Theopolis

Same thing has happened to my HLR. What was the outcome?

Buck52, Thanks, I appreciate it!

Decision P1 Decision P.2 Decision P3 2015 C&P Exam Diagnosis VA 2015 Greetings Berta! I appreciate your knowledge and kindness in addressing my question. The same goes for Broncovet, Buck52 and GBArmy, I appreciate all of your input and consider you my veteran family! Per Buck52's suggestion I posted a redacted copy of the March 19, 2020 Rating Decision. I also posted part of my 2015 C&P exam which took place at the Baltimore MD VA Hospital. As you can see I was diagnosed with Claustrophobia at that time and it was linked to my service by the C&P examiners. At the time of the examination (2015) I could not remember being involved in the automobile accident. In 2019, during a conversation with my sister she reminded me of the accident in 1988 when I was stationed in Fort Drum, New York. I was involved in a accident in Canada where my car was totaled because I was hit from the side. They had to pry me from the car and I was knocked out upon impact. While I was getting checked out at the hospital, they called my father who at the time was a Infantry SGM and told him about the accident. I had no physical injuries (or so I thought) but I did not take into account what the accident did to me mentally. After my conversation with my sister I called my father and he told me the Insurance company and policy number I was insured under. I called Allstate Insurance Company and amazingly they had records of the accident. To reiterate what I said in my initial post, the VA already had the Allstate affidavit. The problem is they did not refer to it during the rating process. I called the VA Hotline after receiving the March 19, 2020 decision and asked one question. I asked if the Allstate affidavit was in my C-File. The VA call center representative stated it was and was received into the system on September 28, 2019 and again in October 2019 from when I hand delivered a copy to the Baltimore Regional Office. After talking with the call center representative I asked to speak to a supervisor. They said a supervisor would call me back and they did. I asked the supervisor to look at the documentation I had faxed into the Evidence Intake Center over the past year and to see if the Allstate affidavit was included. She said it was. I say the following respectfully, this is either a CUE or gross incompetence. I truly appreciate all the response and my goal is to succeed at the Higher Level Review. My claim has been in since 2011 and waiting for the BVA is just kicking the can down the road. I feel the facts and law are on my side. Res ipsa loquitur! Thank you for that case Buck52, it was definitely on point! Thank you Broncovet, I know you are looking out for my best interests. Ms. Berta, thank you for your tutelage and mentorship! VA law is much different than labor law and I humbly appreciate your guidance!

Greetings GBArmy and thanks for the reply. I appreciate it tremendously. You and Broncovet are really preparing me for this Higher Level Review. I have a copy of the Allstate Insurance Company affidavit which verifies the automobile accident by listing the time, date location, damage and accident number. This document is already in the record. This is a business document which can be verified by calling Allstate. It is objective, not subjective. On Page 3 of the M21-1 Part III, Subpart iv, Chapter 5. Evaluating Evidence and Making a Decision, The regulation states: Verifying that the claim is properly developed and procedurally prepared for a decision involves making sure that: · all issues were recognized · the duty to notify was discharged · the duty to assist was completed or otherwise appropriately discharged, and · the appropriate procedures were followed when any other due process requirement was implicated by the facts in the case. As a lawyer myself, I know the rater is not following the due process requirement. Due process is the legal requirement that the state/agency must respect all legal rights that are owed to a person and in this case, veteran. In layman terms, the rater should examine all evidence. If the evidence, as it does in my case, directs you to a document depicting an automobile accident, the rater should look for that document in the C-file, (due diligence). That was not done but the rater made the mistake of saying that there is no evidence of the "event" I subjectively described. The event I "subjectively" described was the automobile accident! My sister described the automobile accident. Allstate Insurance company verified the automobile accident. Allstate Insurance Company is a primary source for evidence because they are the custodian of the document I'm submitting. Caselaw has held that contemporaneous insurance company documentation can be used to authenticate an accident. How can the second element not be satisfied? Lastly, the C&P examiner opined that I should be service connected and the rater actually listed it as a favorable finding, which by law, has to be recognized going forward.

I appreciate the response Broncovet. I have the second element covered via the insurance company affidavit which is a business document that was made contemporaneously. I am not submitting new evidence with the HLR, I'm asking for evidence that is already in the record to be listed and examined. The rater listed and referred to evidence that was submitted in the same fax as was the insurance company affidavit. The insurance company affidavit was submitted in September 2019 (last year). The rating decision was made on March 19, 2020. As for an in service event not be documented at a medical exam. On Page 32 of the VHA Office of Disability and Medical Assessment (DMA) Compensation and Pension (C&P) Disability Examinations Procedure Manual, published July 31, 2019 The regulation states: 3.i. Claimant Records (a) If the claimant provides records at the examination, review the records, document them in the report, and then return the records to the claimant with instruction that they should immediately submit the evidence to VBA. VHA C&P examiners must not take the evidence to transmit to VBA. The evidence can be reviewed and documented, then returned to the claimant for submission to VBA. (b) If the Veteran indicates there are private treatment records the examiner should refer them to VBA for assistance obtaining these records I provided a copy of the Allstate affidavit to the C&P examiner during my March 13, 2020 C&P examination and specifically stated that I was involved in a motor vehicle accident on January 16, 1988. The C&P examiner immediately entered notes onto her computer detailing what I told her and she looked at the Allstate affidavit. That is why I have a favorable finding of Claustrophobia from this C&P examiner. So, for the author of the March 13, 2020 rating decision to declare there is no evidence is false and disingenuous. All 3 elements are covered.

Hello hadit Community. I submitted an initial claim for Claustrophobia in 2011 and my claim was denied in March 2015. I submitted my NOD and appealed the decision. I recently (March 19, 2020) received another rating decision on my claim for Claustrophobia and was denied again for service connection. The issue in 2015 was that I had no evidence of my account of being mistakenly locked in the Arms Room. My period of service in the US Army was from 1985 to 1994, where I was a Supply Sergeant/Unit Armorer and stationed primarily overseas. I submitted buddy statements and a description of my Unit Armorer duties which required me to work in a vault like setting for long periods of time. In September 2019, I submitted an affidavit from Allstate Insurance Company, (on their company letterhead) along with the date and time of the accident to include the Allstate claim number (the accident took place in January 1988) to the Evidence Intake Center. I called the VA Call Center (1-800-827-1000) numerous times afterwards and they confirmed receipt of the document and stated it was in my C- file. I also hand delivered a copy of the Allstate Insurance Company affidavit to my Regional Office in October 2019 and have a stamped copy of the documentation as evidence of my submission. In March 2020, I finally was scheduled for a C&P exam for Claustrophobia. My C&P exam took place on March 13, 2020 and I showed the C&P examiner the Allstate affidavit and discussed my automobile accident and my duties as a Unit Armorer as my stressor events for Claustrophobia. My case was decided on March 19, 2020. When I reviewed the March 19, 2020 Rating Decision, the Allstate affidavit was not listed in the evidence section. The author of the rating decision spoke vaguely about the evidence and on Page 3 of the three (3) page decision, made the following statement; “ There is simply no evidence to confirm that the reported incident(s) occurred, or that you sought treatment documented during service as a result.” In the March 19, 2020 Rating Decision, the rater stated: “that the March 13, 2020 C&P examination reported a diagnosis of situational phobia (claustrophobia) and the examiner opined that the present diagnosis was at least as likely as not due to the event you subjectively reported.” The March 13, 2020 C&P examination is also listed as a Favorable Finding in the March 19, 2020 decision. What is troubling about the rater’s language is they reference the “event” but does not refer to what the “event” specifically is. In addition to the Allstate affidavit, I submitted a lay statement from my sister also confirming the accident. I also included in the evidence: a copy of a February 2015, C&P exam, which was held at the Baltimore Maryland VA Hospital and conducted by VA Psychologists and they opined that my conditions of Claustrophobia and Agoraphobia is directly connected to my military service, a copy of a August 2019, Mental Health DBQ which was conducted at the Washington DC VA Hospital and conducted by a VA Psychologist. The DBQ states my Claustrophobia is linked to my military service; a September 2019 medical opinion letter from my VA Contracted Psychologist, where the doctor states that the automobile accident and my Unit Armorer duties are directly responsible for my Claustrophobia and Agoraphobia. a very detailed Statement in Support of Claim chronologically listing the events in service along with the previous diagnosis that I received. My question for my fellow Veterans is this Rating Decision a Clear Unmistakable Error or just clear incompetence? I have been examined four (4) times and currently by Psychologists and all of them have diagnosed me with Claustrophobia. I also have evidence of the automobile accident that I was involved in (thanks to Allstate keeping records over 30 years). I requested a Higher Level Review on April 13, 2020 and articulated all of the above on the VA form. I also requested that a different office conduct the HLR in addition to requesting the informal telephone conference. Thanks!