ALS Survivor Bens Denied

[JR in OK]

Hello all,

I'm about to start the "journey" of an appeal and need advice.

My wife of nearly 19 years passed away due to ALS at age 44. This is supposed to be a "rubber stamp" situation for survivor benefits but somehow I was denied due to magically being "divorced". The application said husband, the death cert said husband, there was no divorce, etc... I can guess a few reasons for this situation but when I talked to two VA reps, neither of them saw any evidence of a "divorce" and told me to appeal. So, I'm starting that process...

I do plan on an appeal but I'm unsure which type. I'm also considering notifying my Congressman about this because this is a big deal and someone dropped the ball, had a bad day or it's standard operating procedure to deny for budgeting. I tend to be nice but I lost my mind when I read the letter just a week after the VA chaplain sent their letter. It's just stupidity...

So, those that have gone through this type of thing, what would you do?

Quick edit: We used the PVA but they're not as helpful and are just as dumbfounded as myself. Due to this situation, I have to do the paperwork.

Edited September 8, 2023 by JR in OK

[broncovet]

Many times, the documents are very old.   We are not certain whether our (older records) have all been scanned in or not.  

I do think fewer documents seem to disappear now, but, all it takes is "one" supervisor who is "not so Veteran friendly" to delete documents.  

Hundreds and hundreds of my documents are missing.  Some of those probably can not be recovered.  

The solution is to keep a copy of your own records, and keep it permanently "in your control" not in the VA control.  You can give VA access to these, but its in our own best interest to keep electronic or paper records of everything.  Im convinced that "thousands..maybe tens of thousands..of Veterans, especially Vietnam Era or older, are missing key evidence" some of which may never be recoverable.  

Newer Vets, have a better chance than we do.  They likely had all electronic records to begin with.  At least some of my scanned in records are illegible, or incomplete.  While most of this is moot for me (NOW! It wasnt moot when I applied in 2002!) there are still Veterans being denied for lack of evidence..I have not seen any plans to eliminate 38 CFR 3.156 "because there was no need..the records are always there".  

We really have no idea "how long" shredding occurred.  In 2008, the VARO gave Veterans 18 month window.  to submit a "special handling request due to mishandled evidence".  I submitted a special handling request, and that document is no longer a part of my record.  I wonder what happened to that?  Remember, this was submitted "after" shreddergate 2008".  

The 18 month window for the "special handling request" is arbritrary and capricious.  There is no real evidence that mishandling documents was limited to the 18 month period from April 2007 to Oct. 2008.   But this is the only period where VEts got this special handling.  I was informed that "I was not entilted" to special handling because some of the evidence I resubmitted "was outside of the 18 month window" mandated by VASEC in 2008.  

Again, its moot for me, but Im not sure its moot for all Veterans who were shreddergate victims.  

Even today, I hear of Vets with missing records.  Of course, Im not privvy to what goes on inside the VA.  But I do know the VA has an incentive to remove some records, else why would they have found Vets evidence in the shred bin that was good evidence the Vet needed.  And this is not one incident..its many Veterans over at least a half dozen VARO's but other VARO's were not checked by the VAOIG.  

I appreciate thoroughly Broken spoke's insightful knowledge, and, Im sure progress has been made on that fron t.  But its hard to undo what was likely decades of shredding.  The Oct. 2008 incident was not the first, and is unlikely the last.  

At least one or two VA employees were caught with laptops outside of VA with Vets information, and one or more times those laptops disappeared, and we dont even know who or how long they have hackers or others have had access.  

In the "court world" both the prosecutor and the defendent have their own records, and I cant imagine a defendandant "giving control of those records" to prosecution.  Or, I cant imagine the prosecution handing over the records to the defendandt..and tell him..."Please take good care of these records...There is evidence to convict you in there so dont lose those records, OK?"  

Its a conflict of interest for VA to have exclusive control over the records.  Its justified because the VA says they are a "pro claimant benefit benevolent VA", when this is not how we view it at all.   Most of us who have benefits, have gotten them only after a long fight with Va to get them, including/especially me.  

[broncovet]

Welcome to hadit.  

   There are at least 2 ways for you to proceed here.   I cant recommend involving a congressman, its unlikely to be productive but will waste time doing one, or both, of these:

1.  File an appeal.  You may even be able to do an HLR, as it seems to be an obvious error if VA thinks you were divorced but were not.  Interestingly, VA tried to reduce my benefits twice, both of which they accused me of being divorced!  I sent them a letter, along with a statement by my wife, that we have been married continiously since 2006.  Since your wife is no longer with us, your son or daughter, or other person who knew you were not divorced should suffice as evidence.  

2.  File a request for revision of decision due to Clear Unmistakable Error. (CUE). A Cue has to be "undebatable" and, whether or not you were married should not be up for debate.  

A former member, Berta posted an example of how to file CUE (a cue template)

 

[JR in OK]

Very helpful, thank you.

I'm so tired of the drama in my life that I'm in the mindset of "gonna burn it all down", which is why I mentioned a congressional situation. I'm normally a laid back guy but between the VA, the cemetery and caregiver drama I'm just done being nice...

Thanks again.

[broncovet]

My advice is, as mentioned above the following:

1.  File a CUE, using the template posted above.  

2.  "If" VARO "does not respond" and address this mistake "to YOUR satisfaction" within about 50 weeks of the decision (2 weeks before 1 year from date of this decision), then file an appeal.  

      VA can pull bs, like "just not addressing the CUE", and, you figure its coming and dont appeal within a year.  Its "easy peasy" for VARO to delay you for a year, then deny the cue and its too late for you to appeal.  Do not let VA pull this shennanigan, its happened before.  This is why you could/should file BOTH the CUE and a regular appeal.  

      Its an obvious error, assuming your post was consistent with your file (and, trust me that is not always the case, VA has a magic force where evidence magically disappears which would/does result in an award.  Its just easier for them. to lose, or shred a doucment, and just deny it.  

      In Oct. 2008, the VA was caught shredding Vets evidence in multiple VARO's, by the VAOIG.  We called it shreddergate.    VA promised "to put controls in place so it does not happen again", however, several occassions after "the October incident" I found evidence in my files missing, and other Vets reported, also, that Va "never" fixed shreddergate.  

     Va has a "financial interest" in losing your documents, and can not be trusted to care for your documents.  Its been proven over and over.  

     It has, however, somewhat improved as "Janesville" makes an electronic copy of each piece of paper submitted.  This said, its possible to also delete electronic records, too.  

[JR in OK]

I've already experienced the "we lost it" situation with the first application, so I'm not shocked to hear about the shredding issues. After talking with the reps, they have all the paperwork and application and even they can't figure out why it was denied like it was. Just stupidity...

I'll probably file the CUE then an appeal a few weeks later to to prove the point and drive it home.

[brokensoldier244th]

Here's what I know of the process now.

Almost all paper files are at NARA (National Archives). If we need something we tell them and they scan it and send it, there are hardly any situations anymore where paper is used for anything. Even veterans who served in WWII, etc. don't have paper files anymore that don't exist in a secure facility or satellite of the National Archives. 

I've never printed, nor touched paper once in the 3.5 years I have worked for VA- at the office it just doesn't happen. Anything that would be printed is being printed from an electronic document. I saw that twice in 2 yrs,  and it is collected and destroyed at the end of each day. At home (remote) we don't have access to print anything or save anything on our computer for printing later, the capability is locked down and not enabled by Administrative IT policies.

When you guys submit stuff through VA.Gov it's already electronic, and anything mailed to Janestown is scanned daily and appears in its respective file usually within 24 hours. We get a notification that incoming mail was barcode scanned at Janestown before it shows up in your file, and we get a notification that the document is pending scanning at the top of your file when we open it for something so we know to hold the file and 'wait' for something, or follow up with Janestown if it doesn't appear. 

The only people who have the ability to delete records are at the middle to upper leadership level, so, pretty much nobody below a Team supervisor or above in an RO can even request the process if we notify them that there is PII/PHI in a file that shouldn't be there unless they go through an Asst Director. I usually make an electronic copy and move it to the appropriate veteran's file, and then request the deletion of the original information that shouldn't be in there. I have to record the veteran's information (what file it was found in and where it should be) and then make a note of the alphanumeric document ID's of every document involved- those are something 15 characters long and generated at random when something is uploaded or scanned in. 

I'm aware of the stuff in 2008, and the VHA thing in AZ in the later 2000s, so I won't say everything is hunky dory, but the ability to pull some of that stuff that was being done 15 yrs ago is almost non-existent now because paper files don't exist at RO's. Document control has multiple layers, and everything that is emailed back and forth is either encrypted or you get a serious nastygram the first time from IT Sec, usually within the same day- sometimes within the same hour or two. The 2nd time it's an administrative intervention of some kind, and if it happens after that you are out the door.