diabetes Famous Va Brown Envelope

[Chuck75]

Well, it's quite obvious that the VA Atlanta RO is in the denial mode at year's end.

The famous brown envelope received this week denied multiple issues.

It is blatantly obvious that denial was the predetermined result.

Favorable evidence was not referenced. Oddly enough, a recently received letter from the VA only referenced part of the denied items as being under consideration.

The Denials are in direct conflict with current medical thinking, practice, medical references, VA documents, and even a medical opinion from a treating VA doctor, which was not mentioned. Also, medical opinions from two non VA treating doctors were not mentioned.

The denials are even at odds with language contained in the VA's primary care treatment guide. The key statement in the guide is that Diabetes II exists on the average for ten years before diagnosis is made.

If that isn't enough, I requested a copy of my C file almost a year ago, last February, under a procedural clause in the VA's regs and language used in replies to veterans. The VA has yet to supply a copy or make an appointment with me to review the file. It is my opinion that this is a violation of not only written procedures, it is a denial of due process. As a result, any unfavorable decision by the VA might/should be considered defective.

(So much for "duty to Assist"!)

Looks like lawyer time to me!

At heart is a claim that is actually over 100% SC (and retroactive for a few years) by the VA's own rules, and also can involve TDIU, as SSA has already ruled on two of the issues, resulting in SSDI payments, including about 20K in retro payments.

Constructive Comments Please!

[john999]

Rental

What you are saying is the only way it makes sense. If the VA could choose which evidence to evaluate, and which evidence not to evaluate no one would ever win a claim. They could ignore SMR's, SSD records, IMO's you name it, and just deny a claim. Now if they grant a claim the evidence needs to be reviewed to determine the percentage of disability. If one doctor said the person has a mild disabilit, and the other doctor said the person had a severe disability how can the VA simply ignore one or the other opinions without saying why? I had that very problem with my PN claim. One VA doctor said the PN was secondary to my DMII and the other said it wasn't. The VA ignored the one doctor, and went with the doc who said it was not secondary. I won on appeal. There is the benefit of doubt in this case.

[Berta]

Chuck-under the list of the evidence they used- if they did not list SSA records or any other critical medical evidence-

I would suggest you get the support of a vet rep to file a Reconsideration Request.

This doesnt stop the NOD clock from ticking- a NOD must be filed if they do not act on the Recon Request as that NOD deadline grows close.

There isnt much info here and I cant quite determine if this would be a beneficial move for you to take.A good rep would know when they read the decision and see whether VA ignored critical medical evidence.It sure sounds like they did.

If a Reconsideration Request might not help- you must attack the SOC line by line and give a rebvuttal that makes medical sense supported by your medical records.

Diabetes has many secondary conditions that it can cause.

These conditions, such as many types of heart disease,(Atherosclerotic CAD) brain trauma, PN, ED, vision problems, etc that are well known in the standard medical community as most likely due to established diabetes and the VA's own training letter on diabetes shows the VA knows this too.

You know this too- and mentioned they ignored favorable IMOs that you had for your claim.

This is exactly the same BS I have been through for over 5 years- and my claim is AO diabetes causing my husband's death.

I should have requested a Reconsideration on this years ago but didnt- I thought the DRO would address my evidence but-twice she failed to do that.

Only a remand from the BVA recently to the AMC got my medical evidence addressed (I think)

They said it is set for decision but I am prepared to obtain another IMO -even though I dont even know the outcome of the AMC review.All I can do is wait for the decision.

The VA can and will ignore our most critical evidence.

It has happened to me and my husband multiple times since 1988.

Tt takes a major assault on their faulty decision.

I even filed an Administrative Review- in VA DC- this called atention to my gnored evidence but-long story- VA took it out of the C file every time I sent it in.

VA turned around on a NOD I prepared in 1988 for Rod- I attacked the SOC line by line with evidence and basic common sense. They turned on NODs for me and my daughter regarding other faulty decision in the past-but I strongly suggest ( and lawyer I know at NVLSP agrees with me completely on this-) that-in any response to a SOC or on a fprmal I-9 -hit them hard on page one of it- because these days I dont even think they read more then one page of anything they get from a vet or widow.Make the case strong enough that they will be motivated to read any additional pages.

I do think this sounds like you should file for Reconsideration right away.But it would be good to have support and help from a vet rep.Tell them on the first page of that letter the prime evidence they ignored and refer them to M21-1 and 38 CFR 4.6- I have posted their evidentiary case law here many times-

and I am quick to remind them in preparing rebuttals or anything else I send to them.

[Berta]

PS- diabetes can show many symptoms prior to a formal diagnosis.

These symptoms if documented can also be critical to determining when the vet actually started to be diabetic.

You all know I had to prove that VA failed to diagnose and treat DMII.I certainly reminded them that since they were already found negligent in proper diagnosis of CAD , CVA, and many other conditions Rod had,it was "more than likely" VA doctors could not properly assess his diabetes in time to treat and prevent his death.

My IMos concur with that with full medical rationale.

However the BVA remand clearly stated much of the evidence I had sent them dating back to 1988 had to be considered as well as my IMOs.Dr. BAsh also referred to these documented synptoms-one was unusual but after considerable searching on the net- it became a prime piece of evidence.What I sent VA n this unusual symptom could even stand alone -as excellent evidence-we cannot overlook a single thng in the med recs.

At this time my husband was showing multiple other documented symptoms of diabetes which VA failed to diagnose and treat.

His autopsy reads like a poster for the ADA.His conditions at death were highly consistent with diabetes -untreated.

No other medical etiology at all for them.

My long point here is that-only at my daughters urging did I even file this AO claim. She insisted month after month that I should- I didnt even want to think abut dealing with VA again.Finally I obtained a lot of literature on diabetes. Bingo.

She was right.

Diabetes can have a medical trail way before a formal diagnosis is made.

VA is quick to give a DMII diagnosis sometimes at a C & P- and the VA has the audacity to use that C & P date somethimes as the date of the EED- this is ludicrous.No one gets diabetes at a C & P and their mdical records might well reveal considerable evidence of diabetes, as yet undiagnosed even if a few sporadic Glucose tests (which a vet might have gotten hours after eating a meal)are not in a high abnormal criteria.

This type of assessment can help a vet with- perhaps a CAD condition- that VA says predated their DMII- to actually prove that they did have diabetes before the EED date VA said they got it.

SGPT, (ALT), Creatinine levels,BUN levels, etc - floaters documented in vision exams,blurred vision, burning senations in the mouth, dental problems, etc etc -there are many conditions that can potentially be caused by diabetes long before the VA even diagnoses it.

LVH (left ventricular hypertrophy) and any atherosclerotic involvement-heart and brain proven by ECHO,MRI) are markers that also are highly consistent with possible diagnosis of diabetes.

Edited January 1, 2009 by Berta

[broncovet]

I agree with Rental guy and Berta. Moody vs Principi (quoting Roberson vs Principii) says it this way:

“Roberson requires . . . that the VA give a sympathetic reading to the veteran’s filings by ‘determin[ing] all potential claims raised by the evidence, applying all relevant laws and regulations.’”

There is no "escape clause" that the VARO can ignore evidence just because the regional office deems it not relevant, but they MUST CONSIDER ALL THE EVIDENCE and even "give it a sympathetic reading". Whether or not evidence is relevant depends on the point of view, while the Veteran may consider it quite relevant, the Regional office could then say any evidence is irrelevant in their opinion. They are referring to the relevance of applicable regulations, not the relevance of the evidence..all the evidence must be considered!

Edited January 2, 2009 by broncovet

[Berta]

Unfortunately- this doesnt really happen in practice.

How is it that VAROs can ignore the most probative evidence? and address the weakest evidence and then deny?

I got some laughs here years ago when I said I was going to send my evidence to RO with the Publishers Clearing House balloons attached to it-

also maybe my IMOs could have been printed on the toilet paper in the RO bathrooms-but one more way for them to just get into the crapper-

and the Billboard idea would have been quite expensive-

If the VA fails to consider probative evidence- and I mean by that evidence that-even standing alone-is significant- then a claimant has to do all they can to get them to address this evidence.

And this might not come about until years later when BVA orders them to address it on Remand.

My first statement on my I-9 was: NONE of my medical evidence to include 3 IMOS has ever been addressed by the Buffalo VARO in over 5 years.

The BVA can read and they ordered the AMC to address it all.

[Chuck75]

To Berta;

I'd love to send you a copy (privately) of the denials and, as I see it, the major items that might be used to refute the denial . You might have some very useful ideas that add to the NOD. The list of evidence contains only medical records used to try to document problems occurring before DMII was diagnosed, and little or none after. Problems or DMII aggravation of existing conditions occurring after DMII diagnosis were not listed.

A question--

Since the full SOC supposedly does not get into my hands until I file an NOD, should I "tip my hand" by referring to key elements that re butt the denials?

Remember that the denials are "cut and paste" with such things as an improper application of EED in many cases, as well as statements that are contrary to the VA's own treatment guide for DMII. In addition, a whole lot of verbage is wasted in citing obviously non applicable circumstances and regs. An example is the standard bit about one year after active service. Obviously, a claim made relating to DMII and it's occurrence thirty or forty yeas after active service has little relationship to what did or did not occur in the one year time-frame mentioned.

What was ignored in the denial was the known relationship of the items in the claim, and the medical fact that they are caused and exacerbated by DMII. Instead they were treated as if there is no relationship between them and DMII, even though they are known symptoms of early DMII. Evidently, The RO is trying to downplay the "prediabetes condition" that all DMII victims must go through before a formal DMII diagnosis is made.

The major problem is to find a competent lawyer that can take on the Atlanta VARO, and win.

Another issue or two that is involved would allow identification of the exact denial.

Chuck-under the list of the evidence they used- if they did not list SSA records or any other critical medical evidence-

I would suggest you get the support of a vet rep to file a Reconsideration Request.

This doesn't stop the NOD clock from ticking- a NOD must be filed if they do not act on the Recon Request as that NOD deadline grows close.

There isnt much info here and I cant quite determine if this would be a beneficial move for you to take.A good rep would know when they read the decision and see whether VA ignored critical medical evidence.It sure sounds like they did.

If a Reconsideration Request might not help- you must attack the SOC line by line and give a rebvuttal that makes medical sense supported by your medical records.

Diabetes has many secondary conditions that it can cause.

These conditions, such as many types of heart disease,(Atherosclerotic CAD) brain trauma, PN, ED, vision problems, etc that are well known in the standard medical community as most likely due to established diabetes and the VA's own training letter on diabetes shows the VA knows this too.

You know this too- and mentioned they ignored favorable IMOs that you had for your claim.

This is exactly the same BS I have been through for over 5 years- and my claim is AO diabetes causing my husband's death.

I should have requested a Reconsideration on this years ago but didnt- I thought the DRO would address my evidence but-twice she failed to do that.

Only a remand from the BVA recently to the AMC got my medical evidence addressed (I think)

They said it is set for decision but I am prepared to obtain another IMO -even though I dont even know the outcome of the AMC review.All I can do is wait for the decision.

The VA can and will ignore our most critical evidence.

It has happened to me and my husband multiple times since 1988.

Tt takes a major assault on their faulty decision.

I even filed an Administrative Review- in VA DC- this called atention to my gnored evidence but-long story- VA took it out of the C file every time I sent it in.

VA turned around on a NOD I prepared in 1988 for Rod- I attacked the SOC line by line with evidence and basic common sense. They turned on NODs for me and my daughter regarding other faulty decision in the past-but I strongly suggest ( and lawyer I know at NVLSP agrees with me completely on this-) that-in any response to a SOC or on a fprmal I-9 -hit them hard on page one of it- because these days I dont even think they read more then one page of anything they get from a vet or widow.Make the case strong enough that they will be motivated to read any additional pages.

I do think this sounds like you should file for Reconsideration right away.But it would be good to have support and help from a vet rep.Tell them on the first page of that letter the prime evidence they ignored and refer them to M21-1 and 38 CFR 4.6- I have posted their evidentiary case law here many times-

and I am quick to remind them in preparing rebuttals or anything else I send to them.