ptsd "new And Material Evidence"

[Josephine]

Just a tad more knowledge needed. Please?

I don't see where the Judge has stated for me to be paid retro to 1992, although, I have posted a similar BVA case at the end of this.

The way I read this, I am to be paid back to 2004 only.

I had chronic anxiety in 1992 when they say I filed. In fact the letter states that I have had it since 1964 with continous treatment.

Why do they not wish to pay me back?

The last page states, I can take this on the CAVC - am I reading this

correctly?

This is what the paper states:

New and Material

Review of the record reflects that the veterans claim for chronic

anxiety with nervousness was initially denied in June 1992 on the

basis that the service treatment records were negative for treatment

of a psychiatric condition, and such treatment was not indicated

until many years thereafter. In making this determination, the RO

considered the claimant's available service treatment records and

post treatment records dated from discharge from service through

1992. The veteran was notified of the RO 's denial in 1992. The

notice letter provided her with information as to her procedural

rights. She did not appeal this and the decision is final.

However, if new and material evidence is presented or secured with

respect to a claim which was disallowed, VA shall reopen the claim

and review the former disposition of the claim. Manio v Derwinski, 1

VET App .145 (1991)

When determining whether additional evidence is new and material, VA

must determine whether such evidence is new and material. VA must

determine whether such evidence has been presented under 38 C.F.R. &

3.156 (a) in order to have a finally denied claim reopened under 38

U.S.C. & 5108 (West 2002 & Supp. 2007). Effective from August 29,

2001, the regulations defining " new and material evidence" were

revised and clarify the types of assistance the VA will provide to a

claimant attempting to reopen a previously denied claim. 38 C.F.R. &

3.156 (a) and 3.159(b). These specific previsions are applicable only

to claims filed on or after August 29, 2001. As the veteran filed his

claim seeking to reopen in December 2002, the Board has considered

these provisions.

To re-open a claim which has been previously denied and which is

final, the claimant must present New and Material evidence. 38

U.S.C.A & 5108 (West 2002 & Supp 2007). Under new amended

regulations, new evidence means existing evidence not previously

submitted to decision makers. Material Evidence means existing

evidence that by itself or when considered with previously evidence

of record, relates to an unestablished fact necessary to substantiate

the claim. New and Material evidence can be neither cumalative nor

redundant of the evidence of record at the time of the last prior

final denial of the claim sought to be reopened and must raise a

reasonable possibility of substantiating the claim. 38 C.FR. & 3.156

(a) (2007).

In this case, the evidence received since the RO's June 1992 denial

of service connection for chronic anxiety with nervousness includes

some duplicate copies of previously considered treatment records.

such records were considered in the previous denial and are not new

and material.

Also added to the claims file since the previous 1992 denial were

additional service treatment records not previously of record and

private and VA treatment records which show continued treatment for

psychiatric complaints.

The service treatment records are new in that they reflect

inservice treatment for psychiatric symptoms which were determined to

preclude further military service.

These documents include inservice assessments as to the veterans

psychiatric complaints. This evidence is considered New in that it

contains information that was not considered at the time of the 1992

decision, and it is material because it purports to show treatment

for psychiatric disability during service which was not objectively

shown by the evidence previously.

The BVA is speaking of the Psychiatric Consulation of Dr. Jones,

Psychiatrist and Board Certified Psychiatrist Dr. McHon.

Without these records there was no way that I could prove service

connection. The VA knew to secure these records upon my first filing,

they just kept lying to me and told me they didn't exist. They did

and I secured them from the St. Louis Archives 2004.

]Here is a Statement from Another BVA Case:

Since the new and material evidence warranting reopening of

the claim included service department records, the proper

effective date of the award of service connection is the date

of receipt of the veteran's original claim, April 1, 1986, if

the veteran's PTSD existed at that time.

CONCLUSION OF LAW

The criteria for an effective date of April 1, 1986, for the

award of service connection for PTSD have been met. 38

U.S.C.A. § 5110 (West 2002); 38 C.F.R. §§ 3.156©, 3.400

(q)(2) (2004); Spencer v. Brown, 4 Vet. App. 283, 293 (1993).

Didn't I prove that I had Chronic Anxiety at the time also?

Thanks a bunch,

Betty

[Hoppy]

Betty,

Some thoughts on all the recent posts.

The claim has gone on so long some of my recollections are a bit foggy. I do remember that we could not come up with a specific reason they scheduled the board of two. You already had the original C&P that was favorable. I thought that if they continued to site the board of two that you should appeal to federal court because it would result in doctor shopping.

It sounds to me like the judge bought the strong statement made by the new report stating that there was no evidence of record in the SMR supporting a diagnosis of PD. That might be the reference to the comment about lack of objective reports on the previous claims. That is why your evidence was considered new and material. I tend to disagree in that the first C&P may not have so directly attack the PD diagnosis in the military. However, it is my recollection that the first C&P was strong enough to replace the PD diagnosis with anxiety disorder. This may be a mute point since the claim that was decided on the first C&P was not appealed and subsequently closed. Thus, the new and material applies to the current claim.

When they awarded my angioedema claim it had been previously denied two times. The first denial was not properly developed by the RO. However, I did not appeal and it was closed. The second claim was five years old at the time of the award. During the five year period I kept up all the appeals. The effective date was established at the time I filed the second claim. It is really hard to get around the fact that the first claim was closed. I think it would take a CUE. The laws governing the failure of the RO to obtain evidence and or read evidence have change in the last few years and I am rather confused about the status at this time. However, it is safe to say these laws would impact your ability to get around the fact that the earlier claims had not been appealed and then closed

John had said something about using the date of your award for the Non service connected pension. I think this is definitely one issue that should be investigated.

[free_spirit_etc]

Free sez' "You can lay down your sword - or you can pick it back up - any time YOU want."

Betty sez' "I know what I would like to do with it."

LOLOLOLOLOLOLOLOLOLOL

Here is an online Voodoo Doll

http://www.guzer.com/animations/voodoo.php

Free

[free_spirit_etc]

Hoseas 2:14 I will draw her near and take her to the desert and there in the desert I will speak to her heart.

This verse just keeps coming to me when I think of you right now.

You have had to battle so hard for so long - and maybe you need a few days - to rest in the "desert."

And I was thinking of a ritual that helps me sometimes - a release ceremony. I usually like the Fire release - but you can release in many ways.

From the Serenity Prayer - I am pretty good at having the serenity to accept the things I cannot change - and the courage to change the things I can -

It is that danged old Wisdom to Know the DIFFERENCE that gets me every time.

So the release ceremony helps me. So I am offering it to you.

Just write a letter to God -- and express all your worries and concerns - and then BURN IT - as you burn it - know that you have turned it over to him.

He will take care of what he will take care of -

And what he gives you back - is YOUR assignment to handle.

Somehow - this helps me sometimes - to not waste my time on senseless battles - and also to not give up on battles I am supposed to fight.

I guess it helps me with the "wisdom to know the difference."

Everything that God does not give back is not something that you have to have the serenity to accept either.

Sometimes I think he divides them up and says "Here. I will handle this one - and you take care of that one."

You can also build a little fire and write down your concerns and place them on the fire one by one.

Or you can take them out into nature - and put them on a tree - or bury them -- just some tangible way to know that you are releasing them and turning them over.

And THEN rest up - because you just might get an assignment.

Free

[tssnave]

Hoppy,

You wrote "This may be a mute point since the claim that was decided on the first C&P was not appealed and subsequently closed. Thus, the new and material applies to the current claim."

Does this apply if the first claim that was closed was decided without SMRs that showed up years later?

Betty,

I agree w/ Free - You do NOT want to appeal the BVA ruling that gave you service connection. You WANT that ruling to stand. Now the VA will issue you a Decision with a rating percentage and effective date and THEN you can decide what you want to do from that point on.

If it were me, I would not send an IRIS until I understood completely what rules and regulations applied to your claim and which one trumped the other if there is a conflict between the regs (see my question to Hoppy above).

The only IRIS I would suggest sending at this point is one asking them what the timeframe is for a Decision after they get the file back from the BVA so you'll have an idea of how long it will take them to issue a Decision with your percentage and effective date at which point you can decide how to proceed.

Hang in there. I know you are biting at the bit to find out your percentage and effective date. Try to relax in the fact that there is no longer an issue with PD vs anxiety and no longer an issue of whether or not you are service connected. :-)

Congratulations again,

TS Snave

Edited March 10, 2008 by tssnave

[free_spirit_etc]

TS-

VERY good point about waiting to see what rules really apply. Did you notice how you read one rule and another rule counters THAT rule, until it becomes a virtual mine field where you have to watch EVERY step - because ONE misstep can land you on a mine - or take you to a minefield 10 steps down the road.

But I think Betty is pretty good at looking before she leaps

She just doesn't seem to trust the VA.

ACK!!!!!!!

I wonder why.(Duh..)

Isn't it horrid that even in the celebration of her victory - we have to worry about "okay, how are they going to mess this up now?"

Free

Hoppy,

You wrote "This may be a mute point since the claim that was decided on the first C&P was not appealed and subsequently closed. Thus, the new and material applies to the current claim."

Does this apply if the first claim that was closed was decided without SMRs that showed up years later?

Betty,

I agree w/ Free - You do NOT want to appeal the BVA ruling that gave you service connection. You WANT that ruling to stand. Now the VA will issue you a Decision with a rating percentage and effective date and THEN you can decide what you want to do from that point on.

If it were me, I would not send an IRIS until I understood completely what rules and regulations applied to your claim and which one trumped the other if there is a conflict between the regs (see my question to Hoppy above).

The only IRIS I would suggest sending at this point is one asking them what the timeframe is for a Decision after they get the file back from the BVA so you'll have an idea of how long it will take them to issue a Decision with your percentage and effective date at which point you can decide how to proceed.

Hang in there. I know you are biting at the bit to find out your percentage and effective date. Try to relax in the fact that there is no longer an issue with PD vs anxiety and no longer an issue of whether or not you are service connected. :-)

Congratulations again,

TS Snave

Why do you think it will take

[Josephine]

Betty,

Some thoughts on all the recent posts.

The claim has gone on so long some of my recollections are a bit foggy.

Hoppy, yes this claim has been around the Mulberry Bush.

I do remember that we could not come up with a specific reason they scheduled the board of two.

No, there was no reason, as the VA had just had the VAMC C&P just 5 months earlier. I guess they didn't like that he was correct in everything that he said. Also he was correct with his diagnosis of

Anxiety not otherwise Specified and with the More likely than Not this veterans anxiety began in service.

You already had the original C&P that was favorable. I thought that if they continued to site the board of two that you should appeal to federal court because it would result in doctor shopping.

Well, I believe they were doctor shopping, but in the end it appears they were shot down by the Judge.

It sounds to me like the judge bought the strong statement made by the new report stating that there was no evidence of record in the SMR supporting a diagnosis of PD.

Personality Disorder was never once mentioned in my Military Psychiatric Records or Military SMR's. It is no where on my discharge either.

That might be the reference to the comment about lack of objective reports on the previous claims. That is why your evidence was considered new and material.

I think the evidence was considered New and Material as these records were the Military Psychiatric Records and the letter by my Commanding Officer explaining the reason for my early discharge.

They lay silent in the St. Louis Archives until I acquired them myself in 2004.

I tend to disagree in that the first C&P may not have so directly attack the PD diagnosis in the military.

Hoppy, Dr. Muller couldn't find one to attack, he was just as Dr. Crowley, as there never was one, just the one the two quacks placed in the record.

However, it is my recollection that the first C&P was strong enough to replace the PD diagnosis with anxiety disorder.

He couldn't find a Personality Disorder Diagnosis. He gave me my first CF&P.

This may be a mute point since the claim that was decided on the first C&P was not appealed and subsequently closed.

I am a tad confused here. I didn't have any C&P's until this first one and no one ever did anything with his C&P. The DRO just turned around 5 months later and ordered another. It is the same ole claim that has been going.

Thus, the new and material applies to the current claim.

My current claim would be actually the one I filed in 2001 as I filed a NOD on that decision with the Medical Records from the Archives and it was still going in 2004.

When they awarded my angioedema claim it had been previously denied two times. The first denial was not properly developed by the RO. However, I did not appeal and it was closed. The second claim was five years old at the time of the award. During the five year period I kept up all the appeals. The effective date was established at the time I filed the second claim. It is really hard to get around the fact that the first claim was closed. I think it would take a CUE.

Hoppy, I am really sorry for this.

The laws governing the failure of the RO to obtain evidence and or read evidence have change in the last few years and I am rather confused about the status at this time. However, it is safe to say these laws would impact your ability to get around the fact that the earlier claims had not been appealed and then closed

I understand the Judge has re-opened the claims back to 1992 due to the New and Material Evidence due to these records being service department records.

John had said something about using the date of your award for the Non service connected pension. I think this is definitely one issue that should be investigated.

Thanks and will do.

Betty