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Rockhound
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Posts posted by Rockhound
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Thanks to everyone who has been helping me find 1974 era M21-1 procedures 38 CFR regulations, and 38 USC Codes. Found everything at our local University, seems they are a federal depository of such things. Their nearly right down town and easy for me to get to. Once I am downtown, their is a free bus that goes up and down the main drag of town and has a stop with in a block of the University Library. The people their were realy nice and helpfull. almost as nice and helpfull you all have been putting up with my rants and raves. LoL
Chill pill time.
Rockhound :)
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The VA have my Navy medical board findings with a diagnosis and if they had DSM III or IV at the time my axis I would have been acute schizophrenic episode, in remission demonstating moderate impairment to social and industrial adaptability assonciated with depression and anxiety. Axis II would have been a severely schizoid obsessional and womewhat withdrawn personality But the VA just wants to see the personality disorder that their examiner diagnosed and deny, deny and deny.
I am desperate at this point, but I will try tomarrow to see if I can get any help from the state run Adult Mental Health Services Clinic. If they don't, I might just go off my meds and have myself commited, cause I am fed up with it all. I live in a box and barely functioning as it is.
bad day, AMVET looked at my file and saw that personality disorder and said sorry can't help you their, you'll have to get me some new and material evidence to file a claim on that matter. Didn't think much of my CUE claim either, but said he would file it when I was ready.
He also said if I sent anything directly to the VA without going through him first, he would drop me like a hot potatoe. I don't know what that was all about. Why wouldn't I want to do otherwise, if he doesn't know what I am doing or what the VA might have sent me, how can he help me when needed?
By the way, our VA office moved and before they were on a bus route, now they are about a mile from it. Glad I have a good electric chair with strong batteries. I hadn't planned on them being so far out and hard to access by someone like me who has to schedule rides three days in advance. I got their OK, but I didn't think I would need a ride from their. Was I ever ticked off, I even told the guy I was in a wheel chair and had to schedule my ride. he should have told me their was no bus route close by.
Got to go take my meds before I forget again and it will be to late to take my sleep meds and I will be up again most of the night.
Rockhound :)
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When will I get to send in my claim under these New rules? Fractured nasal bone with concussion and lights out/unconcious for a short time. Not I have a personality disorder, adjustment disorder with depression and anxiety and I on occasion get migraines for which I have medicine procribed for them. light sinsitivity, fullmess feeling in ears at times, sleep problems, some confusion at times, trouble remembering things and peoples names, concentration is bad, should I go on?
It is all in my medical charts from the VA and the injury occured while in the service, oh yes job and school history afterward reflects something was wrong. emotional outburst of crying. Can all this be from a mild concussion/TBI? and will soon be ratable?
When?
Rockhound :)
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Its off to see the Wizard, If you can ever think of a VSO as a wizard. LoL
I will be taking with me what I could find of my file. Can't remeber half of things and where I stored them. But I have everything for the 1974 claim, and quite a bit of of my subsequante claims, not all but pretty close.
I need to go by SSA and get the reason for their decision, so I can see what they wrote up, but if my memory is any good, it deals only with my physical problems, which have never been anywhere close to being service related.
Then if their is still time, I might stop by my Congressman's branch office and talk to his representative their, who handles the local VA problems.
I'm not going to file any claim till I can be sure what would be best. May just try for an increase for my fracture nose and deviated septum and how it exasserbates a NSC condition of Nocturnal Hypoxia with Mild Obstructive Sleep Apnea. But not in a hurry, got to get my IMO first on that issue.
Tomarrow I go to Adult Mental Health Services to see if they can or will help. So two full days, I hope I can stand being in my electric chair that long a time. 10 hrs today and 12 hrs. tomorrow. Oh Boy! I'll be one tired puppy, hope my Cat remembers who I am. I hate it when he bites. LoL
Rockhound
p.s. Don't know what happened but I hit the wrong button and it triplicated my post with in the same post, so I had to edit it.
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No! No! The meds stay, the boggy man stays away. LoL
I can't say I don't mind the personality disorder diagnosis, heck after what I went through back in 1974 could well have changed my personality. But the examiner didn't say one way or the other. He didn't even find the diagnosis of the psychotic episode as wrong. He only said he could not solidly support it himself. So as far as I look at it, the personality disorder is a new and seperate diagnosis from another Dr. and that the original diagnosis still stands. but that it was the adjudicator who made the medical assumption that a alternate diagnosis was being offered and that is and always will be, way beyond his authority to do.
I'm just ranting now, off to bed.
Rockhound zzzzzzzzzzzz
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Cowgirl, I doubt anyone would think your ideas are out in left field with the donkeys, unless that is what you ride these days. LoL
I am going in to our State run Adult Mental Health Clinic on Wednesday to see, first if I can afford them and second if they can help me with an IMO. If I can afford them, their is a four hour intake clinic I must go through first to evaluate where I am right now, I guess. It's not a pretty picture. I'd stop my meds, just to give them a better picture, but I am afraid I might hurt either myself or someone else, going cold turkey like that. I could well wake up in a locked hospital ward, but I am only guessing. That's what has me depressed and ancious all the time. I have been scared and I still am, that what happened thirty plus years ago could happen agian and this time someone will get hurt or worse, killed because of my Schizophrenia, that has for the most part stayed in remission, except for recently I have been having schizophric thought and idealation that come out while I am asleep. I keep thinking someone is talking to me, or I hear someone at the front door knocking, but when I get up to check, no one is their. Then their is the thoughts that the police are chasing me with their guns drawn. If these weren't schizoid thoughts and idealations, then why does my shink have my on Quitiapine
I need to sleep now, got a big day ahead, hope I can sleep without my sleep meds, can't function early enough if I do to get dressed and all. 07:20 pick up call to take me into town.
Rockhound.
Thank the Great Spirits for pain pills and psych drugs.
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What I am trying to say, that niether the VA or I can look into a crystal ball and say what would have happened had CUE not occured. Only that the claim has not yet been properly adjudicated upon and the claim remains open. that is how the error manifestly changed the outcome. their hasn't been a legal decision on the claim, one way or the other yet.
Rockhound
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Ricky: No arrows accepted, no arrows intended. So what your saying is that the following have no basis for CUE? What I am saying is that they could not provide the certification of their assumption or findings, so they made up their own.
The examiners report clearly states "at the present time" he was diagnosing a personality disorder, inadequate type. Then goes on to state he could not solidly support the schizoprenia diagnosis by the Navy Medical board. nothing said about a change in the diagnosis to say their was one. As far as the report read, he was offering a new and seperate diagnosis and he could not solidly put his support behind the Navy Medical Board Findings.
My argument is that had not the CUE occured, they would have had to take the report as is: The examiner was opinioning on a new and seperate diagnosis and he personally could not support the findings of the diagnosis of schizophrenia. He did not however say it was wrong either. The the evidence I provided out weighed the examiners and SC should have been awarded.
Sorry rambling. I just get a bit worked up over this
(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
60 days for the presentation of additional evidence to show that service connection
could be maintained
38 CFR 3.103 Procedural Due Process and appelate rights
(2) Advance notice and opportunity for hearing. Except as otherwise provided in paragraph (
(3) of this section, no award of compensation, pension or dependency and indemnity compensation shall be terminated, reduced or otherwise adversely affected unless the beneficiary has been notified of such adverse action and has been provided a period of 60 days in which to submit evidence for the purpose of showing that the adverse action should not be taken.USC 1111
<H2 style="BACKGROUND: white; MARGIN: 12pt 0in 3pt">§ 1111. Presumption of sound condition</H2>
For the purposes of section 1110 of this title, every veteran shall be taken to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities, or disorders noted at the time of the examination, acceptance, and enrollment, or where clear and unmistakable evidence demonstrates that the injury or disease existed before acceptance and enrollment and was not aggravated by such service.
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one-zero: One question, did you recieve a 60 day notice of any of the adverse findings, such as the nsc ones and the denied ones, prior to their decision on them? That is a violation of you due process, according to 38 CFR 3.103
<H5 style="MARGIN: auto 0in">I would be asking for a formal DRO hearing on this matter ASAP. you have time to appeal, but maybe the DRO may see that some of your claims are looked at again, you can offer evidence to support these NSC and denied claims to support your assertions at that time also. Verbal testamony can be read into the record on them and witness statements can also be taken at that time. Read 3.103 completely and see what your rights are.
§ 3.103 Procedural due process and appellate rights.
(2) Advance notice and opportunity for hearing. Except as otherwise provided in paragraph (
(3) of this section, no award of compensation, pension or dependency and indemnity compensation shall be terminated, reduced or otherwise adversely affected unless the beneficiary has been notified of such adverse action and has been provided a period of 60 days in which to submit evidence for the purpose of showing that the adverse action should not be taken.Rockhound B)
</H5>
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Wings as ever, you are a Peach. The two sites you have referenced are a lot easier to use than any I have found so far in looking up CFR or USC items. Thank you for posting them.
Rockhound
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Wings as ever, you are a Peach. The two sites you have referenced are a lot easier to use than any I have found so far in looking up CFR or USC items. Thank you for posting them.
Rockhound
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I pretty sure this will help my CUE claim: All I got to do is find it written in 1974. I copied part of it, but I must have either been copying something else of misplaced part of it, but here is the current reading and it pretty much hasn't changed any that I can tell.
§ 3.103 Procedural due process and appellate rights.(a) Statement of policy. Every claimant has the right to written notice of the decision made on his or her claim, the right to a hearing, and the right of representation. Proceedings before VA are ex parte in nature, and it is the obligation of VA to assist a claimant in developing the facts pertinent to the claim and to render a decision which grants every benefit that can be supported in law while protecting the interests of the Government. The provisions of this section apply to all claims for benefits and relief, and decisions thereon, within the purview of this part 3.
(B) The right to notice —(1) General. Claimants and their representatives are entitled to notice of any decision made by VA affecting the payment of benefits or the granting of relief. Such notice shall clearly set forth the decision made, any applicable effective date, the reason(s) for the decision, the right to a hearing on any issue involved in the claim, the right of representation and the right, as well as the necessary procedures and time limits, to initiate an appeal of the decision.
(2) Advance notice and opportunity for hearing. Except as otherwise provided in paragraph (B)
(3) of this section, no award of compensation, pension or dependency and indemnity compensation shall be terminated, reduced or otherwise adversely affected unless the beneficiary has been notified of such adverse action and has been provided a period of 60 days in which to submit evidence for the purpose of showing that the adverse action should not be taken.
I've undlined terminated and adversely affected. because that is what their decision did to my claim and no I did not get a 60 day notice. nor was it shown to have been given in the summery of evidence or rating decision, statement of their findings, or any copy of a letter advising me of these rights. I can not even remember if they advised me of the other rights 3.103 gives a claimant. Such as the right to a hearing, etc.etc. etc.
Rockhound
p.s. will be going in, in the morning to see the AMVET managing VSO. I'm really anxious to find out what he thinks or knows about CUE claims. I hope his attitude has changed with time. we'll see. LoL
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Berta: Thanks, I stand corrected. I think my mind was stuck in the court decisions and referencing the difficulties my CUE claim has. They didn't have the constructive possession ruling in 1974 and I don't think it was retroactive to earlier claims like mine.
Can you ask the esteam council Mr. Walsh to explain the Manifesty change the outcome had it not been for CUE? In my context of an improper change of the diagnosis to a personality disorder, which led to denial of a psychatric disorder that clearly happened in service.
I will be in town on the west coast at that time and cannot call in. will try to call the number to see if I can post my question now to be answered then, but I need to somehow get a transcript of the show/broadcast to know what all was asked and answered.
Rockhound
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Can you ask for reconsideration of a CUE claim? How can you submit new evidence in a CUE claim?
john999: You cannot present new evidence in a CUE claim, unless it was evidence extent at the time of the alleged CUE. Even the statutes, regualtions and USC's must reflect what they were at the time of the CUE occurred. It must also be evidence that was before the adjudicator and/or examiner at the time of CUE. You cannot bring in or point out evidence that might have been available but not seen or used in the claims process. Only if it was a procedural error or a some stutute, regulation or USC that wasn't applied when they made there decision.
I'm not sure a CUE claim can be reconsidered, I think it can only be appealed to the next higher level.
Another thing about CUE. Once the court has decided on they matter and if it is denied, then you can not go back and fix your mistakes in your CUE claim and precent it again based on the same factual basis of the old CUE. One shot in the courts on one subject. But if you have a different claim for something different that happened at the time of CUE and you think that too was CUE then it would be under different factual cercumstances and you could file on that.
get what I am trying to say?
If not maybe someone else can explain it better.
Rockhound
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It's Ok cowgirl, my bad. My Cat woke me up to early and I was still a bit fuzzy from last nights meds and when I went to take my chill pill, found out I hadn't taken my morning meds. Well medicated now. again, my bad. I should be good to go after a bit.
Rockhound
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cowgirl and everyone: Again, my problem started while I was still in the Navy, spent two months, according to my records, but I somehow remember it as three. The Navy Dr's and Psychiatrists are the only ones who tested, examined, and observed me, thoroghly as shown by the report from the medical board findings.
The examination done by the c&p DR. was cusory at best. making his opinion solely on the records the VA gave him to look at and from the verbal history he took from me. At no time did he give me any tests nor examination, other than a quick physical to come to his opinion of his diagnosis of a personality disorder.
At no time did he provide cirtification that the original diagnosis was in error nor that his was to be used as the corrected diagnosis.
I think I best just stop trying to explain all this, I don't seem to be making my self clear on this.
The VA Adjudicator did not follow procedure when they used another diagnosis to deny my claim for service connection. Not only am I having trouble explaining it here so everyone will understand, I can't seem to get this fact understood by a VSO or the VARO when I submitted a previous claim for CUE and they took it to mean I was reopening the claim with new and material evidence, which I wasn't.
Maybe its the Meds I am on, I'm confused and frustrated and at a lose as what to do. Oh boy its crying time again, got to go take a chill pill or its lights out.
Rockhound,
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Berta: As far as I can tell, the only things that the VA Examiner had to go by was my history I could give him, a short report from the VA hospital I stayed at briefly while waiting for my final discharge from the Navy. Most of the time I spent at home on leave from the Hospital, the report only lists a history of the Psychotic Episode, and my Medical Board report on their findings. At no time did the examiner provide or quote any tests or examinations other than his observations he made during the taking of my history. A physical was done and that was all. Nothing other than his opinion to make his diagnosis of a personality disorder. Which doesn't meet the standard for certification even if he spicifically stated that he believed the diagnosis was in error and said his was the correct one.
My belief has been and will always be, that the claim is still open, because the issue of the Acute Schizophrenia Episode, in remission, demonstrating moderate impairment to future social and industrial adaptability, associated with Depression and Anxiety, is still open, since the issues has never been properly or not at all for that matter, been adjudicated for Compensation and Pension purposes.
Question: If CUE is shown to have occurred and if it is shown that the VA Examiners report was insufficiant for rating purposes, and that the claim is still open, would that be an argument had it not been for Cue, this would have manifestly changed the outcome of the claim? I can't look into a crystal ball and say had they not commited cue, they would have sent the examiners report back for clarification and certification of an alternate diagnosis was proposed, or that they would have sent the report and certification to the Central Office for their approval, or that they would have then given me (60) days to respond with addition evidence in support of my claim.
The question of manifestly changing the outcome is very confusing and I haven't been able to find anything on point that explains it or a case similiar to mine when a change in the diagnosis was made without following the proper steps to do so.
It's too early for me, still in a fog, but my cat was hungry and wouldn't stop bugging me till I got up and fed him. He bites when I ignore him. LoL
Rockhound
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I guess that answers my question. LoL Just another cog in the Buralcratic mess the VA is.
Rockhound
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I've seen this abreviation used, but cannot find the meaning of it in any deffinition post.
Can someone tell me what it means and something about it and how a Claim is involved with it?
Rockhound
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Cowgirl: answers
(1) Do you know what DSM was in effect at the time of your diagnosis?
Answer: DSM II was in effect, but have not been able to find a copy of it yet.
(2) Do you have a copy of the C&P that 'changed' your diagnosis? or what Dr. changed the diagnosis?
Answer: Yes I have a copy of the C&P examiners report, and at no time did he say that his
current diagnosis of a personality disorder, inadequate type was and alternate
diagnosis, nor does he say that the original diagnosis was clearly and unmistakably
in error.
As best I can see, in reading the C&P examiners report is that it was the VA
Adjudicator that made the call, with out the proper cirtification that a change
of a diagnosis was being proposed, nor is their any mention of his recommendation
going to Central Office like they were supposed to. No if approved by Central Office
did I get the required (60) sixty day notice to offer evidence in support to continue
my service connection.
93) Have you been recieving care for Acute Schiz at VA? If so, for how long, since discharge? recent?
Answer: The Acute schizophreic episode remains in remission, but the adjustment disorder with depression and Anxiety continued. Treated briefly only once for depression and anxiety, which only showed I would have only been rated at 30% at most, since I could function to some degree in sociaty, but had difficulties in work, day to day living, poor college record, failed marriages, depression and anxiety. Currently I have had a ferm diagnosis of an Adjustment disorder with depression and anxiety, rated for pension purposes only at (50 %) fifty percent, which is four year now and if anything has gotten worse, even while on some strong medication and begining to have schizoprenia thoughts and idealations. If I sound a little wierd at times of confused, blame in on the meds. LoL
I was discharged from the Navy Sep 1973, you can do the math.
Rockhound
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John999: Yes I was booted out of the Navy for a psychiatric reason. Diagnosis,
Acute Schizophrenic Episode, in remission, demonstrating moderate impairment with social and industrial adaptability, associated with depression and anxiety.(0 %) DC 2954 VA DC 9205, & Fracture of Nasal Bone DC 8020 VA DC 5299 (0 %) & Minor Cerebral Concussion, Frontal Lobe
DC 8500 (0 %)
The VA, without proper cause or by proper statuary and reglatory provisions, changed the diagnosis of the acute schizophrenic episode, in remission to a personality disorder, subjugating any of the adjustment disorder with depression and anxiety with that change.
I tried once to explain it to a VSO but he said he wouldn't touch it. I even submitted one to the VARO and they ran with it as a new claim to reopen with new and material evidence. Before I knew that they had done that, I had another denial in my C-File for nothing new and material to open claim. Tried one for reconsideration, but that one seemed to only be look upon as a claim for increase on my fractured nasal bone. Everything was messed up and I think, but cannot prove that it was the VSO who messed it all up. Once by a AMVET SO & the other by a DAV SO
I need IMO's on everything, so on Wednesday I am going to Adult Mental Health Services, A State run Clinic at our local State Mental Hospital and see if I can afford their sliding scale ability to pay fee and maybe get to see a psychiatrist who can and is willing to help me with an IMO.
Sorry rambling agsin, the thoughts just poor out and I got to say them.
Rockhound
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Berta, thank you first of all for you continued support and information on CUE issues.
Their was no rated SC problem because of an alternate diagnosis of a personality disorder was used. I am not arguing CUE for the alternate diagnosis, The diagnosis was made, but that the adjudicator did not apply the staturary and regulatory provisions extent at the time in order to determine that such a alternate diagnosis was in actuality made.
Since their was no determination that a rating could be applied to. then how do they then determine where the rating should begin and which rating schedule would they use, the one in 1974 or the one now.
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Another question on C.U.E.
If a person wins their claim of C.U.E. and service connection or rating or whatever is restored or in my case would be to finally get my inservice diagnosis restored, what criteria then would they use to determine amount of disability. Would they use that which was in 1974, when the CUE occurred or the more liberalized diagnostic criteria that is used now using the DSM IV and current schedule for rating disabilities?
Am I making any since?
Rockhound
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Wing: Hope it's been a good morning.
I am still considering a CUE claim, so every procedure, statute, regulation, and Law that I quote must be one that was extent at the time of the CUE, thus why I am looking for everything I can for the year 1973 thru 1974.
I have the C.F.R.'s for 1974 and I am almost certain I will be able to get the U.S.C.'s from the University where I got the C.F.R.'s. But I doubt that they will have the VA M21 manual on procedures. I just want show a continuity from procedure to Law so I can show how they violated own procedure, codified by C.F.R.'s and U.S.C.'s
Your help and from others is always appreciated. Thank you
Rockhound
Supplimental Statement Of Case Question
in VA Disability Claims Research
Posted
Am I confused or did you say your claim was denied, June 2007, and sent in your appeal in July 2007. then you say you call today which is January 15, 2008, and they said they were working on a SSOC. But your saying you got your SSOC June 07, 2007.
That June 07, 2007 is before you appealed, amd before you called and they said they were working on SSOC on your claim. doesn't sound right to me, did you get your date wrong?
Or can you get two SSOC on the same claime, one before the appeal and one after?
Rockhound :)