HOLES IN THE FABRIC

Posted on September 23, 2011 by asknod

12/06/08 #1
Holes in the fabricFrom: Posted by NOD
Category: What to do when filing a claim
Date: 09/08/08
CommentsIf you, by some stroke of luck, filed a claim within 1 year of departing from the military, and appealed it to denial, all is not lost. Actually, if you filed at any time in the past, were denied, appealed and lost you can dust off that old decision and ask for a MFR. This will require you to read all of the above and correct past mistakes. Should you finally win, they are going to have to rent an armored car to deliver your $. I read a 2003ish decision where a guy was arguing for $30K more after they’d already compensated him about $303K for pay on a back claim(he won). Don’t think this is a pipe dream. If they owe it to you legitimately, they will pay you. If you don’t file, you don’t get bucks. It’s that simple. No tikee-no laundry. For those of you who committed the ultimate sin of not completing your appeal (like me), there are some narrow avenues around it. One method, the most arduous, is the CUE appeal. This almost rises to the level of hiring a good lawyer competent in VA law. You have to find something legally wrong with the decision. It has to be predicated on the laws in effect at the time the decision was handed down, not as they are currently written. And it has to be so clearly obvious that any judge can see it. It can’t be a he said, she said decision about medical, etc. You must be very specific about what it is you are claiming CUE for. You can’t get to court with a laundry list of stuff you thought up on the way to the VARO and see which version of events sticks to the wall. Most, but not all, CUE assaults fail for lack of proper preparation. Which is not to say its futile to even attempt. If laws were ignored or broken, and you can draw them a picture of why and how, you will prevail. This occurs only at the BVA level, not the RO. You may appeal a denial to the CAVC. There is no benefit of the doubt rule here for you. VA is defending their good name. You alone must prove the decision was flawed and they are not obligated to help you accomplish this. CUE is unarguably the most difficult assault on the legal process. Most, but not all CUE successes stem from unappealed RO decisions. Many errors can occur at this level because the RTs are inept or unschooled in law. Failing to appeal these decisions lets them sit in limbo for years until you choose to fight anew. This is much too complicated for your SO to comprehend, so be careful. You only get one shot at it ,too. The only other permissible defense that is argued with any success is the small window provided for in 38 CFR 3.156 which I include, in part, below. If you somehow have managed to lay hands on some old military records or SMRs that were never presented in a prior denial and they bear directly on your claim, you are in very high cotton, son. At this time, I would caution you to rent a safety deposit box for those records and shop around for a new wheelbarrow to cart all the wampum to the bank. Keep in mind that the VA use of the word “new” and the word “material” differ slightly from Miriam Webster, but not much. I was able to find 5 BVA decisions since 1992 using this defense. 4 of them won.38 CFR 3.156
(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)

(c) Service department records. (1) Notwithstanding any other section in this part, at any time after VA issues a decision on a claim, if VA receives or associates with the claims file relevant official service department records that existed and had not been associated with the claims file when VA first decided the claim, VA will reconsider the claim, notwithstanding paragraph (a) of this section. Such records include, but are not limited to: 

(i) Service records that are related to a claimed in-service event, injury, or disease, regardless of whether such records mention the veteran by name, as long as the other requirements of paragraph (c) of this section are met;

(ii) Additional service records forwarded by the Department of Defense or the service department to VA any time after VA’s original request for service records; and

(iii) Declassified records that could not have been obtained because the records were classified when VA decided the claim.

(2) Paragraph (c)(1) of this section does not apply to records that VA could not have obtained when it decided the claim because the records did not exist when VA decided the claim, or because the claimant failed to provide sufficient information for VA to identify and obtain the records from the respective service department, the Joint Services Records Research Center, or from any other official source.

(3) An award made based all or in part on the records identified by paragraph (c)(1) of this section is effective on the date entitlement arose or the date VA received the previously decided claim, whichever is later, or such other date as may be authorized by the provisions of this part applicable to the previously decided claim.

(4) A retroactive evaluation of disability resulting from disease or injury subsequently service connected on the basis of the new evidence from the service department must be supported adequately by medical evidence. Where such records clearly support the assignment of a specific rating over a part or the entire period of time involved, a retroactive evaluation will be assigned accordingly, except as it may be affected by the filing date of the original claim.

(Authority: 38 U.S.C. 501(a))Cross References: Effective dates—general. See §3.400. Correction of military records. See §3.400(g). [27 FR 11887, Dec. 1, 1962, as amended at 55 FR 20148, May 15, 1990; 55 FR 52275, Dec. 21, 1990; 58 FR 32443, June 10, 1993; 66 FR 45630, Aug. 29, 2001; 71 FR 52457, Sept. 6, 2006]

If you are adroit at Legalspeak, you will note in (3) above that it discusses the date entitlement arose. That would be the day they received your claim. This, as with CUE, is the only way you will ever beat them if you failed to appeal. You should realize that they control the vertical and the horizontal on this as they have your records. I would never accuse them of tampering with official records, but I discovered they had no records of any of my TDY assignments. This means that the records aren’t perfect- or complete. It may be that you have some they are missing. I kept TDY records showing Duty/Visitation to RVN that finally proved I was presumptively exposed to AO. Little things like your yellow shot records book that have a stamp saying where you were vaccinated and when. These can mean the difference between $ and dreambucks.. If you kept copies of anything the Military gave you, look through them for possible use in substantiating your claim.

Another legal avenue Vets have apprised us of is rare but occurs. What happens if you file new evidence while your claim is being developed or awaiting appeal? If VA fails to issue a new SSOC to acknowledge this evidence or fails to consider it, then the claim remains open until they get around to issuing the SSOC- even if its 16 years later. Stinky, dude. Meanwhile, your $ pile up in a non interest bearing account. Too bad about no interest, but you don’t always get a lime in you Cuervos.As I have no legal training, everything written here is just my conception of how VA justice is dispensed. The VA may take umbrage with me for lifting up the curtain and exposing the Wizard of Oz. Gee, what are they going to do? Tie me up and inject me with some incurable disease? You should always get more than one legal opinion. Your choice of representation is severely limited unless you have deep pockets or a brother in law with a degree in VA law. I did this by myself out of frustration and poverty. I had only one nexus with a dx of “most likely” .My last VSO, who would probably wish to remain nameless, could not locate his posterior with a methane detector. He had no more business sitting behind that desk than I would in the cockpit of the Space Shuttle. He was so impressed with himself, he once said: “That’s why they pay me $48 K/year to sit behind this desk and advise you on the correct way to file a claim.” God help us. That’s when my wife told me I was in deep doo-doo and to contemplate a new legal strategy. This is all the knowledge I have gleaned from the BVA website and from my personal encounters with RTs, DAP techs( who are truly angels and a wealth of info.),and my former SO(may he suffer forever from the hemorrhoids which he will never get SC for).I wish all of you great success in the pursuit of your claim(s). I would really like to thank Tricia500 for this soapbox I’m standing on. Without this forum, I would never be able to share my bent humor. As Sgt. Schultz of Hogan’s Heroes was fond of saying: “ I know nuffink “.
P.S.
Here are some more cases that encompass the above technique:
Unknown's avatar

About asknod

VA claims blogger
This entry was posted in Introduction-Read these first and tagged , , , , . Bookmark the permalink.

Leave a comment

This site uses Akismet to reduce spam. Learn how your comment data is processed.