View a denial as a step in the process like any other

Posted on: Wednesday, December 15, 2010
View a denial as a step in the process like any other

Jim,
What is the VA regulation that the rating specialist is supposed to follow in regards to changing, lying or misrepresenting what the C&P examiner actually wrote in the C&P evaluation statement?

In order to deny a claim. Rewriting the doctors statement or ignoring supporting data submitted by claimant. The RO making it almost impossible for the claimant to get a copy of the C&P report to defend or appeal the claim. Thank you.
Reply:
There are many rules that indicate that VA is there to assist the veteran with a claim.
Department of Veterans Affairs assistance in developing claims
http://www.benefits.va.gov/warms/docs/regs/38CFR/BOOKB/PART3/S3_159.DOC
Reasonable doubt
http://www.benefits.va.gov/warms/docs/regs/38CFR/BOOKB/PART3/S3_102.DOC
It is perhaps clearest when we read;
TITLE 38 - PENSIONS, BONUSES, AND VETERANS' RELIEF
CHAPTER I - DEPARTMENT OF VETERANS AFFAIRS
PART 4 - SCHEDULE FOR RATING DISABILITIES
subpart a - GENERAL POLICY IN RATING
4.23 - Attitude of rating officers.
It is to be remembered that the majority of applicants are disabled persons who are seeking benefits of law to which they believe themselves entitled. In the exercise of his or her functions, rating officers must not allow their personal feelings to intrude; an antagonistic, critical, or even abusive attitude on the part of a claimant should not in any instance influence the officers in the handling of the case. Fairness and courtesy must at all times be shown to applicants by all employees whose duties bring them in contact, directly or indirectly, with the Department's claimants.
[41 FR 11292, Mar. 18, 1976]
Read more: http://cfr.vlex.com/vid/4-23-attitude-rating-officers-19774333#ixzz17ysV...

Knowing those rules isn't much help to you when you have been denied a benefit that you believe that you have earned through your honorable military service.
However, rather than claiming that the rater who adjudicated your case was "changing, lying or misrepresenting" the facts I believe that the overall process is so badly flawed that mistakes and errors are routine.
Ratings Veterans Service Representatives (RVSR's or raters) are the people who make decisions on your applications for benefits. These people are supposed to be highly skilled, well trained and very conscientious as they go about their task. In a perfect world they would give every small bit of evidence a lot of thought and consideration and if there was any doubt at all they would assist the veteran by searching out more favorable evidence or folling the priciple of the reasonable doubt doctrine, the case would default to the vet.
Unfortunately the Veterans Benefits Administration (VBA) is a badly broken machine that has long needed repairing. Even VA doesn't deny that there are hundreds of thousands of claims waiting for months or years to be adjudicated and that the current workload is crushing. The VBA has never been computerized, employee supervision and oversight is lacking and training is often far on a back burner while the workers try to get cases closed and out the door in a rush to not fall further behind.
To make matters worse, the rater is under intense pressure to meet a quota by closing files. There are complex schemes to rate the rater on productivity. The worker who is meeting the assigned standard is given a monetary bonus. You begin to see that the incentive is tilted towards the volume, not the quality, of the work.
It gets worse.
When the decision to award or to deny a benefit is concluded, the file is closed and that letter goes out to the veteran. If the letter has awarded a benefit to the veteran, that award is reviewed by senior staff for accuracy and with an eye towards finding reasons to override the raters call and then deny the benefit before the letter is mailed. If the benefit is denied, there is no protocol for senior staff review.
This all tells the rater that if he or she wants to make that extra money, the way to get the bonus is to quickly deny everything that can be denied. Even cases that have blatantly obvious evidence that would require an award of a benefit are often denied in that rush to close the file.
Raters have a financial incentive to deny your claim.
Many raters have told me that there is also a culture in the regional offices that encourage denials as a sort of ritual or right of passage. The rater who approves too many claims is vilified as being soft or too easy on veterans.
I'll give you the benefit of the doubt and assume that you have a well grounded claim. If that's true, what you are experiencing is the failure of the system as a whole...not only that individual rater.
Rather than focusing your angst to the rater, you should stick with the process and appeal. I urge veterans who experience a denial (20% to 70% of initial claims are erroneously denied) to view a denial as a step in the process like any other. Receiving a denial letter should be viewed as an opportunity to get on to winning your well grounded case, not as any sort of defeat.
To worry about that person who denied you is to waste your time and energy. You are always going to be better off to remain as stoic as possible and proceed to filing your Notice of Disagreement (NOD) and forge ahead.
If you are denied a benefit you are at a decision point that may be critical. Depending on how confident you are of your evidence and how well you are able to do it yourself, you must decide if you will handle the appeal or engage an attorney to help you.
The veteran who understands the process and is self educated will know that mistakes by VA are more likely than not going to happen. Spending any time focused on the who and how and why of those mistakes won't help you to get that ultimate goal of your earned award. Decide what your next move will be and do it...leave the anger behind. You'll be glad you did.
 

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