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My Bva Appeal Finally On Line


carlie

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  • HadIt.com Elder

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

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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

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  • HadIt.com Elder

 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

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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 by carlie
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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

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" 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

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Hi! It is me again. The 1999 approval of SC for headaches might be helpful on the neck pain thing.

Here's the part of the case I was talking about:

http://caselaw.lp.findlaw.com/cgi-bin/getc...e&no=007023

U.S. Fed Circuit Court of Appeals

2000

United States Court of Appeals for the Federal

Circuit

00-7023

NORVAL J. ELKINS,

Claimant-Appellant,

v.

HERSHEL W. GOBER, Acting Secretary of Veterans Affairs,

Respondent-Appellee.

Kenneth M. Carpenter, Carpenter, Chartered, of Topeka, Kansas, argued for claimant-appellant.

Our examination of Elkins' briefs before the Veterans Court points to the latter. In those briefs, Elkins cites the medical report conclusion that his headache pain was actually attributable to a neck injury and argues:

The doctor acknowledges that the Appellant experiences pain which he "interprets" as headaches. The Appellant's substantive appeal mentioned headaches. [ ] It is disingenuous, at the very least, to argue that the Appellant is not competent to give an opinion as to the etiology of his condition, but then disallow his claim when he identifies the symptom that he is experiencing for the reason that he has failed to adequately diagnose it.

The vet had claimed headaches -- the doctor diagnosed pain from neck injury. The VA didn't want to give him an earlier effective date for the neck pain because he had claimed headaches and NOT neck pain.

Could they put two and two together and say the doctor states his headaches are caused by his in service neck injury? Nope. They deny headaches - and then make him claim specifically for neck injury.

The courts didn't uphold that.

SO this claim MIGHT help on the ear claims -- and also on the neck pain issue.

If you had enough evidence in your record to grant SC for headaches --then it might be likely that some aspects of your headaches are related to your neck injuries.

Both the case posted and my husband's claim were for headaches. Both times the doctors traced the headaches to actually being neck injuries.

So you might want to check that out. And even bring it up with the doctors - to see if they might be related. The VA doctor my husband had actually had him describe his headaches - and he used the descriptions AND objective medical evidence to attribute them to sinus and neck problems based on how he described them and also the x-rays showing chronic sinutitis and the x-rays showing the cervical problems.

Has any doctor had you actually describe your headaches in detail? you can have more than one type of headache.

And since you are already granted SC for them if any of them are stemming from the cervical region - it might be easy for them to make the connection based on the descriptions and objective evidence.

And again - that thing about checking your treatment records prior to deciding if you are credible - if any of the headaches CAN be connected to the neck injuries -- that might be an easier bridge to build than some others.

Free

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Since you have the SC for the headaches from concussions - is it possible that some of your other symptoms could be the result of Post-Concussion Syndrome?

http://www.adhd.com.au/Post_concussion_Syndrome.htm

The term Post-concussion syndrome or post-concussional disorder as it is referred to in the DSM-IV has been used to describe the range of residual symptoms that persist 12 months and beyond, sometimes years after the injury. Although minor head injuries are generally considered benign, a significant number of people report persistent symptoms for weeks or months [2] and some for years after injury [3-17] despite a lack of evidence of brain abnormalities on MRI and CT scans. The core deficits of post-concussion syndrome overlap with those of Attention Deficit Disorder, Adjustment disorder and Mood Disorders. In addition, sufferers often report memory and socialisation problems, frequent headaches and personality changes.

The cluster of symptoms reported by these patients is referred to as the Post-concussion syndrome. The following are amongst the most commonly reported symptoms of post-concussion syndrome [4, 6].

Attention deficits, difficulty sustaining mental effort.

Fatigue and tiredness

Impulsivity, irritability

Low frustration threshold

Temper outbursts and changes in mood

Learning and memory problems

Impaired planning and problem solving

Inflexibility, concrete thinking

Lack of initiative

Dissociation between thought and action

Communication difficulties

Socially inappropriate behaviours

Self-centeredness and lack of insight

Poor self-awareness

Impaired balance

Dizziness and Headaches [6, 15, 18, 19]

Personality changes [20, 21]

Often despite several of these chronic symptoms, there is no evidence of brain abnormality from conventional structural neuroimaging tests, such as CT scans and MRIs. Consequently the person can be labelled a "hot head" with a "short fuse" or as having either a mood disorder or anger problem, or as having a personality or psychological disorder.

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November 15, 1978

317/211B-102 CSS

Mrs. XXXXX

Dear Mrs. XXXX:

Your disability compensation claim has been carefully considered. To establish entitlement to this benefit, the evidence must show: (a) that you have a disability incurred or aggravated in service, in line of duty; and (b) must be 10 percent or more disabling.

The evidence, including your recently completed Veterans Administration examination, does not entitle you to service connection for the following disabilities: hearing loss, otitis media, lumps on neck, back and neck condition, headaches and dizsiness, and residuals of concussion. Although records show you were treated for these disabilities during your military service, these disabilities were not found on the last examination. If any of these disabilities recur, you may submit medical evidence to show the recurrence.

It is regrettable a more favorable response is not possible. Sincerely yours,

Ati. :tt":

M. R. WOODALL Adjudication Officer

********************************************************************************

**

19. NARRATIVE

J. Reopened claim, 1-15-79. I. SC for seizures.

F. Rating dated 10-31-78 is incorporated herein by reference. Veteran's

original claim was for SC for a hearing loss with otitis media, concussion, lumps on neck, back condition, headaches and dizziness. All claimed disabilities were denied under Code 8. Veteran was informed of the denial of her claim for SC for the mentioned disabilities and she responded on 1-15-79 that she disagreed with VA decision denying SC for seizures. The purpose of this rating action is to dispose of the claim for seizures raised by her communication dated 1-15-79. Available for the Board's consideration is HR from VAMC, Tampa for the period from 1-10-79 to 1-22-79. Veteran was admitted to hospital with a history of seizures. No seizures were observed during period of hospitalization. Several diagnostic tests were performed during veteran's hospital stay and the above mentioned lab tests were all normal. An EEC (sleep deprived) showed a dysrhythmia Grade II of the left sylvian and occipital region. A CAT scan of the head was reportec as normal. However, there did appear to be some artifact in the left temporal region. Because of this, a brain scan was obtained and this was normal. An O&E exam was requested with a request for a definitive diagnosis with number and frequency of seizures ascertained. Veteran was hospitalized for the period from 6-11-79 to 6-14-79 for this purpose. During this period, no seizures were observed and the CAT scan was normal. The available medical evidence does not support a diagnosis of idiopathic seizure disorder. No seizures are shown during active service and there are no confirmed seizures shown in available medical evidence subsequent to service.

********************************************************************************

*

My response on 1-15-1979 I feel was erroneously classified by VARO as a reopened claim

when it is a NOD on the 10-31-1978 Rating Decision, (Iwas notified 11-15-1978), and the claim for seizures was an additional claim put into the NOD.

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  • HadIt.com Elder

Free,

I admire your dedication to the veterans on this site. You were a life saver to me and through your continious research and insight, you put the pieces of the puzzle together for me on my claims file.

For this I am grateful and appreciate you are going full steam ahead to solve the mystery with Carlie's claim.

I am sorry Carlie, but my knowledge is very limited, but can spot a wrong when it is in front of me to read and there is a Huge Rat Out There!

Always,

Josephine

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Carlie- I am focusing on the Sec 1151 part of your claim.

The OGC mumbo jumbo is here in the entire Pres Op they refer to:

http://www.va.gov/ogc/docs/1999/prc1-99.doc

Was BVA aware of the amendment? DId they have jurisdiction over this part of your claim?

"The VA continues to NOT RECOGNIZE the claim was amended several years ago as claim for SC - for PTSD 2 - active duty assaults -"

Did you have evidence to support that- and is this still a pending issue at the RO?

The Office of General Counsel Pres op can be manipulated- if a veteran can manipulate the wording of it and apply it to their situation-

then again-

if this happened during the course of treatment or exam for a service connected condition did you also raise the additional issue that the PTSD was secondary to the SC disability?

Secondary because VA already said it was -if:

"Vet Center & VA, psychologist and psychiatrist have stated my PTSD was a delayed onset" if they then referred the PTSD directly to the sexual assault.

Did you have a service officer or vet rep at time of filing this Sec 1151 claim that also brought up the secondary issue?

An 1151 issue -in my opinion- should often also be filed as additional claim for secondary SC if it involves a direct SC disability.

Depends on the circumstances.

For example -when I reopened my husband Sec 1151 claim after he died-

I raised the 1151 issues and also PTSD causing heart disease and AO causing heart disease.

They granted on the Sec 1151 claim.

I re-opened the heart /PTSD claim in 2004 and Saturday they sent me a VCAA letter on that claim.I also re-opened the Sec 1151 PTSD component of the veterans Sec 1151 claim.

I dont know what to expect on that one-

The Veterans Administration in 2006 inadvertently service connected Rod's 1151 death to his SC PTSD by saying this component was part of the Section 1151 DIC award.

Thus a SC disability directly contributed to his death.

I have asked them for direct service connected death on that basis too.Their letter to me is the evidence to award that claim. (the dopes sent me the evidence)

And of course the AO death claim-still oending-is the most probative medically supported issue that they are trying to avoid deciding.

My long point is that a veterans or widow should raise as many potential bases for direct SC as possible.

If you succeeded on the 1151 part of your claim they would have held back VA comp anyhow until the offset is paid.

They would have withheld the full amount of the settlement you received.

1151ers should raise these potential direct SC issues along with Sec 1151 if they can- because in my case the VA will have to refund my FTCA offset -Direct SC trumps Sec 1151-

If the VA awards as secondary instead of Sec 1151- the veteran-if they pursued and won under FTCA for the same incident or medical error- can keep the whole settlement with no offset.

Lawyers should handle FTCA claims- vet reps handle Sec 1151 claims-

However veterans under the new regs can handle both- if they have the expertise for FTCA and also if the Sec 1151 NOD was filed after June 21,2007.

In the long run this is an advantage to a claimant with FTCA and Sec 1151 issues if they can hire a lawyer under the limiting new regs.

Of course that doesnt help you here Carlie-

I beleive it is not too late to file new claim for PTSD as secondary to any SC disability that this assault occurred during exam or treatment for.

Anyone agree out there?

Edited by Berta
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I agree with free; get this into the press ASAP. Refusing to take liability for a veteran that was sexually assaulted under the VA's care is repugnant to say the least and this is the sort of thing that can cause heads to roll within your local VA (or nationally). Call me pessimistic, but I bet this isn't the first case the BVA has taken on of this sort and you're probably not the only veteran that has been denied for this reason, so bringing your case to light may just bring a lot more folks out of the woodworks and a class action lawsuit could be in the works.....

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A Woman's Rights Attorney might even be interested in this one.

Free

I agree with free; get this into the press ASAP. Refusing to take liability for a veteran that was sexually assaulted under the VA's care is repugnant to say the least and this is the sort of thing that can cause heads to roll within your local VA (or nationally). Call me pessimistic, but I bet this isn't the first case the BVA has taken on of this sort and you're probably not the only veteran that has been denied for this reason, so bringing your case to light may just bring a lot more folks out of the woodworks and a class action lawsuit could be in the works.....
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Thanks Josephine. I kind of came in at the tail end of your claim though -so most of my ideas will only apply IF they don't grant your claim.

I keep looking for your post under Success Stories! :)

Actually, I often run across the best stuff by accident. I am looking for something else and run across exactly what I need.

Free

Free,

I admire your dedication to the veterans on this site. You were a life saver to me and through your continious research and insight, you put the pieces of the puzzle together for me on my claims file.

For this I am grateful and appreciate you are going full steam ahead to solve the mystery with Carlie's claim.

I am sorry Carlie, but my knowledge is very limited, but can spot a wrong when it is in front of me to read and there is a Huge Rat Out There!

Always,

Josephine

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