"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

[Hoppy]

Betty,

OK, I will start calling you Betty now. Everyone else is starting to call you Betty. I have known your name was Betty for a couple years. I agree with Cloud and Free that trying to establish a diagnosis of a disability prior to service at thes time is "40 years to late". (Stealing a line from Jimmy Buffet).

I had the same question about clear and convincing. I recall something to the effect that rebuttal of presumption of soundness can not be based on theory or speculation. If there are no treatment notes prior to service how can it not be based on speculation. Additional, even if you had anxiety prior to service the new requirements of the DSM IVTR indicate that if the symptoms do not interfere with employment and social functining then the symptoms are indicative of a personality trait rather than a disorder. Do any of these new reports give any reference as to what specifically you did or told them that causes them to think that you had anxiety prior to service. Until they make specific reference that back up their logic I really think thay are grasping at straws to come up with the pre-service issue.

I think it all boils down to the pool event. They are assuming that because you developed sufficient anxiety early in your life and military career to interfere with you performing your duties that your condition predated service. This in my opinion is an illegal rebuttal of the presumption of soundness. At the time of your discharge and to this date the shrinks did not do sufficient depth in their work up to establish any pre-service condition. I really do not expect that any of the reports will show that the military shrinks even investigated that you had a events in the military that could have prevoked an anxiety disorder. I was almost killed while sleeping in a barrack. I went to the shrinks and to told them I would not sleep in the barracks. I went to my CO and asked to be transfered to shore duty so I would not have to sleep in the same quarters. At no time did anybody even ask what exactally was the problem that made me dislike the barracks. They just assumed that I had a problem adjusting that predated service.

Did I miss something. I have been away for a while. Did they ask a doctor to address the possibility of pre-service onset? Or did this just come up out of the blue. If they asked the doctor to address the pre-service issue then I would think that they are afraid they are losing the other issues.

The word "appears" is not strong. They also used the word preponderance. I was taught that preponderance had a specific legal meaning of 51% or better. They might be used to writing reports for civil cases. The VA uses the term “more likely than not”. In any event the report is no where near clear and convincing in my opinion.

This brings up yet another issue. Is there case law or any training instructions that explain the difference between "clear and unmistakable" and more likely than not" or preponderance as they chose to use?

Edited December 4, 2007 by Hoppy

[jbasser]

Betty, I feel that you have been jerked around from A to Z by the VA. It is time you do something about it.

Get an Attorney who specializes in this type of case. It is becoming more complex every day. It is Time to go after them including the untruthful docs that lied. An attorney can make them move on your claim.

You may have to take your claim to the CAVC.

Edited December 4, 2007 by jbasser

[cloudcroft]

Josephine,

I had only brought up the point about claiming "aggravation" because I was not clear on your prior-to-service medical history, nor have I been able to follow your huge number of posts here re: your complicated misadventures with the VA and the particulars of your claim, and that it looks like the VA is going to argue (stick with) "pre-existing anxiety" in order to deny you on that basis.

But since you have posted (under oath? -- joke) that you never went to see any civilian doctor for any mental issues whatsoever BEFORE you entered the service, then you certainly should NOT go for "aggravation," but instead go for your anxiety STARTING in service (being caused by or brought about by your service)...as you and others here have said.

You certainly should not admit to or accept something -- even if the VA claims it's true -- that is NOT true.

It does, however, look like it will be only doctors' opinions -- those in your favor and those against you -- as the only evidence because there is no written medical evidence/records (hardcopy stuff) BEFORE you entered the service that VA can use to prove you had pre-existing mental issues.

Hopefully, said opinions will AT LEAST be 50-50 balanced (relative equipoise) and that will win it for you...even if you have to go to the BVA because the VARO won't budge.

-- John D.

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

Edited December 4, 2007 by cloudcroft

[cloudcroft]

cowgirl,

When I got out of the service both times, there was no exit exam in either case...and I was completely ignorant of the importance of having them, and copies of any SMRs as well (if that was even allowed then). And no one ever mentioned the VA and the role it might play in my life down the road.

And when you're young, you usually don't look too far ahead so I didn't know I might need my SMRs 20-30 years later to prove that I had or was treated for this or that medical issue while in the service...you just want to get back to civilian life, forget about having been a soldier and think you'll live/be healthy forever after.

So today, I think it important we tell the new vets and vet-to-be the importance of getting this information and putting it away for use later if needed, such as when filing a claim for VA Benefits, even though at the time we think we will never need or even want to do that.

But things change over the years...and sometimes so do we.

-- John D.

Edited December 4, 2007 by cloudcroft

[Josephine]

Betty,

OK, I will start calling you Betty now. Everyone else is starting to call you Betty. I have known your name was Betty for a couple years. I agree with Cloud and Free that trying to establish a diagnosis of a disability prior to service at thes time is "40 years to late". (Stealing a line from Jimmy Buffet).

I had the same question about clear and convincing. I recall something to the effect that rebuttal of presumption of soundness can not be based on theory or speculation. If there are no treatment notes prior to service how can it not be based on speculation. Additional, even if you had anxiety prior to service the new requirements of the DSM IVTR indicate that if the symptoms do not interfere with employment and social functining then the symptoms are indicative of a personality trait rather than a disorder. Do any of these new reports give any reference as to what specifically you did or told them that causes them to think that you had anxiety prior to service. Until they make specific reference that back up their logic I really think thay are grasping at straws to come up with the pre-service issue.

I think it all boils down to the pool event. They are assuming that because you developed sufficient anxiety early in your life and military career to interfere with you performing your duties that your condition predated service. This in my opinion is an illegal rebuttal of the presumption of soundness. At the time of your discharge and to this date the shrinks did not do sufficient depth in their work up to establish any pre-service condition. I really do not expect that any of the reports will show that the military shrinks even investigated that you had a events in the military that could have prevoked an anxiety disorder. I was almost killed while sleeping in a barrack. I went to the shrinks and to told them I would not sleep in the barracks. I went to my CO and asked to be transfered to shore duty so I would not have to sleep in the same quarters. At no time did anybody even ask what exactally was the problem that made me dislike the barracks. They just assumed that I had a problem adjusting that predated service.

Did I miss something. I have been away for a while. Did they ask a doctor to address the possibility of pre-service onset? Or did this just come up out of the blue. If they asked the doctor to address the pre-service issue then I would think that they are afraid they are losing the other issues.

The word "appears" is not strong. They also used the word preponderance. I was taught that preponderance had a specific legal meaning of 51% or better. They might be used to writing reports for civil cases. The VA uses the term “more likely than not”. In any event the report is no where near clear and convincing in my opinion.

This brings up yet another issue. Is there case law or any training instructions that explain the difference between "clear and unmistakable" and more likely than not" or preponderance as they chose to use?

Hoppy,

I do think that Betty does sound better at this time.

When I spoke to David Barrans yesterday, as his name and telephone number is on the Presumtion of Soundness VA regulation. 38 CFR 3.304(.

He said this lady doc can say what she wants in her report, but it doesn't make it true, unless she has doctor reports or pre- treatment before service. He said that it must be concrete evidence, not guess work or speculation.

When the Regional Office would not give me a new C&P, even though, I had sent them a letter and showed them her lies, I showed them to the Patient Advocate at the VAMC. No one chose to do a thing.

She continues to lie with the medical records. I spend a month writing a letter to the BVA before this case was remanded.

I sent them everything. I had to think of someone credible who had known me most of my life and this would be my minister.

He has to date sent 3 letters on my behalf, that I did not have any signs of nervouness, anxiety, depression, headaches and such before service and his counsel sessions after service. He knows it all!

I met him when I was about 12 or 13 and have continued to have a close relationship with him. He has authored several books and one that is listed with my remand. He signed it for the VA.

I guess he thought that they may benefit from the word of God.

I think that the BVA and the AMC has given this doc ever opportunity to state the correct facts that are in front of her.

I can see why the male dropped out and refused to sign the examination, although, as stated in the C&P, a Board of Two examined this veteran.

The BVA wants them to reconcile their differences, this to date has not been accomplished and will not be.

He will not go along with her lies.

This is just my observation of the situation.

When Dr. C. makes mention of incidents, he knew there was more going on than the swimming pool.

I endured abuse after abuse in DC, by certain petty officers and a couple of doctors.

As he said, " We were a close knit group.

I have a paper signed by me and the Lt of Personnel stating that my medical records would be discharged upon my early discharge.

I have kept that paper all these years and turned it over to the BVA.

A certain doctor took those records and kept them and sent them to the correct place for them to be stored.

This is how I came by locating them after 40 years.

If I receive a denial, I will go to the Courts, as I feel that I have been more than fair with this lady doctor, but I will not allow her to change my medical records and attack my character.

Thanks a bunch!

(Josephine)

Betty

Edited December 4, 2007 by Josephine

[Josephine]

Betty, I feel that you have been jerked around from A to Z by the VA. It is time you do something about it.

Get an Attorney who specializes in this type of case. It is becoming more complex every day. It is Time to go after them including the untruthful docs that lied. An attorney can make them move on your claim.

You may have to take your claim to the CAVC.

John,

When you posted for me to send you my Statment of the Case, you pointed me in the correct direction.

You are right, I am fighting the system, and I have and will not let them off the hook now.

This lady doc can continues to lie, but the medical records speak for themselves.

Dr. Mxxxx the doc that did my first C&P did an honest C&P and now it is obvious that is not what the VA wanted from him.

Five months later, I was sent to those two and it has been a fight ever since.

I do appreciate Dr. Bxxx not signing the C&P as he is only guilty of doing her hypnosis for her.

She never spoke a darn word in that room.

I told the truth then and will continue to tell the truth through out this whole mess.

Always,

Betty