akwidow

I sent the NOD last Saturday, Nov 14 by express mail return receipt. I realize that the bolded commernts you put in your last post are about another malady...I got them from a supporting citation. I used them to enhance my point...not to say that cardio issues were relevant to my case. The study about PTSD and asthma - http://health.usnews.com/usnews/health/hea...ma-and-ptsd.htm provides the causal connection of the two maladies and the doctor IMO not listed in SSOC provides the PTSD proof, along with the 2003 C&P which states that the veteran suffered from PTSD for years but would not open up to earlier examiners due to trust and control issues sufered by the vet. Proof of asthma is in SMR's from 1968 through 2003. I also found another study that shows that PTSD is enhanced by youth and by pre-service stressors - http://www.3-4cav.com/ptsd.htm Since I am not a lawyer, I had to go with what I was able to put together, which includes what you found and supplied to me. If I erred because I am a pro se litigant without the legal skills needed to make a clear and concise argument, I apologize. That is why I put in the legal citation about allowing lattitude to pro se litigants. I still feel that the fact that the lack of evidence section in the 2009 AMC SSOC supports my opinion that I did not receive Benefit of the Doubt as ordered in my remand. I can only hope I am right.

maybe there is a way to permanently attach a link with decision to a profile? I personally bookmark mine as well as save a word file, but I still have to go look for them...

I reread the brief filed by MOPH which got me my remand - and it was specifically aimed at the fact that benefit of the doubt was not given in the denied appeal - in that the evidence previously submitted was not considered, and that no explanation was given as to why the evidence I submitted was not considered or explained as to be inadequate. The SSOC sent to me by AMC included a VCAA letter but did not address the benefit of the doubt, nor did it explain why the evidence I sent in did not count - again. I sent new evidence as well as old - they never considered the entrance/exit exams which noted asthma on exit but not entrance nor did I send in the study that connects asthma to PTSD (2007) before this year, and another relevant PTSD study; I sent in evidence of asthma in 1971, which was after his RVN time but before he got out of the reserves in 1972; I transcribed the personal diary of the vet from 1971 because earlier I only sent in copied pages which may have been hard to read; I don't know if they considered the evidence I sent in 2007 (2008 was duplicate)...as they never listed it on the SSOC. How can I know what was rejected when there is no list of the rejected evidence? Evidence before the AMC is not the same as evidence before the BVA is it?...especially if you can't verify that it was ever looked at because they never listed it as examined. There was no evidence section in the SSOC dated Oct 20 2009 so I put it all together in a timeline again, more complete than ever before. I presented to them the connection of asthma to ptsd and that he had it ever since Vietnam, which was shown by their records. I told them that if you take away the asthma treatment there are very few treatment records for him...asthma and cancer could kill him so he allowed that treatment as he was not suicidal; there were less than ten times in 35 years he sought treatment and part of those were entrance/exit exams mandated by military and the rest were chronic injuries...and when the VA docs told him to get something tested as there were signs he had a problem like an abnormal EKG, he avoided and denied treatment of those maladies. The links you supplied are correct. I did not have time to get another IMO; the IMO I submitted in 2007 was not listed as evidence, therefore I do not know if it was accepted or not or even reviewed.

without digging the decision out of the box again, I believe he applied for PTSD SC May 3, 2003 and that was the effective date. That's close anyway, it was in May. The time before that, it was in 2000. The time before that, it was in 1992. The time before that, it was 1986. Deny, deny deny.

Like I said before, I learned I could not trust 'em....

....and whatever you do, when they ask you how you are, DO NOT SAY FINE! You have to tell the truth - there is something wrong or you would not be filing the claim, right? Don't take any pain meds of any kind before your exam as you want a true reprentation of your malady to present. Good luck; I am sure the others will chime in. Don't be like my late husband who denied all problems until they killed him. AkWidow

yes, he was 50% for ptsd just before his death in 2003. He had applied twice before 86 & 92, one C&P, two rookie examiners; two for and two against ptsd as cause of problem. The more educated examiners saw the ptsd and diagnosed in 92 and 2003. Actually, there was another guy who diagnosed the PTSD in the 80's, but no C&P.

Here it comes - I actually sent it in color to make the citations pop, amd maybe make the themselves follow their own rules. btw, I had difficulty with formatting in the Hadit window, so some of the font may be very small....I am sorry for that. November 12, 2009 21-4138 Notice of Disagreement I am filing a Notice of Disagreement for my case for DIC presently at AMC in Washington DC. I am asking for the reconsideration on this issue today, and have that be done at the BVA. 38 CFR 20.202 specifically provides that the board is required to construe an appellant's arguments "in a liberal manner for purposes of determining whether they raise issues on appeal." See Robinson v. Peake, 21 Vet. App. 545, 552 (2008) ("[T]he Board is required to consider all issues raised either by the claimant or by the evidence of record.") See Hughes v. Rowe, 449 U.S. 5, 15 (1980) (Pleadings drafted by pro se litigants should be held to a lesser standard than those drafted by lawyers since "[a]n unrepresented litigant should not be punished for his failure to recognize subtle factual or legal deficiencies in his claims."); Forshey, 284 F.3d at 1357 ("n situations where a party appeared pro se before the lower court, a court of appeals may appropriately be less stringent in requiring that the issue have been raised explicitly below."). I received a SSOC dated October 20, 2009, giving me 30 days to respond and include information relevant to this case. In the decision given on page 8 of the SSOC in the DECISION heading, paragraph #1 denied service connection for cause of veteran's death. The veteran will generally be presumed to be seeking the maximum benefit allowed by law and regulation (AB v. Brown). In the Reasons and Bases section on page 8 of the SSOC, paragraph it states: “We received a letter requesting additional records for the veteran’s medical care in Vietnam in 1968. We responded to your letter on April 11, 2008.” What I received back in response was induction and exit medical exams. (I included them here because although the entrance exam was silent for asthma, the exit exam was not, and therefore pertinent to my claim.) There were no medical records from Vietnam, although there was a document from Ft. Hamilton in 1972 noting “Acute Respiratory Disease” (to be construed as asthma); and that the records from Vietnam were on the way. “We received you letter and DVD. We made prints from the DVD you submitted. Upon review of the prints (documents it is determined as not pertinent to the issues on appeal.” (As a side note, the actual punctuation was reproduced here of the previous italicised statement...) In actual fact, the data contained on the DVD was all pertinent to PTSD being a contributing cause of death, but not listed by the AMC in the SSOC authored October 20, 2009. Under 38 C.F.R. ù 3.312(a) and ©, a veteran's death will be considered service connected when a service-connected condition was a " contributory" cause of death, that is, where the service-connected condition or conditions were causally connected to the death and "contributed substantially or materially" to the death, "combined to cause death", "aided or lent assistance to the production of death", or had "a material influence in accelerating death". Under the paragraph at the bottom of page 8 - Entitlement to service connection for the cause of the Veteran's death, the writer goes on to say that SC "...when the evidence established that such disability was either the primary or contributory cause of death". Under ù 3.312©(3) and (4), special consideration must be given to a service-connected disease process affecting a vital organ to determine if that disease process was a contributory cause (his brain) of death or had a material influence in accelerating death. In Dr. Shabetai's 1982 testimony, he stated unequivocally that the veteran's service-connected restrictive lung disease combined with the veteran's COPD to produce a more severe breathing problem than either one would have produced alone, and Dr. Shabetai identified the veteran's breathing problem as a factor that made it difficult to keep the veteran out of heart failure (the ultimate cause of death). R. at 700-01. In Grottveit, supra, the claimant presented only lay evidence of causation, and presented no medical evidence of causation whatsoever. In the instant case, the appellant did present medical evidence -- indeed considerable such evidence -- relating to causation: Dr. Shabetai's 1982 testimony and the statements of four other physicians as to the possibility of a causal link between the appellant's service-connected condition and his heart failure due to idiopathic cardiomyopathy. Whether or not such medical evidence would be enough to reopen a claim, see Robinette, supra, the Court holds that this medical evidence, coupled with the special emphasis VA regulation ù 3.312©(3) places on "careful consideration" of the possibility that service-connected injuries "affecting vital organs" may have resulted in "debilitating effects . . . that would render the person materially less capable of resisting the effects of other disease or injury primarily causing death", is enough to make the claim "plausible", "capable of substantiation", under Grottveit and Murphy, both supra. The Court thus holds that the claim was well grounded. The writer goes on to say on page 9, paragraph 2, "The evidence of records does not show that the primary and overwhelming cause of death, metastatic colon cancer, was incurred in service, manifested within any presumptive period after service, is related to herbicide exposure in service, or was caused by a service connected condition." The SSOC says nothing about the PTSD contributing to or causing an early death to the Veteran or about any benefit of the doubt held therein. In fact, this case was remanded in part because Benefit of the Doubt was not given in this case to begin with. I ask for that consideration now. The Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the veteran. See Gabrielson v. Brown , 7 Vet.App. 36, 39-40 (1994); Smith (Morgan) v. Derwinski, 2 Vet.App. 137, 141 (1992) (Board is not free to ignore opinion of a treating physician). My case is based on PTSD being the major secondary contributory cause of death in that his suffering of PTSD affected his psychological ability to manage his health care, manage his relationships, manage his life. My late husband did claim Agent Orange connection in May of 2003. Furthermore, where there is "significant" evidence in support of the appellant's claim, the Board "must provide a satisfactory explanation as to why the evidence was not in equipoise". Williams (Willie) v. Brown , 4 Vet.App. 270, 273-74 (1993) (citing Gilbert v. Derwinski, 1 Vet.App. 49, 53 (1990)). In Gilbert, 1 Vet.App. at 59, the Court held that the Board must evaluate the positive evidence, weigh the positive and negative evidence, and give more than a conclusory statement that the benefit-of-the-doubt rule does not apply. The SSOC did not address this issue, and the information I sent in twice to support my claim was not reviewed as it was not listed in the SSOC. This information was sent to AMC December 26, 2007 return receipt and in DVD format on December 23, 2008 as a back-up by return receipt. There is no evidence section in the SSOC document dated October 20, 2009. I will include the documents listed below to the best of my ability. I will send them with this Notice of Disagreement in paper form, and on a DVD as a back-up that shows everything that I have included. I have submitted proof of PTSD avoidance and denial by my late husband’s in his medical records, in VA records , in my observations and those of the people who wrote buddy letters, and in his own words. These PTSD avoidance and denial characteristics has been documented in records pertaining to diagnosis’s including but not limited to asthma, proteinuria, heart health (EEG) lipid tests and cancer screening. The threshold of plausibility to make a claim well grounded is considerably lower than the threshold for new and material evidence to justify reopening a claim. See Robinette v. Brown , __ Vet.App. __, __, No. 93-985, slip op. at 10-11 (Sept. 12, 1994), mot. for recons. granted on other grounds (Oct. 11, 1994). Therefore, I will again list the evidence and its relevance to my deceased husbands PTSD symptoms that include avoidance and denial related to his health care. This will include letters written by my deceased husband while in country RVN, diary written in 1971 by him while in Europe after college, and pertinent medical records (or lack of) from the early 70’s to his death January 15, 2004. This evidence will include statements by doctors who treated the Veteran. This evidence will include buddy letters. This evidence will include my observations. Where the determinative issue involves either medical causation or a medical diagnosis, competent medical evidence is required to fulfill the well-grounded-claim requirement of section 5107(a); where the determinative issue does not require medical expertise, lay testimony may suffice by itself. See Grottveit v. Brown<A href=http://search.uscourts.cavc.gov/isysquery/7b73213b-8cdd-4842-b54f-eb40c3942f2d/5/doc/#hit10"> , 5 Vet.App. 91, 93 (1993); see also Espiritu v. Derwinski, 2 Vet.App. 492, 494-95 (1992). I would like to point out additional support for PTSD being a contributing cause of my husband’s death. If you take away the asthma treatment records and look at what is left, you will see remaining - catastrophic injury treatment, and a history of not doing what his doctors tell him. You will see that without the asthma treatment, my late husband went to the doctor when the military made him – entrance and exit physicals; and for lumbago on 1975 a broken finger in 1978; an hand injured by anger in 1983; a seriously cut leg in the 80’s; frostbite incurred on National Guard training in 1989, and a car wreck in 2003. This would lead a common person to say he did not take any prophylactic care of his body, but only treated it when he saw blood or rot. "A well-grounded claim is a plausible claim, one which is meritorious on its own or capable of substantiation. Such a claim need not be conclusive but only possible to satisfy the initial burden of [section 5107(a)]." Murphy v. Derwinski, 1 Vet.App. 78, 81 (1990). In addition, the Court held in Tirpak v. Derwinski, 2 Vet.App. 609, 611 (1992) (quoting section 5107(a)), that to be well grounded a claim must be accompanied by supportive evidence and that such evidence "must 'justify a belief by a fair and impartial individual' that the claim is plausible." When doctors who did treat him for asthma found other maladies that needed treatment, you will find that the death causing issues – cancer and asthma - were what The Veteran allowed treatment of. Another classic example of PTSD is that he ignored demands for proteinuria testing, hyper lipid testing,(Cholesterol) FOBT testing before the blackmail in February 2003, and heart testing after his abnormal EKG in 1995 at a entrance test for joining Air National Guard. When you take into consideration the fact that researchers have found a connection between asthma and PTSD; and taking this discovery into consideration, and The Veteran’s history of SC PTSD into consideration, one could easily see that PTSD found and followed The Veteran from the time he was taken down with tear gas in Vietnam in 1968 (see letter from Vietnam July 3, 1968 item 4), and was part of his life from then on. The study that links PTSD to asthma in 2007 also adds weight to this argument. The inclusion of the transcribed 1971 diary written to an old girlfriend, item 8, shows an abnormal obsession type attitude for his bowel habits. In this diary he also talks about his drug use and escapism, his inability to concentrate, and how he “goes away” at times in his mind, and how the Vietnam War affected him. This diary illustrated his SC PTSD. I quote page two, paragraph three of a study titled “PTSD Among Vietnam Veteran Recent research findings”: “We consider the possible role of prewar risk or vulnerabilities that might, in addition to his Vietnam experience, contribute to the veteran’s PTSD symptoms. A very important element was the age of the veteran when he went to Vietnam. As we all know, younger men were more likely to be of lower rank, and thus prone to directly experience the heavier combat. This indirect link of the veteran's age through combat may not be particularly revealing, but we also documented a direct link between the veteran’s age at entry to Vietnam and his reported PTSD symptoms. This finding is suggestive of a maturation-based explanation: The younger the veteran was when he served in Vietnam, the less he was capable of "working through" his experience and the more PTSD symptoms he felt when he returned”. (The Veteran was 20 at induction) “Another risk factor for PTSD was the veteran's history of exposure to traumatic events prior to entering the military. By trauma history, we mean being in a serious auto accident, being a victim of assault, being in a house fire, and other similar kinds of experiences. Prewar trauma history operated in a very interesting way to produce PTSD symptoms. Those men who were in heavy combat and had a history of prewar exposure to traumatic events reported higher levels of PTSD symptoms while those in heavy combat without a prior trauma history reported fewer symptoms. This difference in reported PTSD symptoms did not occur for veterans who were exposed to low levels of combat. So, there seems to be a kind of "piling on" effect--a prewar trauma history plus exposure to heavy combat can lead to more PTSD symptoms.” (The Veteran is the child of WWII Nazi concentration camp survivors; mother became possible paranoid schizophrenic and his father died in 1955 when he was seven years old, which in The Veteran’s mind was an emotional abandonment) The above noted evidentiary citations, along with his notations on his exit exam which note asthma, shortness of breath and pain or pressure in chest and piles or rectal disease, and his mention of his asthma in his 1971 personal diary 5 times and 24 mentions of his very prominent distress over his bowel function to a short time girl friend (which is before his August 1972 release from Army Reserves) directly connect his asthma and bowel function problems to military service time periods. Another classic example of PTSD are my observations as to his bowel habits from 1992 to his death in 2004 can confirm that he still had hyperawareness problems with his bowels which led up to his adamant refusal to have a colonoscopy to screen for colon cancer. Add the Asthma connection to the equation and one could see without a medical degree that this man suffered PTSD continually from his military service until his death; and his control issues kept him from revealing his true feelings to psychological professionals other than the very astute highly educated VA employed psychiatrists who recognized he was sandbagging his problems. “Roberson requires . . . that the VA give a sympathetic reading to the veteran’s filings by ‘determin[ing] all potential claims raised by the evidence, applying all relevant laws and regulations.’” 357 F.3d at 1373 (quoting Roberson, 251 F.3d at 1384) (alteration in original). This duty applies “with respect to all pro se pleadings” before the VA. Id. " It is noted in VA’s own records that The Veteran suffered from SC PTSD in at least 12 documents. It is also listed on hundreds of pages of medical records of VA production that The Veteran is service connected 50 – 100% before his diagnosis in November 2003, and with the submitted evidence displaying the classic symptoms of SC PTSD there is a preponderance of evidence that SC PTSD was the secondary contributing factor to his death. This more than meets the Benefit of the Doubt doctrine held by the VA and also proves that it was more likely than not that his SC PTSD contributed to his death. I therefore ask that you find in favor of this DIC claim. Thank you for hearing my case and I look forward to the BVA decision.

I did what you said. Would you like me to post a generic no name copy of what my NOD says? I would be glad to....I think you would be proud of me. AKW

here is another question - I was given 30 days on the SSOC to sign and return with (I sent tons)or without further evidence. My file will go to the BVA, which is the choice I made. Because the case is going to the BVA - am or am I not able to submit further evidence? I have found a neuro-shrink in Anchorage I will approace for an IMO if I am able to submit more evidence... Thanks again for your knowledge, AkWidow

yes ma'am I am filing a NOD. "and send my case to the BVA" You told me to the same thing as Ken Carpenter did! Of course I am doing just that. I did an intellictual experiment with my data, and I told the BVA to do the same thing. In my argument, which is that PTSD contributed to his cause of death, I asked the governing powers to look at the total evidence, then take away the asthma trteatment records. Asthma is key, as it was listed on his exit exam in 1969, and it was exacerbated by a severe tear gas encounter in the jungle in 1968 which a letter he wrote in 1968 documented; and it was treated while in the reserves before he was released in 1972. I told them to take the asthma records away, and what was lefft? six or seven instances of treatment for catastrophic bleeding type injuries - non compliance to doctor's orders for four other ailments discovered during asthma or induction or exit exams, and then the cancer. this covers 30 years of life. The only illnesses that Paul allowed treatment of was asthma and cancer, both of which could kill him. Then I told them - that asthma and PTSD are tied together by the tear gas episode in the jungle, and documented by the letter home and the exit exam, a diary written by him in 1971, and treatment records from 1974 to 2004. I hope the BVA has a brain, because other than the two pschiciatrists who recognized his ptsd as being longstanding in the 90's and in 2003, I did not have time to get another IMO. My late husband had an negative evaluation for PTSD in 2000 by a newly licensed counselor...48 days after he received his license. ( I included a copy of his license from the state website) Anyway, he had to consult with another counselor in the area as noted in the report, and had a previous relationship with us in the community. The guy gave me the creeps - and my instincts are good. I didn't like him, and I am sure it showed. His verbage in the report shows disdain for the behavior my husband showed, and it showed in the report. I bring this up, because as I said in my NOD, the skilled highly educated VA shrinks saw and diagnosed the PTSD, and the lower educated ones did not or diagnosed less PTSD damage apparent. it is tied at 2 - 2. With the other evidence, it looks like benefit of the doubt to me.... which is why my claim was remanded to begin with.... you know, I went looking for the shrink who gave the favorable C&P in 2003, and I found him all over the internet in Seattle, and he had a web page instructing vets how to let their ptsd show for disability purposes. Maybe I should write to him and ask for an IMO. Since I have made a PDF of all my evidence, I can send it easily. Thanks again for checking in on me.

and I got it all together today, and will be expressing to them tomorrow, return receipt. I am sending hard copy of my evidence that they ignored, plus some new, plus some good legal citation, and a BTW about cue claims I brought to their attention last spring. All of it will be also sent on a CD so that I can prove I sent what I sent as a unit.

and I forgot to say that I'll be going with the BVA option....thanks Wings -

Well, I had my phone call with Carpenter's office today, and was told I had to have filed a NOD sometime in 2007 or later because of changes in Veteran law. So they told me to call back when I get denied at BVA and he will consider taking my case to the next level. In the mean time I have been organizing like a whirlwind and will have my request for consideration sent to the AMC by Saturday, which beats my 30 day deadline. I am sending them every paper they didn't look at the last time, along with a cvouple of studies I found on PTSD that directly relate to my case. I'll be glad to post them if anybody is interested. Thanks for all of your support, and I will continue the saga as news appears. AkWidow We finally got a couple inches of snow -

never been there....my vet earned at or below poverty level the whole time I knew him...

Way to never give up! I am writing my request for reconsideration as we speak. Since I found more evidence THEY sent to me I have the shotgun aimed them, that way some of the evidence(pellets) may get read. Tomorrow is my date with Ken Carpenter, and I am cramming for that too. Hurrah!

Yes, mine has been useless most of the time. The only time MOPH helped was when they decided on their own to write the brief that got me the remand at Appeals court. Upon reading that appeal, I see that now I COULD HAVE WRITTEN that appeal, but not at the time. I plan on using some of the words of that lawyer in my reply to the SSOC, since AMC didn't do what the were supposed to do. We have VSO offices here in my small town, and I plan on using my knowledge to help another vet after my battle is over. Blessed be whose who never give up.

I hate to disappoint you, but the same thing happened to me within a week of your occurance. They did not consider any of my listed dot by dot evidence either. My remand was for BOD as well. - _ have evidence back to 1968 in my case...and I am fixing to use it against them. (They of course, sent me that evidence, so I know they have it....)

I have been going through all my papers - two bankers boxes and about 6 inches of records to catalog once again - the first batch with the second...when I found the brief that got me the remand at BVA...Mr. MOPH lawyer based his brief on Benefit of the Doubt...how I didn't get it, and got me a remand. Of course, it was denied at AMC just last month...I sent in 170 pages of supporting documents all about PTSD, which they said did not apply to the remand! They did not list them either... I looked around and said - What, do they think I am stupid and will give up? I feel even better now, 'cause they in no way addressed the remand instructions, and broke their own rules. Hello Mr. Carpenter, I will have it all lined up for you....

way to go! Over the years I have managed property rentals, and I can still remember the time the bi**h who wasn't watching her kids put all those toys in the toilet, then let them eliminte in there for a couple days before she called me. Not a pretty sight.... :)

yup, them at the AMC is cranking out those denials without considering all the evidence all right, same thing happened to me. No mention as to why the new stuff did not count either, which is partly why it was remanded to begin with. But I'm on 'em like stink on limburger, just like you! Never give up!

way to go baby ray...I'll be doing the same with my 'no-ball' denial...

The magnitude of this fight at times paralyzes me. I find myself swinging up and down emotionally, which freezes my brain and I can't find the "think and process data" button. Then I go back over the material I sent to them before they sent me the last denial, and I realize - those rubber stampers are trying to beat me down and get me to give up. Then I go back and read gain, and realize that the PTSD manifested itself toward more than his health care in regard to colon cancer, but exhibited itself toward other aspects of his health which are illustrated in VA medical records by his non compliance to testing for proteinuria and cholestral and in his chronic and acute asthma care, which was btw recorded for posterity by a letter of his from RVN in 1968 where he talks about when he was hit by tear gas so bad he was put in an oxygen tank for three days...but that is another story and another claim. When I talk to Ken Carpenter's paralegal on November 12, I will ask the hopefully correct questions, and send in either a NOD or Request for Reconsideration, based on the errors in the SSOC and the lack of listing of informatkon they received and apparently did not review the last time, OR NOT, because of what the attorney's staff tells me. Thanks again for all of your time and work, and I will keep Hadit up on the saga.

SSOC tells me I have 30 days to respond or the case will go back to the BVA. I have a year to submit new evidence either way. I planned to submit and respond both within 30 days.

I found Lathan v Brown and am reading it. I will look for definition of 'vital organ'. http://search.uscourts.cavc.gov/isysquery/...c3942f2d/5/doc/