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Appeal On Presumptive List Now


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13 replies to this topic

#1 vetinpa

 
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Posted 22 April 2011 - 01:12 PM

I have two issues that were filed over 5 years ago, they were denied, I did the letter notice of disagreement on time. I have since had a different claim decided about one month ago by local office, it was approved, however these two claims from 5 years ago is still laying in limbo. The items in these old claims have been put on a persian gulf presumptive list.

Since they are now on the presumptive list, do they have to go through the appeals process or can the local regional office make a reverse decision on the claim, if so, how does one go about it? or does it have to go through the VBA?

When I call to discuss them, they have the excuse of the recently decided claim as the hold up, however, these two were 3-4 years old and should have been to the BVA well before this recently decided claim was even filed.

What are my options to get these two claims moving, they even said in my recent granted claim that they were not addressing these two issues in the decision. These two claims are still at the local regional office.

Thanks

Edited by vetinpa, 22 April 2011 - 01:21 PM.


#2 john999

 
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Posted 22 April 2011 - 01:14 PM

If they are on presumptive list the only question should be degree of disability. Do you have a VSO? The RO should be able to rate these issues.

#3 vetinpa

 
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Posted 22 April 2011 - 08:41 PM

Yes I have an RO, I will have to call them and see what they can find out for me. Thanks for the answer.

#4 pete992

 
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Posted 22 April 2011 - 09:45 PM

Since they are now on the presumptive list, do they have to go through the appeals process or can the local regional office make a reverse decision on the claim, if so, how does one go about it? or does it have to go through the VBA?

The local VARO may force this claim to go to BVA (Appeals Board) because they may not want to pay the retro payment.

#5 Berta

 
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Posted 23 April 2011 - 05:57 AM

Do you mean you claimed disabilities that are on the newest GWV presumptive lists?

http://www.hadit.com...tive-illnesses/

Larry's post has the press release and I did a SVR radio show on these conditions available in the SVR archives here.

Or you mean the original GWV presumptive list-

I agree with John -if these are documented disabilities on either GWV presumptive list the RO should be able to rate them.

But John mentioned a VSO - who might be able to find out what is really going on.

#6 vetinpa

 
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Posted 23 April 2011 - 08:11 PM

I filed two claims before the presumptive list came out, the local office denied both claims, so these issues were never decided, put on the back burner to be sent to the VBA.

After the presumptive list came out, one of them was in the claim that the DAV filed on my behalf, however, the local office did not and stated that they did not address the issue. Or the other one that the DAV did not list.

Can the VARO be forced to review and issue since it is on the presumptive list, can it be pulled from the BVA list, since it has not left the local office yet anyway?

#7 vetinpa

 
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Posted 31 October 2011 - 08:24 AM

I got another denial from the local regional office, my stuff is now at the BVA, RO stated that although evidence is compelling, blah, blah, blah, they still denied it. Now it has a 2008 docket number at the BVA, says on ebenefits that it is with a veteran law judge, but the status line folks say it is not? Not sure who is correct there. I was at the VA hospital about two weeks ago, both the physcians I see stated that I should file an unemployability claim, My response is I wanted to see if the BVA gives me a favorable decision. Does the BVA take a different approach to presumptives?

#8 jbasser

 
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Posted 31 October 2011 - 08:35 AM

Actually they do. The BVA actually certifies the file and reads your claim folder. Also Legal precedence sets in. Now the bad thing is that the BVA for some odd and unforseen reason doesnt like to make decisions and awards at that level but it loves to remand the claims back to the RO for adjudication and opinion consistancy, most likely the same RO that denied in the first place.
The only positive here is the fact that the claim is to be afforded expeditious treatment once it gets a remand.


It is still better to have the BVA decide.

J

#9 vetinpa

 
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Posted 31 October 2011 - 11:15 AM

Thanks J,

What do you mean? if the bva sends it back to the RO for remand, couldn't the RO still deny it? Can you please elaborate? I am not understanding??

I just check ebenefits again, now it says that my case is with my VSO, Your case has been received at BVA and is currently with your Veterans Service Organization (VSO) representative for purposes of preparing written argument in support of your appeal. If you have questions about your case contact your VSO. Maybe this will help right?

Edited by vetinpa, 31 October 2011 - 11:35 AM.


#10 jbasser

 
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Posted 31 October 2011 - 01:29 PM

The can deny it but it is often more of a reconciliation of an opinion. If the RO makes a mistake the BVA likes to make the RO fix it. The RO hates this as this gives them a black eye and goes gainst their performance appraisals.

J

#11 vetinpa

 
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Posted 31 October 2011 - 01:55 PM

So if they do end up sending back to the same ro and that ro denies you again, can you appeal again? I have va doctors putting there oppinion in that it is service connected and has been for a long time and this ro will not approve the claim. Guess I will have to wait and see, I have to say it is moving through the BVA process pretty quickly, it has only been there since 10/11/11 and it was with the VLJ, now it back tracked back to VSO, it has a 2008 docket number and they are working on 2009, so it should not take long. hopefully.

#12 carlie

 
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Posted 31 October 2011 - 03:23 PM

I got another denial from the local regional office, my stuff is now at the BVA, RO stated that although evidence is compelling, blah, blah, blah, they still denied it.


If you can post all of and exactly what is stated in the Reasons and Bases Sections
of the denial - then others can help more.
The blah,blah,blah, doesn't help provide any information.
JMHO

#13 vetinpa

 
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Posted 31 October 2011 - 07:00 PM

Sorry Carlie, I will put the main stuff in here, it is really long.

There are two issues, first one is acquired psychiatric disorder, reason for denial...
The statements provided by you, private statements from 3 people, I don't want to put their names here, all of these statements address their views of your actions and mental state upon return to the US. There are no statements indicating correspondence or any other communication of your reported incidents during your deployment as they occurred at the time. The VA examination conducted in june 2010 indicates diagnoses of ptsd, ocd and mdd. The examiner stated he believes you were the victim of military sexual trauma that involved an event out of your control.

The evidence is compelling, however, a type of evidence wihich is not sufficient is after-the-fact psychiatric analysis. After-the-fact psychiatric analysis refers to cases where an examiner documents the existence of a stressor based on the veterans reported history of the event without credible supporting evidience to verify the veterans report. The reported history, alone, is insufficient to establish a noncombat stressful event occurred.

The second issue is gynecological condition to include a hysterectomy. Menstraul conditions are on the presumptive list for persian gulf. They do not a complaint of bleeding in service medical records in May 1991.
Reason for denial.... Your service treatment records do not indication a chronic gynecological condition that has been related to subsequent hysterectomy in 2006, some 14 years following your active service.

On this one, they acknowledge bleeding issues, but do not connect it. Bleeding was the reason for the hysterectomy. On the presumptive list for gulf war they do not define the menstraul condition, and it also states a huge window to claim conditions.

Hope this sheds more light.

#14 vetinpa

 
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Posted 13 December 2011 - 01:18 PM

Currently with the VLJ's Council, what ever that means, does anyone know????

Sorry Carlie, I will put the main stuff in here, it is really long.

There are two issues, first one is acquired psychiatric disorder, reason for denial...
The statements provided by you, private statements from 3 people, I don't want to put their names here, all of these statements address their views of your actions and mental state upon return to the US. There are no statements indicating correspondence or any other communication of your reported incidents during your deployment as they occurred at the time. The VA examination conducted in june 2010 indicates diagnoses of ptsd, ocd and mdd. The examiner stated he believes you were the victim of military sexual trauma that involved an event out of your control.

The evidence is compelling, however, a type of evidence wihich is not sufficient is after-the-fact psychiatric analysis. After-the-fact psychiatric analysis refers to cases where an examiner documents the existence of a stressor based on the veterans reported history of the event without credible supporting evidience to verify the veterans report. The reported history, alone, is insufficient to establish a noncombat stressful event occurred.

The second issue is gynecological condition to include a hysterectomy. Menstraul conditions are on the presumptive list for persian gulf. They do not a complaint of bleeding in service medical records in May 1991.
Reason for denial.... Your service treatment records do not indication a chronic gynecological condition that has been related to subsequent hysterectomy in 2006, some 14 years following your active service.

On this one, they acknowledge bleeding issues, but do not connect it. Bleeding was the reason for the hysterectomy. On the presumptive list for gulf war they do not define the menstraul condition, and it also states a huge window to claim conditions.

Hope this sheds more light.
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