Section B. Reviewing For New And Material Evidence

[allan]

Section B. Reviewing for New and Material Evidence

http://www.warms.vba.va.gov/admin21/m21_1/...2/ch02_secb.doc

[Josephine]

Allen,

Forgive me if I did not read this correctly.

I do not wish to begin any type of Hurrynwait question here.

I filed for benefits in 1978 and received no Statement of Case, only letter from counselor - no service connection. I was not sent any papers to appeal. That was all that was in the envelope, with no reasons. I was told by the Personnel Office, if I took the "early discharge" that I would be giving up my G. I Benefits. This is believed and felt this was the reason for the denial. Remember, I knew nothing of the ways of the VA. I turned in my private medical records from 1965 to 1979 and told the counselor to get my psychiatric records leading to my early discharge.

In 2003 I re-filed and was denied again, no service connection, I did not receive a C&P and I can see that they did not use any of my private medical records from 1965 to 1979. The denial arrived March 2004.

They were generous and awarded me a non service connected pension, 100% for anxiety with depression and unemployable to 1983, denied due to excessive . This would have been March 2004.

This is when I wrote to the archives for any psychiatric records .They sent me all of them. I turned copies of these in to the R.O in June 2004 and the counslor filed out a NOD.

This, he said was appeals. I received a letter in October 7, 2004 denied for anxiety with depression, again they did not use my private records from 1965 - 1978.

The DRO wrote " THIS IS NOT MY FINAL DECISION. I am re- opening your claim due to " New and Material Evidence" for " an acquired psychiaric disorder".

Two C&P followed.

One postive - to me - "more likely than not"- doctor was ask to evaluate me from 1979 to 2004, but he introduced my medical records from 1965 - 1979

One neg - Appears to have primary symptoms of personality disorder. Axix 1 Anxiety - Axis II - borderline personality disorder

Supplemental - Personaltiy disorder - denied decision by VSM.

BVA

Remand

My question is " Do you know how far back the re-open claim is to? My papers do not have any dates.

Thanks,

Josephine

Edited May 12, 2007 by Josephine (see edit history)

[allan]

>I filed for benefits in 1978 and received no Statement of Case, only letter from counselor - no service connection. I was not sent any papers to appeal. That was all that was in the envelope, with no reasons.

hello Josephine,

I believe retro goes back to the date you originally filed. But they have alot of way to get out of it I think.

my 1978 denial is the same way.

I got one sentence. It says,"the records do not support the claim".

Thats it. Not sure if they had to issue a SOC or any reason or basis back than. A copy of my service records was requested by the SO, but I never recieved one piece of paper until 97'.

Mine has a date on it.

Have you tried getting another copy of it?

Allan

[Josephine]

Allen.

I have ask but no response.

Thanks ,

Josephine

Edited May 12, 2007 by Josephine (see edit history)

[allan]

In my C-file, I found a sheet that lists the dates I filed for issues & where filed & through what POA.

Have you come across anything in your c-file, or have you not been able to get anything from them? They kept me in that state for over 20 yrs.

It's very frustrating dealing with an agency that does nothing but drag its heels, while bragging about being the best at everthing, in the Galaxy.

[Josephine]

Allen,

Pasted from the remand: I have sent to the AMC all of the below request. It took me 3 times to get those personnel records logged into my claims file.

The filing of 1978 is on record at the R.O. as Bill Bxxx called me and told me that he had located the records, and I provided his name and telephone number to the AMC.

Pastor B did not have written records, compiled over a period of 13 years, but he did write a third letter for them.

Dr. P has been my doctor for 29 years. I know that he is a " Board certified Internist", but he knows me better than the psychiatrist 30 minute visit. Having treated me for 29 years, I would think that he has proven that he knows what he is doing.

Dr. P never diagnosed my anxiety and depression, this was done 14 years earlier by a Board Certified Psychiatrist. It is not like this is a new thing for me. If you have been treated for an illness for 42 years, it is a little difficult to change the course at my age of 62.

I think back and I was only 23 years of age, when I started treatment for this illness and the same meds are listed in my SMR'S.

As to whether or not " Doris" drown, I do not know, for I never saw her again. It was only the two of us that could not swim.

To date this is the evidence that I have:

VAMC - Dr. Mxxxxx- Anxiety disorder not otherwise specified with depression " More likely than not her anxiety began in service

Pastor B - three letters to VA of counseling me as a Pastor and not a Psychologist for 12 years

Three doctors after service - treatment records from 1965 - date.

Letter from Dr. MIchael Pxxx - my "Board Certified Internist" - since 1979 to date - origin of my anxiety

Buddy letter from girl from Georgia - in boot camp, corps school and this duty station with me - speaks to the events and swimming pool and abuse at duty station.

Letter from my " Military Treating Psychian - stating that he did treat me for anxiety with librium in service and cafergot for a headache and that I was not a behavior problem and that he was supportive of my discharge.

Statement from Nurse Q - who treated me after the C&P by those two Idxxxx. Stated that I could not remember the office visit. follow-up call the following day.

Board of two Psychiatrist - I will fight them in the end for the Hypxxxxs.

Apears the veterans primary symptoms are those of a personality disorder - Axis 1 - Anxiety not otherwise specified - Axis II borderline personality disorder - Axis V- GAF - 40

The vet was discharged by reason of " unsuitability" and for things that she considered " indicative of abuse"

( I think that psychiatrist for the VAMC should have given me the Minn or some other Personality test to place this into my record.)

The VSM - We place our weight with the psychiatrist, as she is a psychiatrist.

.Thanks,

Sorry that this is so long. Perhaps it will help someone new to this site.

Josephine

REMANDIn correspondence dated in April 2004 the veteran's private

internist, M.P. M.D., stated his opinion that the veteran's

anxiety/depression had their origin during her military

service. However, none of Dr. P.'s treatment records,

compiled over many years, reflect any references whatsoever

to military service, or events which the veteran asserts

occurred therein, which she claims led to the development of

her psychiatric disability. It would be helpful if Dr. P.

would provide the basis for his opinion linking the onset of

the veteran's psychiatric disability to service, and whether

he has any specialized training or expertise in the field of

psychiatric illness.

In contrast to Dr. P.'s opinion, and that of a VA

psychologist in an October 2004 report, a board of two VA

staff psychiatrists found that the veteran's symptoms were

primarily consistent with a personality disorder and that it

did not appear she developed a chronic psychiatric disability

while on active duty. It was noted there was no record of

ongoing anxiety or nervousness documented during active

service.

The veteran subsequently submitted additional evidence in

support of her claim including correspondence dated in May

2005 from B.C.C., M.D., in essence, recalling his having

treated her in February 1964 and prescribing medication for

anxiety. In correspondence dated in January 2006, Dr. P.

disputed the April 2005 opinion as to the veteran's having a

personality disorder.

Finally, submitted was a statement from a pastor, Reverend

B.O.B. who reported having counseled the veteran during the

period from 1965 to 1978, at which time she relayed some of

the events in service on which she bases the development of

her psychiatric illness, specifically the "near drowning"

incidents, and "abuse" directed at her by physicians.

Obtaining a copy of these counseling records would be

beneficial in adjudicating the veteran's claim.

Therefore, the Board finds additional development is required

prior to appellate review. Accordingly, this matter is

REMANDED for the following:

1. The veteran must be provided

notification (1) of the information and

evidence not of record necessary to

substantiate her claim, (2) of the

information and evidence that VA will

seek to provide, (3) of the information

and evidence that she is expected to

provide, and (4) to request or tell her

to provide any evidence in her possession

that pertains to the claim. These notice

requirements are to be applied to all

elements of the claim.

2. Appropriate efforts should be taken

to obtain the veteran's complete service

personnel records, as well as any other

service medical records which have not

been forwarded to VA. Those records,

along with the additional records

submitted by the veteran directly to the

Board, should be incorporated into the

claims file.

3. It should be ascertained through

appropriate procedures whether or not the

veteran filed a claim for service

connection for psychiatric disability in

1978 or thereabouts. If so, any records

compiled in association with such claim

should be incorporated into the claims

folder.

4. In the event the veteran provides

sufficient identifying information, it

should be ascertained whether a trainee

died as a result of drowning, at the time

the veteran was in training, and the

circumstances surrounding such incident.

5. After any necessary authorization has

been received, Reverend B.O.B. should be

asked to provide copies of his counseling

records pertaining to the veteran,

covering the period from 1965 to 1978.

6. Dr. P. should be contacted and asked

to provide the basis for his diagnosis of

the veteran, and whether he has any

medical training or expertise in treating

or evaluating psychiatric disability.

7. After the above development has been

completed, the veteran's claims file

should returned to the board of VA

psychiatrists who participated in the

April 2005 examination for clarification

of the provided opinion. They should be

requested to review the record and

reconcile their opinion as to etiology in

light of the evidence added since their

examination of the veteran, including the

May 2005 statement of Dr. Brian C.

Caxxxxx and the January 2006 statement of

Dr. Michael Pxxxxxx.

If neither of these examiners is

available, the RO should consider whether

the veteran should be scheduled for an

additional examination by a board of two

VA psychiatrists for an opinion as to

whether there is at least a 50 percent

probability or greater that an acquired

psychiatric disorder was incurred in or

aggravated by active service. All

indicated tests and studies are to be

performed. Prior to the examination, the

claims folder must be made available for

review of the case. A notation to the

effect that this record review took place

should be included in the report.

Opinions should be provided based on the

results of examination, a review of the

medical evidence of record, and sound

medical principles. All examination

findings, along with the complete

rationale for all opinions expressed,

should be set forth in the examination

report.

8. The veteran must be given adequate

notice of the date and place of any

requested examination, if such is deemed

necessary. A copy of all notifications,

including the address where the notice

was sent must be associated with the

claims folder. The veteran is to be

advised that failure to report for a

scheduled VA examination without good

cause shown may have adverse effects on

her claim.

9. After completion of the above and any

additional development deemed necessary,

the issue on appeal should be reviewed.

If any benefit sought remains denied, the

veteran and her representative should be

furnished a supplemental statement of the

case and be afforded the opportunity to

respond. Thereafter, the case should be

returned to the Board for appellate

review.

The appellant has the right to submit additional evidence and

argument on the matter or matters the Board has remanded.

Kutscherousky v. West, 12 Vet. App. 369 (1999).

This claim must be afforded expeditious treatment. The law

requires that all claims that are remanded by the Board of

Veterans' Appeals or by the United States Court of Appeals

for Veterans Claims for additional development or other

appropriate action must be handled in an expeditious manner.

See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2005).

_________________________________________________

Veterans Law Judge, Board of Veterans' Appeals

Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the

Board of Veterans' Appeals is appealable to the United States

Court of Appeals for Veterans Claims. This remand is in the

nature of a preliminary order and does not constitute a

decision of the Board on the merits of your appeal.

38 C.F.R. § 20.1100( (2005).

Edited May 13, 2007 by Josephine (see edit history)

[allan]

Josephine,

A Psychiatrist takes precedent in their evaluations & opinions of mental disorders, over anyone else. Works that way in our courts as well.

If you can arrange it, I think it would be better to get your own Psychiatrist examination to submit. It might be better to wait until after the VA receives the opinions from their Psychiatrists.

Allan