Medical Opinion Of Two Psychiatrist To Amc

[Josephine]

My husband has the letter in his hand and the guy at records did not read it correctly.

I am not sure, if I am on better standing ground, but it sounds better to me.

This is the way it reads:

Reviewed the C-file and Personnel Records, letter of Dr. B.Cxxxx and the 4 letters by Dr. Pxxx with the dates.

It is the honest opionion of these two professional examiners that the etiology is the preponderance of the evidence is suggestive and appears the veterans anxiety may have preceded service.

At least they have admitted that I had ANXIETY IN SERVICE. They have dropped the Personality Disorder also.

They are still using the word " Appears"

What do you think??

Betty

(Josephine)

Edited November 29, 2007 by Josephine

[Hoppy]

Josephine,

They say there is a perponderance of evidence that the anxiety condition pre-dated service. Perponderence means a chance of 51% or better, I have not seen this term used by the VA to extablish preservice onset. I don't think the benefit of doubt rule applies to rebutting the presumption of soundness. This is because the level of evidence to rebut the presumption of soundness is much higher thaan 50/50 or even a perponderance.

The problem with this is that I think they are using the wrong standard of law. Rebuttal of the presumption of soundness requires "clear and convincing" evidence as far as I can remember. If you can find that they used the wrong standard of evidence, you could argue that they obviously were aware that they could have used a higher standard of evidence and chose not to. Thus, this would have to be intrepreted that the evidence was not sufficient to rebutt the presumption of soundness. No further reports are necessary.

Also, if they say you had an anxiety condition that pre-dated service then they should seek a report as to whether or not the symptoms in service were a flare of the previous condition or did military service aggravate the pre-service condition. I have seen veterans service connect when the report said the veteran had a preservice anxiety problem that was aggravated by military service.

[Josephine]

Josephine,

They say there is a perponderance of evidence that the anxiety condition pre-dated service. Perponderence means a chance of 51% or better, I have not seen this term used by the VA to extablish preservice onset. I don't think the benefit of doubt rule applies to rebutting the presumption of soundness. This is because the level of evidence to rebut the presumption of soundness is much higher thaan 50/50 or even a perponderance.

The problem with this is that I think they are using the wrong standard of law. Rebuttal of the presumption of soundness requires "clear and convincing" evidence as far as I can remember. If you can find that they used the wrong standard of evidence, you could argue that they obviously were aware that they could have used a higher standard of evidence and chose not to. Thus, this would have to be intrepreted that the evidence was not sufficient to rebutt the presumption of soundness. No further reports are necessary.

Also, if they say you had an anxiety condition that pre-dated service then they should seek a report as to whether or not the symptoms in service were a flare of the previous condition or did military service aggravate the pre-service condition. I have seen veterans service connect when the report said the veteran had a preservice anxiety problem that was aggravated by military service.

Hoppy,

I went to the C.F.R and spoke to the General Council and the first thing the lawyer stated. She had better get rid of her word , "Appears". You are correct. The evidence must meet "Clear and Unmistakable evidence.

She has appeared everything:

This is directly from the remand:

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.

Pastor B. O Bxxxx has responded to the remand.

Thanks,

Josephine

Edited November 29, 2007 by Josephine

[free_spirit_etc]

In our professional opinion, the propenderance of the evidence, including the letters by Dr. Cxxxxx and Pxxxx, supports the initial findings and diagnosis of the examiners and suggest that the etiology of her anxiety appears to have preceded her time in service.

Yep. You have a strong argument for that. That the evidence has clearly shown that you suffered from anxiety in the service. That the only disagreement has been the etiology of the anxiety. That the only disagreement about the etiology was, in fact, done by the doctor performing the second C&P. That the diagnosis was made ___ years post service and was also made without adequate testing and without following medically established standards for care for diagnosing personality disorders. That the doctor who gave that diagnosis failed to provide any medical bases for maintaining such and opinion – and failed to reconcile their opinion in light of the additional evidence as directed by the BVA. That an opinion based on the “preponderance of the evidence” which says the etiology of the anxiety “appears” to have preceded your time in service does not come near the “clear and convincing” evidence standard required to rebut the presumption of soundness, especially in light of the other testimony which shows no indication of anxiety prior to the service.

Free

[Josephine]

In our professional opinion, the propenderance of the evidence, including the letters by Dr. Cxxxxx and Pxxxx, supports the initial findings and diagnosis of the examiners and suggest that the etiology of her anxiety appears to have preceded her time in service.

Yep. You have a strong argument for that. That the evidence has clearly shown that you suffered from anxiety in the service. That the only disagreement has been the etiology of the anxiety. That the only disagreement about the etiology was, in fact, done by the doctor performing the second C&P. That the diagnosis was made ___ years post service and was also made without adequate testing and without following medically established standards for care for diagnosing personality disorders. That the doctor who gave that diagnosis failed to provide any medical bases for maintaining such and opinion – and failed to reconcile their opinion in light of the additional evidence as directed by the BVA. That an opinion based on the “preponderance of the evidence” which says the etiology of the anxiety “appears” to have preceded your time in service does not come near the “clear and convincing” evidence standard required to rebut the presumption of soundness, especially in light of the other testimony which shows no indication of anxiety prior to the service.

Free

Free,

I have been on the telephone this morning arguing to get my claims file out of the over-flow.

Boy, some of these people sound and act as stupid as crap. I called Director Russo's office and made it through to someone who did not wish to identify their postion, but stated they would look right now for that " Advancement on the Docket. I trully believe she will have to find at least one of the copies.

So far to date, they only have 4 copies.

I can't believe that AMC would say, they don't get " Advancement on the docket claims.

I know now why, " They wait for us all to die.

I was told by Michael Walcoff's office that in no way could they sent the claims file back to the two psychiatrist again.

It is over. As you said, What in the heck is " Appears".

Appears means nothing.

And they try to make me think that I am the ignorant one

Thanks bunches!

Josephine

[Josephine]

DEPARTMENT OF VETERANS AFFAIRS

38 CFR Part 3

RIN 2900-AL90

Presumption of Sound Condition: Aggravation of a Disability by

Active Service

AGENCY: Department of Veterans Affairs.

ACTION: Final rule.

-----------------------------------------------------------------------

SUMMARY: This document amends the Department of Veterans Affairs (VA)

adjudication regulations regarding the presumption of soundness of a

veteran by adding a requirement that, in order to rebut the presumption of soundness of a veteran on entrance into active service, VA must prove not only that the condition existed prior to entrance into active service, but also that it was not aggravated by the veteran's active service. This amendment reflects a change in VA's interpretation of the statute governing the presumption of sound condition, and is based on a recent opinion of VA's General Counsel as well as a recent decision of the United States Court of Appeals for the Federal Circuit. The intended effect of this amendment is to require that VA, not the claimant, prove that the disability preexisted entrance into military service and that the disability was not aggravated by such service before the presumption of soundness on entrance onto active duty is

overcome.

DATES: Effective Date: May 4, 2005.

[[Page 23028]]

Applicability Date: This rule applies to claims that were pending

on or filed after the effective date of this rule, May 4, 2005. It does

not apply to claims that were finally decided prior to the effective

date of this rule or to collateral challenges to final decisions

rendered prior to the effective date of this rule.

FOR FURTHER INFORMATION CONTACT: David Barrans, Attorney, Office of

General Counsel (022), Department of Veterans Affairs, 810 Vermont

Avenue, NW., Washington, DC 20420, telephone (202) 273-6315.

David is the lawyer that I spoke to that said that she needed to get rid of the word, " appears"

Thanks,

Josephine

[hurryupnwait]

Hi Betty

I agree with Free, the lawyer and you that the word "appears" is very weak.

The positive is the word "anxiety."

Another positive is the lack of "personality disorder"

The negative is "pre service."

Let's review your options.

1. You could ask the Dr. to review her decision and maybe change the wording, like dropping appears and change pre service to service.

2. You could ask the male Dr. for his opinion and why he did not sign the letter. I think that when someone does not sign something it is because they do not accept the terms or language.

3. Do both 1 and 2.

4. You could accept this opinion.

5. Call the news media and see if they are interested in your story.

There are prolly other options

Hope this helps

Happy Trails

Paul

Edited November 29, 2007 by hurryupnwait