Over the course of several clients’ claims, I have been forced to “take it up a notch”. One technique is to use homelessness as a tool to invigorate the VARO’s response time on claims. We all know it can be as much as several years trying to extract a Statement of the Case (SOC), certify a claim for appeal (issue the Form 8) or simply get a DRO hearing. All the recent VBMS hoopla about speeding up this process seems to die after that magic 125-day window promised us called the Fully Developed Claims process (FDC).
Even if you present evidence of homelessness or emergent medical situations that are dire health issues, VA often will dissemble and procrastinate without sufficient prodding. I want to share some of the newer ways they do this that are not as apparent as they seem. Most, but not all, are common on appeals so keep your eyes peeled for them
First, if you present new and material evidence of a secondary disease that is directly linked to your current filing in a Notice of Disagreement (NOD), VA may tell you to file it as a new claim. In some cases, this might make sense. However, if you have peripheral neuropathy (PN) of the extremities and already have a claim in for Diabetes Mellitis II, VA is required by law to view your claim from every angle. This automatically means they should spot any records for the PN and file the PN claim for you. If you included medical records diagnosing you with the PN simultaneously with the claim for the DM II, by law they are required to develop your claim considering the PN and incorporate it as a secondary with no request from you. They can do this without you refiling for it. VA doctors and examiners are well aware of the correlation between PN and DM II. They are trained to do this without any prompting on your part. If they do ask for a separate filing, it is merely a delaying action or unadulterated stupidity. Granted, VA raters are not the sharpest tools in the shed but after a century of doing this, one would think they’ve ironed out all the wrinkles.
Another tried and true technique, and one with some validity, is the NOD with a Clear and Unmistakable Error (CUE) add-on. Let’s say you filed for an increase on the DM II because you are now using insulin and have been for several years. VA usually grants this at 20% if you’re actively using insulin. Knowledgeable Veterans or their legal beagles know that a doctor’s restrictions on diet or exercise will result in the higher 40% rating. If that information was included in the original filing, we can only surmise VA purposefully overlooked it when we open the Big Brown Envelope (BBE in hadit.com parlance) and discover they gave us 20% effective on the date we filed for the increase. This creates a two-year delay in most cases to get the 40% we were legitimately entitled to. Now for the CUE quirk. If you throw in a CUE saying you are legitimately entitled to the 20% (or 40%) a year earlier than your filing for the increase (which you are), VA will divorce the two “contentions” and begin a totally new CUE claim which most definitely will not be part and parcel of the request for the increase. CUE claims are not treated as FDCs so it will be several years in most cases before they mail you the revised decision. Meanwhile they will proceed with the NOD issues in a separate appeal. Idiot’s delight and to your detriment.
Most of us who do VA claims understand that when VA raters have the c-file open, it makes sense to adjudicate any and all contentions and make the most efficient use of their time. We only have one claim in VA’s eyes. It may have different facets but there is still only one legal claims filing. This is why, back in the “olden days”, we filled out the 21-526 one time at the very beginning. VA harvested all our info to include spouses, dependents, active and reserve time, pension viability based on service in war, et cetera. The document was 26 pages long hence the “26” in 526. Any claims after that were done on a VAF 21-4138. Thus, when you filed for the DM II at the outset, you had to provide adequate evidence of the disease and the degree of severity to be granted the claim in the first place. If you had that information present in the original filing and VA purposefully underrated you, it was CUE. Correcting this CUE at the time of the request for an increase to 20% or 40% should not require a separate decision path bifurcated from that request. It merely requires a more nuanced inspection of the file and a simple correction to make it right.
VA will insist they cannot do this but we know differently. When I filed my Extraordinary Writ of Mandamus January 2, 2015, VA managed to “fix” my CUEs (plural) in 45 days and grant me my SMC S all the way back to 1994 as they should have done contemporaneously. They also granted me equitable tolling of my SOC in 2010 to permit it. They also restored the 10% “clawback” for my porphyria cutanea tarda skin condition which they had reduced to 0% in lieu of the 40% grant for phlebotomies. Without going into the minutiae of the decision, the salient teaching moment here is VA can do whatever they want to conversely proportional to how much pressure is exerted from on high to correct the error right f—–g now (RFN). In my book, 45 days is definitely RFN and clear as well as unmistakable evidence that VA can do anything they want to in as little time as it takes for the OGC to pick up the phone, call the VARO director and tell him to issue the rating- and be quick about it. This is the new tool we were handed by Secretary Bob two years ago.
Another technique, but certainly not the last of their delay and deny tactics to throw sand in the gears, is the worst and one they have only recently discovered when they need more time to fix something horrendous. Butch Long’s claim for an earlier effective date, filed with his NOD this July, prompted this little gem. VA generally sends you the 21-4142 and the 4142a in the preliminary stages if you have not sent in any medical info regarding your filing. This automatically disqualifies you from the FDC expedited process as we know. But what happens when you’ve already sent in every last medical record in existence regarding your condition and diagnosis? What could possibly be the rationale for the raters to ask for more medical records on appeal? Well, folks, look at the VAF 21-4142 below and read what’s in the red circled area.
Below the primary admonition is the codicil stating VA will not pay for the records. I do not know how many Vets I’ve helped tell me they identified all the records for VA. They assumed VA fetched them. When I get the c-file, nary a record is there which was essential to proving the claim. I guess I don’t need to tell you this is all the more reason never to allow or expect VA will obtain what’s needed to win. In the brave new world of Obamacare, virtually every medical provider is charging for a paperclip-let alone your records. You, by law, are entitled to them for free. Not so VA. VA is not required to tell you they had zero success on fetching said records either. The only way you’ll ever know is to obtain the c-file to discover the problem.
In Butch Long’s case, they know full well they have any and all records, including everything from the local VAMC on him. I can only surmise the reason the Appeals Team sent me the 4142/4142a was a stunt to begin a whole new search for something they know full well doesn’t exist to gain time. In numerous filing of evidence on this claim, any and all records have been submitted and statements to that effect have been included. VA went even further and refused to x ray his left hand for the 2015 C&P- in spite of his filing for it in 1970. In further correspondence, they stated Butch has not supplied them with any evidence he has retained foreign objects from the SFW in the left hand. He clearly stated it in the Court Martial documents which seems to point to gross error-i.e. even more CUE.
What is clear is that VA will resort to any ploy to dawdle and delay the inevitable. Any time VA contacts you or your attorney during the course of the claim or the appeals process, be wary of what they ask for. Be even more wary of what you sign or give them permission to obtain. I have strongly advocated that Vets only give VA that which is pertinent to the claim(s) at hand. There is no need to supply them with your mental health records if you’re filing for DM II or PN. It has no bearing on those claims and could hold up your adjudication for months or years. There certainly is no law against holding back anything that has no identifiable purpose to the claim(s) at hand. I call that VA fishing for detrimental evidence-something they are clearly not permitted to do.
Make it so numbah one.
I got a yelled at by va records… I had so many files,,,, it took xerox boxes….. and they yelled at me, told me never order my records again…. btw, I won my 1151, necrotizing pancreatitis due to va error. (of course they low balled me, and haven’t closed out my claims still sending me back to repeat some exams, which I have been taking for a decade now during appeals, so the vso says I can’t file an nod yet on rating, she said). The same one that the vso’s refused to help me with. Crooks, liars, deny deny die die.
I don’t believe you. Show me the letter they yelled at you. My claims file (in 2015) was 45 inches tall ( 14,979 pages). It’s even larger now.
first of all, I have no clue why you don’t believe me…. I can post a photo of some of my records… of course getting them all in one place is hard….. as I am too sick to pick them up and move them around.. I have so many freaking letters in boxes, if I do find that letter that I got back with the zerox boxes from the San Diego VA records section I will post it.. right now I am still searching for records and copies for this long struggle, as they stil fight me over more claims. How do I post a photo of the xerox boxes… maybe you can explain why they don’t use digital and thumb drives? Of course this was around 2009, but they could have started digitizing the records in 1998, regarding having technology. I was hospitalized for 6 months with necrotizing pancreatitis after the va cut the wrong part of my pancreas and liver (they were suppose to just remove a cyst on the head of my pancreas, instead they cut a tube). Hence the win on my 1151 claim and appeal. I had to get some on paper to figure out how to support va claims. So, progress notes, labs, and much, much more, 100x cat scans… more. They were angry and told me never to order copies again.. I am not real happy to post my Facebook, twitter? If I can just post the photo…. I do it on other well known veteran forums discussing how to work on claims. You know what,, send me a link to post a photo.
A little more…. so, I ended up against the va at the BVA, I told the judge they never read me records and I had to give them some, of course they called it new evidence even though they are my records at the va! When you are sick out of your mind, on your own, no one else with getting records, search, reading. Fighting with the va denials for decades.
Steven, I hold no malice towards you. I work with VA daily and I will concede they are dickheads. However, they never commit to paper any anti-Vet sentiments. I ask for my client’s records several times a week. Since 2015 (roughly) everything comes on a CD. I had to ask a CD reader be installed in my latest computer as thumb drives have pretty much supplanted them now. Ditto floppy discs. My lawyer asked for my last c-file in 2014 and they sent it in five boxes which weighed 20 lbs apiece. The FedEx bill was $115. VA didn’t complain or send obnoxious letters castigating me for my request. And, for the record, I doubt San Diego RO was the author of the records. They sent it out to a subcontractor to create as they have no time to produce them.
The reason I say I don’t believe you is simple as mentioned above. VA prides itself (falsely) on being pro-Vet, nonadversarial and your huckleberry. In reality, on a face-to-face basis they are rude, crude and unattractive people.If you possess a letter or correspondence showing VA was overbearing and obnoxious, I would dearly like to have a copy to publish here. I will redact any personal identifiers and then send it to the VA Director of the AMO. I’m sure he’d love to see it so they can reprimand the jerk who insulted you-assuming arguendo s/he has not retired or quit by now. Trust me when I say if you indeed do have such a letter, it’s a very damning piece of evidence.
I started doing this in 1989 and have yet to see anything akin to what you contend you received. Hence, I do not believe you until I see it myself. I’m sorry for your circumstances and commiserate with you. I, too, have been damaged by VA surgeons and escaped with my life-barely. If you possess such a document , please scan it and send my a copy attached to an email at email@example.com. I would be honored to publish it here to show others.
When I began my “odessey” in filing for compensation with the VA in the nineties I did so with the help of a friend who was at that time a service rep for the DAV. He had been associated with the VA regional office in his state of residence, that shall remain unnamed. He shared with me some of the VA’s stalling tactics and why they do it. His information proved true. What he told me was that there is an unofficial “points for promotion system” within each VA Regional office. He said that to his knowledge it didn’t matter where one files for compensation it pretty much goes the same in each state and regional office. He told me that the stalling tactics are also associated with a bonus system that sometimes is in money. He said that that is the reason that most of the rating boards stall and delay. Then he told me that the only way to get through the morass of rating board bull s**t is to keep it in writing. “Never let them talk you or influence you into going to a hearing. That way they can delay it for years and you will be none the better off. I listened to him for he appeared to know what he was talking about and he proved true.
The points for promotion you are no doubt curious about is as follows (according to my friend):
Keep a vet from getting to the rating board through stalling tactics and bogus letters stating they can’t get your medical record FIVE points.
Keep a vet from getting more than thirty percent FIVE points
Get a vets rating reduced from 100% to below sixty FIFTEEN points.
Then he told me of the bonuses that they get. That is at the rating board level and in the hearing sections. He stated that he had heard various amounts so he didn’t get into the dollar amounts but it certainly made sense to me. I hope that this helps someone. I fought them for over fourteen years before I won. Think of all the bonuses that they got off of me and then if you give in altogether and that is what they want, they get money for that also. No wonder the VA IG team back several years found entire medical records, DD214’s, records of service and so forth in shread bins during the Bush rein of terror. Now what would they find in the BO rein?
Has anyone mentioned that, in writing, when they are filing their umpteen appeals?
Wouldn’t the American people love to know this information? No wonder our veterans claims are denied 1 out of 4!! Unbelievable!!!
–If you ever signed one of these blasted 21-4142, are they eternally in play?
–Also, we have been charged for medical records in the past. Is this a recent change (free records for patients)?
HIPPA law is now that you are allowed one (1) free copy of any record in paper format for you if you need it for an insurance company or the VA. Notice it doesn’t say free to the insurance company or the VA. Therein lies the problem. Likewise, if you go to the VAMC Release of Information (ROI) and ask for your records-et voila! Same deal. You get one free copy of anything they have. Then you start paying .12 cents a sheet thereafter.
Does the VA have the right to deny a claim when you have requested more time, via fax that was received in a timely manner. I requested Tim’s c-file and have been told it would be Feb before they can complete my request. Also, would I have the right to tell them I do not accept their denial because the have put me in a hostile position knowing a NOD can take up to 4 yrs. Which is what they suggested.
About the 40% grant for phlebotomies – really? Tim’s SO was so not n top of anything. He had been getting them for at least a 2yrs before he died while his claim was in limbo.
Now, I put this here because I know they are screwing with me and I thought it fit???
1)You can ask VA to hold a decision in abeyance while you obtain the c-file but you must file a NOD or Form 9 to keep the appeal viable. VA will rarely toll the failure to file a NOD of VA 9 equitably.
2) No, You cannot refuse a denial.
3) Tim’s SO had no legal training so he might not have been aware VA has a rating for phlebotomies under 38 CFR 4.117 (DC 7704 Polycythemia Vera).
VA could care less about Vets. We are a claim number-a SSN and nothing more. They are not the least interested in mitigating circumstances. That’s the ugly truth.