Sad Day ...............

[lamontino]

I called today to the BVA, they told me that my claims where denied. I dont know how this happen and its extremely upsetting. I dont have the paperwork yet. But they must didnt look at my IMO or IME or consider anything else that was of fact. Also, I found out that they wasnt even suppose to tell me anything about it until I got the mail. It was just decided yesturday. IF anyone can help me please refer to my past topic at "The Va is trying to Hoodwink me" than you all could know what happen in my case. Thanks very much all

[lamontino]

Josephine,

I here you :). I was thinking of writing my congressman. But I dont know if that would do any good. But I figure out what they are doing now. I just wonder, why in the heck didnt they denie my claim in the year 2002 when I first file to reopen my claim????

THen, adjudicated it when my claim was reopen but they failed to tell me what was considerate new and material. And than failed to tell me what not to send that would probably would be considered redundant and cumatilive

They had a duty in accord to VCAA ACT of 2000..

The law reads failure to provide notice of what constitutes material evidence would generally be the type of error that has the natural effect of producing prejudice because it would constitute a failure to provide a claimant notice of a key element of what it takes to substantiate a claim to reopen. See Mayfield, 19 Vet.App. at 122. Without such notice,a claimant effectively would be deprived of an opportunity to participate in the adjudication process because he would not know what evidence was needed to reopen his claim.

Understandably, this would indeed confuse anyone as to what would constitute new and material evidence to reopen.

Under 38 U.S.C. 5103(a), VA was required to notify the appellant of

what constituted "material" evidence in the context of his particular

claim to reopen.

However, as the BVA correctly noted in their decision to me saying, this version of the regulation did not apply to the appellant's claim to reopen since the claim was first(de vono) filed before August 21, 2000. R. at 7. The Court notes that the definition of "new and material evidence" was changed by the 2001 amendments.

BUT! Having found a failure to fulfill VA's section 5103(a) notice obligations, the Court must take into account the rule of prejudicial error. Error is prejudicial when it affects a substantial right that the statutory or regulatory provision involved was designed to protect so that the error affects "the essential fairness" of the adjudication. Mayfield, 19 Vet.App. at 115. Once an I have demonstrates a VCAA notice error, I will has the burden of going forward with a plausible showing of how the essential fairness of the adjudication was affected by the error. If I makes such a showing, the burden shifts to the Secretary to demonstrate that the error was clearly nonprejudicial, i.e., that the error did not affect the essential fairness of the adjudication.

VA's failure to give notice as to the first requirement produced prejudice because it precluded the me from participating effectively in the processing of my claim, "thereby substantially defeating the very purpose of section 5103(a) notice.

THe Bva judge said on my decision, argues that any notice error is harmless in this case because the outcome would not have been different.BUT! this argument was specifically rejected by the Court in Mayfield. See Mayfield, 19 Vet.App. at 115.

I dont know what kinda of lawyers or judge exactly read my c file but if I can see all these things as a lay person. How in the HELL didnt the lawyer or judge see it. THey knew back in 1986 that they had the wrong address and that I gave them, "in writing a new address".

Basically, my claim in 1987 was denied because of a alleged "missed rheumtory exam (which if they was soo soo concern about if I had rheumtory arthiris why in the hell didnt they exam me for this in the reopening of 2002 to this time point if nessary)which is an out, right, LIE. Rheumtory exam was done the same day of my examination for c&P benefits I seen two doctors that day. And I have laboratory results to prove. THe doctor order it which is the same rheumtory doctor that they said I missed an appointment with.

I may request an oral argument be which the court can grant at a particular law school in the United States. In accorded to VCA.

Peoples say that my case is a mess. BUt not really, because the facts are right there in the claim files and evidence I sent to them in the past month or so. BUt it would seem as if they are looking OVer all that and looking at all that "was done wrong in the first place".

lamontino,

One thing for sure if the BVA or the VA visit my site, they will definitely know how I feel about their deceit.

Always,

Josephine

[Josephine]

Lamontino,

I find that they all pick and choose what they care to read and what they wish to tell you or to consider.

I admire you, for taking your case to another step.

I know for me, if I receive a denial as most on this board feels that I will receive. I am off the bandwagon and regret that I ever re-opened this can of worms almost 7 years ago.

If I had not filed in 1978 and located all of those psychiatric records in the archives, where they lay silent for 40 years, my case would not be so imposssible.

thanks

Josephine

[sixthscents]

Josephine,

Sadly I agree with your statement that they pick and choose what they read. I have a vet that they deny limps.. who has a VA provided AFO and built-up heel. Yet he "doesnt show an antalgic gait"... when its ALL over his current and past records... so hi-ho hi-ho to BVA it goes. BUT.. eventually we will win. We went from 10% to 30% to 50% so far.... eventually he'll get 100% TDIU. Experience tells me that... the VA did schedule numerous NEW C&P exams, just not for this injury... go figure.

I think they use a magic 8 ball sometimes - (sigh), but they are caught in the system just like us. Hopefully the increase in raters will help.

Bob

[Hoppy]

Lamontino

I think Wings said it .. Get a lawyer. The VA is amazing. They do what they want until it occurs to them that they will look like idiots if another court reviewed their lunacy. I once read a post online by an attorney who went to work for the VA and could not believe how screwed up the VA was. I am going to tell a story about a legal dispute I had and then draw a parallel to your claim. This post is my opinion. I have now specific legal expertise. I have been run through some court actions as a plaintiff and learned some things as an inured party. I was falsely arrested by the LAPD and my civil rights were violated by some idiot cops who did not have sufficient reason to arrest me. The courts had developed protections for the civil rights of citizens and to prevent false arrests by over zealous cops.. The first thing the LAPD did when we got to court is deny that they arrested me. The claimed they just stopped my car to talk to me. In so doing they pointed guns at me, they hand cuffed me and they searched my vehicle without obtaining my permission. Wouldn't you know it the courts had made an earlier ruling that if three criteria occurred it constituted an arrest. The three criteria was pointing guns, hand cuffing and searching a vehicle without the consent of the owner constituted a "FELONY" arrest. Thus, technically I was falsely arrested for a felony.

The parallel to you claim is that in my opinion you in fact did sustain an injury to your back in the military. The courts need to build in some protections that keep the military from sweeping potential disabilities that would require compensation from being swept under the carpet. This is what they did in your case. You reported an injury, they treated an injury, they gave you a profile and discharged you. Under labor law there is no requirement that there be witnesses to an industrial injury. I think some court needs to explain to the VA that if an injury is reported, treated, profiled and results in a discharge that the VA cannot question whether or not the injury ever occurred. The VA's reference to the "alleged" injury tells me the are still denying that an injury occurred. "aggravation of his pre-existing asymptomatic lumbar spondylosis, and that the alleged injury during service "did exacerbate his pre-existing condition". Having proved that a back injury did occur the court should instruct the VA to consider such a series of events including; a reporting, treatment, profile and discharge indicates that the in-service injury is considered chronic unless there is evidence to the contrary. The VA loves to play the chronic game. They deny that conditions are chronic and split words. I have seen them deny claims as being not chronic because the doctor said that the condition was re-occurring rather than using the word chronic.

Some comments on the SOC;

"However, a carefule reading of both private medical opinions fails to reflect an opinion or finding that establishes a measurable permanent

increase in severity of the vet pre-existing lumbar spondylosis during his period of service between may 13 1986 and june 20 198+6 temporary

or intermittent flare ups of symptoms of a preexisting condition,"

The BVA made a powerful statement . They are saying that you do not have a claim, have never had a claim, and are not capable of producing evidence in the future that will establish a claim. Neither a valid claim for disability or CUE exists. Establishing a measurable disability in service would be the first step of a multiple step process in establishing a CUE. The next step would show a failure to apply the law. I think it can be argued that they CUED when determining that you gad a condition that pre dated service if this determination was made prior to your submitting the 1984 reports from the doctor. This is because your subjective comments to military doctors unsupported by medical opinion is not sufficient to establish a diagnosis that can be used to make a determination of disability. It appears that they failed to consider that you had an injury that resulted in a disability while in the military that was unrelated to the alleged pre-service condition. This also could be a CUE. There are some disputed cases that are or were in the courts that give or revoke the VA's the ability to say that if they consider all issues if they considered one issue. "FREE" who is a poster on hadit was tracking these cases. I am not sure what happened with these cases, Maybe it applies to you.

Consider that the disability shown in the reports that pre existed service and were submitted in 2000 could be argued that the report was not sufficient to establish a chronic disability the issue becomes when and how can you establish a diagnosis that a chronic disability began while serving in the military. The VA is pretending that the fact that you reported an injury were treated, given a permanent profile and discharged does not equate to a significant disability. This is the real BS the VA is perpetrating. It was obvious that you did something to your back that could have resulted in a permanent disability and the VA needs to have a doctor address this. They need to get a report that the military made an error otherwise there is no evidence that the in-service condition resolved and thus continuity can be established between the post service condition and the and the in-service condition with a doctors statement that the two conditions have a nexus. It appears they are not interested in what your family says.

I did have a doctor tell me that my diagnosis of chronic lumbar sacral strain after two months of treatment would be permanent and I was awarded a permanent disability rating under labor law. Additionally, after that time I have continued to have lower back pain for thirty years and have not seen a doctor. The doctor who gave me the permanent rating told me not to waste my money seeing doctors unless the symptoms got significantly worse. I had an aggravation that was worse and still did not see a doctor because the pain went away in two months. I was not working and did not miss any work and the problem occurred in between my regular visits to primary care..

As far as the mailing of the denial consider that the same thing happened to me. later I changed SO's. They mailed my denial to an old address and I could prove they had the new address for a year prior to them mailing the denial. I am convinced they mailed it to the old address on purpose. They were convinced I did not have a claim and did not want me to waste any more of there time with an appeal. They hoped I would go away. Also consider that I could prove that the denial was returned to the VA unopened. My SO said that proving that it was returned unopened was a big step. However, he would not try for an earlier date of claim because he was of the opinion that to much time went by and I should have talked to the previous SO and or went into the RO on a regular basis to see what happened to my claim. I would not talk to the previous SO because he threw me out of his office and told me I did not have a claim. The new SO was of the opinion that I was not diligent in keeping up with the claim. I lost two years of eligibility. My new SO won the claim.

"Courts have ruled that The holding in Hayre as explained in Tetro v. Gober, 14 Vet. App. 100 (2000) provided for review of unappealed decisions where

grave procedural error had occurred so as to render the decision nonfinal. In Hayre the vitiating error was failure to assist in obtaining specifically

requested service medical records and failure to provide the claimant with notice explaining the deficiency. Other examples of grave procedural error

referred to in

*Tetro were Tablazon v. Brown, 8 Vet. App. 359, 361 (1995) (failure to provide a statement of the case after receiving a notice of

disagreement); Hauck v. Brown, 6 Vet. App. 518, 519 (1994) (failure to provide notification of denial tolls period to file a notice of disagreement);

*Talabzon v. Brown could refer to the fact that the VA did not even prepare the SOC and there never was an SOC in the file.

** Kuo v. Derwinski, 2 Vet. App. 662, 666(1992) (failure to send statement of the case to accredited representative tolled 60 day period to respond) and

**The fact that they mailed the denial to youy POA Might be sufficient. Administrative regularity shown in your post does not specify who they have to mail it to. Have you

found any case law more specific as to who they have to mail it to. I think it is very significant if they can show it was mailed to the POA.

*** Ashley v. Derwinski, 2 Vet. App. 307, 311 (1992) (evidence sufficient to rebut presumption of administrative regularity for mailing of appeal notice)."*** Ashley v. derwinsky would need an example of what they are talking about "administrative regularity" in insurance law can mean that they put a first class stamp on it and threw it in a mail box.

[lamontino]

Goodmorning,

I understand what your saying hoppy and others. BUt the fact stills remains (even through they are trying to complex things) that prior to going in the military my back pain was "acute" my pain at that time went away. When I went in the military I didnt have pain and I passed the rigor examination to be accepted and further was accepted in a MOS (11 Bravo 10th mountain div aka Air assault) that was extremely demanding of phyiscal fitness.

While after the three injuries while doing PT (Falling off a 13 Feet wall backwards and than rolling off the platform and landing on the ground, than twisted my back low crawling and than while doing pushups) which was report each time in the SMRs report. Which I got dianosis with "chronic low back pain" which changed to "chronic mechanical low back pain" and than sent right back out to "full duties". Until my complaining leaded to a me getting out the military and given a permanent profile of "L3 no running or lifting".

The VA and the BVA is trying to say that they denied my claim on "a missed rheumory arhritis exam". Which that is completely false. My c&p exam, both, was done on the same day and I have the laboraray results as well as the xray reports to prove it. I remember the doctors say nothing was wrong with my back. But the rheum doc said I had elevated something in my blood. Which is the way the find out if I have any type of rheum or other arthiris dieases.

Some how the VA did even look at that report. Or basically trashed it. BUt smart me, Is they mess up and gave me the lab reports and UA reports with the "very doctor that they claim I missed an appoint with". I ask them about his report years ago. " VA says that the other documents related to that was lossed".

On my 2004 c&p exam (which if they wanted me to see an rheumorty artihiris doctor why didnt they have me examin for that instead of a normal back exam when they had my records) they doctor dianosis me as having now " chronic strain of the lumbosacral spine of musuloligamentous origin". ANd said that base on the service records his examination as well as the sincere conversion with vet it is "At least likely as not that vet while during PT lead up to his now conditions of chronic strain of the lumbosacral spine".

And the VA have use this in all its denials of benefits rightfully mines. DO you guys and gals see the nexus??????? in this case?????????

1. diansois with "chronic condition in the military in 1986

2. given a permanent profile L3 no running or lifting

3. C&P exam in 2004 says " chronic strain of the lumbosacral spine of musuloligamentous origin".

4. 2007 get a IME and IMO saying the same thing with adding that L2-L4 are new injuries substanced in the military because it was noted while in the military".

BUt the judge is saying "yeah but you did do that exam back in 1986 as well as you didnt appeal in a timing manner. But I have a letter from 1986 (which they do to because they stamp it with a date and a time it was recieve the VA im talking about) stating I have a new address and that I was homeless and to forward all my mail to my mothers house and gave them a phone number to call me at. This was done waaaaaaay before any RO denial never did I receive anything I even called the region office because I never received an decision. They claim to still be working on it. Then In 2002 when I reply and the loooooong haul of waiting for my records to be sent from ST LOuis I found out in those records that they sent a denial to my old address well, allegedly because that was and RO COPY thats what it says at the top. BUt see I thought that was a never challenged thing because the SOC or SSOC never disclose that to me as being an issue. BUT like I said they sent me a copy of my "OWn letter dated 10/86 which has a VA Stamp on it telling me they recieved it" waay before they denied me. IN fact they didnt even send anything to my mother address in no letter to this date letting me know they sent anything there.

VA didnt even let me know about TDIU or IU or anything. THey knew I wasnt going to be able to get a job. ANd left me on the streets. Picture this, being let out the military prior to being in the military I was in a foster home, just an GED, and no work experience. THey knew this

How in the heck was I going to get a gainful job after receviing an profile of this nature. Every job I attempt to get they would not hire me because I had to disclose (prove a work history) of that permanent profile and show my military records to any employer.

Lamontino

I think Wings said it .. Get a lawyer. The VA is amazing. They do what they want until it occurs to them that they will look like idiots if another court reviewed their lunacy. I once read a post online by an attorney who went to work for the VA and could not believe how screwed up the VA was. I am going to tell a story about a legal dispute I had and then draw a parallel to your claim. This post is my opinion. I have now specific legal expertise. I have been run through some court actions as a plaintiff and learned some things as an inured party. I was falsely arrested by the LAPD and my civil rights were violated by some idiot cops who did not have sufficient reason to arrest me. The courts had developed protections for the civil rights of citizens and to prevent false arrests by over zealous cops.. The first thing the LAPD did when we got to court is deny that they arrested me. The claimed they just stopped my car to talk to me. In so doing they pointed guns at me, they hand cuffed me and they searched my vehicle without obtaining my permission. Wouldn't you know it the courts had made an earlier ruling that if three criteria occurred it constituted an arrest. The three criteria was pointing guns, hand cuffing and searching a vehicle without the consent of the owner constituted a "FELONY" arrest. Thus, technically I was falsely arrested for a felony.

The parallel to you claim is that in my opinion you in fact did sustain an injury to your back in the military. The courts need to build in some protections that keep the military from sweeping potential disabilities that would require compensation from being swept under the carpet. This is what they did in your case. You reported an injury, they treated an injury, they gave you a profile and discharged you. Under labor law there is no requirement that there be witnesses to an industrial injury. I think some court needs to explain to the VA that if an injury is reported, treated, profiled and results in a discharge that the VA cannot question whether or not the injury ever occurred. The VA's reference to the "alleged" injury tells me the are still denying that an injury occurred. "aggravation of his pre-existing asymptomatic lumbar spondylosis, and that the alleged injury during service "did exacerbate his pre-existing condition". Having proved that a back injury did occur the court should instruct the VA to consider such a series of events including; a reporting, treatment, profile and discharge indicates that the in-service injury is considered chronic unless there is evidence to the contrary. The VA loves to play the chronic game. They deny that conditions are chronic and split words. I have seen them deny claims as being not chronic because the doctor said that the condition was re-occurring rather than using the word chronic.

Some comments on the SOC;

"However, a carefule reading of both private medical opinions fails to reflect an opinion or finding that establishes a measurable permanent

increase in severity of the vet pre-existing lumbar spondylosis during his period of service between may 13 1986 and june 20 198+6 temporary

or intermittent flare ups of symptoms of a preexisting condition,"

The BVA made a powerful statement . They are saying that you do not have a claim, have never had a claim, and are not capable of producing evidence in the future that will establish a claim. Neither a valid claim for disability or CUE exists. Establishing a measurable disability in service would be the first step of a multiple step process in establishing a CUE. The next step would show a failure to apply the law. I think it can be argued that they CUED when determining that you gad a condition that pre dated service if this determination was made prior to your submitting the 1984 reports from the doctor. This is because your subjective comments to military doctors unsupported by medical opinion is not sufficient to establish a diagnosis that can be used to make a determination of disability. It appears that they failed to consider that you had an injury that resulted in a disability while in the military that was unrelated to the alleged pre-service condition. This also could be a CUE. There are some disputed cases that are or were in the courts that give or revoke the VA's the ability to say that if they consider all issues if they considered one issue. "FREE" who is a poster on hadit was tracking these cases. I am not sure what happened with these cases, Maybe it applies to you.

Consider that the disability shown in the reports that pre existed service and were submitted in 2000 could be argued that the report was not sufficient to establish a chronic disability the issue becomes when and how can you establish a diagnosis that a chronic disability began while serving in the military. The VA is pretending that the fact that you reported an injury were treated, given a permanent profile and discharged does not equate to a significant disability. This is the real BS the VA is perpetrating. It was obvious that you did something to your back that could have resulted in a permanent disability and the VA needs to have a doctor address this. They need to get a report that the military made an error otherwise there is no evidence that the in-service condition resolved and thus continuity can be established between the post service condition and the and the in-service condition with a doctors statement that the two conditions have a nexus. It appears they are not interested in what your family says.

I did have a doctor tell me that my diagnosis of chronic lumbar sacral strain after two months of treatment would be permanent and I was awarded a permanent disability rating under labor law. Additionally, after that time I have continued to have lower back pain for thirty years and have not seen a doctor. The doctor who gave me the permanent rating told me not to waste my money seeing doctors unless the symptoms got significantly worse. I had an aggravation that was worse and still did not see a doctor because the pain went away in two months. I was not working and did not miss any work and the problem occurred in between my regular visits to primary care..

As far as the mailing of the denial consider that the same thing happened to me. later I changed SO's. They mailed my denial to an old address and I could prove they had the new address for a year prior to them mailing the denial. I am convinced they mailed it to the old address on purpose. They were convinced I did not have a claim and did not want me to waste any more of there time with an appeal. They hoped I would go away. Also consider that I could prove that the denial was returned to the VA unopened. My SO said that proving that it was returned unopened was a big step. However, he would not try for an earlier date of claim because he was of the opinion that to much time went by and I should have talked to the previous SO and or went into the RO on a regular basis to see what happened to my claim. I would not talk to the previous SO because he threw me out of his office and told me I did not have a claim. The new SO was of the opinion that I was not diligent in keeping up with the claim. I lost two years of eligibility. My new SO won the claim.

"Courts have ruled that The holding in Hayre as explained in Tetro v. Gober, 14 Vet. App. 100 (2000) provided for review of unappealed decisions where

grave procedural error had occurred so as to render the decision nonfinal. In Hayre the vitiating error was failure to assist in obtaining specifically

requested service medical records and failure to provide the claimant with notice explaining the deficiency. Other examples of grave procedural error

referred to in

*Tetro were Tablazon v. Brown, 8 Vet. App. 359, 361 (1995) (failure to provide a statement of the case after receiving a notice of

disagreement); Hauck v. Brown, 6 Vet. App. 518, 519 (1994) (failure to provide notification of denial tolls period to file a notice of disagreement);

*Talabzon v. Brown could refer to the fact that the VA did not even prepare the SOC and there never was an SOC in the file.

** Kuo v. Derwinski, 2 Vet. App. 662, 666(1992) (failure to send statement of the case to accredited representative tolled 60 day period to respond) and

**The fact that they mailed the denial to youy POA Might be sufficient. Administrative regularity shown in your post does not specify who they have to mail it to. Have you

found any case law more specific as to who they have to mail it to. I think it is very significant if they can show it was mailed to the POA.

*** Ashley v. Derwinski, 2 Vet. App. 307, 311 (1992) (evidence sufficient to rebut presumption of administrative regularity for mailing of appeal notice)."*** Ashley v. derwinsky would need an example of what they are talking about "administrative regularity" in insurance law can mean that they put a first class stamp on it and threw it in a mail box.

[lamontino]

Also, I forgot. The doctor whom seen me for the IME ANd IMO. I had a appointment with him. I brought in the decison he was mad because He knew his reports was detialed. So now hes making a supplement to the report as far as "measurable" thinkie the judge said.

MY gut feelings are the military just dont want to pay. I am filing a motion to request an oral agruement. As well as a motion to expedited this case being that I was granted the motion to advance docket.

It would seem as if im losing everything. I dont know how long I will be online if I dont pay my internet bill. I have kids now, and one of them requires alot of attention. BUt im not giving up. even tho my bills are extremelly behind. My daughter needs shoes and being that im a single parent and getting NO help but ADc and my disability and foodstamps its hard to get hardly even the essential things for my family. I dont know what I can further do to get help.

I know you all saying about the lawyer thing. And I have recently contact HUgh COx. BUt he hasnt called me back. I figure my case is not that complex because the evidence is in my c file as well as me having my complete c file. ANd I thought it might further complex things and delay it and right now i cant afford any more complexities