Saturday, March 29, 2008

Some Haas cases have a disconnect

We note here that in several months we will hit the second anniversary of the Haas decision in the US Court of Appeals for Veterans Claims in August of 2006, and very few have seen the benefit of it. We are nearing the end of the fifth month since the oral arguments for the VA's appeal of that decision at the US Court of Appeals for the Federal Circuit last November.

Justice frequently is painfully slow in this country.

Some Haas cases will suffer from a disconnect of sorts because they have been denied since the 2002 manual change, and the Veteran either did not appeal, or appealed and was denied. Many have filed new claims since the Haas victory in the Veterans' Court.

The worst case scenario would be for the current panel of judges to render a decision reversing the lower court. That would pretty much make permanent the manual change the VA made illegally in 2002 barring any Blue Water sailors from Agent Orange benefits.

We don't think that will happen.

The court could issue a decision that is in our favor, but make no mention of how the VA should proceed, leaving that matter up to them. That may be almost as bad.

In this case we suspect the VA, unless it is otherwise instructed by the court, will slowly issue a memo to allow only those claims that are in active status at any level within the VA Claims System, that is either at the VA Regional Office or VARO, at the VARO for review, at the Board of Appeals, or at the US Court of Appeals for Veterans Claims to be processed. This of course would result in a minimum payout by the VA.

However, we prefer to think [and pray] that the court will indeed instruct the VA to proceed with the processing and approval of valid Blue Water Navy Agent Orange claims with all dispatch, and will also instruct them to back date any claims denied as a result of the 2002 Manual change to the filing date of those claims, connecting any previously denied claims to current claims with no gap, and activating automatically any claims that were denied and never reopened. In other words, reversing all claims that were denied based on the manual change of 2002 and instituting where valid, full benefits to Blue Water Navy Veterans.

We queried Rick Spataro of the National Veterans Legal Service Program, the group which is shepherding the Haas case through the legal system on the disconnect issue. Of course Rick would have no idea how the court would rule, but apparently the NVLSP has been anticipating the possibility that they would need to argue in court to connect those disconnected benefits.

So, a likely scenario is that all current claims on hold under the stay issued during the VA's appeal of the Haas decision will be processed, and probably fairly quickly, but any disconnected claims will require a precedential case similar to Haas to get a court decision to force the VA to go back and reverse their erronious denials that were based on the 2002 manual change. Winning that case could take a few years, too, though it should not.

Indeed, the VA erred when it made that manual change without putting it out for public comment prior to instituting the denial policy for Blue Water Veterans in 2002. As a result, all such denials based on that error should be reversed automatically by the VA.

Once again, we pray that the coming Haas decision will address that issue and include orders to the VA to go back and reverse all those denials based on the 2002 manual change.

Our best advice at this point is to not be surprised by anything that happens when the court rules on Haas, but be aware of the different possibilities in the decision. And there are probably other scenarios that are possible as well.

In the meantime, we urge you all to please donate to the National Veterans Legal Service Program, as they do their excellent work pro bono [free], but their work is not without cost.

VNVets

"With malice toward none; with charity for all; with firmness in the right, as God gives us to see the right, let us strive on to finish the work we are in; to bind up the nation's wounds; to care for him who shall have borne the battle, and for his widow, and his orphan--to do all which may achieve and cherish a just and lasting peace, among ourselves, and with all nations." -- President Abraham Lincoln

"Without a decisive naval force we can do nothing definitive, and with it, everything honorable and glorious." --President George Washington

Copyright © 2005-2008: VNVets Blog; All Rights Reserved.

Saturday, March 22, 2008

Repost: Obtaining and Using Documents to Support Your Claim [VA and SSA]

[Note: We think that with a decision nearing on the Haas case, it would be a good idea to review the things you can do to bolster your claim. So, here is a post full of tips and guidelines, and practical advice on documentation of your service, and your claims. We hope these are helpful to you.]

[Reposted from April 18, 2007]

We are going to post a series of tips here to help Blue Water Veterans with their claims. The more information the Veteran can get for himself, the greater the control over his claim. That applies to those who are filing their own claims and to those using the services of a Veterans Service Officer.

It is important that all of your records be available to the Department of Veterans Affairs [DVA or VA], or the Social Security Administration [SSA] when you are filing a claim with either body. Even if you are working with a Veterans Service Officer, you should have copies of all the documents that are being submitted. Such documents include, but are not limited to:
  1. Your complete medical records
  2. Your complete service record
  3. Your ship’s deck logs
We will tell you where to obtain these records, and why they are important.

First, however, here are some steps to take in the process of obtaining official documents or copies of official documents. Please note that these steps are common sense steps to help you stay organized throughout the process of your claim, and to make things easier for whoever is processing your claim. You never know when someone is grateful for you making it easy for them may be the difference in how he approaches the decision making process. If your case is close, it might make the difference. Also note that some of these steps may cost you a few dollars at a time, some more so, but in the long run may be worth much more in return.

Whatever official documents or certified copies of such you obtain, the first thing you should do is arrange a safe, fireproof location to store them.

Stop in at your local Staples, or office supply store, and get a couple of self-inking stamps made up. One should have your name, and address. A second should have your Name and VA Claim number. A third one is for Social Security and it should have your Name and Social Security number. Maximum cost for this should be under $30.

Next, either make or have 2 sets of copies made of all the official documents and certified copies. If you own a multipurpose printer [printer, copier, scanner, fax], you are in very good shape. The price of these has come down and their quality has gone up. Even if you have only a regular printer you can save a lot of time and aggravation. Count the number of copies you need to have made. Count out an equal number of blank pages and run them through the printer, placing your Name, Address, and VA Claim Number in the center of the page. [For copies for Social Security, use your Social Security number rather than your VA Claim Number.] Also, place the following words near your personal information: “Page ____ of _____ pages.” When the copying is done, you should serially number all those pages to help you, and anyone else working with the set of documents keep them in order. It also helps if one gets mislaid. You would then know which one must be replaced and can send it to whoever lost it. That is why you need to keep a second, working copy of your documents. Create separate file folders for them.

On the front of those pages, after they are printed, use your self-inking stamps to mark your name and VA Claim Number [or name and Social Security Number for SSA Applications], somewhere on the page where it does not interfere with what is on the page. Usually there is room at the bottom for this info. Stamp it on each and every page.

To the documents:

1. Medical Records:
Make sure that all your physicians, specialists and other health care workers [including hospitals…tell them to send a copy of all your records from your hospitalization to your family physician] send copies of any and all lab reports, and records of your visits and treatment plans, plus any prescribing information to your family physician. If you do this studiously, and you should insist upon it, then all of your pertinent medical records will be in one place: in the office of your family physician. When it comes time to gather all your current medical records, you only need to go to one place to obtain copies. Most physicians, when told it is for the VA or the SSA will cut you a break and either not charge you, or reduce the charge for copying. Most specialist do send a letter to your family physician and include copies of all test results and x-rays.

Make sure if you change physicians, you get a copy of all your medical records from the physician you are leaving and take them to the new physician and allow them to copy for their records. That gives them the records, and you then have a copy for all your records up to that date.

2. Your complete Personnel Record:
Most of the time, the VA and the SSA deal only with your DD-214 [Page 4 of the Navy Personnel File]. This usually has all the pertinent information, unless you served in more than one duty station or aboard more than one ship. It generally will only have your last duty station or ship and whatever personnel information to be recorded that was generated during that stay. This is important to understand especially if you were a Reservist, as well. Some reservists had several ActDuTra [active duty for training] periods before going on active duty, and may have had more after they came home from their two, three, or four year hitch on Active Duty. In such cases, this information may not show up on your DD-214.

Additionally, if you were TAD anywhere, having the rest of your personnel file should prove that, and that might be exactly the proof you need to prove “feet on the ground”, or a specific exposure.

To request your records, you should go to the following website:

http://www.archives.gov/veterans/evetrecs/index.html

This site will allow you to go to the National Archives and Records Administration [NARA] application for Military Personnel Records. Follow the directions carefully. This process in the past has taken over a year before the records arrived, so start now and be patient.

3. Your ship’s Deck Log:
If your personnel record does not show proof of you being “foot on the ground” or in a place where you were exposed to Agent Orange, your ship’s Deck Log might very well be able to do so. Also, it would be additional documentary evidence in support of your claim as your Personnel Record will show you stationed aboard during a period the Deck Log makes reference to a working party ashore, or some such.

For most Blue Water Vietnam Veterans, ships Deck Logs are to be found at the Modern Military Branch of the National Archives, located just off the Washington Beltway in College Park, Maryland. It is a fascinating facility to visit, and you are encouraged to do so. If you do, go early and get your request in as soon as you get there, as it takes a while to pull the physical records from the archives. Logs from 1941 through those that are 30 years old or older are in the Modern Military Branch, National Archives, 8601 Adelphi Road, College Park MD 20740-6001 [telephone (301) 837-3510]. Be prepared for heavy security, and when you sign in you must answer some questions on a computer, sign some pledges dealing with the handling of documents, and get a photo ID good for one year. Repeat visits are somewhat easier to accomplish.

These are the smooth copied Deck Logs hand written by a revolving set of Officers on board the ship, copied weekly from the rough daily log. They are official documents and are signed by the ship’s Captain and countersigned by the XO.

You may not need an entire period, but just certain dates. If you have a Cruise Book, that can sometimes help you pin point the dates.

The cheapest route to take is to just get copies made of specific dates. These are on oversized [10x15 inch] paper [the Navy went to 8 ½ x 11 log books after we all got out!], so special copiers are set up to deal with the size. But the copiers are sometimes balky.

We copied one month’s worth of log entries, about 50 over-sized pages as most entries ran over onto the back of the page. Because we had waited so long for the box to come up with the log entries, and then the copier we were using was constantly changing the settings, we decided to contract the NARA staff to copy and ship me the rest. It came to about $230 for an additional eight months.

Here is what is contained in the deck logs according to Navy Regulations:
  • Absentees
  • Accidents [material]
  • Accidents/Injuries [personnel]
  • Actions [combat]
  • Appearances of Sea/Atmosphere/Unusual Objects
  • Arrests/Suspensions
  • Arrival/Departure of Commanding Officer
  • Bearings [navigational]
  • Cable/Anchor Chain Strain
  • Collisions/Groundings
  • Courts-Martial/Captain's Masts
  • Deaths
  • Honors/Ceremonies/Visits
  • Incidents at Sea
  • Inspections
  • Meteorological Phenomena
  • Movement Orders
  • Movements [getting underway; course, speed changes; mooring, anchoring]
  • Passengers
  • Prisoners [crew members captured by hostile forces]
  • Propulsion Plant Status changes
  • Receipts and Transfers [of Crew Members]
  • Ship's Behavior [under different weather/sea conditions]
  • Sightings [other ships; landfall; dangers to navigation]
  • Soundings [depth of water]
  • Speed Changes
  • Tactical Formation
  • Time of Evolutions/Exercises/Other Services Performed
This information can prove invaluable in supporting your claim. If you cannot go to this incredible facility you can probably call and get a researcher to collect the data for you, but that might be more expensive.

The facility is on its own campus, has good parking, and beautiful grounds. Inside in addition to the records and archives are a small book-gift shop, a small snack shop, and a large, well appointed cafeteria. Security is very tight, and you are not allowed to take anything onto the floors with you. There are rental lockers in the basement for handbags, coats, pens, pads, and other research tools. There is plenty of scratch paper and pencils around on the research floors. The check-in process takes about 40-60 minutes before you even get to the research floor.

Note: any Deck logs that are less than 30 years of age are in the custody of the Ships History Deck Logs Section, Naval Historical Center, Building 57, 805 Kidder Breese Street SE, Washington Navy Yard, DC 20374-5060. All inquiries concerning research access to logs that are less than 30 years old should be sent to the Ships History Deck Logs Section.

Logs that are less than 30 years old are held in either paper or microfiche form, stored in the Washington National Records Center, 4205 Suitland Road, Suitland MD 20746. Logs from 1979 through February 1993 are on microfiche in the Ships History Deck Logs Section. Logs from 1990 through 1993 are partly on microfiche in the Deck Logs Section, partly on paper at the Records Center. All logs from March 1993 are on paper and stored at the Records Center. The logs that are classified must be sent to the proper authorities for declassification review before they can be researched or copied.

One other thing: If for some reason the above does not contain specific enough information to satisfy either the VA, or SSA, or both, and your claim involves combat action, you may need one other resource: The Navy Historical Society mentioned above also stores all ships’/units’ action reports, which were required after every engagement. That might be another source for validation of your claim, as it is usually more specific than the deck logs.

There you have it. IF you are doing your own claim [probably online] via VONAPP or on the Social Security website, you will be required to provide verification of your claim. The above documents are, in most cases, all you will need. We packed ours up into several small boxes [about a ream of paper in each] and shipped them to the VA with our claim number on the outside of the boxes. We also shipped them return receipt requested. That proved they got to where they were intended, and showed us the date when they arrived.

If you are ill and can no longer work, you should apply for Social Security Disability in addition to your VA claim. It too can be a long and ugly process, but in the end, if you go to a hearing, things will work out. You must have an attorney for the appeal to Social Security and the attorney is paid from your lump sum if you win, up to a maximum of $5,400. Our appeal took almost 18 months from initial rejection to the hearing. Nevertheless, when that lump sum comes in, it is a huge load off your mind, as is the monthly income.

VA claims, at least to date, are not permitted to use attorneys to argue the claim before the Board. So there should be no fee for any VA claim, though Congress may change that at any moment.

The SSA almost automatically denies about ¾ of all claims up front [ours was denied before we even finished submitting our paperwork!] forcing the engagement of an attorney and the paying of a fee out of your lump sum. If you lose your appeal with Social Security, there is nothing owed to the attorney. In other words, the SSA is using private attorneys that you must hire to cut down on fraudulent claims, and forcing the claimant to pay for it. Something is very wrong with that.

Good luck, endure, and keep the faith.

VN Vets

"With malice toward none; with charity for all; with firmness in the right, as God gives us to see the right, let us strive on to finish the work we are in; to bind up the nation's wounds; to care for him who shall have borne the battle, and for his widow, and his orphan--to do all which may achieve and cherish a just and lasting peace, among ourselves, and with all nations." -- President Abraham Lincoln

"Without a decisive naval force we can do nothing definitive, and with it, everything honorable and glorious." --President George Washington

Copyright © 2005-2008: VNVets Blog; All Rights Reserved.

Tuesday, March 18, 2008

An Explanation of recent Court Actions

Courtesy of Veterans Advocate Berta Simmons, comes this explanation of the flurry of VA remands from the US Court of Appeals for Veterans Claims. The source is Rich Cohen of NOVA [National Organization of Veterans Advocates]:

------------------------------------
From Rich Cohen NOVA

Berta:

The large number of remands form the Fed Circuit has nothing to do with Hass.

Rather, they are reversals based on Simmons/Sanders. It is pretty complicated and involves the application of the Rule of Prejudicial error (RoPE) as applied to the failure of the VA to provide adequate VCAA notice or assistance to veterans. The VA appealed all the cases in which the veterans court said the case needed to be remanded to the VA. Then, the Fed Circuit stayed all the cases for 2-3 years until the lead case was decided. A typical order from
the Fed. Cir. looks like this :

"This case was stayed pending the court's disposition in Roan v. Principi, 2004--7093, which was stayed pending the court's disposition in Sanders v. Nicholson, 487 F.3d 881 (Fed. Cir. 2007), and its companion case Simmons v. Nicholson, 487 F.3d 892 (Fed. Cir. 2007). In Sanders, this court held that any 38 U.S.C. § 5103(a) error should be presumed prejudicial and the Secretary has the burden of rebutting this presumption. Id. at 891. [¶] The court agrees that summary affirmance of the judgment vacating and remanding to the Board is appropriate in light of our decisions in Simmons and Sanders. [¶] Accordingly, [¶] IT IS ORDERED THAT: [¶] (1) The stay of proceedings is lifted. [¶] (2) The judgment of the Court of Appeals for Veterans Claims is summarily affirmed. The case is remanded. [¶] (3) Each side shall bear its own costs. [¶] FOR THE COURT [¶] /s Jan Horbaly [¶] Clerk".

Obviously, the explanation of issues such as RoPE, the VCAA, and procedures in the Fed. Cir, is too complex and would take too long to explain to your listeners."
------------------------------------

Essentially, the cases centered on the requirements of the VA to notify the Veterans filing claims, in more detail, what the VA required to approve their claim, and what the VA could do to help. Without that information in the notices, those notices were "prejudicial" against the Veteran.

Now, if someone could answer the current question about why the United States Court of Appeals for the Federal Circuit has gone two straight business days without disposing of a single opinion of any kind. Hmmmmmmm....

VNVets

"With malice toward none; with charity for all; with firmness in the right, as God gives us to see the right, let us strive on to finish the work we are in; to bind up the nation's wounds; to care for him who shall have borne the battle, and for his widow, and his orphan--to do all which may achieve and cherish a just and lasting peace, among ourselves, and with all nations." -- President Abraham Lincoln

"Without a decisive naval force we can do nothing definitive, and with it, everything honorable and glorious." --President George Washington

Copyright © 2005-2008: VNVets Blog; All Rights Reserved.

Wednesday, March 12, 2008

Important Info on Stardust Radio Tonight!

Good friend and superb Veterans Advocate Berta Simmons will be hosting a radio show tonight. Here are the details:

---------------------------------------------------

Please pass on to any vet who can listen in tonight:

Berta Simmons,
www.hadit.com, SVR radio, BWNVV Association, OSR,VCV,ltd, Gold Star Wives, Marine Corps Association, etc-

Men and women- my special guest for the March 12th, 2008 SVR show is the highly regarded and very well known veteran’s attorney ,Rich Cohen, who is the Executive Director of NOVA- National Organization of Veteran’s Advocates. Mr. Cohen has been with NOVA since it’s inception in 1993. NOVA’s website is at

http://www.vetadvocates.com/

NOVA is the National Organization of Veteran' Advocates, Inc.which is headquartered in Washington , DC at 1425 K St NW, Suite 350 and which can be contacted at 877 483 8238.Finally, NOVA is taking application for registration for VA training at its upcoming Seminar April 11-13 in Crystal City, VA. see
or at

http://www.trainandjoinatnova.com/cgi-bin/commerce.cgi?cart_id=?product=DVDs&pid=1

Many of you have heard Rich’s compelling testimony before the SubCommittee on Disability Assistance and Memorial Affairs recently on February 14, 2008 regarding the VA claims process.
This testimony is available on line at
http://veterans.house.gov/hearings/ under the February date and you can hear the audio via your PC.

Prior to becoming an attorney Rich Cohen was an engineer who worked on the massive Sikorsky Sky Crane.

This helicopter was larger than the Jolly Green Giant and was designed to carry heavy ‘under slug’ loads as opposed to traditional internal load capabilities. It completely altered the way materiale got into and out of Vietnam and was fully adaptable to the varied topography of Vietnam.

This will be an excellent show for all VA claimants , all veterans, and for all of our active military listening in.

http://www.stardustent.com/ Click on SVR on the left 6:30 to 8:PM EDT

any media player will bring you the live audio and you can join the online chat room too.

Also call ins ----toll free at 1-877-213-4329

March 19th my guest is Bob Walsh-veteran's attorney-back by popular demand and in April ( we are waiting for Congressman Filner's office to book him-as Jerrel Cook's guest) and I will be interviewing VA Watchdog Jim Strickland.

Berta Simmons
------------------------------------------------------------

Thanks Berta, we'll be sure to tune in tonight!

VNVets

"With malice toward none; with charity for all; with firmness in the right, as God gives us to see the right, let us strive on to finish the work we are in; to bind up the nation's wounds; to care for him who shall have borne the battle, and for his widow, and his orphan--to do all which may achieve and cherish a just and lasting peace, among ourselves, and with all nations." -- President Abraham Lincoln

"Without a decisive naval force we can do nothing definitive, and with it, everything honorable and glorious." --President George Washington

Copyright © 2005-2008: VNVets Blog; All Rights Reserved.

Tuesday, March 11, 2008

Court Update – No news on Haas, but…

In the past week the US Court of Appeals for the Federal Circuit, the panel that is currently considering the Haas case on appeal by the VA, has posted a list of cases involving appeals to the decisions of the US Court of Appeals for Veterans Claims. The list is stunningly large.

At this point, since last Wednesday, the court has disposed of well over 100 Veterans’ cases. We have no idea what those appeals were about but the majority of them were remanded back to the USCAVC for further disposition. We think this means that the Veterans’ court has probably been doing something consistently wrong, according the Federal Circuit Appeals court.

We have been watching the daily dispositions, opinions and orders of the Federal Circuit court since the oral arguments in the Haas case last November. It has been more than four months since those arguments were presented, and during those four months, there have seldom been more than four cases dealing with Veterans appeals disposed of each day, usually with the higher court noting it did not have jurisdiction over factual matters in the US Court of Appeals for Veterans Claims.

Until last week.

Coming on the heels of last months request for more information from the Court of Appeals for Veterans Claims, we suspect that the court has hit on something during its investigation of the Haas case. If this is the case, we think there may be some movement soon on Haas, and we think the court has perhaps found something the lower court has been doing on a regular basis and the decisions they’ve been handing down over the past week may be paving the way for a positive outcome for the rest of us who have pending Haas claims with the VA.

We may be 180 degrees off on this, but we can’t figure an alternate scenario that fits. Regardless, most of the suggestions above are merely layman's conjecture. However...

Stay tuned. Keep a positive outlook. And of course, “hurry up and wait

VNVets

"With malice toward none; with charity for all; with firmness in the right, as God gives us to see the right, let us strive on to finish the work we are in; to bind up the nation's wounds; to care for him who shall have borne the battle, and for his widow, and his orphan--to do all which may achieve and cherish a just and lasting peace, among ourselves, and with all nations." -- President Abraham Lincoln

"Without a decisive naval force we can do nothing definitive, and with it, everything honorable and glorious." --President George Washington

Copyright © 2005-2008: VNVets Blog; All Rights Reserved.