In 1998, at the
urging of fellow vets, my husband applied for benefits through the VA office in Visalia, Ca. He claimed, among other things,
Agent Orange exposure resulting in Hodgkins Lymphoma, PTSD, jungle rot and other health issues. The VA referred him to a VA
contracted counselor in a nearby community who diagnosed him with PTSD and set up a program of individual and group counseling.
Almost immediately, the VA denied benefits, stating he did not prove his disability and/or its nexus to his service. When
my husband went to the VA office for an explanation, he was told he needed to prove he had been in Vietnam (hello
DD-214?) and he also needed to provide photos of himself in uniform and letters to/from him showing he was stationed
in Vietnam. He explained he had moved countless times and had been divorced 3 times. His parents and close relatives were
deceased. He was unable to provide these items. The VA was not sympathetic. My husband, who had temperament issues related
to his service, became enraged and left. Any discussion about pursuing his claim resulted in an argument. He has continued
to fume over the treatment by the VA in the many years since. It remains an issue today.
In 2009, following surgery for a brain tumor, an article appeared in the Decatur, TX newspaper detailing
the change in attitude within the VA and it provided a list of presumptive conditions for those exposed to Agent Orange. I
was able to persuade him to try again and thanks to the good attitude he encountered, his claim was re-opened. The initial
award in 2010 was 20% (diabetes), but with constant prodding, submission of records of other health issues and our determination
not to quit, he was found to be 70% disabled medically and 100% based upon a well documented history of unemployability related
to PTSD. He was compensated back to when his claim was re-opened in Texas. Shortly thereafter he was diagnosed and treated
for cancer of the larynx (again, Agent Orange). He supplemented his claim and the VA responded IN WRITING that he did not
prove his cancer was cancer (2013). Seriously. We continue to prosecute that claim. The VA sends us medical releases to sign
periodically, requesting records they already have and upon which have based his current disability rating. He has been waiting
for a hearing in Dallas for well over a year.
His primary issue
is: A claim he has advanced with the VA at all times since re-opening his claim in 2009, was that he was wrongly denied benefits
in 1998 and benefits should be paid back to the date of his original claim - 1998. The VA denied benefits despite a diagnosis
by their expert in 1998 that he suffered from PTSD and they denied him prior to obtaining his medical records for Hodgkins.
Based upon (1) His emotional state from PTSD and (2) his inability to obtain photos and letters he was told were necessary
for his claim, he did not appeal in 1999. The VA, by treating him in such a callous manner and throwing up roadblocks to deter
him, wrongfully benefited from his PTSD disability/inability to deal with their bureaucracy (likely intentional). Apart from
the humiliation he felt by his experience with the VA in 1998/99, he believes that had he received benefits (support and counseling)
in 1998, he might have had the ability to develop interpersonal skills to deal with his PTSD, thus preserving relationships
with family and others. He lost not just 10+ years of benefits, he lost family, friends, jobs.
In as much as he has been found to suffer from PTSD after reopening his claim in 2009, doesn’t
that bolster his argument he was wrongly denied in 1999? Has anyone succeeded with a similar fact pattern? In order to TRY
to obtain some emotional closure for him on this matter, we will have to proceed through the VA hearing system to a final
decision, but any suggestions, other than to just move on, would be greatly appreciated. Senators Cornyn’s office merely
forwards his letters to the VA, receives a form letter response that his claim is in the process and forwards that letter
to us year after year after year. The local VSO, while sympathetic, did not see a path back to 1998. Anyone?
A1: Go see
your Congressman. Ask for his help. (FK) 8/4/2016A2: I
went through the same battles with my late husband and his AO claims. Now I am currently helping my partner with his
VA fight again for PTSD and other service related issues. Due to service related issues he also is 100% unemployable
but VA is doing the postponing shuffle, (your claim is under review). He is now at the appeal board and more of the
same. We are working with our Senator, Ms. Vicky Hartzler, and she has made some headway. email me if you wish.
(SR) 8/4/2016
A3:
The VA just doesn't want to pay out. My husband has diabetes and was exposed to agent orange on board ship while cleaning
planes after raids. Since he's bluewater, and the govt refuses to recognize what has happened to them, we enlisted the help
of berry law firm near Washington DC. They are fighting the good fight for us. (CE) 8/4/2016
A4: You need a good claim lawyer. Call Bergmanand
Moore. They helped me get 100% Service connected. They are former VA lawyers and know the ins and outs of VA. They are great.
Their number is 301-986-0844. You owe to yourself. (TS) 8/4/2016
A5: I would highly recommend based on the
complexity you obtain a qualified lawyer to put the case together which will increase you chances of winning. The good news
is by law they can only charge if you win and there is a limit to what they can charge much like social security cases.
Overall well worth the time and effort if you win. There are lawyers who specialize in cases like yours. Good luck.
(LG) 8/4/2016
A6: I will give
you a short answer to a long question. One, get a good VSO. Two a certified or notarized copy of his DD-214 and an upgraded
copy of a DD-215. There's no policy or requirement to provide pictures in uniform. His picture is on his VA ID card and this
is sufficient. (PW) 8/4/2016
A7: If your husband has been fighting the VA alone without the assistance of a VA
knowledge attorney he is going no where. There are attorneys where you live who are required to do so much ProBono work each
year. Try and contact one of these attorneys who will represent your husband ProBono (free of charge). (WJB) 8/4/2016
A8: All dealings with the DVA, its important to adhere to time
restraints. So the original 1998 appeal was not submitted in time and so the case was dropped. I don't understand why there
is a problem getting a copy of the DD-214 unless he was on a Navy ship and transferred to brown water service. Once you leave
a ship you are stricken from the roster, but you make no mention of which service. I wish I could help but info is missing.
(JM) 8/4/2016
A9: This raises a general question of how to document one's presence in Vietnam or elsewhere.
A DD-214 does not document all duty stations, although it would be nice if they could state that one had served in Vietnam.
In some cases, medals listed in DD-214 could help. If a complete service record is not available to provide copies of
military orders, it is possible to order replacement records from various sources. As to pursuing older claims or appealing
decisions, if a local VSO cannot be found to help, a qualified lawyer might help. The VA certifies lawyers with specialized
training to represent vets before their officials and hearings, but in contrast to help in filing claims, most such lawyers
cannot handle appeals free. Many will work on a contingency basis, however. Good luck! (JKP) 8/4/2016
A10:
One of the first things you need is someone who can put the time in to work with the claim. Your VSO may be overloaded
with his claims load, but, an Accredited Agent may be able to help you. The first thing to do is to have your representative
(even if it is a local VSO) request the complete C-file. That C-file will have the original claim along with the reasons
for denial. If the C-file has his original orders to Viet Nam and evidence of his assignment to Viet Nam. If the
evidence is in the C-file then you may be able to get your VSO to file for the effective date based upon a Clear and Unmistakable
Error. This is a complicated issue and you would need help in resolving it with the VA.
A Clear and
Unmistakable Error is committed if the VA has in the C-file documentation that the veteran had served in Viet Nam and did
not use that when making the original decision. Even though the VA may say the claim is final because you didn't file
and appeal within the one year deadline a CUE is an exception and the VA may be forced to grant the claim with an earlier
effective date based upon their having evidence in the file that would prove the veteran was in Viet Nam when the claim was
denied originally. It is highly probable that a good VSO/Agent/Attorney would be able to find the Nexus that you need
to get the correct effective date, but you have to use the VA's own regulations and not depend upon emotions. Although
you may be right it is unfortunate that sometimes that is not what it takes to prove the claim to a bureaucracy. I was
originally denied myself for lack of evidence on wounds even though I had been awarded Purple Hearts and medevaced.
So I know how easy it is to let your emotions take over the claim. (CKP) 8/4/2016
A11: I was torched
in boot camp and got %100 disabled because even my records it showed what they did to me. If your husband claims PTSD. and
the Doctors concur that is what he has. the he will be evaluated to see at what percent of PTSD he has. they always start
out at 30% but then he must file for a review of that ruling. (TO) 8/5/2016
A12:
You need to get that expedited by contacting you US House Rep or Senate Rep. Both offices have veterans represenatives. VA
has just given you the old pass the buck and hope you will go away. Personnel shortages are not your concern. In some instances
the job is never filled or abolished. Put it in your government reps hand and bug them. (EL) 8/8/2016
A13: Your husband has several courses of action. I would recommend that he pursue
review based upon Clear and Unmistakable Error (CUE). The court, in Russell v Principi, 3 Vet. App. 310 (1992), held that
a clear and unmistakable error (CUE) exists if all three of the following requirements are met: (1) either the correct facts,
as they were known at the time, were not before the adjudicator, (e.g., the adjudicator overlooked them) or the statutory
or regulatory provisions extant at the time were incorrectly applied; (2) the error must be the sort which, had it not been
made, would have manifestly changed the outcome at the time it was made, and; (3) the determination must be based on the record
and the law that existed at the time of the prior adjudication in question. CUEs are undebatable, so that it can be
said that reasonable minds could only conclude that the original decision was fatally flawed at the time it was made.
See: 38 CFR 3.105(a); Grover v. West, 12 Vet. App. 199 (1999); Wilsey v Peake, 535 F.3d 1368 (Fed. Cir. 2008).
38 CFR 3.105(a) provides that if a CUE is established in a previous, final and binding decision, then the previous decision
is reversed or amended, and the effect is the same as if the corrected decision had been made on the date of the reversed
decision.
Other informative readings: protection of evaluation in effect for 20 years or more under 38 CFR 3.951(b),
and protection of SC in effect for 10 years or more under 38 CFR 3.957; revision based on CUE, see 38 U.S.C. 5109(a); severance
and its relationship to CUE, see M21-1 Part III, Subpart iv, 8.E.2; adverse action resulting from CUE or severance of SC,
see M21-1 Part IV, Subpart ii, 3.A.2; reductions in disability evaluations and CUE see M21-1 Part IV, Subpart ii, 3.A.3; the
effective date of an allowance based on CUE, see 38 CFR 3.400(k); protection of disability evaluations under 38 CFR 3.951(b),
see M21-1, Part III, Subpart iv, 8.C.1, and; protection of SC under 38 CFR 3.957, see M21-1, Part III, Subpart iv, 8.C.2.
