Appeal To Bva

[jtg1966]

okay...HI, i have repeatedly put in a claim for S/C for a mental disability since 1995...served from 7/30/86-->10/15/87....got chaptered out (chapter 13) for unsatisfactory performance...gen/honorable...the reason for my admin seperation was because i was having problems (writing bad checks, missing formations, poor concentration, poor hygeine, started signing stuff John the Great, including my Military ID, was clearly manic...ect)...got sent to the dmha for suicidal ideation after a suicidal "gesture"... OD'd on tylenol...went for 2 or 3 therapy sessions...went awol...3 weeks after suicide attempt...for 3 days...this was on 08/21/87...showed up for my scheduled therapy appoint....and the stuff hit the fan...the dmha psychatrist was ranting and raving at me...and was threatening me with a chap 10 or 14....well i had a breakdown right there in his office....so he admitted me post haste... and i spent the last 55 days in service in an army psych ward...got chaptered out while an inpatient in the aforemenntioned psych ward...

th VA has consistantly denied my S/C claiming the my SMR's are completely silent for any treatment, diagnosis, or complaint of a chronic mental disorder/disability...and that the earliest evidence of a chronic mental disability was when i was seen in a VA hospital in 1994 for a suicide attempt on asprin...

part of the problem with successfully prosecuting my claim is that i've been chronically homeless since seperation...and have been hospitalized for a mental disability (bipolar) at least 2 dozen times...so i haven't had a fixed address for the denials and correspondence to find me...

okay so now i have a fixed address, and am on ssdi for bipolar...since 2007....but they (the SSA)claim that my complete disability started in 1994...i received my c-file in oct 2008...and they are right...my smr's are pretty bare as to treatment of my mental illness...none of the outpatient cousuling records are in the file...nor are my inpatient records...except for a "STAT" lab order from the er for a tylenol OD from when I attempted suicide. so wrote to the nprc requesting the inpatient/outpatient psych records....and personell records to validate my signing stuff as John The Great....what i got back from the nprc is a letter stating that while my service medical records are available according to the dod cfr (actually they quoted 32 cfr 310.30(f)), a portion of my medical records that i requested could only be properely explained my a doctor...and if i would resubmit my request naming a dr. that could explain the records to me that they would sent them out to me...so i went through my congressmen and got the records....at least the inpatient hospital records...

does the VA's failure to request the inpatient records and their not aknowledging the lab order constitute CUE? given that the lab order was in the record at the time...and the circumstances are so similar e.g...OD on OTC medication...and the fact that the inpatient records were never requested?

i have appealed the lasted decsion on 5/23/08 to the bva travelling board...and have been told by the VA that a dro reveiw is going to be performed before it goes to the board because of the missing reocrds...( i sent a lengthly letter to the sec dva...outling all of this and have rec'd calls from washington DVA and calls from the RO)...

any comments...well any constructive comments are most appreciatively welcome...

[carlie]

jtg,

Welcome to Hadit.

"th VA has consistantly denied my S/C claiming the my SMR's are completely silent for any treatment, diagnosis, or complaint of a chronic mental disorder/disability...and that the earliest evidence of a chronic mental disability was when i was seen in a VA hospital in 1994 for a suicide attempt on asprin...

what i got back from the nprc is a letter stating that while my service medical records are available according to the dod cfr (actually they quoted 32 cfr 310.30(f)), a portion of my medical records that i requested could only be properely explained my a doctor...and if i would resubmit my request naming a dr. that could explain the records to me that they would sent them out to me...so i went through my congressmen and got the records....at least the inpatient hospital records..."

The VA may have made the choice not to release these records to you due to

mental health problems. There is a rule with psyc records that, if it is felt that the

claimant may decompose due to reading their records - then they have to have a

mental health doctor's approval to get the records.

"and i spent the last 55 days in service in an army psych ward.."

does the VA's failure to request the inpatient records and their not aknowledging the lab order constitute CUE? given that the lab order was in the record at the time...and the circumstances are so similar e.g...OD on OTC medication...and the fact that the inpatient records were never requested?"

These medical records of your last 55 days of active duty as a patient in an army psych ward, would be critical to your claim and them not being of record in your SMR's and your original denial - could surely help in a claim for CUE to both grant the claim and provide an EED.

A CUE is only supposed to be granted on a prior, final, unappealed decision so the CUE would be filed with the RO and filed on the original denial.

The lab order is probably much of nothing but could show the VA should have obtained additional records. I would venture to guess the lab order would not be included in the claim for CUE.

With your past and current MH disabilities I would suggest getting a service officer to

help and work on a claim for CUE should you decide to file one.

With the information you have provided you should have an excellent CUE claim.

"i have appealed the lasted decsion on 5/23/08 to the bva travelling board...and have been told by the VA that a dro reveiw is going to be performed before it goes to the board because of the missing reocrds...( i sent a lengthly letter to the sec dva...outling all of this and have rec'd calls from washington DVA and calls from the RO)...

It sounds to me like the VA has ordered it's own De Novo review.

I would immediately write everything up on a VA Form 21-4138 for a CUE if you are able,

if not run to a service officer - request the RO to CUE itself, on the original denial dated XX/XX/XXXX, due to missing SMR's.

Since you now have copies of those records cite the dates of these (now of record) in your Statement of Support (VA Form 21-4138) make copies of this medical evidence to submit with your 21-4138.

Request a SC,compensable grant of your MH disabilities back to day following separation,

(that is if you filed your original claim (VA Form 21-526) for SC of MH disability, within

one year of separation).

This all needs to get to the decision maker doing the De Novo review ASAP !

If you are close enough to hand deliver it to the RO - do so and request a date stamped copy.

On your last correspondence from VA it should have up top a REPLY TO: XXXX

Put that on a cover page, be sure to have your name, current address, SS or VA claim #

on each page.

If the medical evidence was there and this is done right you may not have to go to BVA !

"any comments...well any constructive comments are most appreciatively welcome..."

Sorry.... we don't get to pick what comments are made, if you don't like a comment just ignore it.

carlie

[carlie]

jtg,

I would also be sure VA knows of your SSA award as Fully Favorable due to MH Disabilities.

If you should be granted SC due to CUE - compensation may well be granted, in staged rating percentages being allowed, that would equate with your medical evidence.

carlie

[jtg1966]

ty hadit's for taking the time to consider my plight...i have as of today sent the VARO a letter for cue consideration:

I, John Smith, do hereby make a motion to the St. Pete VARO DRO to vacate the Department of Veterans Affairs Philadelphia Regional Office rating decision dated August 21, 1995 for dysthymic disorder due to clear and unmistakable error.

I am going to borrow the characterization of the August 21, 1995 denial from the Statement of Case dated May 23, 2008 (page 24 attached as exhibit "A" along with the original rating decision) from the St. Petersburg Regional Office because it so succinctly summarizes the matter now before the DRO.

"Your service medical records are completely silent for any complaints, treatment or diagnosis of any chronic mental disability.

A review of your claims folder reveals that service connection was previously denied for a mental disorder diagnosed as dysthymic disorder dated August 21, 1995. It is noted that the earliest evidence of a mental disability is noted in 1994 and 1995 when you were seen at a VA facility due to attempted suicide (overdose on aspirin). You had one year to appeal this decision and in the absence of such an appeal the decision became final."

I received a copy of my claims folder in October 2008, and after carefully reviewing the record, I discovered a "STAT" lab order contributable to a Tylenol overdose on July 13, 1987. In other words, a suicide attempt while in the service. (Attached as exhibit "B")

The lab order directly contradicts the Department of Veterans Affairs (Hereafter referred to as the "DVA") assertion that my service records are completely silent for any complaints, treatment or diagnosis of any chronic mental disability. Additionally, the lab order also clearly demonstrates that earliest evidence of a mental disability as defined by the DVA's own characterization is in fact July 13^th, 1987. And as a matter of fact did occur in service.

Because the record of my 1987 suicide attempt was in the possession of the AOJ at the time of the 1995 denial and that it's evidentiary relevance, erroneously was not considered, gravely so, given that the context of both of the circumstances in 1994 and 1987 are nearly identical.

Therefore, it is abundantly clear that the correct facts, as they were known at the time, were not considered and consequently constitutes CUE as held in Russell v. Principi, 3 Vet. App. 310, 314 (1992) I ask that the DRO vacate the 1995 decision and that an appropriate rating be assigned to my mental disability (as characterized by the DVA) due to CUE.

While I feel as though I've made my case for CUE, I can't in good conscience ignore the idea that the DVA has repeatedly neglected my statement that I spent the last several months in the service in an ARMY psychiatric ward.

"Your service medical records are completely silent for any complaints, treatment or diagnosis of any chronic mental disability.

That's a fairly definitive statement. Your service medical records are completely silent. One assumes that the veracity of that statement would include all of my service records. Not just the ones that the DVA felt like requesting or that were on record or in my claims file, but instead ALL of my service medical records. If I did indeed spend the last 55 days spanning the time period from 21 August, 1987 to 15 October, 1987 as an inpatient on Ward 3A, Winn Army Hospital, then how could my service records be "completely silent"? The simple answer is that they weren't completely silent.

I did spend the last 55 days in an Army Psych ward. That's a fact. I was there. So then why weren't the records of record? I honestly don't know. But they must, and in fact do exist.

I would have thought that an adjudicating officer would have said to himself, gee here's this guy claiming that he spent his last days in service in a psych ward, but we don't have any record of it. Wow, you know I'm a professional, and as such, I know that psychiatric medical records aren't always kept with other medical records so maybe I should fully and sympathetically develop the veteran's claim to its optimum before making a decision on its merits, you know as has congress mandated( (H.R. Rep. No. 100-963, at 13 (1988)). Because to do otherwise might just also be considered CUE.

Finally, I assert that I made an informal claim for service connection for depression on 12/06/1991 (attached as exhibit C) which has neither been developed nor adjudicated, or in fact acknowledged. Therefore I demand an immediate DRO review and a DRO hearing to consider the merits of my claims.

---thanks again hadit community for our consideration....and for the record, i was only joking when i said i would only appreciate constructive comments....well mostly joking...

[jtg1966]

thank you all for your responses...

--john

[jtg1966]

ty t-bird...testing out my new privs

[carlie]

jtg,

Your profile shows you are rated by VA at 20% SC,

what is this for ?

okay so now i have a fixed address, and am on ssdi for bipolar...since 2007....but they (the SSA)claim that my complete disability started in 1994"

Have you compared SSA's evidence just to see if they have possession of any of

the medical records from 55 days in patient active duty - ever appeared ?

What Medical Evidence did SSA provide a fully favorable decision from ?

Have you submitted the following Medical Evidence to VA at any time,

"...and have been hospitalized for a mental disability (bipolar) at least 2 dozen times...so i haven't had a fixed address for the denials and correspondence to find me..."

I really do not understand what's up with this,

"i have appealed the lasted decsion on 5/23/08 to the bva travelling board...and have been told by the VA that a dro reveiw is going to be performed before it goes to the board because of the missing reocrds...( i sent a lengthly letter to the sec dva...outling all of this and have rec'd calls from washington DVA and calls from the RO)..."

If the BVA has requested a DRO or De Novo review of the claim then why do you have this in here ?

"Finally, I assert that I made an informal claim for service connection for depression on 12/06/1991 (attached as exhibit C) which has neither been developed nor adjudicated, or in fact acknowledged. Therefore I demand an immediate DRO review and a DRO hearing to consider the merits of my claims. "

What is your bases for feeling that you made an informal claim for SC for depression on

12/06/1991 - what is the exhibit C that you are submitting ?

I do not see any way that you can demand an immediate DRO review and DRO Hearing on

what you feel - is a pending (unadjudicated claims are pending claims) - informal claim from 1991.

Also, in a claim for CUE claim you must state in specifics how-the error must be undebatable and of the sort which, had it not been made, would have manifestly changed the outcome at the time it was made.

My mind isn't real clear right now - so this is all I can comment on for now.

carlie