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Va Made In Cue In Granting Service Connection For Als

65 posts in this topic

Posted

SORRY everyone -Yes you are right Philip- I meant 90 days and I do feel Title 10 ADSW supports his position.

But if not that is why I raised the issue of possible direct SC.

The VA may have CUEed him on awarding under the wrong rule, presumption, rather than direct SC or vice versa."

Yes-=quite possible!

"Stopping the sever is the immediate problem and the hearing must be applied for prior to the 30 day allowance."

YES to that too!!!!!!

If I find something at BVA on Title 10 that will help-=I will post-

I am not familiar at all with title 10.

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Posted

Stopping the sever is the immediate problem and the hearing must be applied for prior to the 30 day allowance.

They must do that today and fax a copy to the VA, immediately!!!! Prove the Title 10 and they win!!!

pr

Ditto on pr's post above.

I would also contact the reporter from the PostStar, that did the recent articles on

Charles Cooley - "Collecting benefits is a losing battle for some veterans"

Reporter : Will Doolittle - will@poststar.com

JMHO

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Posted

Yup, thanks Berta!! I'm not familiar w/Title 10, either, but I think even one day under that may qualify him, at least that's one of the theories I'd use. As long as they have the proof I feel they'll win but they've gotta stop the severance, now and the hearing is the only way I see to do it, assuming someone at the VA has some smarts. Duh!!! jmo

pr

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Posted

Hi All, I may have found something. His 4 months that he was put on active duty after boot camp, and before he got his full time job with the Guard, may be "ADSW" (Active Duty for Special Work) under Title 10. Any comments? I know not everything will show up on his DD 214. Any ideas where I go from here. My service Officer(VFW) is not a lot of help, but I am talking with one from Vegas(PVA) who is really good. Only problem Vegas is 8 hrs away. Can't talk with him till Thursday, and my local guy is out till next Monday!!

'CALS', you posted you have your husband's DD214

MY older DD214, shows Item # 22. Statement of Service" b. "total active service".

With the limited info you have posted here, and with your due date to NOD or request a hearing being less than 3 days from now.

I agree with all here, who suggest you respond to the VA, ASAP... Even if it's registered mailed, return receipt requested.

Please keep us posted,

Bob

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Posted

Thanks all! It doesn't show up on his DD-214 or his Guard release form, so we are going to try and contact someone in Phoenix to see if there are more records. He was granted under the Presumptive clause. What we need to find out is : What was he working under from Feb 1983 to May or June of 1983(when he got hired full time for the Guard) He received his E-1 pay during this time. He was told by the AG that he was being put on Active Duty, was paid a Federal check, and was doing NO training. When he got out of Boot camp, his MOS training was not scheduled until 8 months down the road, he had no job, so the AG told him he had no job at the time for him, but had special funding to do landscaping and maintenance around the base. If it wasn't ADSW or ADT(active duty for training) what was it? It was some kind of Active Duty. And how can I prove it is ADSW if it isn't in his records. This was almost 30 yrs ago that all this took place. I SO appreciate all of you!! HUGS Lori

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Posted

Cals - I need to correct some previous answers I gave you. According to the VBM, the VA must give you 60 days to submit evidence disputing the proposed reduction/severance and after that 60 day period ends, they must give you another 60 days before the reduction/severance can begin. So, if my computations are correct you will receive the last payment on Oct 1st.

pr

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Posted

The AG's office should have the records.

pr

Thanks all! It doesn't show up on his DD-214 or his Guard release form, so we are going to try and contact someone in Phoenix to see if there are more records. He was granted under the Presumptive clause. What we need to find out is : What was he working under from Feb 1983 to May or June of 1983(when he got hired full time for the Guard) He received his E-1 pay during this time. He was told by the AG that he was being put on Active Duty, was paid a Federal check, and was doing NO training. When he got out of Boot camp, his MOS training was not scheduled until 8 months down the road, he had no job, so the AG told him he had no job at the time for him, but had special funding to do landscaping and maintenance around the base. If it wasn't ADSW or ADT(active duty for training) what was it? It was some kind of Active Duty. And how can I prove it is ADSW if it isn't in his records. This was almost 30 yrs ago that all this took place. I SO appreciate all of you!! HUGS Lori

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Posted

I know about the 30 days to request hearing.

Hi Cals,

You originally posted that you had 30 days from May 25th to respond. Was that deadline contained in the notice you received from the VA?

Best wishes

C.B.

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Posted

Per NVLSP ( 2010 Edition page 380 VBM ) there is only a 30 day window in which to request a "predetermination" hearing -that is-within 30 days of the date of the notice of the proposed action.

This delays the implementation of reduction of benefits until after the hearing if the decision cannot be reversed.

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Posted

Berta and everyone - I think we have been looking at this wrong. This is a case where the VA is proposing to sever SC, based on a CUE. I believe we need to look at VBM 2010, pages 382, 383 & 384.

CALS - we need to see the actual notice you've received, which you haven't posted, yet.

pr

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Posted

All of the relevant info is here and she needs to submit a request for a hearing now !

At this point I don't know enough about Title 10 and his time considered AD

to even guess if it's a CUE or not - but hopefully !

http://www.benefits....ms/M21_1MR1.asp

Chapter 2 - Due Process

Table of Contents

Section A - General Information on Due Process

Section B - Notice of Proposed Adverse Action

Section C - Adverse Action Proposal Period

Section D - Contemporaneous Notice

Section E - Exhibits

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Posted

carlie - the CUE, at present, is supposedly the VA's and, as such, there are evidentuary(sp) standards/rules they must follow. We need to see her notice and the accompanying(sp) evidence, before commenting any further on this. Otherwise it's just speculation, on our part. jmo

pr

All of the relevant info is here and she needs to submit a request for a hearing now !

At this point I don't know enough about Title 10 and his time considered AD

to even guess if it's a CUE or not - but hopefully !

http://www.benefits....ms/M21_1MR1.asp

Chapter 2 - Due Process

Table of Contents

Section A - General Information on Due Process

Section B - Notice of Proposed Adverse Action

Section C - Adverse Action Proposal Period

Section D - Contemporaneous Notice

Section E - Exhibits

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Posted

carlie - the CUE, at present, is supposedly the VA's and, as such, there are evidentuary(sp) standards/rules they must follow. We need to see her notice and the accompanying(sp) evidence, before commenting any further on this. Otherwise it's just speculation, on our part. jmo

pr

pr,

I think w also need to see what I had posted earlier.

"CALS,Is it possible for you to scan and post the Reasons and Bases Section of the 2009 Rating Decision

that granted SC ?

If you're able to do it - be sure to redact the personal info such as name, SSA/VBA claim number,

address, etc.. "

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Posted

carlie - I agree and we still haven't seen any of it. So at this point, it's been a lot of "speculation" on our part and I won't comment anymore, w/o seeing some documents, first.

pr

pr,

I think w also need to see what I had posted earlier.

"CALS,Is it possible for you to scan and post the Reasons and Bases Section of the 2009 Rating Decision

that granted SC ?

If you're able to do it - be sure to redact the personal info such as name, SSA/VBA claim number,

address, etc.. "

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Posted

Can't scan, but will type. This is from we got it raised from 30% to 100% plus SMC's:

"The records reflect that you are a veteran of Peacetime. You served in the Army from Oct 25, 1983 to Jan 30, 1984.

We grant service connection for a disability that began in military service or was caused by some event or experience in service. The records in this case have been reviewed and the issues considered under the provisions of VCCA (Public Law 106-475). We have determined that all indicated development has been undertaken and all reasonable efforts to assist you in pursuing your claim has been exhausted. The evidence of record is shown to be sufficient to render a sound decision on the merits of this case. The following decisions have been made based on a review of all evidence listed." Then it list the service connections for ALS and loss of feet ect.

Under the "What we decided" part it says:

"We decided the following conditions were related to your military service, so service connection has been granted:" Then it lists ALS and loss of feet ect.

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Posted

CALS - would you please post the letter proposing to sever, quoting any evidence and "reasons and bases" quoted?? Also need the part where 30% was awarded clarified?? Thanks!

pr

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ALS is automaticly awarded at 30%(although it is going to be raised to 100% soon) and we immediately put in for an increase, and increase was granted 7 days later. We also put in for an increase and had a C&P in Feb 2010, which was not granted. We put in for another increase in Feb 2011, it was granted, but they proposed to deem my husband incompetent. We put in a NOD on the incompetency, and they deemed him competent, and in the same letter informed of they made a CUE.

Here is what the letter states:

You are considered competent for VA purposes.

A clear and unmistakable error is found in the grant of service connection for Amytrophic Lateral Sclerosis (ALS) therefore severance of service connection is proposed.

Important Information

A clear and unmistakable error is found in the rating decision dated Sept 28, 2009, which granted service connection for ALS therefore severance of service connection is proposed. There is no record of ALS occurring during active duty service nor a diagnosis within one year of discharge from active duty.

The ratings decision dated 9 28 09 committed a clear and unmistakable in granting service connection for ALS on a presumptive basis since the record does not show that the veteran has active, continuous service of 90 days or more nor is service connected for a separate disability on either a direct or aggravated basis.

Your DD214 shows you served from 10/25/83, to 1/30/84, and were released from Active Duty for Training(ADT) upon completion of your MOS training. It also notes prior active duty for 2 months and seventeen days.

The record does not show service connection has been granted for a separate disability on either a direct or aggravated basis nor that you served on active duty under Title 10 or 32.

SO:

The time frame we think he had ADSW is from Feb 1983 to June 1983. He worked at the Base, turned in a time sheet each week to the custodian of records, and was told he was on Active duty by the AG, and was getting paid from a special fund.He was paid at his E 1 rate and received a Federal check. In about June of 1983, he got a full time job on the shooting range and got a significant raise in pay. Then in Oct 83 he went to his MOS training. On his DD214 it shows "Total Prior Inactive Service" line e as 8 mos 15 days, which covers the time from release from boot camp to going to his MOS. Could this 8 months have really been inactive service?

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CALS - as I see it, you'll either need to prove AD under Title 10, for the 90 day requirement or show that he had ALS symptoms, to a 10% level on active duty for training or within a yr of discharge. I can't see any other way around it. To me the Title 10 would be the best otherwise, otherwise as I see it, you don't have a chance. I suggest you start looking for work and saving wherever you can. Sorry! jmo

pr

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If the request for hearing is going to be made-

I guess it should be requested in a letter in person at the VARO for the time/date stamp- or otherwise I might have a working fax number for this VARO.

Math isn't my strong suit but I think you have only until tomorrow to request the hearing.

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Thanks for all the help on this matter. We are going to try and get his time sheets and records for the time we hope is ADSW, although it is very unlikely. We are not asking for a hearing on the advise of our VSO, since doing so will subject us to over payments, and once they make a ruling, the payments stop immediately. Our VA works real fast(from the time we filed original claim till first check was 3 wks) and the wording in our paperwork says we will get at least 3 more payments with no over payment. The amount we are losing is staggering. $500,000. I am grateful for the benefits we have received, however, taking them away at this point in my husbands disease is so hard. If we had never received any benefits we would not be facing the decisions we are facing today. After long and painful discussions, my husband had made the decision to continue his fight against this horrible disease by getting a trache and vent. He has an appt for surgery consult on this on July 17. He has already beaten the odds by living with ALS for 4 years, and he made the decision to continue the fight. Now, with no VA benefits, he can not get a trache and vent, and has to face the facts that he will most likely die before his 47th Birthday. He feels he has let his family down, and the depression that he has now is heartbreaking. I will fight this until the day I die, unfortunately, I will have to fight it without my husband. HUGS Lori

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Thanks for all the help on this matter. We are going to try and get his time sheets and records for the time we hope is ADSW, although it is very unlikely. We are not asking for a hearing on the advise of our VSO, since doing so will subject us to over payments, and once they make a ruling, the payments stop immediately. Our VA works real fast(from the time we filed original claim till first check was 3 wks) and the wording in our paperwork says we will get at least 3 more payments with no over payment. The amount we are losing is staggering. $500,000. I am grateful for the benefits we have received, however, taking them away at this point in my husbands disease is so hard. If we had never received any benefits we would not be facing the decisions we are facing today. After long and painful discussions, my husband had made the decision to continue his fight against this horrible disease by getting a trache and vent. He has an appt for surgery consult on this on July 17. He has already beaten the odds by living with ALS for 4 years, and he made the decision to continue the fight. Now, with no VA benefits, he can not get a trache and vent, and has to face the facts that he will most likely die before his 47th Birthday. He feels he has let his family down, and the depression that he has now is heartbreaking. I will fight this until the day I die, unfortunately, I will have to fight it without my husband. HUGS Lori

CALS,

Personally, I think it's a mistake to not have requested the hearing in a timely fashion

without that I see no chance at all in keeping any benefits.

It sounds like that when/if the benefits remain severed the family will pretty much be financially destitute

so any overpayment wouldn't matter - as they say - you can't get blood out of a turnip.

Also, there is always the strong possibility of getting any overpayment waived.

If you had requested the hearing, no matter what VARO you are with, due to Nehmer claims process going

on right now, I doubt the hearing would have been scheduled immediately.

If it is found to be correct, that there really was never any entitlement to benefits to begin with,

then I don't understand how you see it as "losing a staggering. $500,000."

Another way I see this is, if your husband had not been receiving these benefits, it sounds like he wouldn't

have been able to do as well as he has during this time and the family would have had to face the decisions

of today, at a much earlier date.

I am at loss to be able to understand that - yes he has decided to get the trache and vent and has an appointment for

a surgical consult on July 17, but then you followed with "Now with no VA benefits he can not get a trache and vent,"

Is the July 17 consult with a VAMC ?

You had asked in an earlier post something (para-phrasing here) that he wore the uniform each day and worked

along right with the active duty personel that get the benefit and that he should also.

One difference is that at any given moment the active duty personel can be sent anywhere without question

and the same was not true for your husband. The regular military members are pretty much the property of the

DOD whether it be Army, Navy, Marines - whichever branch, but the Army National Guard people are not.

Of course there are many more differences than this, but this is not really relevant in trying to help your husband's

situation.

No matter what, this is a horrible situation for your family and I do send my best wishes.

Is there an ALS Society or Foundation that can provide any help ?

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We have lived and planned our lives after his diagnosis with ALS with the knowledge that we would be receiving VA benefits. We would have planned differently if we had no VA benefits. Our VSO officer advised us NOT to file for a hearing. Our consult is with the VAMC for his trache, however, 24/7 care is required with a trache and vent, and I will have to return to work in order for our family to survive, therefore I can not give him 24/7 care. The R1 allowance would have allowed us to hire attendants for him, which is the only reason we requested an increase. No single person can provide 24/7 care for a person on a trache and vent. And you are right, my husband would already be dead if it wasn't for the VA benefits. Now , because they are taking away his benefits, he will die SOON. We had hope, now we have nothing. Carlie, please watch some of the links I will post about ALS, and put yourself in my shoes. We are continuing to fight in the hope of a cure. The "WE" will now become just "ME", because my husband will die in the next 6 months without VA care. I will fight for him until the day I die.

http://www.cmt.com/videos/ty-herndon/603383/journey-on.jhtml

If this was happening to your loved one, would you just say, Oh Well, and give up??

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CALS - that's your decision. Listening to your VSO is probably the biggest mistake you'll ever make. You can still pursue the appeal, tho. So you "might" have to pay some money back. Wouldn't having your husband survive longer have been worth it??? jmo As you can probably tell I have little, if any, use for VSO's. Most are in the VA's pocket, anyway.

I feel what your statement "The "WE" will now become just "ME", because my husband will die in the next 6 months without VA care. I will fight for him until the day I die" really means is that you will fight for your death benefits (DIC) because if you really were fighting for him you'd have had the hearing and "maybe lost" and "maybe" had to pay back the funds. Sorry if I sound callus and uncaring but it's just how "I" feel. Besides I get a little irritated when . . . never mind.

I wish you the best for you, him and your family! I'm signing off on this topic.

pr

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I found this ALS support group, while looking for additional options.

http://www.alsforums.com/forum/archive/index.php

My most positive thoughts,

C.B.

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