Exceptions and Appeals

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VA Disability - Step 7: Filing A Court Appeal

This step-by step guide will walk you through the process of a VA Disability claim. This step will explain how to file an appeal on your claim's denial.

It's not you, it's the VA...

Jim,

I am wondering if you have any knowledge on what you think the outcome might be on my husband's C&P for an increase.

 My husband had a C&P on Dec 11th 2014 for an increase and the doctor put down that he was exaggerating and that is so far from the truth.

In fact he is suicidal and is being watched very closely by his mental health doctor. He has seen 3 other mental health doctors and not one of them thought he was lying.  So my question is do you think now the rater will reduce him from his 50% or take in to consideration the other doctors.

This has set my husband off and does not want to continue with any care at the V.A. he is insulted and feels that this doctor didn’t know him but called him a liar.

 

Reply:

 

First up: He should try to get over anything said by a VA doctor. This isn't about him, it's just typical of how VA treats us all. Getting angry doesn't help. Leaving the VA system won't hurt the VA system...it will only hurt him.

What he should do is to get an independent medical opinion from a civilian. That will trump anything a VA doctor says. You see, rather than getting angry we have to get smart.

I'd like for you to contact Dr. Brett Vallete here http://www.veteranspsychevaluations.com/Veteran_Evaluations.htm

Ask him about a review of your husband’s medical and mental health history. Once that's done you'll have all you need to tell VA how things really are. This is a great investment for your future.

Where is the VA accountability?

Waiting on appeal to be finalized. Appeal assign date May 13, 2014 with there completion time within 291 days. Now call center for Winstons Salems Regional Office wants additional 300 days in the decision review office process. Why are there no accountability? Need a advocate that has accessibility to the review officer checking monthly on my behalf. Winston Salems Regional Office do not follow there own est. completion time. Who is working in my behalf?

 

Reply:

The VA has been in the headlines across America for the last year or so. One leading problem that is reported on frequently is the lack of timeliness for responses or claims decisions by VA. In a recent Congressional hearing, a VA representative alluded to the backlog of claims and appeals that have been caused by numerous VA inefficiencies.

 

Many appeals are taking 2 or more years to adjudicate. Even though VA may offer a figure like 291 days, they aren't committed to that and usually can't get an appeal resolved in a reasonably timely fashion.

 

There isn't any reason for an advocate to check the status of a claim on a monthly basis. That wouldn't be productive for anyone. If you're confident that VA has all the forms and evidence necessary to make a decision on the claim or appeal, there's nothing to be done but to wait.

 

In reference to needing an advocate, we recommend that every veteran who is in any appeal of a denied claim should be represented by a veterans law attorney. The VA appeals process is notoriously adversarial and if you appeal a denied claim without attorney representation, you may be disappointed in the outcome.

 

VA processes most claims in the order they are received. There isn't any way to have your claim expedited or otherwise given any sort of priority in processing. That wouldn't be fair to other veterans who are waiting.

 

The VA remains a badly broken agency. The best thing a veteran can do today is to first submit a well prepared claim or to appeal with an attorney at your side and then to wait patiently.

 

/S/ Jim

The VA fumbled, they should pay up

Jim,

I have an appeal for a heart condition that was filed in 2011 to raise my rating from 60 to 100.  While waiting on VA I was granted 100% P and T Schedular on a totally separate claim I filed in 2013.  VA obviously dated the 100% rating from the 2013 date.  After about a month or so VA suddenly sent me a SOC on my appeal for the older issue that was pending since 2012 which is when I filed the appeal and NOD.

My question to you is should I continue my appeal on the older claim?

Basically all it would do is move the 100% rating back to the 2011 date which would be about 2 years of retro pay if granted.  Or should I just drop the older claim not wanting to rock the boat?  I'm concerned also that even though VA has granted P & T and no future exams scheduled that they will suddenly try reducing my ratings anyway because I'm appealing the older issue.  My VSO says to still keep the appeal because there's always a 50/50 chance the judge will side with me and it's also the principle that it's the correct rating for that claim.  What advice do you have Jim?

 

Reply:

 

I agree with your VSO. Frankly, I can't imagine that even VA would try to lower an existing rating under these circumstances. It sounds as if they fumbled the ball and the record should be corrected. I think we agree that the money isn't the important thing...it won't be a fortune. But you earned it and VA should graciously settle up.

Why is the Board of Veterans' Appeals mailing my decision to my regional office?

Dear Jim,

 

Just saw on e- benefits my BVA appeal in Washington has made a decision on my claim and are mailing to the following---me ,my rep,and back down to RO.

Why back to RO,from what I have read this means I possibly won after all these years?

Any opinions on this.

 

Reply:

 

When BVA sends a claim back to the RO it's often called a "remand".

There are any number of reasons that BVA could remand your claim back to the RO. The usual reason is that you won service connection that had been denied and now the RO has to determine a rating %. The BVA can determine service connection but they can't assign a rating %. The RO would then schedule you for another C & P to determine the rating.

 

BVA may have determined that the RO didn't do all they should have earlier. The BVA may order the RO to do a more thorough C & P exam or to collect more records and then make another decision based on that new evidence.

 

The bottom line is that the BVA has a dozen or more ways to send a file back to the RO for rework. You may be on the way to getting the benefits you seek, you may be staring at 5 more years of paperwork.

You won't know until you see your letter.

 

Just curious...why aren't you asking your "rep" these questions?

 

Did you know that I'm recommending that every BVA claim be handled by a veteran’s law attorney...not a "rep"? I know that these VSO people are free...but you get what you pay for, don't you?

 

https://www.vawatchdog.org/how-to-hire-a-veterans-law-attorney.html

Jim explains the importance of completing paperwork

Dear Jim,

My father was discharged from the Army in the early 70's, he was given a piece of paper that stated he a hearing loss. He went to the VA in La Jolla 2or3 yrs later and was told learn to read lips.
After I got out of the Navy I was awarded 100% for PTSD, he put in a claim for a hearing loss. Well during his C&P they only did a physical, he was denied for not having a Maryland CNC Exam.
We move to Tampa, FL in mid 2013 and is trying to get it done again & is getting the run around.
How does he get the proper exam's needed?? We both go to the James A. Haley VA.....any help would be greatly appreciated in this matter.

Thanks!

 

Reply:

 

You mention that your father has filed a claim in the past for hearing loss. It seems he was denied because of an inadequate C & P exam. The C & P exam should have included the standardized audiology testing required by VA.

That's an oversight on the part of the VA. Once he received the denial letter he had one year to appeal that denial. If he didn't formally appeal during the one year period after denial, the claim is considered to be permanently adjudicated and it's closed.

It sounds as if he's now using health care services in West Florida. That's fine but he still has to file a formal claim for hearing loss. Talking with health care providers won't do the trick. Until a formal claim is filed, nothing will happen.

Once a formal claim for hearing loss if filed, he should be scheduled for an audiology exam at the VA facility closest to him that conducts these exams. That is all a part of the process after a claim has been filed. He doesn't have to do anything to schedule the exam.

Once the exam is completed, he has nothing else to do other than to wait. It is taking VA 6 to 18 months to process claims. There is no way to speed that up.

This will be a new claim. Please click https://www.vawatchdog.org/how-to-file-a-claim.html

 

To learn more about veterans and hearing loss, please click https://www.vawatchdog.org/hearing-loss---tinnitus.html  

How to deal with a Clear and Unmistakeable Error in 2015

Happy New Year Jim,

I was diagnosed with prostate cancer in August, 2013. Since I am a Vietnam Nam veteran and served on a brown water ship, the USS Krishna, I filed a claim with the VA in September 2013 for exposure to Agent Orange. At first, the VA said that I had not been in VN. After proving through DD214 and  copy of my original orders, they said that they did not have proof that the ship I was on was in an area that was exposed to Agent Orange, even though my ship was listed as one of those on the presumptive list for Agent Orange exposure. Finally, they denied my claim and gave me a 0% rating.

My urologist and I decided to go the "watchful waiting" route and I was prescribed Finasteride for three months to shrink the prostate. I am still on "watchful waiting" and see the doctor every three months for a PSA test and a DRE, as well as a possible biopsy every year. The VA's reasoning for my denial was that I had undergone androgen deprivation treatment for taking Finasteride and had no residuals. My research on Finasteride indicates that it really is not a treatment for prostate cancer, but a treatment to shrink the prostate. The cancer still exists even after taking the Finasteride. I understand that based on the diagnosis, a 100% rating is demanded and that rating continues until a treatment is completed. Am I correct and what should be my next step? Should I just ask for reconsideration and provide information regarding medical experts opinions on Finasteride as not being a true treatment for prostate cancer? Thanks for any assistance you can provide.

Reply:

There is no such thing as reconsideration. Although the term is used a lot on the Internet and by "experts", it doesn't exist.

You should formally appeal. That means to file a NOD and then state your case.

As it happens, I agree with you. I see this all the time...VA tries to interpret watchful waiting as some sort of magic cure if you're given any of the prostate size reducing medicines.

If you got a 0% rating for prostate cancer, the claim was not denied. It was approved as service connected at a 0% disabled rating. I know this makes no sense at all but it's a constant state at the VA...they pull this all the time. Finasteride is absolutely not a treatment for cancer, it's a treatment for BPH.

So, your nest step is to mail a NOD. Use this form http://www.vba.va.gov/pubs/forms/VBA-21-0958-ARE.pdf

In the NOD tell VA what you told me. If you can get a statement from the urologist that you have had cancer continually since the date of diagnosis, that would help a lot.

Get the NOD into the mail. Mail it using ONLY certified mail, RRR. Don't deliver it any other way. Then wait patiently.

keep me posted as to when VA responds, please.

Jim

Am I submitting the right paperwork? My Rep said I needed more...

Jim,

Back in 2012 I hurt my back overseas i was hospitalized and on quarters for one week. I came back to California and my back was never the same i started with discomfort so i saw my own doctors i never had an MRI just paper work staying "lower back pain"  at the beginning of 2013 i filed with va and went through a C&P i just got rated two months ago 09/14  i was awarded 10% for sciatica on each leg and 20% for intervertebral disk syndrome. My pain so bad i had to quit my job a month ago I was also given an MRI something i should of done at after my injury but the va would not pay for it ended up paying for it the MRI concluded that i have 4 bulging disks. I am in so much pain and i feel my health starting to go down the drain do to this  back injury i recently reopened my back claim and submitted my MRI and more medical paper showing i am getting worse i have done all my paper work and filing by myself i was told by a American legion vet that my MRI  isn’t enough evidence i am so appalled if it wasn’t for that MRI i would not know what has been wrong all these years now i have to wait and get reevaluated for a higher rating i cant believe my MRI and my paperwork of my weekly doc visits isn’t enough not to mention i had to resign my job due to my back getting worse which i have a paper letter to my employer stating my decision to leave due to them sending me to their docs for my back pain. Which the va should been responsible 4 i know some people mention that VSO, and other reps help but they can be discouraging. how can i go about my case?

 

Reply:

 

You're doing all the right things. The VSO is wrong. The MRI report and all the other evidence you tell me that what you're submitting is plenty.

I've published a page on all this here

https://www.vawatchdog.org/how-to-increase-an-existing-benefit--.html

Having said that, your claim may still be denied. The VA is currently denying about 1/2 of all claims even if they're very well grounded.

There's nothing you can do but to wait and see what happens.

If your claim doesn't come back to you with what you deserve, you will have to formally appeal. I suggest that you retain a veteran’s law attorney to handle that. This won't cost you anything out of pocket.

Click https://www.vawatchdog.org/how-to-hire-a-veterans-law-attorney.html

http://statesidelegal.org/statesidemap

You can speak with a lawyer today and get to know someone ahead of time, just in case. Any of the lawyers featured on that page will be happy to take some time and talk with you.

One of the very best things you can do is to get an IMO done. The VA quacks who examine you aren't specialists. The IMO doctors who I work with are disability specialists and can write up a report that really addresses what's happening to you. These IMO reports are often what will make the difference between a win and a loss.

 

Click https://www.vawatchdog.org/imo-ime-medical-opinions-exams.html

 

I hope this helps...good luck.

Does the VA consider other medical records during a C&P exam?

Jim,

Questions: Once a C&P examination is order by the regional office Veteran Service Representative, can the examiner request information from the veteran's private doctor?  Is there an official form that a veteran uses to "refute" the report that a C&P sends back to the Regional Office Veteran Service Representative?

 

Reply:

No on both counts.

The examiner is only supposed to review or accomplish what he's told to do. He isn't operating independently. The orders are so specific that I once went in for an exam of my right shoulder. There was a typo and the examiner had been ordered to examine my left shoulder. When I pointed out the obvious error, my exam was rescheduled so they could get the proper order. He could not examine my left shoulder w/o the paperwork getting fixed. Amazing, ain't it?

The examiner is supposed to be provided with the documents he needs up front. If there are civilian records and you've ensured that those are in your files at the regional office, the VSR will provide those to the examiner. If you bring records with you, the examiner may or may not accept them...he isn't required to.

If after the C & P exam you view the report and disagree with it, you shouldn't try to intervene or to correct the record. There's no decision yet so you have nothing to appeal. The best thing to do is to wait for the decision. If it isn't what you thought it should be, then you can appeal based on an inadequate exam.

If we interrupt the process by trying to argue midstream, VA is likely to start the whole thing over again and that could add years.

Appealing a denied or low-balled claim today is just another step in the process. Over 70% of claims are wrongly denied. The great majority of those are won with a simple appeal.