90 Day Letter On Its Way From Bva

[Josephine]

Here is the latest, I think I have had it!!

Well, I just called the BVA. I was told my claims file left

the legal team

and now I have been mailed a 90 day letter to respond.

What can they possibly do to me now?

I have been at the BVA remanded to AMC for another almost two years

and before I receive the SSOC. The claims examiner calls me to advise

me to waiver my 60 days to submit new evidence to AMC.

She politely walks the file back to BVA.

I secure the IME and I think now it is being

considered as " NEW EVIDENCE".

Doesn't it sound like, I am starting the process again?

I will never live to see the end of this claim.

I may just have to drop the whole darn mess.

I don't know how to fight this thing any longer.

Always,

Betty

[Josephine]

Betty - I'm w/ Free, I don't see how, at this point, they could continue to deny your claim. I'm all for a party, keep us posted. ;-)

Free,

What if a claim comes down to how the VA weighed the evidence? If the courts won't overrule the way the VA weighted the evidence then what recourse does a vet have when they ignore outside evidence in favor or their own (or just ignore their own evidence when it's favorable to the vet)?

I know the VA can "weigh" evidence as it sees fit but can't the vet challenge the way they weighed the evidence (as in, our C&P exam is right and your IMO is wrong) or must you fight the claim on the sheer volume of evidence and the number of reports (as in getting 3 IMOs to the VA's 1 C&P exam)?

Here are your statements that bring up these questions in my mind:

"The Court of Veteran's appeals won't actually re-decide claims. They can decide the law and regulations weren't followed - but they won't retry the facts. So they won't get into the issue of how evidence was weighed. They won't determine that your evidence is more credible than the BVA said it was.

If the BVA denies - and there is ANY evidence to support the denial - the Court won't put the decision aside on THAT basis. (They won't say your evidence was stronger than the evidence the BVA relied on). If there are medical opinions that support the BVA's decision - they will uphold it and not redecide what weight that evidence would have been afforded."

Thanks,

TS Snave

Ts,

You will certainly be invited, if I win.

Thanks so much.

Always,

Betty

Edited January 31, 2008 by Josephine

[free_spirit_etc]

I am NOT an expert on this - but it seems like the Court of Veteran's Appeals - from the cases I read - are just like any appellate court. They don't retry the facts - They do assure the law was followed.

Ignoring evidence is not in accordance with the law. The law says they have to consider ALL evidence.

I have seen cases where they did not consider lay evidence - and specifically said they were giving it no weight BECAUSE it was lay evidence. THe CVA reversed that decision because of the reasoning the BVA used - They have to consider ALL evidence - and they can't refuse to consider evidence because it was lay evidence. It was the reasoning the BVA gave that got them. Had they just said they gave it less weight, or did not find it convincing - they might have got by with it. But they gave an UNLAWFUL reason for not giving it weight.

I would also think some of the more cruddy C&P's could be questioned - if the vet could show that they were not done according to the standards...

Like in Josephine's case maybe. IT has been pointed out that the C&P examiners did not do an adequate exam. So I would think if they relied on it - she could question that the BVA relied on an inadequate exam. Then the issue would not be which report they gave more weight to - but the Court could decide whether the C&P exam was actually adequate - (done accoring to medical standards) or remand it back to the BVA to "explore"

Or if they gave the reason for Josephine's case that the RO gave - We considered the opinion of the psychiatrist to have more weight because they were a psychiatrist. She might be able to fight that.Psychologists are actually more qualified to do psychological testing than psychiatrists. So dismiss a psychologists opinion merely because they were not a psychiatrist might not fly with the court.

(In private practice - most psychiatrists actually send patients to psychologists to get psychological testing - and rely on the psychologist's interpretation to base their diagnosis. Psychologists are trained to give and interpret tests. Psychiatrists don't receive that much training in that area.)

In Josephine's case - she could raise the issue of them going on a fishing expedition (trying to find someone who would back denying her claim).

She had a favorable C&P and favorable statements from her private physican to begin with. They haven't even been acknowledging her initial C&P - who opined service connection. They merely sent her to ANOTHER C&P - with the quacks that DID agree that she had anxiety - but gave her the BPD - nonspecific - diagnosis - and said that caused her disability - with NO testing to back this NEW diagnosis. So she could raise the issue that they should have granted with the medical evidence of record all being in support of her claim - INCLUDING her FIRST C&P - and that they fished around until they found someone who would write a nonfavorable opinion.

Actually, as it stands - the Court says the remands have to be followed to a T. In this case they did not. The BVA specified that the C&P docs were supposed to review the specific evidence they pointed out - and see if it changed their opinion. If it did not change their opinion - they were supposed to give REASONS for WHY their opinion did not change in the face of the aditional evidence.

They did not follow the remand orders. They did not say "Rev.___ stated ___. However, that does not alter or conclusion because of __, ___, and __> (giving medical reasons). They just listed what they reviewed and said it didn't alter their conclusion.

So if they STILL gave the quacks more weight - she could challenge that they did not comply with their own remand (requiring the docs to give reasons in light of the new evidence)

And there is much more....

So there are LOTS of issues you can bring up and challenge... But it is not merely a retrying of a case (like the BVA does after the RO) You have to point out specific errors they made in procedure and law.

And how they weighted the evidence isn't usually pat of the picture - UNLESS you can show that they did so as a result of a legal error.

Free

Betty - I'm w/ Free, I don't see how, at this point, they could continue to deny your claim. I'm all for a party, keep us posted. ;-)

Free,

What if a claim comes down to how the VA weighed the evidence? If the courts won't overrule the way the VA weighted the evidence then what recourse does a vet have when they ignore outside evidence in favor or their own (or just ignore their own evidence when it's favorable to the vet)?

I know the VA can "weigh" evidence as it sees fit but can't the vet challenge the way they weighed the evidence (as in, our C&P exam is right and your IMO is wrong) or must you fight the claim on the sheer volume of evidence and the number of reports (as in getting 3 IMOs to the VA's 1 C&P exam)?

Here are your statements that bring up these questions in my mind:

"The Court of Veteran's appeals won't actually re-decide claims. They can decide the law and regulations weren't followed - but they won't retry the facts. So they won't get into the issue of how evidence was weighed. They won't determine that your evidence is more credible than the BVA said it was.

If the BVA denies - and there is ANY evidence to support the denial - the Court won't put the decision aside on THAT basis. (They won't say your evidence was stronger than the evidence the BVA relied on). If there are medical opinions that support the BVA's decision - they will uphold it and not redecide what weight that evidence would have been afforded."

Thanks,

TS Snave

[free_spirit_etc]

tssnave,

Here's a link to an interesting example

http://www.hadit.com/forums/lofiversion/in...php/t12125.html

Betty - I'm w/ Free, I don't see how, at this point, they could continue to deny your claim. I'm all for a party, keep us posted. ;-)

Free,

What if a claim comes down to how the VA weighed the evidence? If the courts won't overrule the way the VA weighted the evidence then what recourse does a vet have when they ignore outside evidence in favor or their own (or just ignore their own evidence when it's favorable to the vet)?

I know the VA can "weigh" evidence as it sees fit but can't the vet challenge the way they weighed the evidence (as in, our C&P exam is right and your IMO is wrong) or must you fight the claim on the sheer volume of evidence and the number of reports (as in getting 3 IMOs to the VA's 1 C&P exam)?

Here are your statements that bring up these questions in my mind:

"The Court of Veteran's appeals won't actually re-decide claims. They can decide the law and regulations weren't followed - but they won't retry the facts. So they won't get into the issue of how evidence was weighed. They won't determine that your evidence is more credible than the BVA said it was.

If the BVA denies - and there is ANY evidence to support the denial - the Court won't put the decision aside on THAT basis. (They won't say your evidence was stronger than the evidence the BVA relied on). If there are medical opinions that support the BVA's decision - they will uphold it and not redecide what weight that evidence would have been afforded."

Thanks,

TS Snave

[Josephine]

I am NOT an expert on this - but it seems like the Court of Veteran's Appeals - from the cases I read - are just like any appellate court. They don't retry the facts - They do assure the law was followed.

Ignoring evidence is not in accordance with the law. The law says they have to consider ALL evidence.

I have seen cases where they did not consider lay evidence - and specifically said they were giving it no weight BECAUSE it was lay evidence. THe CVA reversed that decision because of the reasoning the BVA used - They have to consider ALL evidence - and they can't refuse to consider evidence because it was lay evidence. It was the reasoning the BVA gave that got them. Had they just said they gave it less weight, or did not find it convincing - they might have got by with it. But they gave an UNLAWFUL reason for not giving it weight.

I would also think some of the more cruddy C&P's could be questioned - if the vet could show that they were not done according to the standards...

Like in Josephine's case maybe. IT has been pointed out that the C&P examiners did not do an adequate exam. So I would think if they relied on it - she could question that the BVA relied on an inadequate exam. Then the issue would not be which report they gave more weight to - but the Court could decide whether the C&P exam was actually adequate - (done accoring to medical standards) or remand it back to the BVA to "explore"

Or if they gave the reason for Josephine's case that the RO gave - We considered the opinion of the psychiatrist to have more weight because they were a psychiatrist. She might be able to fight that.Psychologists are actually more qualified to do psychological testing than psychiatrists. So dismiss a psychologists opinion merely because they were not a psychiatrist might not fly with the court.

(In private practice - most psychiatrists actually send patients to psychologists to get psychological testing - and rely on the psychologist's interpretation to base their diagnosis. Psychologists are trained to give and interpret tests. Psychiatrists don't receive that much training in that area.)

In Josephine's case - she could raise the issue of them going on a fishing expedition (trying to find someone who would back denying her claim).

She had a favorable C&P and favorable statements from her private physican to begin with. They haven't even been acknowledging her initial C&P - who opined service connection. They merely sent her to ANOTHER C&P - with the quacks that DID agree that she had anxiety - but gave her the BPD - nonspecific - diagnosis - and said that caused her disability - with NO testing to back this NEW diagnosis. So she could raise the issue that they should have granted with the medical evidence of record all being in support of her claim - INCLUDING her FIRST C&P - and that they fished around until they found someone who would write a nonfavorable opinion.

Actually, as it stands - the Court says the remands have to be followed to a T. In this case they did not. The BVA specified that the C&P docs were supposed to review the specific evidence they pointed out - and see if it changed their opinion. If it did not change their opinion - they were supposed to give REASONS for WHY their opinion did not change in the face of the aditional evidence.

They did not follow the remand orders. They did not say "Rev.___ stated ___. However, that does not alter or conclusion because of __, ___, and __> (giving medical reasons). They just listed what they reviewed and said it didn't alter their conclusion.

So if they STILL gave the quacks more weight - she could challenge that they did not comply with their own remand (requiring the docs to give reasons in light of the new evidence)

And there is much more....

So there are LOTS of issues you can bring up and challenge... But it is not merely a retrying of a case (like the BVA does after the RO) You have to point out specific errors they made in procedure and law.

And how they weighted the evidence isn't usually pat of the picture - UNLESS you can show that they did so as a result of a legal error.

Free

Free,

Go on with your " So there are LOTS of issues you can bring up and challenge... But it is not merely a retrying of a case (like the BVA does after the RO) You have to point out specific errors they made in procedure and law."

I will use it to go with the 90 day letter that is being sent to me.

I could use some help. This claim has taken its' toll on me.

You have it to a T.

The VA would not listen to my doctor of 30 years and then sent me for

a C&P and it was postive, more likely than not and perhaps a result,

and as you said,the VA just overlooked by shoving him to the side and

if you notice, he is never mentioned in the SSOC.

Dr. Muller has never been mentioned and neither has my buddy letter

from the girl in Georgia. Surely she was qualifed to state what she

saw, as she was with me in boot camp, corpschool and D.C.

The two psychiarist stated she didn't address , " my personality."

This she would have not been qualified to do.

The letters by my husband and two daughters have never been mentioned.

Just because Pastor B. O B. does not have records 30 years after the

fact does not make him less credible.

He still is a graduate of Piedmont Bible College and my pastor and

friend for over 50 years.

Even the AMC is picking and choosing and going along with the only

psychiatrist that uses the word, " Apears".

It " appears" her primary symptoms are those of a "Personality

Disorder".

It appears she did not acquire a Chronic Psychiatric Disorder in

service". and last addendum.

It appears the preponderance of the evidence her anxiety preceded her

time in service.

Why is she allowed, " Appears".

Thanks,

Betty

Edited January 31, 2008 by Josephine

[cowgirl]

Betty, you say the doc hasnt been mentioned nor a buddy letter? Whoa Heavens to Betsy, has the VCAA been er, 'manipulated'? I pray daily for you and know that we here at Hadit will see this case through, come flood famine or fury, am sure. Put me down for cookies and decorations, dont worry about a map, I'll find ya!

Dear Betty, I reviewed my old claim re the pd diagnosis I recieved in the 90s; they didnt use the word 'appear' on their lengthy SOC description. I think the word 'appears' its probably just 'legalize' dont you? Protecting themselves until the truth is tatooed on, (did I say that; sorry!sorta)

In my SOC, they listed 'possible' post traumatic stress disorder and that vet 'probably' has a pd with dependent features and other gobbedly gook. They added 'provisional' diagnosis of dysthimia too. I could go on and on, but wanted you to know I have taken quite some time (years) to shake the pd 'non -commital' diagnosis off my back and replace my self esteem a bit. simply thinking about the outcome of the raters ignorance for us each. Last year was rated mdd 30% up from 10% pyscho-physicological rating in the 90s.

I want to thank you now, I have found something clearly that would have made a dramatic difference in my original decision. IN my smrs there is a ptsd diagnosis, listing the doc as a 'clincal social worker'. If i didnt look back at my records today out of curiosity regards the statements you made here, who knows how long it would have taken recognize this false statement. Thank you Betty, one more iron in the fire for my claims work corrections.

God bless and best to ya, cg

Free,

Go on with your etc, as I will use it to go with the 90 day letter that is being sent to me.

I could use some help.

You have it to a T.

The VA would not listen to my doctor of 30 years and then sent me for

a C&P and it was postive, more likely than not and perhaps a result,

and as you said, the VA just overlooked by shoved him to the side and

if you notice, he is never mentioned in the SSOC.

Dr. Muller has never been mentioned and neither has my buddy letter

from the girl in Georgia. Surely she was qualifed to state what she

saw, as she was with me in boot camp, corpschool and D.C.

The two psychiarist stated she didn't address , " my personality."

This she would have not been qualified to do.

The letters by my husband and two daughters have never been mentioned.

Just because Pastor B. O B. does not have records 30 years after the

fact does not make him less credible.

He still is a graduate of Piedmont Bible College and my pastor and

friend for over 50 years.

Even the AMC is picking and choosing and going along with the only

psychiatrist that uses the word, " Apears".

It " appears" her primary symptoms are those of a "Personality

Disorder".

It appears she did not acquire a Chronic Psychiatric Disorder in

service". and last addendum.

It appears the preponderance of the evidence her anxiety preceded her

time in service.

Why is she allowed, " Appears".

Thanks,

Betty

Edited January 31, 2008 by cowgirl

[Josephine]

Betty, you say the doc hasnt been mentioned nor a buddy letter? Whoa Heavens to Betsy, has the VCAA been er, 'manipulated'? I pray daily for you and know that we here at Hadit will see this case through, come flood famine or fury, am sure. Put me down for cookies and decorations, dont worry about a map, I'll find ya!

Dear Betty, I reviewed my old claim re the pd diagnosis I recieved in the 90s; they didnt use the word 'appear' on their lengthy SOC description. I think the word 'appears' its probably just 'legalize' dont you? Protecting themselves until the truth is tatooed on, (did I say that; sorry!sorta)

In my SOC, they listed 'possible' post traumatic stress disorder and that vet 'probably' has a pd with dependent features and other gobbedly gook. They added 'provisional' diagnosis of dysthimia too. I could go on and on, but wanted you to know I have taken quite some time (years) to shake the pd 'non -commital' diagnosis off my back and replace my self esteem a bit. simply thinking about the outcome of the raters ignorance for us each. Last year was rated mdd 30% up from 10% pyscho-physicological rating in the 90s.

I want to thank you now, I have found something clearly that would have made a dramatic difference in the original decision. IN my smrs there is a ptsd diagnosis, listing the doc as a 'clincal social worker'. If i didnt look back at my records out of curiosity, who knows how long it would have taken recognize this false statement. Thank you Betty, one more iron in the fire for claims work corrections.

God bless and best to ya, cg

Cowgirl,

No, Dr. Muller has never been mentioned since the C&P and neither has

the buddy letter.

Way back when, John S ask me to sent him my statement of the

case, he was correct, I am fighting the whole darn system and

trying to stay sane at the same time.

If you guys didn't come in and help me, I couldn't keep this thing

going as long as I have.

You are correct, those little meaningless words are just that.

Possible, Probably, Appears and Maybe this and Maybe that?

They mean absolutely nothing!

Go after them now.

I have posted my whole life history in hopes that I can set an

example and help those riding the same train I am.

And it sure isn't an Am-trak. It is an old Coal Train!

I remember so well riding one of those things back to D. C

when the planes were all grounded, when the area was crippled with a

snow storm and it was Christmas Break.

I was told by my Chief Petty Officer if I didn't get my ass back in

D. C. I would be AWOL. I liked to have froze to death and when I

arrived in D. C the complete city was crippled also. Guess who was

the only one in the barracks. This was January of 1964. It was

shortly there after, I requested a Transfer out of D. C.

I was to be transferred July 1964, but had to take the early

discharge May 1964.

It has taken me 43 years to locate that one sheet of paper - Request

for transfer, Urgent. 40 years to locate the " Psychatric Records and

43 to locate my Personnel Records and now the Personnel Records are

stated as being lost in the Archives again.

I sure appreciate you guys helping me though this.

Betty

Edited January 31, 2008 by Josephine