My Bva Appeal Finally On Line

[carlie]

http://www.va.gov/vetapp07/files2/0716190.txt

My_BVA_Decision_from_the_web_site.htm

Edited August 28, 2007 by carlie

[Josephine]

In an August 2004 rating decision the RO denied entitlement 

to a total rating based on individual unemployability.  The 

veteran submitted a notice of disagreement with that decision 

in April 2005, and the RO issued a statement of the case in 

November 2005 and a supplemental statement of the case in 

December 2005.  The veteran, however, failed to submit a 

substantive appeal within 60 days of the statement of the 

case or the supplemental statement of the case.  For that 

reason the issue of entitlement to a total rating based on 

unemployability is not within the Board's jurisdiction.

Carlie,

As you know that I am learning by trial and error. If you did nothing when you received your statement of the case or the supplemental. How did you get to the BVA to begin with?

Josephine

[free_spirit_etc]

I think it is because she appealed the other decisions. They just would not consider the one she said she hadn't appealed.

That is a pretty intensive BVA reply. From reading it - I assume you must have presented a heck of a case - because they really got intensive into explaining some of the laws - rather than just pasting them in with a brief blurp.

I was totally appalled that a VA doctor can sexually assault a patient, and since the sexual assault isn't within the realm of what the doctor SHOULD be doing, they can deny benefits from resulting PTSD - becuase it wasn't the result of the CARE recieved from the VA.

Isn't that what the Section 1151 claims are ABOUT? That the VA either did do something they shouldn't have or didn't do something they should have in respect to your treatment and care.

I would be tempted to send that to the press. They have really been running some stories about the PTSD many women vets have as the result of sexual assault from fellow soldiers.

They might be interested in a story that the risk of sexual assault for female vets CONTINUES - by the physicians that are supposed to be treating them at the VA - and the VA refuses to pay the victims for PTSD caused by sexual assaults their own physicians perform on the female disabled vets they are supposed to be treating.

Free

In an August 2004 rating decision the RO denied entitlement 

to a total rating based on individual unemployability.  The 

veteran submitted a notice of disagreement with that decision 

in April 2005, and the RO issued a statement of the case in 

November 2005 and a supplemental statement of the case in 

December 2005.  The veteran, however, failed to submit a 

substantive appeal within 60 days of the statement of the 

case or the supplemental statement of the case.  For that 

reason the issue of entitlement to a total rating based on 

unemployability is not within the Board's jurisdiction.

Carlie,

As you know that I am learning by trial and error. If you did nothing when you received your statement of the case or the supplemental. How did you get to the BVA to begin with?

Josephine

[Josephine]

 The veteran submitted a notice of disagreement with that decision 

in April 2005, and the RO issued a statement of the case in 

November 2005 and a supplemental statement of the case in 

December 2005.  The veteran, however, failed to submit a 

substantive appeal within 60 days of the statement of the 

case or the supplemental statement of the case.

Free, This is what I did not understand. When I received my Statement of the Case, The DRO sent me a form 9 to return within 60 days. No mention of a NOD. It was 14 months before I received my Supplemental Statement of the case and it said, If you have any new evidence to submit in support of your claim, please turn this info in to the R. O as we are preparing your claims file to be sent to the BVA. Why didn't this happen in Carlie's Case?

I was totally appalled that a VA doctor can sexually assault a patient, and since the sexual assault isn't within the realm of what the doctor SHOULD be doing, they can deny benefits from resulting PTSD - becuase it wasn't the result of the CARE recieved from the VA.

Free,

What in the Hxxx do they think that doctor was doing? No, it sure wasn't care.

I guess I got off luckier than I thought, they one either used hypnosis on me or drugged the heck out of me.

Is there anything that VA doctor's can't do? Is everything they do acceptable?

Josephine

[carlie]

The thing is that I did respond to the Nov SOC & the Dec SSOC regarding IU and submitted additional evidence.

I did file a FTCA against Bay Pines USA - VA and won a minimal amount.

VA, long ago denied my PTSD as an 1151 due to the 1999 PRECOPGC. The VA continues to NOT RECOGNIZE the claim was amended several years ago as claim for SC - for PTSD 2 - active duty assaults -

Vet Center & VA, psychologist and psychiatrist have stated my PTSD was a delayed onset.

The ENT doc that assaulted me was the last straw for me

Gotta close --- bad lightning storm.

carlie

Edited August 29, 2007 by carlie

[free_spirit_etc]

That is one thing the VA doesn't seem to realize about PTSD is that delayed onset it part of the nature of the beast.

We had to fight that same concept in my husband's cancer claim. Wellll - if the nature of lung cancer is that is is typicallt asymptomatic until late stages - it is not useful to require that someone display symptoms in the early stages.

If the nature of PTSD is that is often a delayed manifestation - then to require it to be anything else than what the nature of the very illness is goes against the standards of medically accepted principles.

So since even the BVA failed to address the issue of the in service stressors - maybe you will have to point that out to them.

1. That as sexually assaulting patients is outside of the standard of care that physicians should follow - that the section 1151 claim should prevail (and I would think that MIGHT prevail in court) -

2. That as the section 1151 claim was only one basis of the PTSD claim. So even if they deny it as a 1151 claim - that does not preclude them from granting the PTSD for the in service assaults.

That would be interesting for them to wiggle out of - explaining that as the VA doctor sexually assaulting you worsened your service induced PTSD they can't grant the claim.

It looks like they have a lot of claims still to consider.

I wasn't fully understanding the whole ear problem process - but I think you might have a basis on the EED on the other ear problems as they WERE in the VA record even if you didn't file a formal claim for them specifically. When you claim ANY TYPE of ear problems - and the record reasonably raises a claim for another condition - aren't they supposed to consider that.

As you are not qualified to diagnose yourself - THEY are supposed to obtain the diagnosis and see if the diagnosed condition could have stemmed from the service.

I remember reading a Court of appeals claim where the vet claimed for headaches - and the VA doc stated the headaches were actually caused by something else - which was connected to the service.

But the VA just denied the headache claim becuase the doctor didn't diagnose them as headaches.

They did that with my husband's claim. He claimed headaches as a Desert Storm related illness. The VA doc said the headaches were caused by his chronic sinus condition (which was diagnosed in service) and his cervical condition (which he had filed a claim for when he retired but was denied because there was no evidence of "current" disability - x-ray ALMOST normal). Instead of granting SC for the headaches based on the sinus and cervical conditions - they denied service connection because they were not a undiagnosed illness.

We didn't have a copy of his records at that time.

But in the Court of Vet Claims case - the court agreed that as the VA states that a vet, being a lay person, is not qualified to diagnose their own illness, then they can't deny the claim just because the vet imprmoperly diagnosed their illness and thought it was headaches instead of what it was.

So that MIGHT apply in your ear claim. Being a lay person - you reported your symptoms - it was not up to you to diagnose yourself. Once the doctor properly diagnosed you - you claimed for that DIAGNOSIS.

However, when you FIRST claimed for trouble hearing - ANY hearing related condition should be considered. If it is later found that you had other diagnoses than the one(s) they considered - you HAD claimed for hearing loss - I don't think the vet actually HAS to claim the specific diagnosis (as they aren't qualified to diagnose themselves).

Free

The thing is that I did respond to the Nov SOC & the Dec SSOC regarding IU and submitted additional evidence.

I did file a FTCA against Bay Pines USA - VA and won a minimal amount.

VA, long ago denied my PTSD as an 1151 due to the 1999 PRECOPGC. The VA continues to NOT RECOGNIZE the claim was amended several years ago as claim for SC - for PTSD 2 - active duty assaults -

Vet Center & VA, psychologist and psychiatrist have stated my PTSD was a delayed onset.

The ENT doc that assaulted me was the last straw for me

Gotta close --- bad lightning storm.

carlie

[free_spirit_etc]

" Although her physician has provided an opinion that the

currently diagnosed neck disorder is related to the injuries

she incurred in service, that opinion was based on her report

of having experienced neck pain since then. Her VA treatment

records since service should be considered prior to

determining whether her report of continuing symptomatology

is credible."

Whoa! Credible??

Now here is what gets me. Sound medical principles indicate that many of those types of injuries do not manifest in a painful way until LATER. Yet - if you start having pain several years later (like a normal person would after an injury) does that mena your reports of pain are not "credible' unless you got treatment all along??

I think the BVA remand pretty much prejudiced the case. They stated over and over in the remand . "The opinion should be based on

review of the evidence of record and

sound medical principles, and not solely

on the veteran's reported history."

They have pretty much put your credibility in question - and semi-instructed the examiner's and the RO to pretty much not put much weight on your reports of your history, your pain, your buzzing in the ears, etc.

It almost looks like they instructed them to ignore what you say.

I haven't seen that type of instruction repeated like that over and over in a remand.

SYMPTOMOLOGY - one of those words the VA LOVES - IS the subjective experience of the person who is having the symptoms.

Definition of Symptom

Symptom: Any subjective evidence of disease. Anxiety, lower back pain, and fatigue are all symptoms. They are sensations only the patient can perceive. In contrast, a sign is objective evidence of disease. A bloody nose is a sign. It is evident to the patient, doctor, nurse and other observers.

They didn't ACTUALLY tell the examiners and RO to IGNORE your self reports - however the fact that they instructed them to look at your treatment records prior to deciding whether your reports of your symptoms is CREDIBLE?? They brought your credibility into question in a way that I think prejudices the claim.

And then when they repeat over and over that the report and med opinions have to be based on the med records and medical principles and not soley on the self reports (like doctors don't already KNOW this??) When they say that AFTER they have already brought your credibility into question --it is almost like telling them they think you are lying - so don't consider what you are saying.

I really don't have a good feeling about the remand instructions at all.

You might want to save this post for the credibility issue

hhttp://www.hadit.com/forums/index.php?

showtopic=12125ttp://

It refers to this case:

www.fedcir.gov/opinions/05-7174.pdf

Where the court says that the VA must consider lay evidence on its own merit. In the case posted - the court said the VA could not refuse to give weight to the lay evidence just because there was not documentation in the medical records to support such evidence - that the lay evidence had to be considered on its own merit.

That doesn't mean the VA HAS to believe you - but they can't use the fact that your lay statements aren't supported by the medical records as the REASON to not give your lay statements probative value.

To me - it seems like the remand instructions specifically violated this court ruling. They didn't just tell them to review your records to see if there is documentation to support your reported symptoms. They told them to check your medical records PRIOR to determing whether your reports are CREDIBLE.

To me - that is the same thing the court directed them NOT to do - to basically say - if it isn't in the med records your lay statement CAN'T be credible.

I'd keep that case in my resource file - because I think it might be something you can use in an appeal.

Of course, if you bring it up now - they will just find a different way of wording why they think you aren't credible.

But basically, I think the BVA has already instructed the doctors and RO to basically ignore your reported symptoms (when symptoms are a HUGE part of diagnosing someone) and go only by what is written in the medical records.

and I think you might have a strong case with the court that they did not follow case law in considering the lay evidence of the veteran on its own merits - and did so in such a way as to actually prejudice your claim (by instructing others to give your statements no weight).

How in the world can neck pain or ringing in the ears be diagnosed solely on the OBJECTIVE medical evidence? But if they put your reported symptoms in their reports - then the BVA can not give their opinions probative value because it relied on you knowing if you hurt or not or whether you were hearing buzzing in your own ears.

Free