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Grrr - I Got Another Rubber Stamp Denial


akwidow

Question

AMC came through with a SSOC in todays mail. Once again, I am denied for DIC.

They did not list my evidence. (spoilation?) Rubber stamp again!

They did not address my issue - that PTSD contributed to my hubbys death. (denial made while not condiserating my position)

As an aside, they mentioned the DVD I sent them with the second set of papers but did not list the evidence, and never mentioned the original documents I sent...(spoilation?)

I have thirty days to respond, which I will, with the full gamut of information I have already supplied. They said if I do not respond within 30 days, they will send the file back to the BVA. Is that good for me or bad?

GRRR I am angry.

Should I ask for a reconsideration, or make a NOD?

I had already connected the dots, supplied IMO for PTSD, and copied them with their documents pertaining to his PTSD.

My friends here are telling me to get out of the loop and get congressional intervention, even though I told them about the retribution that it can cause.... any thoughts?

Thanks, please forgive me for venting,

AkWidow

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  • HadIt.com Elder

I think I would hire a lawyer if possible. You claim can get lost in this shuffle. The AMC seems to be a holding tank for claims that serves no purpose. These remands are a curse. The BVA should either grant or deny claims and not remand them endlessly.

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john and wings:

I did contact two of the lawyers listed in Larry's recent post; one has responded to me and asked me to call for a telephonic appointment. I will do that today.

Wings, I made the DIC claim in 2004 and was denied. I appealed and was denied. MOPH picked up my case and took it to Court of Veterans Appeals where it was remanded (according to Berta, for VCAA violations) to AMC.

All I know is, when it was remanded, I sent in 170 pages of material proof and a 16 page brief, all of which the AMC must have lost, because they did not address or list that material. I sent in a CD a year later which was a mirror of the same material just to cover my A**. AMC did not list the material on the CD or the other material - THEY SAID THEY PRINTED IT BUT IT WAS IRRELEVENT; all they said was it did not apply to my case....and ruled that the cancer death was not SC. I was claiming that a secondary condition - PTSD - was contributory to his death, and that material was I am guessing what they said did not apply to my case.

THEY DID NOT RULE ON THE GUTS OF MY CASE, OR EVEN RECOGNIZE IT...

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  • HadIt.com Elder
john and wings:

I did contact two of the lawyers listed in Larry's recent post; one has responded to me and asked me to call for a telephonic appointment. I will do that today.

Wings, I made the DIC claim in 2004 and was denied. I appealed and was denied. MOPH picked up my case and took it to Court of Veterans Appeals where it was remanded (according to Berta, for VCAA violations) to AMC.

What were the Remand Instructions from the Court to the BVA??? Can you type it out here, in brief? Seems the BVA has not followed the Court's remand order. Most often, a Remand from CAVC is an almost certain victory for the veteran. ~Wings

All I know is, when it was remanded, I sent in 170 pages of material proof and a 16 page brief, all of which the AMC must have lost, because they did not address or list that material. I sent in a CD a year later which was a mirror of the same material just to cover my A**. AMC did not list the material on the CD or the other material - THEY SAID THEY PRINTED IT BUT IT WAS IRRELEVENT; all they said was it did not apply to my case....and ruled that the cancer death was not SC. I was claiming that a secondary condition - PTSD - was contributory to his death, and that material was I am guessing what they said did not apply to my case.

THEY DID NOT RULE ON THE GUTS OF MY CASE, OR EVEN RECOGNIZE IT...

Edited by Wings
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  • HadIt.com Elder

I bet they did not even read the material you sent to them. They would have had to address this material in the decision. They did not want to do the extra work so they just ignored it. This is why you need a lawyer.

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http://www4.va.gov/vetapp08/files2/0811271.txt link to COVA remand

Sorry, it is not brief...but I do not want to mis-state anything. I basically see that the RO at AMC in my current denial did not consider any of my ptsd evidence as of any value. I never once claimed tha colon cancer was SC, but that ptsd was and that it contributed to his death. I illustrated this with almost 30 years of medical records, most of which they gave me.

In its September 2007 Joint Motion the Court requested that

the Board provide more comprehensive discussion of the

reasons and bases pertaining to its decision on further

consideration of the claim, with reference to one or more

sources of evidence indicating that service-connected PTSD

may have been one of the contributing factors to the cause of

the veteran's death. The case was then returned to the

Board. Thereafter, the Board sent to the appellant an

October 2007 notice letter informing her of the opportunity

to submit additional argumentation and evidence prior to the

readjudication of her claim within a 90-day time period.

In response, she provided several items of evidence not

previously on file, including but not limited to a detailed

personal statement dated December 2007, statements from

physicians and other treatment providers, and various medical

journal articles. Moreover, she elected the option set forth

upon the Board's October 2007 letter to have the case

remanded to the RO as the Agency of Original Jurisdiction

(AOJ) to initially consider such evidence. Thus, a

remand is necessary to implement this request.

...

1. Prior to any further adjudication of the

claim for service connection for the cause

of the veteran's death, the RO should

send the appellant another VCAA letter in

accordance with 38 U.S.C.A. §§ 5102, 5103,

and 5103A (West 2002), and all other

applicable legal precedent. This

additional letter must set forth

discussion of the criteria for

demonstrating entitlement to DIC benefits,

as outlined in the Court's decision in

Hupp v. Nicholson, 21 Vet. App. 342

(2007).

2. The RO should readjudicate the claim for

entitlement to service connection for the

cause of the veteran's death. If the

benefit sought is not granted, the

appellant and her representative should be

furnished with a supplemental statement of

the case (SSOC) that includes review of

all additional evidence received from the

appellant in December 2007, and then

afforded an opportunity to respond before

the file is returned to the Board for

further consideration.

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  • HadIt.com Elder

See http://www4.va.gov/vetapp08/files2/0811271.txt"]http://www4.va.gov/vetapp08/files2/0811271.txt

Sorry, it is not brief...but I do not want to mis-state anything. I basically see that the RO at AMC in my current denial did not consider any of my ptsd evidence as of any value. I never once claimed tha colon cancer was SC, but that ptsd was and that it contributed to his death. I illustrated this with almost 30 years of medical records, most of which they gave me.

x

x

x

akwidow, The link you provide takes me to a recent BVA Decision, dated 04/04/08. You have not provided the actual Court (CAVC) Remand, but rather it is referenced therein the 04/04/08 BVA Decision.

What I am reading into this 04/04/08 BVA Decision:

"The appellant ... raises the issues of entitlement to service connection

for asthma, and a higher rating for service-connected

post-traumatic stress disorder (PTSD), both presumably for

accrued benefits purposes. These claims, however, are not currently before

the Board. See 38 C.F.R. § 20.200 (2007).

Whereas these [two] claims have not been adjudicated by the RO in the

first instance, to include the question of whether they were

timely filed pursuant to 38 C.F.R. § 3.1000© (2007), they

are referred to the RO for appropriate development and

consideration.

. . . the appellant provided a notice of disagreement (NOD)

with the initial non-compensable rating for bilateral hearing

loss, for purposes of entitlement to accrued benefits.

Consequently, this claim should be remanded to the RO for issuance of a

statement of the case (SOC) pertaining to the matter.

Ak Widow, I do not know the conditions surrounding your husband's death.

From reading this 04/04/08 BVA Decision, I clearly read your claims for Asthma and Increased service-connected for PTSD. I clearly read, that these two claims were to be Adjudicated in the first instance by the VA Regional Office; in this case, the AMC would be acting as the VARO. This Remand also asks the VARO to provide a decision on the issue of a compensatable rating for bilateral hearing loss.

I gather that the SSOC you just received from the AMC did not properly "develop" or "adjudicate" your increased SC PTSD claim. Is that correct? Did the AMC decision decide the Asthma issue? The Hearing loss issue? If the AMC did not properly adjudicate, develop or decide the PTSD, Asthma and Bilateral Hearing Loss Issue(s) "in the first instance", then they could not properly decide the cause of the veterans death. Sounds like the AMC has put the cart before the horse.

You got little help from the AMC, they are poorly trained to say the least. In my opinion, your best route of attack would be a simple NOD to the AMC, tell them they did not follow the Board's Remand instructions and ask them to return your case to the BVA for a decision.

I recently had to NOD the AMC decision, and this is how I did it. The BVA still denied my claim, but they did so in just a few months ... Now I can go to the Court. ~Wings

January 31, 2009

RE: 397/AMC

VA File No. xxx-xx-xxx

BVA Docket No. 06-33 xxx

Veterans Name

Veterans Address

Veterans Tel Number

Department of Veterans Appeals

Appeals Management Center

1722 Eye Street NW

Washington DC 20421

CC: Board of Veterans Appeals

NOTICE OF DISAGREEMENT (NOD)(6 pages)(evidence attached)

The veteran, expressly “waives” prior review of this Notice of Disagreement by the Appeals Management Center (AMC); and asks that the case be returned to the Board of Veterans Appeals (BVA) for further review.

SUBJECT: Formal Notice of Disagreement with the Appeals Management Center’s (AMC) Decision dated 12-01-08. The AMC Decision and SSOC were mailed to the veteran, 1-13-09.

ISSUE: Entitlement to an effective date prior to January 25, 1999 for the grant of service-connection for post-traumatic stress disorder (PTSD)

INTRODUCTION: See the BVA REMAND, 8-21-08

BACKGROUND: See veteran’s Submission of Additional Evidence to the Board of Veterans' Appeals (6-02-08, 28 pages)

The BVA Remand

The 8-21-08, BVA Remand instructed the AMC to adjudicate the veteran’s CUE claim. Only thereafter, was the AMC to adjudicate the Issue of Earlier Effective Date for Post Traumatic Stress Disorder, as “inextricably intertwined” with the CUE claim. Detailed on page -2- of their Remand, the BVA rightly explains the claim of CUE in two parts: “Specifically, she argued that the finding that she had a dishonorable period of service and that a failure to notify her of the August 31, 1988 decision were CUE.”

The AMC Adjudication of the CUE Claim

The 12-01-08, AMC Decision did Concede CUE in that, “ ... However, the 12-01-08, AMC Decision did not adjudicate the second part of the CUE claim ...

Then I listed the AMC Errors and CC to the BVA. I sent my NOD to both the AMC and the BVA at the same time. The AMC did, in fact, forward my NOD to the BVA for a final decision.

NEVER GIVE UP!!!

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