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Help With Understanding Remanding From Appeals Back To Ro

appeals and remand

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#1 Mil T

 
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Posted 21 March 2012 - 05:34 PM

Hello,
I am a Vet advocate in my small town. I help as many as I can with their claims and following them along the process. I am not associated with any organization. We don't have any organized VSO's in our town so I try to take up the slack where I can.
I have an issue that I need to get some understanding of.

One of the Vets I'm helping has had claims in for several years and under appeal. When he came to me his claims were very convaluted and all had been denied because no one had helped him with the processes. He even had an attorney that advised him to file for agent orange but the vet is a blue water and was never qualified for agent orange. I was able to get most of it straightned out by dropping the agent orange presumptive illness claims that were never going to be awarded.
We turned in new evidence for the rest of the claims of PTSD, Hearing and tinnitus. Also unemployability because he has parkinsons and he is in a wheel chair due to his SC Knees that he was discharged from service for with a 0% award and asked to be reopened based on new evidence that I helped him acquire. We also asked to have the claims in appeals remanded back to the RO based on the new evidence. This was in October of 2011. We've been following this on E-benfits and never saw any changes. We visit the RO in Phoenix often and were told the claims were back in RO. Yesterday we visited again and this time the Service Officer finally went and got his file after seeing on his computor that all of his claims were still in appeal. When we inspected the file, the 4138 where we requested the remand of claims was there but there was never any action taken. The SO noted this and said he would take it up to appeals and make them aware of the 4138 request.
Today the Veteran was called by the appeals dept. and was told that if they remand the claims that his initiation date of all the claims would revert to todays date and all of his back pay would be lost.
Can someone clarify for me why that would happen? I've always been of the understanding per the VA website and on the e-benefits website that the appeals board should always automatically remand claims with new evidence back to the RO in the first place. I don't understand why he would loose his origional date for the filing of the claim. Some of the dates go back to 2007.
Any help would be appreciated.

#2 carlie

 
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Posted 21 March 2012 - 08:17 PM

Quick question,

I know you posted:
"He even had an attorney that advised him to file for agent orange but the vet is a blue water and was never qualified for agent orange. I was able to get most of it straightned out by dropping the agent orange presumptive illness claims that were never going to be awarded."

Many blue water vets are now eligible for SC under presumptive conditions.

My concern in this relates fairly strictly to his Parkinson's Disease.
By chance - just to be absolutely sure of this, has anyone checked out the alphabetical list and exposure locations and time frames - of 214 ships that blue water vets served on -

http://www.publichea...iplist/list.asp

Blue Water Veterans must have actually stepped foot on the land of Vietnam or served on its inland waterways anytime between January 9, 1962 and May 7, 1975 to be presumed to have been exposed to herbicides when claiming service-connection for diseases related to Agent Orange exposure.

Some offshore vessels docked to the shore of Vietnam, operated in Vietnam's close coastal waters and sent smaller vessels ashore, or conducted operations on the inland waterways of Vietnam.

Check VA's list of U.S. Navy and Coast Guard ships that operated in Vietnam.


Evidence confirmed through military records must show that the Veteran was aboard one of these ships.


Blue Water Veterans who did not set foot in Vietnam or serve aboard ships that operated on the inland waterways of Vietnam anytime between January 9, 1962 and May 7, 1975 must show on a factual basis that they were exposed to herbicides during military service in order to receive disability compensation for diseases related to Agent Orange exposure. These claims are decided on a case by case basis.



#3 Mil T

 
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Posted 21 March 2012 - 09:15 PM

Yes, we checked the list. He was on the USS Enterprise, a nuclear aircraft carrier and he never went ashore in Vietnam. Because of his diabetes II and the parkinson's the attorney just figured they should file it for AO not thinking that you actually had to prove you were exposed. The claim for AO was also made before the current list of ships were actually approved for AO. It was a crime that he went through all of the wasted time and frustration of 2 denials and a DRO hearing that was initiated by this attorney. He was on the flight deck as an aircraft launcher. He was the person closest to the plane to give the ok to launch the plane. He was exposed to some of the loudest noise exposure DB's in the military service with the F4's launching at full throttle and noise levels exceeding 150 DB's. No one advised him to turn this information in to support his claim and he was denied hearing loss and tinnitus. The parkinson's symptoms are there but the doctors have not said that it is definitly Parkinsons. The tremors don't resemble parkinson's. He is in the Wheel Chair because of his severe artheritis and the failure of his knees. His knees are SC yet he was never advised to file for an increase in award. He has an appointment for knee replacement evaluation and will probably be approved which means we will be able to file a 100% temporary unemployability while in healing process. The attorney also had put him in for IU but he did not meet any of the schedular requirments even though his doctors have confirmed that he is not able to have gainful employement and have said it on his medical progress notes. It is like the cart before the horse kind of thing. He needs to be awarded the necessary disabilities to meet the schedular requirments in order to have IU.
I just need to understand how remanding claims from appeals will make all of his retro dates go away and they start all over? Doesn't make any since to me.
I also will be in the same boat if that is true. I am 80% total with 70% ptsd and 20 for hearing and 10 for tinnitus. I was refused IU when I was awarded the increase for PTSD, so I went to Voc Rehab per the VA's recomendation in the award letter. I was told that I cannot achieve gainful employment due to my SC PTSD. So I used that letter form VR&E to remand my request of a hearing by DRO and appeal back to the RO based on the sufficient and material new evidence of the letter from VR&E. It was brought back to the RO level and is in the pending decision stage per my E-Benefits page. So now I'm thinking that instead of being a retro of April 2009 when I had origionally filled for the IU that it will be Aug 2010 when I asked to have it remanded for new evidence if this information is true about giving up the back dates for the origional claim due to remanding the claim from appeal to RO.

#4 carlie

 
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Posted 21 March 2012 - 10:02 PM

I have an issue that I need to get some understanding of.

One of the Vets I'm helping has had claims in for several years and under appeal.
When he came to me his claims were very convaluted and all had been denied because no one had helped him with the processes.
He even had an attorney that advised him to file for agent orange but the vet is a blue water and was never qualified for agent orange.
I was able to get most of it straightned out by dropping the agent orange presumptive illness claims that were never going to be awarded.
Did he ever actually contract with this attorney and get any VBA adjudication from their services ?

We turned in new evidence for the rest of the claims of PTSD, Hearing and tinnitus.
Also unemployability because he has parkinsons
and he is in a wheel chair due to his SC Knees that he was discharged from service for with a 0% award
and asked to be reopened based on new evidence that I helped him acquire.
Why were the claims for PTSD, Hearing and Tinnitus denied ?

So, is the claim for IU a new issue or has that also been denied in a prior decision?

By chance, does he fall under the income limitations for pension, if yes has a claim for pension
benefits ever been submitted or has VBA ever inferred the issue, if yes was there ever a decision adjudicated
for pension benefits ?

OK, he was discharged from service and was granted SC for "knees" at zero percent.
Had a request for increase in his "knees" condition been submitted, a rating decision denied the
request for increase in "knees" condition.
This denial became final and currently a request to reopen (based on new evidence) has been submitted
on the issue of increase in evaluation for the SC'd "knees"

We also asked to have the claims in appeals remanded back to the RO based on the new evidence.
This was in October of 2011.

Oh my goodness, I do not understand at all, asking the BVA "to have the claims in appeals remanded back to the RO
based on the new evidence".
Are you aware that you had the opportunity to submit the "new evidence" directly to the BVA along with a
Waiver Of VARO consideration?
This would have allowed the BVA to go ahead a make some decisions on the issue/s -
or remand for some other reason that has not yet even been considered, (but may end up waiting for
an additional remand down the road).

We've been following this on E-benfits and never saw any changes.
Ebenefits and the 800 # are infamous for providing inaccurate information/answers.

We visit the RO in Phoenix often and were told the claims were back in RO.
Yesterday we visited again and this time the Service Officer finally went and got his file after seeing on his computor
that all of his claims were still in appeal.

When we inspected the file, the 4138 where we requested the remand of claims was there
but there was never any action taken.
The SO noted this and said he would take it up to appeals and make them aware of the 4138 request.
From what you've posted so far I am guessing that the 21-4138 was the request to (remand),send the
issues under appeal back to the VARO, and the submission of the "new evidence".
Is this correct ?
If not correct, then on the 21-4138 - what exactly was requested ?
Had this vets claim file ever actually been physically transferred to the BVA's jurisdiction?
What action do you feel was to be taken in response to the 21-4138 ?

Today the Veteran was called by the appeals dept. and was told that if they remand the claims
that his initiation date of all the claims would revert to todays date and all of his back pay would be lost.
I would certainly ask what this statement is based on.

Can someone clarify for me why that would happen?

I've always been of the understanding per the VA website and on the e-benefits website that
the appeals board should always automatically remand claims with new evidence back to the RO in the first place.
Not at all.
This whole step can easily be negated by submitting the signed Waiver Of VARO Consideration.
This is FOR SURE the way I personally would have handled it, but maybe that's just me.

I don't understand why he would loose his origional date for the filing of the claim.
Some of the dates go back to 2007.

On any issues that have been under continuous prosecution and have had no failure on the part of
the claimant, to file the NOD's in a timely manner, I do not feel he would loose his earlier effective date/s.

The the 38 CFR and M21-1MR instruction is here:
http://www.benefits.va.gov/warms/M21_1MR1.asp

Scroll down to:
Chapter 5 - Appeals
Click on :
Section G

- Board of Veterans Appeals (BVA) Decisions and Remands




33. Reviewing and Processing Decisions
h. Determining effective date for a grant of benefits -

See 38 CFR 3.400
http://ecfr.gpoaccess.gov/cgi/t/text/text-idx?c=ecfr&sid=b35d85c535d0a340db47b3d2f7278e9a&rgn=div8&view=text&node=38:1.0.1.1.4.2.69.173&idno=38

#5 carlie

 
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Posted 21 March 2012 - 10:27 PM

Waiver Of RO Consideration :

Attached File  VA_Waiver_of_RO_Consideration (5).pdf   41.62KB   3 downloads


Here's more info on providing the BVA with the Waiver, which provides the BVA
with the authority to go ahead and rule with only their consideration of the "new" evidence,
thereby being able to bypass this time waster (in the majority of Appeals), at the RO level.

"In June 2011, the Veteran offered testimony on the claim for a TDIU during a Board hearing before the undersigned Veterans Law Judge at the RO; a transcript of that hearing is of record. In connection with the hearing, the Veteran submitted additional evidence, along with a waiver of RO consideration of the evidence. See 38 C.F.R. §§ 20.800, 20.1304 (2010).

During the June 2011 hearing, the Veteran requested, and the undersigned granted, a 30-day abeyance period for submission of additional evidence in support of the claim for a TDIU. In July 2011, the Veteran's representative submitted additional evidence in support of the claim. This evidence was also accompanied by a waiver of RO consideration. See 38 C.F.R. § 20.1304 (2010)."


http://www.va.gov/ve...es4/1137318.txt

#6 carlie

 
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Posted 21 March 2012 - 11:09 PM

If his "knees" are SC'd and he has TRK - he can get temporary 100%
under Convalescence (38CFR 4.30) for up to 13 months.

After that he should be scheduled for a re-examinination and I believe in most cases, it will drop to 30%.

#7 Mil T

 
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Posted 22 March 2012 - 03:01 PM

I have an issue that I need to get some understanding of.

One of the Vets I'm helping has had claims in for several years and under appeal.
When he came to me his claims were very convaluted and all had been denied because no one had helped him with the processes.
He even had an attorney that advised him to file for agent orange but the vet is a blue water and was never qualified for agent orange.
I was able to get most of it straightned out by dropping the agent orange presumptive illness claims that were never going to be awarded.
Did he ever actually contract with this attorney and get any VBA adjudication from their services ? Yes he did. When I heard what was taking place I recommended that he give up on the attorney as he was just not doing anything for him as you will see when I answer your other questions. He is in Arizona now which is why I am helping but he started in St. Louis which is where the attorney was at.

We turned in new evidence for the rest of the claims of PTSD, Hearing and tinnitus.
Also unemployability because he has parkinsons
and he is in a wheel chair due to his SC Knees that he was discharged from service for with a 0% award
and asked to be reopened based on new evidence that I helped him acquire.
Why were the claims for PTSD, Hearing and Tinnitus denied ? basically because there was never any evidence turned in. The vet was never advised by the attorney that he needed to or to go to the VA or Veteran Center to start some counceling.

So, is the claim for IU a new issue or has that also been denied in a prior decision? Denied and then take to DRO by the attorney which was also turned down because the Vet didn't have any schedular qualifications other than his knees that were 0%. The attorney kept argueing the AO arguement.

By chance, does he fall under the income limitations for pension, if yes has a claim for pension
benefits ever been submitted or has VBA ever inferred the issue, if yes was there ever a decision adjudicated
for pension benefits ? I looked at that as soon as I took over his case. He made to much money to qualify. All of his medical is being handled by VA with no co-pays. One of his doctors agreed that he was catastrophic and he was moved to priority 3.

OK, he was discharged from service and was granted SC for "knees" at zero percent.
Had a request for increase in his "knees" condition been submitted, a rating decision denied the
request for increase in "knees" condition. There was never an increase requested by the attorney or his first VSO. They kept going after the AO and presumptives. It wasn't until he came to me that I advised him and he accepted to drop the AO as he did not qualify and to go after increase in Knees, PTSD and the Hearing and tinnitus. All issues that he does qualify for and we have been able to turn in new evidence.
This denial became final and currently a request to reopen (based on new evidence) has been submitted
on the issue of increase in evaluation for the SC'd "knees" yes.

We also asked to have the claims in appeals remanded back to the RO based on the new evidence.
This was in October of 2011.

Oh my goodness, I do not understand at all, asking the BVA "to have the claims in appeals remanded back to the RO
based on the new evidence".
Are you aware that you had the opportunity to submit the "new evidence" directly to the BVA along with a
Waiver Of VARO consideration? I was not aware of that at the time. I was kind of going off of what the VA claims website and E-Benefits was saying that when new evidence is submitted that the BVA automatically sends the claim back to RO to let them have another look at it with the new evidence. When we would go to the VARO and talk to the Veteran service Rep he could not tell us where the claims were at. That was one of the reasons we asked for the claims to be remanded to the RO again because at least there we could follow the claim. The VSR also advised us to do that. I was not sure if it should have been that way but the VSR we have been going to is one of the supervisors and has been there a long time. He didn't understand why the BVA had not sent it back to RO either with the new evidence. This would have allowed the BVA to go ahead a make some decisions on the issue/s -
or remand for some other reason that has not yet even been considered, (but may end up waiting for
an additional remand down the road). I agree. One other problem was that the NEHMER cases where being done at that time and all the claims and appeals people in Phoenix VARO were working on those and nothing with regular claims and or appeals was being done. They finally got back into regualr claims in Nov 2011 sometime.

We've been following this on E-benfits and never saw any changes.
Ebenefits and the 800 # are infamous for providing inaccurate information/answers. I agree. The veteran is always looking at it and not seeing anything happening. Hince one of the reasons we go down to the RO when one of us or both of us go down for other reasons. We are approx 2 hours away and the RO is located close to the Phoenix Med Cntr so it isn't out of the way. I usually take others with me down to check their claims or go to doctor appointments. We try to kill seveal birds with one stone so to speak.

We visit the RO in Phoenix often and were told the claims were back in RO.
Yesterday we visited again and this time the Service Officer finally went and got his file after seeing on his computor
that all of his claims were still in appeal.

When we inspected the file, the 4138 where we requested the remand of claims was there
but there was never any action taken.
The SO noted this and said he would take it up to appeals and make them aware of the 4138 request.
From what you've posted so far I am guessing that the 21-4138 was the request to (remand),send the
issues under appeal back to the VARO, and the submission of the "new evidence".
Is this correct ? Correct
If not correct, then on the 21-4138 - what exactly was requested ?
Had this vets claim file ever actually been physically transferred to the BVA's jurisdiction? When you say BVA, are you talking the appeals dept at the Phoenix RO or to Washington? It was transferred to Phoenix and since the claims are still in appeals per our visit the other day when we learned that if they were remanded as we had requested last year, that his retro date would be lost and it would start as of the day they are transfered or remanded back to RO. The appeals dept. is still holding them at this time until we get this straightened out regarding the retro dates.
What action do you feel was to be taken in response to the 21-4138 ? That per the new sufficient and material evidence that the claims for PTSD, Hearing and Tinnitus should have been sent back to RO for their review and decision.

Today the Veteran was called by the appeals dept. and was told that if they remand the claims
that his initiation date of all the claims would revert to todays date and all of his back pay would be lost.
I would certainly ask what this statement is based on. Unfortunatly the veteran did not get the phone # or name of the person that called, so I will have to make a trip down, since we have an 0845 form allowing me to represent him, and try and get this sorted out. It brings up the question as to what regulation are they referring to?

Can someone clarify for me why that would happen?

I've always been of the understanding per the VA website and on the e-benefits website that
the appeals board should always automatically remand claims with new evidence back to the RO in the first place.
Not at all.
This whole step can easily be negated by submitting the signed Waiver Of VARO Consideration.
This is FOR SURE the way I personally would have handled it, but maybe that's just me. I guess I was naive to think that what it actually says on the website and also in the regulation is what would happen. I did finally become aware of the waiver but still thought that we didn't want to have it continue in appeals because we could not get a straight answer as to where the claims where at and also that we really thought with the new evidence that it would or should go back to the RO for review.

I don't understand why he would loose his origional date for the filing of the claim.
Some of the dates go back to 2007.

On any issues that have been under continuous prosecution and have had no failure on the part of
the claimant, to file the NOD's in a timely manner, I do not feel he would loose his earlier effective date/s. My thoughts also. Hince the reason it caught me by total surprise what the VA said.

The the 38 CFR and M21-1MR instruction is here:
http://www.benefits....ms/M21_1MR1.asp I will review. Thanks

Scroll down to:
Chapter 5 - Appeals
Click on :
Section G

- Board of Veterans Appeals (BVA) Decisions and Remands




33. Reviewing and Processing Decisions
h. Determining effective date for a grant of benefits -

See 38 CFR 3.400
http://ecfr.gpoacces....69.173&idno=38



#8 Mil T

 
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Posted 22 March 2012 - 03:12 PM

If his "knees" are SC'd and he has TRK - he can get temporary 100%
under Convalescence (38CFR 4.30) for up to 13 months.

After that he should be scheduled for a re-examinination and I believe in most cases, it will drop to 30%.

I'm sorry for my ignorance but what is TRK?
We did just learn that he could get 100% Temp for the Convalescence and will plan on doing that if he is to have the knee replacements. I have advised him to have one done at a time and that should turn into 26 months by which hopefully the rest of the claims issues will be completed.

Just got a call from the Vet.
The VA just called him. He was only able to get a first name as she said that she cannot give out a phone # or her last name.
She has given him the details of where everything is at. It sounds like they have transfered the claims to different locations. He will be coming over in a couple of hours so I can get the details and I will come back and let you know what he has shared with me.

By the way. Thank you so much for taking the time to help me out here. I consider myself pretty knowledgable in these matters but when something like this comes along then I consider myself pretty ignorant but I am willing to learn to not let it happen again to me. It is upsetting to know that no organization wants to place a trained VSO in our community or have them come up at least a couple of times a week. Our community is full of Veterans and there are many that are just now understanding that they are entitled to VA benefits for their service. Most of these vets are War time Vets as well. I have WWII, Korean, Cold war atomic vets and Vietnam. The younger ones don't seem to want to engage the VA or have decided to go down to the Vet Cntrs in the Phoenix area to get their help.

#9 carlie

 
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Posted 22 March 2012 - 03:51 PM

I'm sorry for my ignorance but what is TRK?
We did just learn that he could get 100% Temp for the Convalescence and will plan on doing that if he is to have the knee replacements. I have advised him to have one done at a time and that should turn into 26 months by which hopefully the rest of the claims issues will be completed.



Sorry - I should have posted TKR = Total Knee Replacement

#10 Mil T

 
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Posted 22 March 2012 - 06:24 PM

I just talked with the Vet. Someone by the name of Cheryl from Minneapalis called him and gave him dates of claims and where they have been sent to at this time.

HIs knees and hearing loss that was first denied in 2007 was sent to RO (I'm going to assume Phoenix) on May 7, 2011

The PTSD/Depression which was denied in May 2010 and NOD sent in May of 2010 was sent to RO Jan 2012.

The IU that was denied in 2008 and also Jan 2012 is at Phoenix, and an NOD was submitted in Feb 2012.

His April 2009 adaptive eq. Car Grant (attorney put this in) was denied and DRO hearing was done was sent to RO in 2011.

She also told him that all the claims are at the Washington DC management of Appeals.

Now mind you, yesterday he received the call from the Phoenix RO Appeals that if he remanded his appeals that he would loose his retro dates. We also viewed the file ourselves on Tuesday at the phoenix RO. So the quesion that is in my mind is why the Gal from Minneapalis is calling with this information and how could the claims be in Washington and we viewed them in Phoenix on Tuesday.

Oh and the gal from Minn says that his file is in the sensative area at this time. That's because he had an attorney working it but the VA has the letter from the Vet and the attorney telling them that the attorney is no longer handling the case. It's almost like we have been sending all this information for the past year and no one ever reads it or follows up with what we tell them or ask for.

Are you totally confused yet??

Mil T

#11 carlie

 
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Posted 22 March 2012 - 07:15 PM

I just talked with the Vet. Someone by the name of Cheryl from Minneapalis called him and gave him dates of claims and where they have been sent to at this time.

HIs knees and hearing loss that was first denied in 2007 was sent to RO (I'm going to assume Phoenix) on May 7, 2011

The PTSD/Depression which was denied in May 2010 and NOD sent in May of 2010 was sent to RO Jan 2012.

The IU that was denied in 2008 and also Jan 2012 is at Phoenix, and an NOD was submitted in Feb 2012.

His April 2009 adaptive eq. Car Grant (attorney put this in) was denied and DRO hearing was done was sent to RO in 2011.

She also told him that all the claims are at the Washington DC management of Appeals.

Now mind you, yesterday he received the call from the Phoenix RO Appeals that if he remanded his appeals that he would loose his retro dates. We also viewed the file ourselves on Tuesday at the phoenix RO. So the quesion that is in my mind is why the Gal from Minneapalis is calling with this information and how could the claims be in Washington and we viewed them in Phoenix on Tuesday.

Oh and the gal from Minn says that his file is in the sensative area at this time. That's because he had an attorney working it but the VA has the letter from the Vet and the attorney telling them that the attorney is no longer handling the case. It's almost like we have been sending all this information for the past year and no one ever reads it or follows up with what we tell them or ask for.

Are you totally confused yet??

Mil T



Something I have been a bit concerned with is that you post that you made a request for the BVA
to "remand" everything back to the VARO. I just don't feel that this would be a correct process as BVA
is the ones to determine if a "remand" needs to be done and there are even rules for this procedure,
I don't know if a rep or claimant can even actually request the BVA to remand.

I would contact the BVA Ombudsmans Office and see if they have physical custody of the claims file
and if so, find out exactly what issues are shown in the appeal, that are under their jurisdiction.

If they have physical custody of the file I would ask them to withdraw the request to send everything
back to the VARO.

I would tell them you are sending some new evidence to factor in during consideration,
directly to them along with a signed waiver of RO consideration.
I would also verify that you are the rep for the claimant - I believe you already did a 21-22a.
Be sure they DO NOT have that attorney listed as the rep.

Be sue to get the name of who you talk to and a contact or reply # to send the above info to.
JMHO


http://www.bva.va.go...omerService.asp


Our mailing address is:


Board of Veterans’ Appeals


810 Vermont Avenue, North West


Washington, DC 20420


For your convenience the Board of Veterans' Appeals has a FAX line. FAX: 1 202 343 1889


We may be reached by our phone number (202)-632-4623 Monday-Friday 9:00am-4:30pm (Eastern time zone).


For an Email status report on your claim before the Board of Veterans’ Appeals, please state your name, file number and request, click here BVAOmbudsman@mail.VA.Gov



#12 Mil T

 
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Posted 22 March 2012 - 10:38 PM

Something I have been a bit concerned with is that you post that you made a request for the BVA
to "remand" everything back to the VARO. I just don't feel that this would be a correct process as BVA
is the ones to determine if a "remand" needs to be done and there are even rules for this procedure,
I don't know if a rep or claimant can even actually request the BVA to remand.

I would contact the BVA Ombudsmans Office and see if they have physical custody of the claims file
and if so, find out exactly what issues are shown in the appeal, that are under their jurisdiction.

If they have physical custody of the file I would ask them to withdraw the request to send everything
back to the VARO. As said in earlier post that we physically saw the claims file ( 3 seperate folders) at the phoenix RO. the VA service representative went up stairs in the Appeals section and pulled them for us to see and for him to look at.

I would tell them you are sending some new evidence to factor in during consideration,
directly to them along with a signed waiver of RO consideration.
I would also verify that you are the rep for the claimant - I believe you already did a 21-22a.
Be sure they DO NOT have that attorney listed as the rep. We turned in a 21-085 authorizing me as a third party to have the private information disclosed to me. The 21-22A did not allow me to do that since I am not a formal Veteran Organization VSO or attorney. We were told that with the 21-22A that it would go to sensative filing. Well it seems that it is any way because they must think the Attorney is still handling it. Yes we have the letter that the attorney actually wrote and filed with the VA and the Vets file that he is no longer the representative.

Be sue to get the name of who you talk to and a contact or reply # to send the above info to.
JMHO. I will do that.


http://www.bva.va.go...omerService.asp



Our mailing address is:


Board of Veterans’ Appeals


810 Vermont Avenue, North West


Washington, DC 20420


For your convenience the Board of Veterans' Appeals has a FAX line. FAX: 1 202 343 1889


We may be reached by our phone number (202)-632-4623 Monday-Friday 9:00am-4:30pm (Eastern time zone).


For an Email status report on your claim before the Board of Veterans’ Appeals, please state your name, file number and request, click here BVAOmbudsman@mail.VA.Gov



Wording of 4138 turned into the Phoenix VARO on 10/11/2011: I would like to remand all of my claims in appeal status back to the Phoenix RO for adjudication based on the new evidence I have submitted over the past 6 months and doctor exams that were conducted for the claims. I wish to have the claims re-opened with the new evidence that I have submitted regarding PTSD, HEARING LOSS, TINNITUS, and MY SC KNEES.

Second request sent 11/7/2011 with small change in wording and also sent to Phoenix VARO: I am requesting that all of my claims in appeal status be moved back to the Phoenix RO for adjudication based on the new evidence I have submitted over the past 8 months and doctor exams that were conducted for those claims. I wish to have the claims re-opened with the new evidence that I have submitted regarding PTSD, HEARING LOSS, TINNITUS, and MY SC KNEES.

#13 deanbrt

 
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Posted 23 March 2012 - 08:54 AM

If new evidence has been submitted with a waiver of RO consideration it would be considered at BVA. They are going to be very thorough at BVA.

#14 carlie

 
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Posted 23 March 2012 - 11:50 AM

Posted Imagecarlie, on 22 March 2012 - 09:15 PM, said:

Something I have been a bit concerned with is that you post that you made a request for the BVA
to "remand" everything back to the VARO. I just don't feel that this would be a correct process as BVA
is the ones to determine if a "remand" needs to be done and there are even rules for this procedure,
I don't know if a rep or claimant can even actually request the BVA to remand.

I would contact the BVA Ombudsmans Office and see if they have physical custody of the claims file
and if so, find out exactly what issues are shown in the appeal, that are under their jurisdiction.

If they have physical custody of the file I would ask them to withdraw the request to send everything
back to the VARO.

As said in earlier post that we physically saw the claims file ( 3 seperate folders) at the phoenix RO. the VA service representative went up stairs in the Appeals section and pulled them for us to see and for him to look at.

Mil T - I would still call the BVA and ask these specific questions - regardless of seeing 3 separate folders at the RO.

I would tell them you are sending some new evidence to factor in during consideration,
directly to them along with a signed waiver of RO consideration.
I would also verify that you are the rep for the claimant - I believe you already did a 21-22a.
Be sure they DO NOT have that attorney listed as the rep.

We turned in a 21-085 authorizing me as a third party to have the private information disclosed to me. The 21-22A did not allow me to do that since I am not a formal Veteran Organization VSO or attorney. We were told that with the 21-22A that it would go to sensative filing. Well it seems that it is any way
because they must think the Attorney is still handling it. Yes we have the letter that the attorney actually wrote and filed with the VA and the Vets file that he is no longer the representative.

Mil T - I do not know where you are getting the above information from BUT,
if you want to be the recognized individual representative of this claimant - then a completed and signed 21-22a must be of record for both levels,
VARO and BVA.

The BVA has very specific rules regarding representatives and very specific rules in any change of representative and specific timelines in regards to this issue of representation.

IMO - you just having a copy of "the letter that the attorney
actually wrote and filed with the VA and the Vets file that he is no longer the representative" does not suffice in this discombobulated situation. I can easily see, even the basic issue of acknowledgment of representative, to be a reason for additional problem and remand back to to VARO again.

I would clarify with the BVA exactly WHO is the representative of record. If a 21-22a is not of record then you WILL NOT be the representative for this claimant.

The 21-22a also DOES PROVIDE AUTHORIZATION DISCLOSURE OF RECORDS !

http://www.veteranai...docs/21-22a.pdf

APPOINTMENT OF INDIVIDUAL AS CLAIMANT'S REPRESENTATIVE

RESPONDENT BURDEN: We need this information to recognize the individuals appointed by claimants to act on their behalf in the preparation, presentation, and prosecution of claims for
VA benefits (38 U.S.C. 5902, 5903, and 5904) and for those individuals to accept appointment. We will also use the information to verify consent for disclosure of VA records to the appointed
representative (38 U.S.C. 5701(b) and 7332) Title 38, United States Code, allows us to ask for this information


I, the claimant named in Item 2, hereby appoint the individual named in Item 7A as my representative to prepare,present, and prosecute my claims for any and all benefits from the Department of Veterans Affairs (VA) based on the service of the veteran named in Item 4. If the individual named in Item 7A is an accredited agent or attorney, the scope of representation provided before VA may be limited by the agent or attorney as indicated below in Item 15.

If the individual indicated in Item 7A is providing representation under 14.630, such representation is limited to a particular claim only. I authorize VA to release any and all of my records (other than as provided in Items
9 and 10) to that individual appointed as my representative, and if the individual in Item 7A is an accredited agent or attorney, this authorization includes the following individually named administrative employees of my representative:


A 21-085 ONLY PROVIDES AUTHORIZATION to disclose information to a third party -
A 21-085 DOES NOT PROVIDE AUTHORIZATION for you to represent the claimant.

Be sue to get the name of who you talk to and a contact or reply # to send the above info to.
JMHO. I will do that.

http://www.bva.va.go...omerService.asp


Our mailing address is:


Board of Veterans’ Appeals


810 Vermont Avenue, North West


Washington, DC 20420


For your convenience the Board of Veterans' Appeals has a FAX line. FAX: 1 202 343 1889


We may be reached by our phone number (202)-632-4623 Monday-Friday 9:00am-4:30pm (Eastern time zone).


For an Email status report on your claim before the Board of Veterans’ Appeals, please state your name, file number and request, click hereBVAOmbudsman@mail.VA.Gov


Wording of 4138 turned into the Phoenix VARO on 10/11/2011:
I would like to remand all of my claims in appeal status back to the Phoenix RO for adjudication based on the new evidence I have submitted over the past 6 months and doctor exams that were conducted for the claims.
I wish to have the claims re-opened with the new evidence that I have submitted regarding PTSD, HEARING LOSS, TINNITUS, and MY SC KNEES.

Second request sent 11/7/2011 with small change in wording and also sent to Phoenix VARO:
I am requesting that all of my claims in appeal status be moved back to the Phoenix RO for adjudication based on the new evidence I have submitted over the past 8 months and doctor exams that were conducted for those claims.
I wish to have the claims re-opened with the new evidence that I have submitted regarding PTSD, HEARING LOSS, TINNITUS, and MY SC KNEES.

Mil T - IMO - the submission of these 21-4138's above, is a huge FUBAR !

In everything you have posted so far - the claimant had filed various claims for several issues.
The issues were denied - a substantive appeal was filed and the claimants issues (claim) were transferred to the BVA's jurisdiction. I believe that you have chosen to use the wording "re-opened" by application of the following:
3.160 Status of claims.
(e)Reopened claim. Any application for a benefit received after final disallowance of an earlier claim, or any application based on additional evidence or a request for a personal hearing submitted more than 90 days following notification to the appellant of the certification of an appeal and transfer of applicable records to the Board of Veterans Appeals which was not considered by the Board in its decision and was referred to the agency of original jurisdiction for consideration as provided in §20.1304(b)(1) of this chapter.


Now to be truthful I am not familiar with this pathway to "re-open" claims/issues.
The circumstances I am familiar with to Reopen a claim/issues, is when
any decision has become final:

(d) Finally adjudicated claim. An application, formal or informal, which has been allowed or disallowed by the agency of original jurisdiction, the action having become final by the expiration of 1 year after the date of notice of an award or disallowance, or by denial on appellate review, whichever is the earlier. (See §§20.1103 and 20.1104 of this chapter.)

and the claimant/representative, request the claim/issues to be Reopened - based on the submission of NEW and MATERIAL EVIDENCE.

38 CFR - 3.156 New and material evidence.

(a) General. A claimant may reopen a finally adjudicated claim by submitting new and material evidence.
New evidence means existing evidence not previously submitted to agency decisionmakers.

Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim.
New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim.
(Authority: 38 U.S.C. 501, 5103A(f), 5108)

(b) Pending claim.
New and material evidence received prior to the expiration of the appeal period, or prior to the appellate decision if a timely appeal has been filed (including evidence received prior to an appellate decision and referred to the agency of original jurisdiction by the Board of Veterans Appeals without consideration in that decision in accordance with the provisions of §20.1304(b)(1) of this chapter), will be considered as having been filed in connection with the claim which was pending at the beginning of the appeal period.

(Authority: 38 U.S.C. 501)

This reg above regarding PENDING CLAIMS - is what I would cite in my attempt to maintain
the earlier effect date.

I believe the additional evidence will absolutely have to meet the definition in the regs for both
N&M inorder to accomplish this.

Can you post the most relevant portions - of the additional "new" evidence that has been submitted?

I hope some other chime in on this thread.

Edited by carlie, 23 March 2012 - 11:59 AM.
font size & spacing


#15 Mil T

 
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Posted 24 March 2012 - 06:21 PM

Carlie.

I do understand everything that you said in this response and agree with most with ? on some. I am taking the advise of the Veteran Service Rep that I see when I go to the RO. I always see the same one so I don't have to re-explain everything about a case to another VSR.

Regarding the 22A form. That is what I did at first. When I went down to check one time on this claim, I was told it was in the Sensative File section. I asked what and why it was in that. I was told that when claims are handled by attorneys that only privledged, cleared personel are allowed to handle the file. That if I wanted to ask questions or review the file that I would have to fill out a 0845 form so that as a third person I could do what I'm doing. So I did what they advised. My mistake. I did not understand why they were suggesting this as I did read and understand the 22A and saw no restrictions for a regular person to represent a Veteran with their claims. I will follow up with a 22A again and with the questions that you suggested.

The word remand was always a concern of mine as well. However I was of the understanding that when N&M evidence is submitted for a claim and the claim is in appeals that it would come back to the RO anyway. My thoughts, because it has taken so long for these claims and this Vet to get any resolution that bringing it back to the RO would initiate a faster decision than an appeal. As explained to myself and the Vet by the VSR that I use at the RO that a regular claim is approx. 12-18 months, an NOD with a DRO or the appeal section of the RO usually takes 18 to 36 months and a regular BVA appeal is 36 to 10+ years.
The previous attempts for these particular claims had all been denied, mainly by mishandling by Service Orgs VSO's and Attorney. I have been trying to get some since of these claims since I took over. I have a good handle so that the Vet and myself understand what has happened. The problem is never knowing, until this last visit, and that has been blown out of the water now, as to exactly where the claims are at. I will be calling the BVA OMBudsman Monday. I hope you can understand that when we get the RO service rep telling us in person to do what we have been doing and then the someone from the RO Appeals dept, calling the vet the next day with different information and then someone from Minnesota the next and giving all different information it is frustrating to say the least.

Regarding the point of filing the waiver. I'm a bit confused. The waiver is for the BVA to NOT have the N&M evidence remanded back to the RO for review and a decision made if appropriate. The N&M evidence that we have turned in are doctors reports showing PTSD diagnosed, Knees worsening, Stressor letters that were never written explaining the incidents that caused PTSD while in service aboard the Enterprise. Noise trauma proof and studies by the Navy that showed the Decibals of the job this Vet did and the ultimate damage it caused. Deck records to show the incidents actually took place that were described etc. Plus on going progress reports from Doctors.that continually show lack of improvement for this veterans claimed illnesses. We also have the C&P doctor exams and each of those doctors have said he is not capable of any fullfilling activites or gainful employment due to his illnesses. Non of this had been turned in until the Veteran came to me. I found a lot of infomation in the files that the Vet had received from the Attorney when he was let go. None of this information was ever turned in. One of the other things that happened and has been a questionable practice in my opinion was that when the Veteran left St. Louis, he requested, in writing, that his case be kept there for adjudication based on the DRO hearing that had just been done. The DRO hearing officer agreed and was working the claim when his supervisor came up to him and took the file and told him that he was not to work on it any longer and that he was sending it to Phoenix. This supervisor and the vets attorney were friends and when nothing was happening and the Vet released the attorney for service, all of this happened. The Veteran talked to the DRO that heard the case and recieved this information straight from him. We requested a copy of the hearing through the Phoenix RO and we received a letter from St. Louis that said the recording machine had malfunctioned and nothing was available. Go figure. So you can see that there has been some unconventional handling of this claim. Also at that time the Vet was still being reviewed for AO presumptives which I explained before he was not qualified for and he finally dropped.

I know this is a discombobulated situation. Thats the reason I am here in the first place. I have been pretty successful with many other claims etc. and representing other Veterans but his one came all messed up and has taken some time to try and get it sorted out but as you have read, it has been very difficult to get straight and accurate information from the VA.
Undoing the damage that people that are supposed to be in the know have done is difficult when it's an amature trying to straighten it up.

I do appreciate your help very much. Your disclaimer is pretty much the same as myself. I am not an export, or attorney or a trained VSO but I do this to help my fellow Veterans in a town that no one is available from any organization or the VA itself.

To show you how messed up it can get in this town for us veterans, I have been a member of a combat vet counceling group that meets every other Thursday for 5 years. The council came from the Mesa Vet Center 100 miles away. This past Dec. the coucelor from the vet center came in to the meeting and announced the Vet Center would not be sending anyone up to do counceling any longer and that was the last meeting. Needless to say everyone was pretty much shocked and for a predomanetly Vietnam Veteran group of Grunts, it did not set to well. We have completely felt abadoned. The group has approx 23 vets that participated. The Vet Center has said they are working on a solution but so far nothing has transpired. I don't have faith that anything will happen. We continue to meet because we are all close and know each others problems and are there to help each other when necessary. We have definitly come to learn that the VA is not our advocate but our advisary just like when we came home from war.






Posted Imagecarlie, on 22 March 2012 - 09:15 PM, said:

Something I have been a bit concerned with is that you post that you made a request for the BVA
to "remand" everything back to the VARO. I just don't feel that this would be a correct process as BVA
is the ones to determine if a "remand" needs to be done and there are even rules for this procedure,
I don't know if a rep or claimant can even actually request the BVA to remand.

I would contact the BVA Ombudsmans Office and see if they have physical custody of the claims file
and if so, find out exactly what issues are shown in the appeal, that are under their jurisdiction.

If they have physical custody of the file I would ask them to withdraw the request to send everything
back to the VARO.

As said in earlier post that we physically saw the claims file ( 3 seperate folders) at the phoenix RO. the VA service representative went up stairs in the Appeals section and pulled them for us to see and for him to look at.

Mil T - I would still call the BVA and ask these specific questions - regardless of seeing 3 separate folders at the RO.

I would tell them you are sending some new evidence to factor in during consideration,
directly to them along with a signed waiver of RO consideration.
I would also verify that you are the rep for the claimant - I believe you already did a 21-22a.
Be sure they DO NOT have that attorney listed as the rep.

We turned in a 21-085 authorizing me as a third party to have the private information disclosed to me. The 21-22A did not allow me to do that since I am not a formal Veteran Organization VSO or attorney. We were told that with the 21-22A that it would go to sensative filing. Well it seems that it is any way
because they must think the Attorney is still handling it. Yes we have the letter that the attorney actually wrote and filed with the VA and the Vets file that he is no longer the representative.

Mil T - I do not know where you are getting the above information from BUT,
if you want to be the recognized individual representative of this claimant - then a completed and signed 21-22a must be of record for both levels,
VARO and BVA.

The BVA has very specific rules regarding representatives and very specific rules in any change of representative and specific timelines in regards to this issue of representation.

IMO - you just having a copy of "the letter that the attorney
actually wrote and filed with the VA and the Vets file that he is no longer the representative" does not suffice in this discombobulated situation. I can easily see, even the basic issue of acknowledgment of representative, to be a reason for additional problem and remand back to to VARO again.

I would clarify with the BVA exactly WHO is the representative of record. If a 21-22a is not of record then you WILL NOT be the representative for this claimant.

The 21-22a also DOES PROVIDE AUTHORIZATION DISCLOSURE OF RECORDS !

http://www.veteranai...docs/21-22a.pdf

APPOINTMENT OF INDIVIDUAL AS CLAIMANT'S REPRESENTATIVE

RESPONDENT BURDEN: We need this information to recognize the individuals appointed by claimants to act on their behalf in the preparation, presentation, and prosecution of claims for
VA benefits (38 U.S.C. 5902, 5903, and 5904) and for those individuals to accept appointment. We will also use the information to verify consent for disclosure of VA records to the appointed
representative (38 U.S.C. 5701(b) and 7332) Title 38, United States Code, allows us to ask for this information


I, the claimant named in Item 2, hereby appoint the individual named in Item 7A as my representative to prepare,present, and prosecute my claims for any and all benefits from the Department of Veterans Affairs (VA) based on the service of the veteran named in Item 4. If the individual named in Item 7A is an accredited agent or attorney, the scope of representation provided before VA may be limited by the agent or attorney as indicated below in Item 15.

If the individual indicated in Item 7A is providing representation under 14.630, such representation is limited to a particular claim only. I authorize VA to release any and all of my records (other than as provided in Items
9 and 10) to that individual appointed as my representative, and if the individual in Item 7A is an accredited agent or attorney, this authorization includes the following individually named administrative employees of my representative:


A 21-085 ONLY PROVIDES AUTHORIZATION to disclose information to a third party -
A 21-085 DOES NOT PROVIDE AUTHORIZATION for you to represent the claimant.

Be sue to get the name of who you talk to and a contact or reply # to send the above info to.
JMHO. I will do that.

http://www.bva.va.go...omerService.asp



Our mailing address is:


Board of Veterans’ Appeals


810 Vermont Avenue, North West


Washington, DC 20420


For your convenience the Board of Veterans' Appeals has a FAX line. FAX: 1 202 343 1889


We may be reached by our phone number (202)-632-4623 Monday-Friday 9:00am-4:30pm (Eastern time zone).


For an Email status report on your claim before the Board of Veterans’ Appeals, please state your name, file number and request, click hereBVAOmbudsman@mail.VA.Gov


Wording of 4138 turned into the Phoenix VARO on 10/11/2011:
I would like to remand all of my claims in appeal status back to the Phoenix RO for adjudication based on the new evidence I have submitted over the past 6 months and doctor exams that were conducted for the claims.
I wish to have the claims re-opened with the new evidence that I have submitted regarding PTSD, HEARING LOSS, TINNITUS, and MY SC KNEES.

Second request sent 11/7/2011 with small change in wording and also sent to Phoenix VARO:
I am requesting that all of my claims in appeal status be moved back to the Phoenix RO for adjudication based on the new evidence I have submitted over the past 8 months and doctor exams that were conducted for those claims.
I wish to have the claims re-opened with the new evidence that I have submitted regarding PTSD, HEARING LOSS, TINNITUS, and MY SC KNEES.

Mil T - IMO - the submission of these 21-4138's above, is a huge FUBAR !

In everything you have posted so far - the claimant had filed various claims for several issues.
The issues were denied - a substantive appeal was filed and the claimants issues (claim) were transferred to the BVA's jurisdiction. I believe that you have chosen to use the wording "re-opened" by application of the following:
3.160 Status of claims.
(e)Reopened claim. Any application for a benefit received after final disallowance of an earlier claim, or any application based on additional evidence or a request for a personal hearing submitted more than 90 days following notification to the appellant of the certification of an appeal and transfer of applicable records to the Board of Veterans Appeals which was not considered by the Board in its decision and was referred to the agency of original jurisdiction for consideration as provided in §20.1304(b)(1) of this chapter.


Now to be truthful I am not familiar with this pathway to "re-open" claims/issues.
The circumstances I am familiar with to Reopen a claim/issues, is when
any decision has become final:

(d) Finally adjudicated claim. An application, formal or informal, which has been allowed or disallowed by the agency of original jurisdiction, the action having become final by the expiration of 1 year after the date of notice of an award or disallowance, or by denial on appellate review, whichever is the earlier. (See §§20.1103 and 20.1104 of this chapter.)

and the claimant/representative, request the claim/issues to be Reopened - based on the submission of NEW and MATERIAL EVIDENCE.

38 CFR - 3.156 New and material evidence.

(a) General. A claimant may reopen a finally adjudicated claim by submitting new and material evidence.
New evidence means existing evidence not previously submitted to agency decisionmakers.

Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim.
New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim.
(Authority: 38 U.S.C. 501, 5103A(f), 5108)

(b) Pending claim.
New and material evidence received prior to the expiration of the appeal period, or prior to the appellate decision if a timely appeal has been filed (including evidence received prior to an appellate decision and referred to the agency of original jurisdiction by the Board of Veterans Appeals without consideration in that decision in accordance with the provisions of §20.1304(b)(1) of this chapter), will be considered as having been filed in connection with the claim which was pending at the beginning of the appeal period.

(Authority: 38 U.S.C. 501)

This reg above regarding PENDING CLAIMS - is what I would cite in my attempt to maintain
the earlier effect date.

I believe the additional evidence will absolutely have to meet the definition in the regs for both
N&M inorder to accomplish this.

Can you post the most relevant portions - of the additional "new" evidence that has been submitted?

I hope some other chime in on this thread.



#16 Berta

 
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Posted 25 March 2012 - 09:37 AM

Carlie said: “Mil T - IMO - the submission of these 21-4138's above, is a huge FUBAR”

I sure agree.

A claimant can ask for a BVA remand but I DONT recommend it unless the claimant knows VA 101 in and out.

In my 2008 BVA remand, it states something to the effect that 'the widow requested BVA remand' and she is correct.

I was afraid the BVA could possibly gloss over major errors in the decision I appealed, one being a VCAA violation, so I made sure they remanded the claim. Otherwise, if BVA had not caught the errors and I didnt inform them, the claim would have taken even longer than it did.

The evidence you mentioned as 'new'-did you send it,under the vet's BVA docket number directly to the BVA?

GeezI just read this-

"She also told him that all the claims are at the Washington DC management of Appeals.

Now mind you, yesterday he received the call from the Phoenix RO Appeals that if he remanded his appeals that he would loose his retro dates. We also viewed the file ourselves on Tuesday at the phoenix RO. So the quesion th... ....)


I am lost already.

Does he actually have a BVA docket number ? "or is te apeal at the AMC????

Remanded appeals do not lose their retro dates.

Can this vet join hadit and give us more info?

#17 deanbrt

 
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Posted 25 March 2012 - 11:47 AM

The way it has been stated to me BVA does not like to get reversed at CAVC and you will have attorneys at BVA reviewing everything with that in mind. If you are denied at BVA and file at CAVC I can attest personally that once your docket number appears on their calendar you will have an army of lawyers contacting you since CAVC pays their expenses with any kind of remand (which was my case). Your docket number stays with you all the way through it.

This is the challenge I see. You have to sift through differing opinions as a veteran and make the decision that is right for you.

#18 carlie

 
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Posted 25 March 2012 - 01:37 PM

Carlie.

I do understand everything that you said in this response and agree with most with ? on some. I am taking the advise of the Veteran Service Rep that I see when I go to the RO. I always see the same one so I don't have to re-explain everything about a case to another VSR.

Regarding the 22A form. That is what I did at first. When I went down to check one time on this claim, I was told it was in the Sensative File section. I asked what and why it was in that. I was told that when claims are handled by attorneys that only privledged, cleared personel are allowed to handle the file. That if I wanted to ask questions or review the file that I would have to fill out a 0845 form so that as a third person I could do what I'm doing. So I did what they advised. My mistake. I did not understand why they were suggesting this as I did read and understand the 22A and saw no restrictions for a regular person to represent a Veteran with their claims. I will follow up with a 22A again and with the questions that you suggested.

Mil T -
Apparently this vet already had the attorney listed as their acknowledged representative by way of submitting
a 21-22a for the attorney to rep them. They don't allow for more than one rep of record, at a time.
Although this can be, for a law firm - or service organization that has several VSO's.
In other words - they are not going to allow both a lawyer and an individual to be acknowledged as the representative -
at the same time. This is why they wouldn't allow for your 21-22a while the lawyer was still the appointed rep.
In regards to Sensitive 7 - there are several reasons for a claim to be flagged as Sensitive 7, as you posted above
or it can even be that the claimant is a VA employee- but Sensitive 7 doesn't really have much bearing or impact
on a claim one way or the other.
The 21-22a, provides for records to be released to the appointee.
carlie

The word remand was always a concern of mine as well. However I was of the understanding that when N&M evidence is submitted for a claim and the claim is in appeals that it would come back to the RO anyway. My thoughts, because it has taken so long for these claims and this Vet to get any resolution that bringing it back to the RO would initiate a faster decision than an appeal. As explained to myself and the Vet by the VSR that I use at the RO that a regular claim is approx. 12-18 months, an NOD with a DRO or the appeal section of the RO usually takes 18 to 36 months and a regular BVA appeal is 36 to 10+ years.

Mil T -
I understand your thought process above - BUT - if the claims file was already transferred and under BVA's
jurisdiction - most of the waiting time has already passed. The Waiver, I feel would have bee the best route.
carlie


The previous attempts for these particular claims had all been denied, mainly by mishandling by Service Orgs VSO's and Attorney. I have been trying to get some since of these claims since I took over. I have a good handle so that the Vet and myself understand what has happened. The problem is never knowing, until this last visit, and that has been blown out of the water now, as to exactly where the claims are at. I will be calling the BVA OMBudsman Monday. I hope you can understand that when we get the RO service rep telling us in person to do what we have been doing and then the someone from the RO Appeals dept, calling the vet the next day with different information and then someone from Minnesota the next and giving all different information it is frustrating to say the least.
Mil T - I know this is very frustrating and sure doesn't seem at all fair to the vet . - carlie

Regarding the point of filing the waiver. I'm a bit confused. The waiver is for the BVA to NOT have the N&M evidence remanded back to the RO for review and a decision made if appropriate. Mil T - YES - this is correct. carlie

The N&M evidence that we have turned in are doctors reports showing PTSD diagnosed,
Mil T - good to at least have the PTSD diagnosis - but be sure the doc's (with the right pedigree in Mental Health)
also link the PTSD to the active duty stressor. It would also save time if the doc addressed current level
of disability due to PTSD, especially in regards of Occupational and Social functioning.
All of this is to be factored into the "Development" process of claims. - carlie

Knees worsening,
Mil T - you posted the "knees" are already SC'd, so this issues would be for an increase of SC'd evaluation percentage
of the "knees".
All that is needed for this is medical evidence showing, current medical findings as related to the criteria shown
in the Diagnostic Code (DC the vet is rated under for this disability) in 38 CFR - Part 4. - carlie

http://ecfr.gpoaccess.gov/cgi/t/text/text-idx?c=ecfr&sid=55d5280d2bae0fbc41825278506b7a74&tpl=/ecfrbrowse/Title38/38cfr4_main_02.tpl

Stressor letters that were never written explaining the incidents that caused PTSD while in service aboard the Enterprise.
Mil T -
This is what the VA would use to verify the stressor and the C&P examiner would use to
support the link to active duty with full medical rationale. Again, this is in the "Development" of the claims process.- carlie

Noise trauma proof and studies by the Navy that showed the Decibals of the job this Vet did and the ultimate damage it caused.
Mil T -
Same as above for the hearing loss and Tinnitus but needs to be done by licensed Audiologist.
Also, there is a list somewhere that lends/provides support for a grant of SC, for Hearing Loss and Tinnitus for
specific MOS job titles. - carlie


Deck records to show the incidents actually took place that were described etc.
Mil T - This goes with the Verifying Stressor & Mental Health & Development. - carlie

Plus on going progress reports from Doctors.that continually show lack of improvement for this veterans claimed illnesses.
We also have the C&P doctor exams and each of those doctors have said he is not capable of any fullfilling activites or gainful employment due to his illnesses.
Mil T - Since all of the issues involved, relate to claim's for Compensation versus Pension -
UNTIL THE ISSUES ARE ADJUDICATED AS SERVICE CONNECTED,
it point blank won't matter a rat's behind that "each of those doctors have said he is not capable of any fullfilling activites or gainful employment due to his illnesses".
The first step is getting SC granted.

Now - I will add that as a downstream issue -
if the medical issues are warranted to be SC, and VA adjudicates effective dates with
the application of staged staged ratings, to the medical evidence of record at the time of the various dates -
I feel that - if a claim for IU or a statement from the vet/rep, stating something to the effect of,
I feel that the disabilities/medical conditions I have, are related to/a result of my active duty service and these conditions
prevent me from being employed/ being able to hold employment -
then the statements above from the C&P doctor/s, will be supportive as an earlier effective date for IU -
IF IU were to be granted. As I posted - this would be a downstream issue.

Non of this had been turned in until the Veteran came to me. I found a lot of infomation in the files that the Vet had received from the Attorney when he was let go. None of this information was ever turned in.
Mil T -

It is clearly the position of the VA, that the ultimate responsibility of prosecuting claim issues, lays with the claimant.
It's also good to keep in mind (for your own well being) that this veteran currently feels he has pretty much
been screwed over / claims mishandled, not only by the VA - BUT ALSO by the Service Orgs / VSO's and the attorney.
One day (hopefully not) he might just add you to his list, if things don't turn out satisfactorily to him.
Who knows - perhaps he can have some recourse down the road regarding improper representation,
but I wouldn't count on this very much. - carlie

One of the other things that happened and has been a questionable practice in my opinion was that when the Veteran left St. Louis, he requested, in writing, that his case be kept there for adjudication based on the DRO hearing that had just been done. The DRO hearing officer agreed and was working the claim when his supervisor came up to him and took the file and told him that he was not to work on it any longer and that he was sending it to Phoenix. This supervisor and the vets attorney were friends and when nothing was happening and the Vet released the attorney for service, all of this happened. The Veteran talked to the DRO that heard the case and recieved this information straight from him. We requested a copy of the hearing through the Phoenix RO and we received a letter from St. Louis that said the recording machine had malfunctioned and nothing was available. Go figure. So you can see that there has been some unconventional handling of this claim. Also at that time the Vet was still being reviewed for AO presumptives which I explained before he was not qualified for and he finally dropped.
Mil T,
Whether the attorney and the supervisor were in co-hoots, is hard to prove, even if this was accomplished
it would also need to be shown that this was detrimental to the claimants issues.
What were the results of this DRO Hearing - a Rating Decision - a SOC or SSOC ?
I call BS on VA stating no transcripts on the DRO Hearing - without transcripts to go over -
I'd sure want to see what the results were from this Hearing and what those results were based on. - carlie

I know this is a discombobulated situation. Thats the reason I am here in the first place. I have been pretty successful with many other claims etc. and representing other Veterans but his one came all messed up and has taken some time to try and get it sorted out but as you have read, it has been very difficult to get straight and accurate information from the VA.
Undoing the damage that people that are supposed to be in the know have done is difficult when it's an amature trying to straighten it up.
Mil T -
Ask them to provide the information in writing. - carlie

I do appreciate your help very much. Your disclaimer is pretty much the same as myself. I am not an export, or attorney or a trained VSO but I do this to help my fellow Veterans in a town that no one is available from any organization or the VA itself.
Mil T - Remember getting SC granted is step # 1.
A claim (if needed) for earlier effective date/s can be supported by :
38 CFR - 3.156
(b) Pending claim.
New and material evidence received prior to the expiration of the appeal period, or prior to the appellate decision if a timely appeal has been filed (including evidence received prior to an appellate decision and referred to the agency of original jurisdiction by the Board of Veterans Appeals without consideration in that decision in accordance with the provisions of §20.1304(b)(1) of this chapter), will be considered as having been filed in connection with the claim which was pending at the beginning of the appeal period.

(Authority: 38 U.S.C. 501)


To show you how messed up it can get in this town for us veterans, I have been a member of a combat vet counceling group that meets every other Thursday for 5 years. The council came from the Mesa Vet Center 100 miles away. This past Dec. the coucelor from the vet center came in to the meeting and announced the Vet Center would not be sending anyone up to do counceling any longer and that was the last meeting. Needless to say everyone was pretty much shocked and for a predomanetly Vietnam Veteran group of Grunts, it did not set to well. We have completely felt abadoned. The group has approx 23 vets that participated. The Vet Center has said they are working on a solution but so far nothing has transpired. I don't have faith that anything will happen. We continue to meet because we are all close and know each others problems and are there to help each other when necessary. We have definitly come to learn that the VA is not our advocate but our advisary just like when we came home from war.
Mil T -
Here's some links for information that the VAMC / Vet Center MIGHT be able to implement to help your group. - carlie

VA Launches Telemed Pilot Project



http://www.informationweek.com/news/healthcare/mobile-wireless/231902871


The VA's Take on Telemedicine :

http://www.governing.com/topics/technology/VA-Telemedicine.html


VA's telehealth programs bring care closer to home

http://www.columbiatribune.com/news/2012/mar/24/vas-telehealth-programs-bring-care-closer-to-home/

Guide To Mental Health Services :
http://www.dmh.ca.gov/services_and_programs/VeteransResources/docs/Guide_to_VA_Mental_Health_Svcs.pdf



#19 Mil T

 
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Posted 26 March 2012 - 10:58 PM

I went to Phoenix RO today to discuss this Veterans case with the same rep I have always talked to and that knows this Veterans case completely.
He told me that he went up with the file after we left our meeting with him last Tuesday. He talked with the Appeals dept at the RO and they were the ones that advised that the word remand could not be used by the Veteran. But that what they were reading into it was that the Vet wanted his claim retracted from appeals and that would close the claims and a new one would be started with the new evidence which would stop the original dates of the claims in appeal and the new claims would start new dates. That made since to me so now I understand how that can happen. The VA rep advised them that this was not the original intent and that all we were trying to do is to have a re-evaluation of the evidence for the claims with the new evidence. So the appeals person is the one that called the Vet and let him know this and that they would not send it back or close the appeals claims and that they would continue it in appeals. They were protecting the Vets original dates of claims which we do appreciate. So that was cleared up.
The other part is that the claims have not been sent to the BVA. They are still in the appeals dept. of the RO. Now that confused me because I was of the understanding that there is only one appeals dept. Apparently not and I was made clear of that today. It's like there are 2 depts. The RO appeals process which is triggered by the NOD and DRO's and review of new evidence etc. Then a decision is completed one way or the other in the RO appeals dept. When a decision is made and If you disagree with that decision then you have the right to send it to the BVA where the docket # etc. is established and the long process starts of appeal in the Washington arena of the BVA.
So right now his files are in Phoenix RO. There is no Docket # and all is being handled in Phoenix.
Whoever called from Minnesota named Cheryl does not show up on the Vets online file so whoever called and gave all the confusing information and saying it was being handled through the Washington Appeals Management cntr just totally confused the Vet with bad information.
We are in good shape for now and will continue with waiting and monitoring.
The attorney is not representative of record. I am, with the origional 21-22A form that was filled out the same time he fired the attorney.

Now here's the kicker. While I was waiting to see the va rep to discuss this issue, I got a phone call from the Veteran. He was at an Ortho appointment in Prescott VA med cntr that was set up by his VA GP for his knees. The Vet has been told that he was a candidate for knee replacement for his 0% SC knees which is why he was discharged for in 1972 from the Navy. Documented by VA doctors that his knees suffer from severe deg arth. The Vet carried all the other doctor's C&P exam notes and other progress notes and diagnosis to this ortho doctor for the appointment. This doctor told the Vet that the problem with his knees was caused by his Parkinson's. The Vet had to call me to tell me he almost blew it. He could not believe what this doctor had just told him and then excused himself from the appointment telling the doctor he was nuts. I could not believe what he told me. I'm telling you that if this vet didn't have bad luck he wouldn't have any luck at all, which for him may be a better alternative.
I advised the Vet to talk to the Ortho Dept Head and tell him what was said and also his GP in order to get a 2nd opinion.

At least I was able to set his mind at ease about his claims.
and that he was not going to loose his original dates for the claims. I told the VA rep what had happened and he also was as confused and dumb founded as I was to hear what the ortho doctor said. Go figure.

So with all of this dialogue, I have been educated more and I do appreciate the time you have spent with me on this. I hope that by some degree that someone else may benefit from this dialog as well
Thank you Carlise for your help.


Mil T.

#20 Berta

 
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Posted 28 March 2012 - 06:22 AM

I am planning to do a SVR radio show via hadit next week on the BVA with Jerrel Cook and John Basser.Please try to listen in or access the show when it is archived.It might help you understand the appeal process a little better. Actuallt the SVR show tonight is with Mike Harris and that might be all the info you need.


The BVA only has jurisdiction of a claim when an I-9 has been filed. The claimant gets a letter acknowledging when the file and records have been formally transferred to the BVA.


A vet or survivor could have multiple issues,on appeal with one or more at the BVA, while others are still at the RO.


I know you are trying hard to help this vet and this can be a VERY confusuing process so dont take this personally-what I say- because I commend you for the help you are providing the veteran.and Carlie has certainly explained a lot here to you already.




“So right now his files are in Phoenix RO. There is no Docket # and all is being handled in Phoenix.”
GOOD.
“Whoever called from Minnesota named Cheryl does not show up on the Vets online file so whoever called and gave all the confusing information and saying it was being handled through the Washington Appeals Management cntr just totally confused the Vet with bad information.”

The AMC probably sent it off to the Phoenix RO. AMC is useless in my opinion.


I used to handle local claims , some as volunteer for my vet rep. A lot gets lost in the translation when too many people try to get info out of the VA and try to interpret, as second hand knowledge,what the VA said when they were called for a status.
It is better to use IRIS -the VA "Contacvt Us" link, and get a hard copy response.


This concerns me:


“This doctor told the Vet that the problem with his knees was caused by his Parkinson's “


Does this vet have a formal Parkinson's disease diagnosis?


Is he an incountry Vietnam Vet?
Has he filed for Parkinsons under the 3 new AO presumptives?


“I advised the Vet to talk to the Ortho Dept Head and tell him what was said and also his GP in order to get a 2nd opinion.” Great- but I hope that works.....
That is a good point to raise on appeal if needed, to get another C & P exam.


But -was this statement from a formal C & P exam as to the knees and Parkinsons? Do you have a copy of the actual Exam results?


Carlie helped you a lot here and you stated:

“I hope that by some degree that someone else may benefit from this dialog as well “


They will -I am sure. Please keep us informed of this vet's situation.