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

[free_spirit_etc]

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

[free_spirit_etc]

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.

[carlie]

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.

[Josephine]

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

[Berta]

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 August 29, 2007 by Berta

[Jay Johnson]

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.....