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Rockhound
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Posts posted by Rockhound
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If a Veteran has a question about VA Law, can he ask for an opinion from the OGC, concerning certain aspects of his claim, that may show that the VARO, AOJ, failed or misapplied certain statutroy and/or regulatory prenciples in his original claim, but does not meet the complete terms of CUE, as to how the Veteran may correct these errors, so that his original claim can be properly adjudicated for disability and compensation?
Rockhound :)
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cowgirl: I've collected what I can to show pre-service, which includes but only one buddy statement from a friend who has known me for about 38 yrs now and has seen me through out all that time. I submitted it last time I filed but they ignored it as new and material or at least not to the degree to help open my claim, since at that time I had no IMO to coroberate the observations they made.
Also I will provide sports activities I was involved in prior to service, if that helps, Personel records that show personal evaluations that are average to above average marks, the above average marks usually pretained to attitued. Extra training I did while in service to, which was usually above what you would expect from an average serviceman, to include recomendation for reinlistment and advancement upon completion of an advanced training opertunity.
Post service, shows a roller coaster ride with many jobs, most of short duration, but even then I have letters from employers who praised me. Attitude again was in the above average range.
I plan to chart with a graph showing times when it appeared that I was having a difficult time with social and industrial adaptability. Of course it is subjective, but employment, health, and school records will help to back this graph up. I will use the DSM IV and schedule of dissabilities for mental health as a guide showing 10% to 100% disabling criteria.
T-Cat is doing fine. When I was zonked out with my doubled psych medication, he would make sure I didn't sleep to deeply or to long. I just wished he would find a different way of doing it. My hand is getting a bit sore from his biting it, to get my attention and wake me up. LoL He's almost as good as a day nurse. Now if he could only make sure I took my meds on time.
Snowed again last night and continues snow lightly this morning. More is expected Thursday when I rescheduled my trip into town. May have to wait until early next week when the weatherman expects a brake in the weather pattern.
Rockhound :)
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It costs me a lot more to be dropped off and picked up from the VARO using the Handicap service. They have Vans at the VA hospital, but they onlly pick up and take you home for DR. visits and the only ones that get to use them for other stops, are amblitory patients and those staying at the Transitional Care Unit.
Just thought I would ask.
Rockhound :)
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cowgirl: You pretty much got the idea. I'm just concerned that the VA will continue to say that the PD is the correct diagnosis and unless my psychiatrist gives me a very good and well layed out IMO, they will continue to use the PD saying that although my psychiatrists says that the PD diagnosis is wrong, it won't be enough th change the outcome. I'd rather prove them wrong at the VARO level than to wait several years to see my claim through the BVA or even longer to ague it iin COVA.
These claim issues take a big toll on my nerves and sanity.
Rockhound :)
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Our local VARO has moved from one location that was easily access by the City Transit System, One block from Bus Stop. They have Moved nearly clear across town to a location where the nearest Bus stop is about one mile away.
I depend on City Transit and Handicap Transit to get around. Only if I am able to schedule my ride through Handicap Transit, am I able to get to the VARO or my VSO's office during bad weather. Even in good weather, and I can only get to the nearest Bus stop, I must make it my first stop, to be assured of having a near full charge for my electruc wheel chair, to get me their and back to the bus stop.
As a disabled person, is their anyway I can charge the VARO for this inconvenience?
Rockhound :)
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I'm hoping to get an IME/IMO from my VA Psychiatrist. Of course Hope is a big IF.
If I do get the IME/IMO and I am able to open my previousely denied claim and they procede to deny the claim, still using the alternate PD diagnosis to deny my claim. Will I be able to claim some type of error, since the evidence they proport says that the VA examiner made an alternate diagnosis, or maybe I will be able to show how this evidence is deficit the proper certification that the original diagnosis was worng. That their denial is based on a VA C&P examination that is insufficient for rating purposes?
Rockhound :)
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Thanks Josephine: Will add it to my stack of records to help my Psychiatrist write her diagnostic opinion. I will be adding the C&P check list as well.
Snowed here, so I may have to wait for better weather before goin into town. Will have to give the sidewalks time to be cleared of snow.
I hate winter, I become almost like a shut in a good portion of the time.
Rockhound
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I will be providing my VA Psychiatrist with my Medical records used in my claims effert to SC my psychiatric problems I had in service to those I have now and to refute the PD/personality disorder they said was an alterhative diagnosis and used to deny my claim.
What should be in their report or how should it read, so that not only does it say or show that my psychiatric problems today are a continuation of my in service psychaitric problems and to further refute the PD diagnosis?
Even though my Psychiatrist has told me I do not have a PD, I would be just as happy for her to say that the PD was a seperate identity from the psychistric problems or as a result of the psychiatric problems. As long as their report refutes the assumption that it was an alternate diagnosis some how.
Back then, they had the DSM II and now they have the DSM IV which could list the PD as a secondary issue or Axis II and the Psychiatric problems as the primary or Axis I
I need New and Material Evidence to reopen my claim otherwise the VA will continue to use any evidence of a Psychiatric problems as not new or material to the PD.
I Know and understand the terms "As likely as not" and "More likely than not" But I have to Refute the PD as an alternate diagnosis or I'll never have a chance without somehow finding an answer to my CUE claim or even such an outside chance filing for Equitable Relief.
Any one have examples of a IMO.IME that refutes a VA examiners opinion?
Rockhound <_<
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Finally found a conversion tool, so I can read the COVA cases, and I was wrong, the cases do predate 1974, so I got a lot of reading to do.
I only hope I can find a few claims where CUE was won, for comparison.
Rockhound <_<
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Berta: If my memory service me right, the Court of Veteran Appeals wasn't around in 1974
What case law would I look up to sight. The M21-1 manual of procedures, CFR regulations,
and USC Codes I can find for 1974 at my local University Library. I am not sure what you mean by VA case Law. What kind of appeal was their after the BVA in 1974? Not that my claim ever got that far.
Rockhound <_<
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When I click on the Forum link, it sends me to a list, for social chat, geek, test post, but the forum link is missing. can't get in to the Forum.
I even tried reloading the web sight but that didn't do any good.
Did I do something wrong to be locked out?
Rockhound <_<
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Ricky: You are not understanding my CUE claim. I am not saying the PD was a wrong diagnosis. I am saying that the va adjudicator did not follow the statuary, regulatory or law when he dicided it was a change in the original diagnosis. He failed to substantiate the change with clear and unmistakable evidence that the change was in order and that this evidence is missing from the record. That being were the examiner was to certify, backed by his own testing, examination, and observations, stating that the original diagnosis was erronious.
This is not a question of which diagnosis is a correct one, this is about Due process and not following the provisions set down for the va adjudicator.
38 CFR 3.105 (a)
Error. (In part) Previous determinations on which an action was predicated
including decisions of service connection,
This does not say that you have to already be SC with a diagnosis. The action for which my claim was predicated on was SC for my mental disorder. They denied me SC because they violated my Due process rights and other statutory and regulatory provisions when the adjudicator made a medical opinion, ( not in his authority to do) when he denied my claim, saying an alternative diagnosis had been made. He also failed to provide the certification, required by statutes, regulations, and laws, to back up his assertion , that such a change was proper in this case. Nor did he give me the required notice/time to provide evidence in my favor so that the claim for which my SC was predicated on could be maintained.
had it not been made, would have manifestly changed the outcome when it was
made. If it is not absolutely clear that a different result would have ensued, the
error complained of cannot be clear and unmistakable.
As far as I can see in my claim for CUE, I have but one stumbling block to get past and it is the one above. If I can adiquately explain, how had it not been for the error, it would have manifestly changed the outcome of my claim. When I mean stumbling block, I should say brick wall.
On Tuesday I am delivering my medical records to my Pyschiatrist at the VA Hospital. After this latest emotional break down, she has agreed to look at them. Whether she will help me with an IMO is another question yet to be answered. But she did answer my one nagging question when I asked her. did she think I had a personality disorder, and she enfatically said no. I'm cureous what she may have written down on her latest report of that visit, besides doubling my psych medication.
Man, if I only have one episode every six months, I'll stick with the lower dosage. Two days I walked around the house like a zomby. Now and then my mind would clear from the fog, so I could at least eat a bit and put a few thoughts together. So if I sound wierd or way out their, take it with a grain of salt and keep responding. The more of my questions are answered or get me thinking, the better I will understand everything about my claim, not just the CUE issue, but for my other claims as well.
Thanks Ricky, your imput is always welcomed as is everyone elses. Please don't be scared off becaues of my one sided view. After all, it is my claim and if I make a mistake, its not your fault that I did not follow the wisdom of others.
Rockhound <_<
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In going over my paperwork, for the umteenth time, I was reading the part in the Statement of the Case where they list the pertinent Laws, Regulations; Rating Schedule Provisions: After reading the requirement necessary to change a diagnosis, it came to me. Shouldn't they have listed the Law and/or Regulation that gave them the right to make the change in the diagnosis?
Here are two such Regulations that I feel should have been listed giving reason and basid to their decision, but they didn't. Least of which would have been the General Due Process Provisions under M21-1 which the basic right is that if any action proposed could result in denial, suspesion, reduction, or termination of benefits, you have certain basic right you may exercise before the proposed action is taken. In 1974, you had 30 days to submit evidence or request a hearing and had the right to representation such as a VSO. None of these things where given or made aware to me.
(1) 38 C.F.R. § 3.105 (a) Revision of Decision (d) Severance of Service Connection (1973)
(a) Error. (In part) Previous determinations on which an action was predicated
including decisions of service connection, degree of disability, age, marriage, relationship,
service, dependency, line of duty and other issues, will be accepted as correct in the absences
of clear and unmistakable error. Where evidence establishes such error, the proper decision
will be reversed or amended.
(d) Severance of service connection. (In part) Subject to the limitations contained in
C.F.R. 3.114 and C.F.R. 3.957, service connection will be severed only where evidence
establishes that it is clearly and unmistakably erroneous (the burden of proof being
upon the Government)……A change in diagnosis may be accepted as a basis for severance
action if the examining physician or physicians or other proper medical authority certifies
that, in the light of all accumulated evidence, the diagnosis on which service
connection was predicated is clearly erroneous. This certification must be accompanied
by a summary of the facts, findings and reasons supporting the conclusion. When
severance of service connection is considered warranted, a rating proposing severance
will be prepared setting forth all material facts and reasons, and submitted to
Central Office for review without notice to the claimant or representative…….
If the proposal is approved on review by Central Office, the claimant will be notified at
his latest address of record of the contemplated action and furnished detailed reasons there
for and will be given 30 days for the presentation of additional evidence to show that
service connection could be maintained. You will note that these are dated for when the claim
was submitted in 1973 and were in effect in 1974 when it was decided.
(2) 38 C.F.R. § 4.128 Change of Diagnosis (1973)
Rating boards encountering a change of diagnosis will exercise caution in the determination
in the determination as to whether a change in diagnosis represents no more than a
progression of an earlier diagnosis, an error in the prior diagnosis, or possibly a
disease entity independent of the service-connected psychiatric disorder.
How might this relate to a claim still open or a CUE claim?
Rockhound <_<
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Feeling better guys. Felt like someone put a straight jacket on my mind their for awhile. I think I might have the "manifestly change the outcome" problem with my CUE claim figured out. Have some more rewriting to do first to make sure what's in my mind looks ok on paper as well.
Basically since the VA adjudicator accepted the VA examiners report as being sufficient for adjudication purposes, he is stuck with the wording and findings of that examiner. Since the VA examiners report will not hold up to scruitny. that is to say that their is no certification to say or show their was an error in the original diagnosis, then it won't support the adjudicators assumption of a diagnosis change and since the probative value of the Naval Medical Board evidence out weighs the VA examiners non compeling report, and given the benefit of the doubt doctrine, the decision should be revised so that the original diagnosis is reinstated and service connection restored so that the severity of the disablity can be assessed for compensation.
Neither one of us gets a second bite at the apple. they broke the rules so their stuck with what they got to use, as I am stuck with the evidence extent at the time to use on my behalf.
It needs some refinement, so it's not so wordy, but it kind gives you an idea what I'm trying to say. I still got to think about it a bit, may change my thinking in a few days who knows.
Rockhound <_<
p.s. Looks like I will have to go back to the University Library, re-read the pertinent laws: regulations; Rating shedule provisions page on my 1974 claim. They used USC 310 & 331 which is now USC 1111 I think. Presumption of Sound Condition.
Weatherman says it's going to be cold, possibly snow on Wednesday, when I usually go into town, will have to pick another day I guess.
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Tried to access the VA manual, regs, & codes link on home page and it comes up as URL not found. Is it just me or is anyone else having trouble accessing it too?
Rockhound <_<
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$10.00 is cheap. The last time I went in for a copy they added a letter saying that my next copy would cost me over $30.00 dollars, probably more since my last claim had several pages in it alone. May have to pay just to see how much more my file is screwed up.
OH yea! Ask that they copy on only one side, otherwise you will have to recopy everything again just so you can put things in order. They seem to have fun copying things out of order copying on both sides of the page. You might end up with a medical report on the back side of a copy some other evidence. anyway it was a pain sorting everything out when I got my copy.
Rockhound <_<
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Tbird: having problems with accessing the manual regs & code link on the home page. keeps coming up as URL not found. Sorry for posting it here, but I couldn't find the Geek site.
Rockhound <_<
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Has anyone read or seen where through an administration error or adjudication error, a claim that was thought to be closed was not. That since it was not properly adjudication, the claim remaind open for several years? Some how in the back of my mind I remember reading something about such a claim, but I cannot remember where I saw or read it.
Rockhound :)
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My Cats name is " Tom T. Terrific," of course. Tom for short. Silver Tabby. Went to bed early last night and low and behold, he woke me up at about 06:30, bit my hand. I keep telling myself he is just waking me up because I'm not breathing, but when he bites me even after I am awake, I know he is hungry and wants food now!
I'm trying to figure out why I haven't gotten 10% already for my broken nose and diefiated septum. I also have chronic sinusitis that's been agrivated by my broken Nose. that in itself deserves ten percent. The need for constant medication should put it no more than 30% but do you think they would give it to me, oh no, I got to fight tooth and nail to get it.
Stay away boogy men, not now. no you cannot come out and play with my thoughts. LoL
Not drooling yet, but I got to work up to my full psych med increase or I would probably a blither idiot for a couple of days.
Hurry up and Wait.
Rockhound :)
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I've submited a new claim for increase, for my SC Nasal Fracture (0 %) which is causing me breathing problems and I constantly have to use a corticosteroid nasal spray solution to help keep the airways open and clear. The dosage is at its highest recommended level for its use.
Their are some complex issues I wish addressed. One is the fact that if I do not use the nasal spray, I can not use a nasal canula, to treat another condition that is not SC with oxygen.
What are the chances of getting the NSC condition, which is Mild Obstructive Sleep Apnes, Nocturnal Hypoxia. the Sleep Apnea is not severe enough by itself for the use of a C-Pap machine, but I still need to use oxygen for the Nocturna Hyposia and they do not currently have any proper masks like the C-Pap machine. So I must use the oxygen fed through a Nasal Canula to keep my O2 saturation level in the normal range when I sleep.
This condition, If I did not use my nasal spray, would acerbate the problem, because then I could not use the nasal canula to feed oxygen through my nose due to parcial blackage and at time full blockage. This condition can cause Sudden Death Syndrome or even heart attacks and arrythmias, when I sleep.
When would be the proper time to ask for a formal hearing so that I might address the issues so they do not somehow get lost in the decision that their si no change in the prior decisions..
My VSO says to wait and see what the VA is going to do. Do I wait for a development detter, a denial letter, when is the time right to present these other items. My VSO only submited a short but sweet application that asks for an increase due to breathing problems and I am being treated at the VA Hospital. No evidence or anything that I know attached to it. I'm getting a bad feeling already that I should have had more ducks in a row.
Rockhound :)
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If you have credible evidence showing that the Cysts you were treated for in service, Which is already SC at 0 % for residual scars and credible medical evidence that the Cysr diagnosis and the HS is one and the same. That the Cyst diagnosis was in error and the HS is the correct one. Then all you have to show is a history of being treated for the Cyst/HS to prove a chronic condition existed. The hard part is showing that it was 10 % disabling during the presumptive one year of service.
Work history might show that you had to take time off from work for treatment and recovery, Anything credible evidence that shows you were effected financially as well as Medically could be of help. Did your employer have to make any allowances for you during the presumptive year, such as limited work duties, giving you time to heal. A noterized letter from him could be of some help. He doesn't have to be a medical professional to be a credible witness, that he knew of your condition and made allowances for it, as it affected your ability to do your job is all he has to attest to.
Rockhound :)
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Do you have any credible evidence, such as from a DR that you were treated for the cysts within one year after leaving service. Scars alone would not be sufficient evidence that they were incured within the one year of leaving service.
To show that the prior diagnosis is or was in error. that the treatment you recieved for the cysts was actully for the wrong diagnosis and that it should have been diagnosed as HS. That the records that show treatment for the Cysts with in the one year of leaving service are treatment, although the wrong treatment, for the HS.
I hope I am making since. Had some problems earlier today and now I am just waiting while an increase in med dosage kicks in.
Rockhound. :)
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Just put me up against a wall and shoot me! I came one tearful outburst away from checking into the loony bin. Oh boy! Went to Adult Mental Health Services and what to my surprize, after calling them and explaining what my needs were, I was all prepared to spend four to six hours on an intake examination. But and a big But it turned out to be, they could not help me since I was already being treated by the VA.and even if I wasn't, I owuld have to go see them first to see if they would treat me.
Anyways, I lost all control of my emotions and nearly had a melt down. Had to go see my VA shrink to see If I needed another 72 hr. volentary commitment. But instead she doubled my Quetiapine Fumarate, to keep the boogy men at bay.
I think she finally realized that what I have been trying to tell her, was my dreams are to real to be just dreams, that I am not only schizophrenic, but darn near paranoid also. After this last fiasco, I just know the Government is out to get me, their out to put me in the grave so I won't be bothering them anymore.
Only one thing came of it and I won't know how it's going to work out. My shrink has agreed to look over my medical records that were used in my original claim that saddled me with a personality disorder. I asked her point blank if she thought I had a personality disorder and she said no she did not and that is why you won't find it in any of her reports. I said fine write it down that I don't have a personality disorder, but she wouldn't go that far until she has had time to do some of her own examing.
I have an appointment in a month, to give my increased meds time to level my emotions out again. We'll just have to wait and see.
I hope the increase in meds doesn't make me a drooling zonked out zomby. I think that would put me over the edge, I couldn't live like that. I was so worked up I couldn't even remember my shrinks name. Now that I have calmed down a bit I can remember it, go figure.
Sorry to unlode on all of you to this, but this is what happens when I get frustrated working my claim. It's a double edge sword. If I don't work my claim, I won't get whats due me and if I do and I get either stalled as in this CUE claim or run into a wall as in getting an IMO that will trash the personality disorder diagnosis. Every seanse in my body is whawned up like a bow string getting read to release.
Man I hate the thoughts in my head and the voices that are putting them their. Not quite thirty years I have been able to ignore them and only thought of them like a bee hive buxxing in my ears. But with my bad health and the stress I am under, not only in my claim, but just daily living, It's getting harder and harder to ingnore them.
I asked for an increase in my depression meds also and she said she could not do that, I am already at maximum dosage. That if it is still a problem in this coming month, she may have to go to some other and hopefully stronger medication to keep from hitting these terrible lows every now and them like today.
Wll I better go see to my Cat before he looses it too and bite my hand off when I try to pet him.
Sorry again about the rant, had to let some of it out before I take my increase in meds, for I am sure it will probably put me down for the night, and every night till I start to get a working madicnal level in my systom and hopefully get used to the residual effects when I wake up in the morning.
Oh by the way. I don't know about your VA outreach centers where you are, but here, they only help combat Veterans, I don't know if that is a general rule or if it is just particular to ours here. Limited funds means limited ability to do much of anything to help even Combat Veterans.
I' ll go now and leave you guys in peace for tonight. Don't have the where with all to put my two cents worth on anything but myself. Hope I am not coming across as stingy or conseted.
good night all, will read any answers whenever I wake up.
Rockhound :)
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I'm not sure who or where you would get them, or if you could. but I would and someone help me out, get any action reports for that day in the area where you say the bullets were flying. If one of those who where next to you are now SC for PTSD, then they would be your best buddy statement, saying you where their along with him and others. Another thought, did you write home about any of these incounters. If so, did the person you wrote to, keep the letters or could attest to what you wrote. Might help, maybe even a little. Know anyone who took pictures, just a thought? You might even see if their were any News stories about that day and which company/squads were involved. Anything that shows you were their when it happened.
You may not want to read this one. Did any close friends in your squad get seriesly injured or killed during these insodinces?
Rockhound :)
Question About Ogc
in VA Disability Claims Research
Posted · Edited by Rockhound
I don't know if my question is asked by others in a similiar situation or not, I do know that their are probably a number of Veterans who where saddled with a PD without the proper procedures addressed when they used the PD as an alternate diagnosis and their basis to deny Veterans their right to SC disability and compensation.
If it isn't CUE when they deny your due process rights and failed to apply the statutory and regulatory procedures in a change of diagnosis further failing to show certification of that change by a physician(s) How is one to show error in the decision administratively speeking.
Why then must Veteran(s) seek out a seperate medical opinion, that has already been given by the Military Medical board and for which Veteran(s) was medically discharged for, especially that of a mental disorder, to refute facts that are not in evidence, in the report by the VA's own Examiner.
Berta: Thanks for the OGC number, but you left part of the number out. 1-202-6660
Should have been 1-202-273-6660
I hope this make since, I got up this morning and got ready to go into town, only to find out that I am a day ahead of myself. Having a bit of trouble keeping track of time with the doubled psych medication. At least I am not running behind schedule. LoL
Four or five years seems an alful long time to get an answer back on a question of Law.
Rockhound :)