was not CUE but merely a difference of opinion in the weighing of evidence by the VARO adjudicator and not CUE.  Many vets believe that all errors are CUE but they are flat out wrong even though they may have won an appeal of a non CUE error in rating by the VARO.

I have read many many dozens of CUE court decisions before and after my CUE court appeal and like me you have a long haul to win a TRUE CUE claim under 3.105. 

You may have better luck in filing a standard appeal or new or supplemental claim instead and save a tremendous of time but I understand your desire for CUE due to amount of compensation to be gained from the earlier decision denial years ago.  Your choice. My CUE claim was around 15 pages as I recall.  Good luck going forward.

There are others on this forum with REAL CUE claims and Appeal experience.

My comment is not legal advice as I am not a lawyer, paralegal or VSO so do not contact me for more information folks.

 

Thanks that is helpful.

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May I ask one more question.  How did you transmit your motion for review for CUE to the VA?  Did you use VA FORM 21-4138 Statement in Support of Claim, or is there a better way? I can find nothing in M21 or CFR stipulating process for submitting a CUE.

 

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I have been try to see how u file a cue with all this new stuff.

On my post about cue. I believe a veteran posted were there are to be send now.

I believe you will at the least get a new exam and a new decision.

That was a great write up and hit all your points.

If VA does address it that is a great write up for the cavc to take a look at it.

Good luck

 

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I recall using a statement in support of claim form with an added continuation of 12 or 15 pages of the actual CUE claim contentions.  There were no specific forms then (2001) for filing CUE claims and I don't believe there are any special CUE forms today for CUE.  Maybe use 526EZ (??).

Must remember to sign both the form and last added final page of the CUE claim contention and date both of course with your last four SSN and C-File number in top right corner of each page including copies of any evidence you submit with the claim/appeal. I also initialed all the other pages just in case.  Make copies of everything you submit to VARO, BVA and/or court.

Also when as expected BVA denied my appeal I may have ask BVA for a reconsideration in a written letter or I may have filed directly to the CAVC court with only 120 days time line allowed to appeal to the court.

When referring to C&P errors I would say something to the effect that the VARO adjudicator also committed additional CUE by relying OR TRANSMITTING a C&P error.  As with my CUE you seem to state that multiple CUE errors were committed by VARO adjudicator and one of these may stick or work for you.

It is good to claim more than one CUE error was committed (be all inclusive).  You of course must provide convincing arguments and facts to support each CUE contention as you seem to have done here. Go for broke and see what sticks on the wall as I did.  Worked for me but may not for others.

My comment is not legal advice as I am not a lawyer, paralegal or VSO.

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