Question on EED

broncovet
Registered: 01/24/09
Posts: 9

	01/24/09	#1

NOD. My claim is in such a chaotic mess, the RO cant decide if my TDIU claim is pending, denied or closed. April 08 RO decision says denied. August 08 RO decision says pending. Recent Iris Inquiry says TDIU opened January 07 “closed” July 07. Yes, its at Cleveland RO, shreddergate headquarters. Evidence shredded..Claims overlooked. Conflicting RO decisions! Currently I am rated at 40% with NSC pension. I am talking to a Veterans lawyer on Friday. I have already won a BVA appeal back in 2004 which awarded me a “complete grant of benefit sought”. My contention is that this BVA award (not a remand..even tho one of my RO decisions lists “BVA REMAND” in evidence section) includes benefits sought by the Veteran in 2002, but ignored due to RO errors/and/or shredding evidence. (The RO considered only hearing loss, and I have evidence that I had sought depression, tinnitus, and TDIU). Q1. If I can prove to the judges satisfaction the RO committed errors/shredding, can/will the judge order the VA to pay my attorney fees? Q2. Should I “seperate” my TDIU and EED claims? That is, should I work on TDIU and not worry about the effective date, then, after it is approved (yea..Im an optimist) go back and file a NOD asking for an earlier effective date, or, go for six points and dont worry about field goals by asking (again!) for TDIU with 2002 effective date?__________________ broncovet

NOD

Manager
Registered: 11/22/08
Posts: 652

	01/24/09	#2

Wow, dude! The Honorable Drew Carey VARO-Recycling HQ for Amerika. I will tell you several things. It would be hard to say how the VARO will respond. Seattle VARO did the same thing to me. They said a claim(PCT=AO) had been “closed out” when it hadn’t. I reminded them they still hadn’t adjudicated it for a year(from 4/07) until after they rated me on hep(6/08). Finally, on 10/3/08 they gave it to me, after insisting on 10/01/08 it was closed out on 7/07. You just read that right- a 48 hour rating! So I would tell you to break each claim down and address them individually to the VARO. If you put all the claims in one mailing, and they need to send one to the hep guy, one to the TDIU guy and one to the tinnitus/hearing loss section, they will not make copies of the letter. They won’t tear it in three pieces. The letter will go to the TDIU people(Triage) They will get out the Bic lighter, set their hair on fire and run around in circles. You realize you are talking about government GS-3 to 5 employees, right? Meanwhile the letter falls on the floor and is LOST. Or else it mysteriously arrives in the Shredder Room…Your saving grace in all this is if you mail in a NOD and they never mail you an SOC, Time Stands Still until they send out an SOC. Period. The CAVC has reiterated that time and time again.If you had a claim decided at the BVA in 2004, ostensibly it would be sent back from DC to the VARO for proper implementation and rating after a successful decision(this is why you might have seen the word “Remand” in the evidence section). If the VARO failed to accomplish this(and from what you are saying, they did), then you need to complain about it to the BVA as they were the AOJ at the time of the adjudication. They still control the decision. They are the ones who can yell at Cleveland for you to straighten it out.TDIU decisions, like hardship filings, are a 90 day project. They have to be adjudicated in that time period. So if you mail them a TDIU request with other issues attached, guess where the other $hit sits while you are awaiting TDIU? It gets filed and forgotten after that unless you bring it up again. Your absolute best bet is to do the IRIS thing in my book. Write them a love letter for each issue. Ask for the current disposition of the claim, expected date of completion of rating and any other info they can provide. Always ask them to send you some supporting paperwork confirming the IRIS contact as well. Concerning your 2004 BVA appeal, send that one to the VA Ombudsman(BUDMAN) as he is in charge of BVA decisions. IRIS only deals with local VARO adjudications. On Q#1, I will say that you are not going to get any comp. from VA for attorney. The EAJA(Equal Access to Justice Act) deals with these issues at the CAVC level. I’ve seen remands back to the BVA where the VET took the CAVC-assigned law dog with him to do the BVA remand and then back up to the CAVC for final Adjudication. I have never seen them pay down to the VARO level-ever. Of course, I have never seen the VA resort to shredding(or get caught at it, anyway), so we are in uncharted territory here. You may have a good claim. No one’s an expert on that as it is new stuff. Your private VA law dog can only charge you 20% of any judgment he gets for you. He knows that if he’s a legal one and won’t try any funny business. Ask him what he thinks. On Q#2, as We mentioned above, all TDIU/ hardships go to a special adjudication process on a RFN basis. If you have other stuff like the EED taped on, it’s gonna get misplaced or lost. Be an optimist on that EED, bubba. You are legally allowed to ask for an EED a year before any increase in a rating decision if you can medically support it. Just be careful on late NODs. Be really careful not to let these things go past the one year point, even if they are assuring you they are “pending”. They will “pend” you right out of a claim. If you have statements in to them (with a green card backup) telling them of their mistakes and/or failure to adjudicate, then you have viable proof to fix any “you failed to NOD” assertions by VA. There is something known as “presumption of regularity” of the U.S. Postal Service. That basically says that if they mail you something, it is assumed that you got it. It works both ways. If you have something sent RRR to them, you can be assured that the CAVC will rule in your favor should it come to it. Always CYA. The RO folks are chuckleheads, wannabe lawdudes, and people with low intelligence. They makes lots and lots of errors. That is why we have the Board of Appeals. Unfortunately, as you have experienced, it is sometimes necessary to go to DC to get it straightened out. By the same token, the BVA isn’t perfect and Vets have been forced to go on up the ladder to seek justice. The Drew Carey RO has a particularly bad reputation right now as you are aware. Trust them to do nothing right at the moment for you. I suspect they have quite a few Inspectors General running around there firing people or giving out Employee of the Month Awards. Hard to say with VASEC Peake in charge. You do realize that guy owns a $hit ton of QTC stock, along with his VASEC predecessor, Mr. Principi. Most people don’t realize Mr. Principi and 40 of his buddies started QTC and sold the VA on it. Amazing what you can find if you start digging in the right places. With all that said, We wish you good luck on this and feel free to ask more if we failed to clarify any particular point. Is Bronco a reference to an OV-10 as in FAC or just horse-busting in general? Idle curiosity from a GIB/Robin. NOD sends P.S. I found this in 38 USC. Show it to your law dog. http://www.law.cornell.edu/uscode/html/uscode38/usc_sec_38_00000503—-000-.html

broncovetRegistered: 01/24/09
Posts: 9

	01/25/09	#3

Nod Thanks..your post was informative and entertaining. Part of my problem is I dont know WHICH court to be in..VARO level has shown to be a 7 year excercise in futility, the BVA level has been productive, but the BVA decisions do not make utility payments. I do think you make a good point that it may make sense by asking the BVA to enforce the 2004 mandate (“a complete grant of benefit sought”) and actually award those benefits already given to me. I filed a pro se Writ of Mandamus (at the CAVC) in November 2007 alleging the VARO ignored the Veterans 2004 NOD. The court ordered the Secretary respond to my complaint. The Secretary acknowldged my 2004 NOD but said it was “interpreted as a claim for benefits”. However, I contend this “interpretation” reeks similar to my tennis shoes after walking in my back yard because a 2004 claim for benefits would have, at a minimum, a DTA letter, and should, by all rights also have either a benefit denial or award by now. Further, the VARO manager testified they “did not hear” from the Veteran between March 2004 and January 2007. However, that testimony reeks even worse than my tennis shoes, because I have copies of documents and IRIS emails sent to the VARO (stamped and dated “received” by the VARO) during the alleged “blackout period”. I guess the management thought, when I got a 2007 copy of my C file, that I would also shred the same documents they shredded. However, since they forgot to tell me which documents they shredded, I kept them all. I have 4 “pending” NOD’s of which VARO has only acknowledged one. Knowing that I have documentation that does not smell like tennis shoes, which court do you think I should be in? VARO? DRO? BVA? CAVC? VAOIG? Law Dog? Senator’s Office? Or, should I “punt” and let the defense try to score the winning TD by waiting, and waiting.__________________ broncovet

NOD

Manager
Registered: 11/22/08
Posts: 652

01/25/09

Okay, bubba. let’s look at this strictly from the standpoint of who’s on first, etc. The AOJ (Agency of Juristiction) will always be the defining rule on these things. You (or any properly POA’d law dog or, God forbid, a VSO)must determine this like unraveling a sweater coming undone. Keep pulling on it until you see where it leads. My technique is to follow it until it dies out. That’s who owns it. If they failed to finish the job, they are the guilty party. The BVA and CAVC always do the Macarena and figure out if they do, indeed, own the thing and have juristiction to act on it before they lift a finger and do anything.I do not have your C file in front of me so I’m trying to do this with binoculars. Let’s say you took a properly appealed SSOC/F9 to DC and got a proper BVA SC decision. BVA would have sent it back to your VARO for a % rating, and proper financial award. If they(VARO) failed to grant your $ and complete the directive from BVA, then you have to seek redress from BVA. They are still the AOJ for anything relating to that judgement. When the VARO was handed that, they should have given you everything you won –AND handed you another SOC to answer if you were not happy with the %, the ED, or the $. If they did not, then the adjudication is not complete. Go to DC, Go to BVA, Do not pass Go! Start that one there. No decision is ever “complete and final” until a period of one year has gone by without a NOTICE OF DISAGREEMENT. PERIOD.(38 USC)Having filed and received a WOM, technically the CAVC owns it now!Re the Writ of Mandamus in 11/07 regarding your 2004 NOD: I do not know where it stopped, nor do you say what it concerned or whether you received an SOC. A properly executed NOD, if properly labeled as such(be it on a 21-4138 or a piece of toilet paper)will always be a NOD-nothing more, nothing less. It would obviously have been sent to them by you following a letter they mailed you denying you some, or all of benefits you filed for. It could not be confused with a new claim unless you are incredibly verbally challenged or you had a VSO in charge of it. I concur with the feeling you have that an award or a denial would have arrived by now. I am going to assume that you are relatively intelligent and sent all the 4 NODs via Certified Mail, Return Receipt Requested? The presumption of regularity will attach to that. I also will assume you have not changed your address during the course of this adjudication? Seeing as its taken so long, it would not surprise me if you had one of those flexible zip codes. They will try to blame it on that if they can.
Were I in your shoes( and I may be soon as I have 7 claims in various states of completion spanning 20 years), I would be sending my complaints in the form of more WOMs to the CAVC. Make sure you send copies to BUDMAN and the OIG, too. If your senator is on the Veterans Affairs Committee, send him one as well. If he isn’t, send it directly to Sen. Akaka. Pretend you are explaining it to a kindergartener with ADHD.Do not punt unless you are incredibly rich and are using this for a non-interest bearing IRA! You need to get this on someone’s desk that you can physically talk to. You know as well as I how difficult it is to find a warm body with authority at that August Institution. You may accomplish the most by contacting the Service Center Manager if they still have anyone willing to admit to that Job description at Drew’s VARO. You can do this via the Dial A Prayer telephone #,or, failing that, a personal visit to the House of Horrors. Remember- no guns, knives, baseball bats or tactical nuclear devices are permitted. Leave the bad words at home.Lots of sad smiles are in order here. You are the aggrieved party and are long overdue for some Justice.

The one thing that disturbs me the most is the TDIU rating. If you have the requisite % to qualify(one disability rated @ 60% or more-or- one disability rated @ 40% with additional disabilities that combine to make 70% or more), VA is required to make a decision on that within 90 days of filing. That is the law and there is NO wiggle room on that rule. If you lacked those requirements, they still should have been polite enough to mail out out a denial letter.

Now, with that all said, you must have CBS, NBC, and ABC in your town. The locals always have a “fix it” ombudsman or a “You’re never gonna believe this $hit” dude that loves to discover injustice. This is the perfect storm for you. Nothing would put a bigger feather in Shinseki”s hat than to have you show up on his doorstep as he takes over. While you’re waiting, click on the attachment below,take two and call me in the morning…

broncovetRegistered: 01/24/09
Posts: 9

	01/26/09	#5

NOD I am considering trying something REALLY CRAZY because I had a “Popeye moment”..”That’s All the VARO bull I can stand and I cant stand no more” I figure I would bounce it off you first. It goes something like this:VETERANS SUICIDE NOTE The Veteran respectfully requests that this note be regarded as a suicide note, with intent or plan. Copies of it have been sent to the CAVC, the BVA, the Police department, and, worse, my very angry wife with instructions to complain to the media, “How could the Regional Office let this happen?” This Veterans suicidal ideations are “at least as likely as not due to military service” and have been aggravated by disgracefull treatment of the Veteran by the Regional Office. I have elected NOT to tell you how, or when, OR EVEN WHO, this suicide will occur, because about 5000 other Veterans have already taken their own life, and according to CBS news another 120 Veterans will commit suicide this week. I am speaking the voice of all 5000 of them..because they arent talking but I have had all your bull I can stand and I AINT TAKING NO MORE!!!!!! GET IT? My family and my doctors are sincerly hoping that I dont do this, but there is no doubt in my mind that Drew Careys RO in Cleveland is betting that I wont get any help and that I will be successful in my attempt. THIS WONT “BLOW OVER”, THE BVA/CVAC wont fix your mistakes again, and asking for more C&P exams WILL BACKFIRE. ANY Additional DELAYS are, well…..suicidal. I will make a decision based on whether or not to “finalize” my decision contingent upon your action upon my claim.DO NOT PUT THIS DOCUMENT DOWN, but take it to your supervisor and tell them this Veteran is nuts and wants IMMEDIATE action on his claim. If you are the supervisor, then dig the rest of my claim out of the shredder bin and apply the following congressional mandate to it: ‘fully and sympathetically develop the veteran’s claim to its optimum before decision on its merits.” By the way, this Veteran is facing a LIFE THREATENING CONDITION and requests that a decision be rendered and sent in TODAY’s mail. You do not have to approve the Veterans claim, but if you deny it you had better have some pretty good reasons as to WHY the Veteran is somehow not eligible for a 70% evaluation for depression and also TDIU, considering the evidence contained in this letter and the Veterans Cfile. If certain evidence has been shredded, then you had better connect the dots “as if” that evidence was there because there is no time to order any more C&Pexams or other reports..the time limit expired on ordering more C&P reports 6 years ago. Call the doc if you like. ..but if you get his message machine then apply the “favor the Veteran” rule. After you complete this decision, then IMMEDIATELY PROCESS ALL other VETERANS decisions whose claims are MORE THAN FIVE years old..starting with those 30 years old or more, then go to the 20 year claims, then 10 year, 5 year, etc. NO MORE VETERANS deserve the disgrace of having their claim sit in your office for MORE THAN 5 years since initial application, regardless of how many times the Veterans claim has been appealed. If the Veterans claim has been shredded and cant be located then APPROVE it, because it is YOUR FAULT.__________________ broncovet

NOD

Manager
Registered: 11/22/08
Posts: 652

	01/26/09	#6

I would probably like to sign my name to that, too. But, being a realist, I know they are praying I will “cross over” to be with Jesus and they won’t have to pay MY irate wife. With that said, I suspect I may have a better idea to elicit a response.You mentioned “life threatening illness”. Now, as I am unaware of just exactly how ill you are(that binocular issue again), let me illuminate you on a helpful rule. If you are in a financial or medical hardship situation, you qualify for a 90 day ruling on your application for said hardship. Just as they must adjudicate a TDIU claim in 90 days, so must they also do the same if you apply for 38 CFR 20.900(c)-{38 USC 7107}. If you can prove you are in danger of losing your home to foreclosure or your current medical condition is ratable at the high end of DC7354( HCV)and your relatives are making plans to plant you outdoors soon, you qualify for this codicil. Remember, you are required to prove these claims with facts from your med. provider, your mortgage company, etc. Mere bald assertion of these claims without backup paperwork will result in a denial. However, when they do grant your request (and they are fairly liberal on this), they will then move all your issues to the top of the pile and adjudicate your claims on an RFN basis. I guarantee they will not go home on the 90th day without completing the project. That is law. So, should you qualify for this dispensation, file immediately with the supporting paperwork. If you wish to quote the regulation, look to your left margin in the blue area for the Federal Code and look up 20.900(c). It discusses it in terms of an Appeal, but the reg. applies to the VARO as well.I used this method because my shelf life date suddenly changed after 1 dose of IFN (it started an AIH response and I can’t stop it). I filed it on Dec. 2, 08. After an Iris inquiry in mid January, I discovered that it(everything) was ready to rate as of 1/09/09. They have been toying with this since I filed a NOD in July and asked for a DRO review for 94 EED and a Fenderson rating to the present. Long and short is 1 month for the decision on the fin/med hardship and 30-60 days for the Fenderson adjudication.That is way faster than singing “The Letter” by the Boxtops to them. I am all for humorous and/or extreme measures. I was born one day before April Fool’s, @ 2349 hrs. I feel I personally induced Mom’s labor myself. My humor doth runneth over. I am the “Person with a disgusting sense of Humor” who created a fake $1,000,000.00 Publisher’s Clearing House Check on plywood and drove around in an unnamed low income housing area on April Fools with helium balloons and “PCH Prize Patrol” magnetic signs on the sides of my Brand new Ford Expedition in 2002 ( in a northwestern state named after our first President that touches the Pacific Ocean which shall remain nameless). I had a parade of vehicles following me around until we left for lunch. So, being no stranger to humor, I appreciate your ploy. I expect nothing would come of it other that Drew Carey’s Loompah-Loompah RVSRs accidentally shredding all the wrong files of terminally ill Vets in hopes of destroying the pertinent ones. Murphy’s Law usually prevails in these cases. You do realize that they may shred ALL the files as they have screwed over virtually every Vet they have come in contact with over the last 54 years since WW2? I do still see the”Broncovet abused by VA for 6 years. News and film at 6″ being a viable ploy to get their attention. Bad news travels fast. Just ask that Governor 2 states to the left of Ohio about it. Bad news about govt. misbehavior travels exponentially faster. The hardship path, however, is guaranteed. If you qualify legitimately, go for it, sir. We stand behind anything you do. If it backfires,sue us. We’re judgement proof, as I assume you are. Hell, virtually all Stage 3-4 Vietnam Vets are. I have another news flash for you today, too. I lied. My last name isn’t Nod. I’m dead serious about that or will be soon. I will go back to the CAVC site and look for your WOM this afternoon. Perhaps I can glean more info from that. Best of luck and let us know if you choose the Channel 7 option so we can keep an eye out for your 15 minutes of Andy Warhol fame, sir.

RobD1956

Moderator
Registered: 11/22/08
Posts: 31

	01/27/09	#7

Senator time. Are any of your senators on a VA committee? If so write him/her the same type of letter I’m responding to. Then If you get no response from him/her. Write a high ranking Senator that is on a VA committee. They will kick yours into gear I cant say this works all the time and for everyone but It reclaimed mine from the shredder and its now in process. If you have long distance phone service call em. They are starting to pay attention .We all must do our part to make them work instead of rip us off. And leaves us for dead.. Note this is just my opinion and it may or may not ruffle some feathers but like I said it worked to bring my file back from the dead. Do it know while the issue is starting to be come hot on the Hill. NOD has a lot of ammo to fire at the VARO’s and we are not afraid to shoot from the hip.

broncovetRegistered: 01/24/09
Posts: 9

	01/27/09	#8

I think suicidal ideations would qualify as a “life threatening illness”, dont you? In 2004, I was in danger of loosing my home. I told the VARO that..and 19months later they finally got me about 29% of the benefits I was entitled to in 2004. It was too late..I lost my home, my truck, and my wife filed for divorce.My problem seems to be one of accountability. The VARO has their “interpretations” of the law. They “interpreted” my NOD as a claim for benefits. They “interpreted” a BVA award of a “complete grant of benefit sought” to mean a remand granting me a 0% evaluation for one of 4 benefits sought, while completely ignoring the other 3. They have “interpreted” the “favor the Veteran” rule to mean “forget the Veteran”. I am aware there are regulations prohibiting the VA from doing this, but, they seem to have effectively manipulated and circumvented the regulations in the interest of their own agenda. When the VA messes up, we are supposed to have a right to appeal. But there is not anything preventing the Regional office from just plain shredding or disregarding the Veterans NOD, thereby nullifying any appeal rights. The problem is the fox is guarding the henhouse. It is wrong that we file a NOD with the Regional Office..that is like a gal who gets raped asking the rapist to represent her in a court to convict him. Its a conflict of interest.__________________ broncovet

NOD

Manager
Registered: 11/22/08
Posts: 652

	01/28/09	#9

Were I you, I would keep that date with the law dog. As I sent to you via e mail, there is no way to defend against this shy of congressional inquiry. Having your own legal representation in something this screwed up is paramount. As we do not specialize in this vein of VA Law, we find ourselves over our legal heads and suggest those things I mentioned above and in the private E mail. Good Luck, sir