"clear And Unmistakeable Evidence "

[Josephine]

Hi to all,

I am back at it again. Gosh, I never thought that I would have to prove that I was sane before service.

I have to go back to the years before 1964 and most of you weren't born then.

I spoke to David Barrans, Attorney, Office of General Counsel concerning this regulation.

VA’s regulation implementing the presumption of sound condition, 38 CFR 3.304(

I am not putting those little faces in this.

It is susposed to be a (B)

This is what he said to me, " Everyone is considered to be in sound

condition as noted on the enlistment form and it would take

"Clear and Unmistakeable Evidence " to rebut that soundness.

This is a complicated mess in my mind as the C&P states a Board of

Two and now that went out the window, we are back to one ( lady????)

psychiatrist with her last addendum.

The etiology of her anxiety appears to have preceded her time in

service.

What is " Clear and Unmistakable Evidence"?

He said that he couldn't solve my claim for me, but he could quote

the law, as I just typed.

Berta, Anyone, what would have to be in my records for anxiety to

precede service?

I can't go under aggravated, because, I never had anxiety or

nervouness until that swimming pool.

I only saw the doctor a couple of times before service, once for a

bladder infection and once for strep throat.

That is it. I was never ill or in need of a doctor. I had a regular

dentist and regular eye doctor, but not a regular doctor.

I remember being told that we ( the family) was quarantined by the

Health Department for " Scarlet Fever". I was about 3 years of age at

that time.

I put on my enlistment papers. I had had the Scarlet Fever, Measles,

a penicillin shot, and I guess that was for the strep.

I remember in the 1950's our whole school was given Polio shots and

that is it. Things were different in my time period.

My mother knew what the chicken pox were and my parents knew how to

pour that old iodine and that old burning bottle of stuff on my

scrapes.

I did find out today, that my claims file has made it back to the

rater and the answer should be within 30 days.

I am just trying to gain some insight.

Thanks and Always Appreciate all you and your Time and Knowledge,

Josephine

(Betty)

Edited December 3, 2007 by Josephine

[cloudcroft]

Then just be thinking lke the VA does when it denies a vet's claim for service-connection of some medical issue because "no record of your medical issue [insert its name here] is found in your SMRs so we must deny SC."

If your very early medical history as you give is correct, and your prior-to-entering-service-medical-records ("PTESMRs" if you will) do not show any anxiety issues AT ALL -- even any mental issues or visits to psychiatrists -- then how will the VA actually FIND any such evidence or medical records to prove you DID have such issues prior to service? It can't even be reasonably SUGGESTED that you did, let alone proving it to the higher level of "clearly and unmistakeably."

How can the VA find something that isn't there?

It can't.

Since you appear to want to use the Presumption of Soundness doctrine, then call on the VA either (1) to PROVE you had a pre-existing mental disorder as they are suggesting you do or, (2) to cease and desist their nonsensical/illegal stalling and grant your your claim.

Good luck,

-- John D.

Edited December 3, 2007 by cloudcroft

[hurryupnwait]

Betty

You entered the service fit for duty.

I agree with Cloudcraft

In addition:

Doctor statement,

"In our professional opinion, the propenderance (greatest weight) 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."

After reading this again, I think it is saying that in the letters by Dr. Cxxxx and Pxxxxx they found what "suggest that the etiology of her anxiety appears to have preceded her time in service." They are also including their own evidence.

Do you have copies of these Dr. letters? If so, I would reread them and see if there is any way this psychiatrist could interpret them this way.

Happy Trails

Paul

[Josephine]

Since you appear to want to use the Presumption of Soundness doctrine, then call on the VA either (1) to PROVE you had a pre-existing mental disorder as they are suggesting you do or, (2) to cease and desist their nonsensical/illegal stalling and grant your your claim.

Cloudcroft,

I haven't got any choice in the matter, as I don't have a shred of evidence of any signs of nervouness, anxiety before service.

I wouldn't know how to state it aggravated a condition, to which I knew nothing about.

I know that you guys think that I should go under aggravation, but how do you do that?

Always and thanks,

Josephine

[Josephine]

Betty

You entered the service fit for duty.

I agree with Cloudcraft

In addition:

Doctor statement,

"In our professional opinion, the propenderance (greatest weight) 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."

After reading this again, I think it is saying that in the letters by Dr. Cxxxx and Pxxxxx they found what "suggest that the etiology of her anxiety appears to have preceded her time in service." They are also including their own evidence.

Do you have copies of these Dr. letters? If so, I would reread them and see if there is any way this psychiatrist could interpret them this way.

Happy Trails

Paul

Paul,

That is exactly what Dr. L is saying. That my doctor of 30 years and Dr. Campion agree with her findings of " The veterans primary symptoms appear to be those of a personality disorder and it does not appear that she has developed an acquired chronic psychiatric disability in service.

That was her first conclusion and the second - does not alter initial conclusion and you know what the third one said.

That is what I can't figure out, where is she coming from?

Those letters are posted under my name somewhere on the site.

I will try to locate them.

Always,

Josephine

[cowgirl]

Oh my word, Cloud, I agree with you, when anyones first SOC returns with the lame response of prior or suspected or probable personality disorder or other 'pre-existing' disorder, your reply here should be posted again and again. Too bad that most vets find Hadit after they have hadit with efforts trying to understand whats needed to support themselves. Advocate thought for each future or current military member - Request a personal transcripted benefits counseling session from a non-VA employee, VSO or ? before signing up for service and before departing service.

My mdd and associated issues are written in my SMRs, in several places, inpatient hospitalizations, counseling, personnel records and now I haven't been able to work since discharge well over a decade, though I try, it hasn't happened. I plow on and try to make it. When I recieved my first SOC, I appealed issues, but only using layman terms and efforts, less a VSO that didn't have the what for, I accept that I failed to appeal what mattered most, MDD, dysthimia, somatzation and ptsd w/MST issues. Bottom line, the VA failed to recognize the life changing medical disabilities I had incurred. Now, I work towards an end goal of trying to get whats due by law. I truly and heartedly appreciate the clarity I see in your post to Josephine.

Then just be thinking lke the VA does when it denies a vet's claim for service-connection of some medical issue because "no record of your medical issue [insert its name here] is found in your SMRs so we must deny SC."

If your very early medical history as you give is correct, and your prior-to-entering-service-medical-records ("PTESMRs" if you will) do not show any anxiety issues AT ALL -- even any mental issues or visits to psychiatrists -- then how will the VA actually FIND any such evidence or medical records to prove you DID have such issues prior to service? It can't even be reasonably SUGGESTED that you did, let alone proving it to the higher level of "clearly and unmistakeably."

How can the VA find something that isn't there?

It can't.

Since you appear to want to use the Presumption of Soundness doctrine, then call on the VA either (1) to PROVE you had a pre-existing mental disorder as they are suggesting you do or, (2) to cease and desist their nonsensical/illegal stalling and grant your your claim.

Good luck,

-- John D.

Edited December 3, 2007 by cowgirl

[LarryJ]

Betty, darlin, you and I both entered the service at the SAME time. Me, two weeks after high school graduation, 1964, I was in USMCRD, Diego.

The stuff is called Mercurachrome or somethin like that, and it burned like he**.

The "legal beagle" was trying to tell you that the gubbermint has to have "clear and unmistakable evidence" that you DID have a pre-existing problem before you entered the military, otherwise they CANNOT overcome the "presumption of soundness" that you entered the military under. If it doesn't say that you had PRE-EXISTING blah, blah, then you DIDN't have IT.

Take a deep breath........that's it.....in and out....slowly.....goood gurl.....

Imagine World Peace......

Kuum By Yah, Lord.....Kuum By Yah........

LarryJ