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To Berta: Bva Second Remand In Two Years.


lu12
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Question

Any comment on how should I start this new action is truly appreciated due to the fact that I'm exhausted.

Filed my claim for service connection back in 1998 for depression. In April 1996 on a C&P orthopedic exam it was reported that I was experiencing anxiety problems, in August 1996 was medically treated again by the VHA for the same problem, anxiety. Late in 1998 my claim was denied.

1998 VA examiner and claim decisions makers label the psy. disorder as Dysthymia. Dysthymia is a "less severe form of depression // is a disorder characterized by symptoms of mild depression.

My case went before the Board in 2006, the Board remanded my case and came back early 2008 with a 30 percent rating for a Dysthymic disorder. Filed a NOD, the Board remanded my case one more time. I base my NOD on the following facts:

1998 Examiner did not consider evidence of record from VHA system and private sector including numerous IME-IMO's. 1998 VARO claim examiners and decisions makers also failed to consider supportive and objective evidence available at that time.

2008 Examiner and (AMC) base their opinions and diagnosis on 1998 VARO changed diagnosis classified as "DYSTHYMIA" and it is my believe that been classified with a different diagnoses affected the out come of the new service connection and recent rating of 30% and a 2008 GAF: 55-60

2009 VARO-SOC denied my claim for entitlement for a higher evaluation in excess of 30 percent.

I've been diagnosed Since early 1996 with recurrent mayor depression, Chronic long lasting anxiety, PTSD secondary to multiples surgical procedure and pain disorder.

2007-2008 VHA attending PSY. Current Dx's: MDD, anxiety and pain disorders GAF: 50

2006-2007 most recent IMO's refer to the following Dx's: MDD, anxiety, GAF:50 this evidence were rejected by VA Examiner during the psychiatric evaluation. evidence not mentioned by the Board second remand nor by 2009 VARO denial decision and new VA-SOC

I know that you can only be rated for one condition, but my contention is that I filed my first claim under a different diagnosis "DEPRESSION" because that was the diagnosis that I was given them by independent private physicians. In addition to the facts that the PTSD and pain disorders are residual effects of my MDD and Chronic Anxiety. Facts that serve to prove aggravation of the Psychiatric conditions for the past 19 years.

BVA in 2006 recognized and consider the evidence since my presumptive period to present, 19 years of cumulative evidence, yet the Board remanded my case for a second time in early 2008.

Along with the 2009 denial decision, the new VARO gave me 60 days to submit more arguments, a VA form 9, and to point out the facts in their SOC in which I disagree with and the error I believe they made in applying the law, matter of fact that it all started with a Wrong Diagnosis.

In regards to entitlement to sc for a cervical spine disorder this issue was also remanded by the Board due to the facts That the Examiner did not reconcile his opinion with other opinions of the record per remand by the Board, in addition to the fact the the examiner estated that there was no evidence of any cervical Dx's or other evidence of record when the BVA identified almost every piece of evidence and multiples Dx's related to the cervical condition .

I'm still waiting to hear about this issue, due to the fact that it was sent to a different VARO-VAMC for further development.

cordially,

lu12

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When I summited my NOD to the BVA it was done also based on a VA mental health Exam rebuttal. the examiner stated that she completed the report together with the SW survey report. I refer to the Board that this statement as wrong, false and unjust due to the following facts:

Examiner report makes no reference to social worker information reported and well documented in fact SW report is by far quiet different from examiner final report.

Also the Examiner contradict her own opinions on the same report when refer as a AXISI: DYSTHYMIC DISORDER, CHRONIC. while at the same time refer about That condition as: This veterans' mental disorder symptoms represent a moderate impairment for social and occupational functioning.

Further more failed to consider VHA & IMO"S evidence of record described in sections III & IV

I designed a diagram/chart in order to make my point and submitted to the Board with the following information.

I Examiner report:

Reports of social and industrial field survey previously requested was reviewed, prior to our statement, all the evidence in the (5) volumes of veterans claims folders;:

Although this veterans does not appears as having received psychiatric treatment until at least 10 years. After his initial injury, there notes in the service records and in records from Hawaii that indicate veteran was experiencing worry, anxiety, lack of concentration, difficulties sleeping etc…Related to back pain and his physical conditions.

Throughout the years and in notes of others specialist, including private chiropractor these elements are shown to be present although not at a degree that required separate treatment, nor did the veteran seek psychiatric treatment for these symptoms never the less, the existence of those symptoms, no matter how sporadic they appear reported in notes of treatment, establish a relationship between veteran's actual symptoms and his different musculoskeletal conditions.

Therefore, based on that evidence, it is our opinion that the veterans presently diagnosed mental disorders is at least as likely as not related to his service orthopedic service connected disabilities.

E. Diagnosis:

AXISI: DYSTHYMIC DISORDER, CHRONIC

AXISII: NOT ENOUGH INFORMATION

AXISIII: SEE MEDICAL REPORTS, MEDICAL RECORDS

AXISIV: SEE OPINION STATEMENT

AXISV: GAF: 60

E. 4. This veterans' mental disorder symptoms represent a moderate impairment for social and occupational functioning it is important to mention that the principal and primary reason for this veteran not working and receiving SS disability is not his mental disorder, but his orthopedics conditions.

MIRIAM MARTI, MD.

Signed: 01/28/2008

II CLINICAL SOCIAL WORKER

M. Summary & Conclusions Discussion:

This is a 41 year's old disabled veteran. There is no history of adjustment problems in young years. He was an excellent student with special interest in math and science. He was also very interested in Armed Forces and since early age he expressed his dream to become a soldier. He joined the ROTC while in college and when decided to quit college to join the Marines. He adjusted well to military and was very satisfied with his work and job assignment. During his military service he injured his right knee and after long time treatment and care was discharged from the Marines due to medical reason (un-fit for duty). This situation was the source of great stress, disappointment and frustration, anxiety and depression. He made attempt for rehabilitation, studying and working but was not successful.

Summary Ratings:

Veteran is extremely disabled to work due to knee condition and back pain, his service connected condition. He made attempts to complete college education and work but resigned due to the fact his knee and back condition worsen with work. Veteran's service connected condition adversely impacted his social interaction due to severe depression, anxiety, chronic pain

INDUSTRIAL impairment:

[x] EXTREME

SOCIAL impairment:

[x] SEVERE

SONIA BURGOS

CLINICAL SOCIAL WORKER

Signed: 01/11/2008 09:08

Consult no. : 12830744

III VHA evidence of record

  • Ponce, Out Patient Clinic:
    2001 Dr. N. (PCP), Ass: Anxiety and Depression.
    2002 Dr. N. (PCP). Ass: Anxiety and Depression.
    2002 Dr.Y. P., Psy. Dx: MDD; GAF 60
    2003 Dr.Y. P., Psy. Dx. MDD; GAF 60
  • Mayaguez, Out Patient Clinic:
    2003 Dr. Q.A., (PCP). Dx Anxiety and Depression.
    May 2 004 Dr. L.N., Psy. Dx: Major Depression.
    Jul 2004 Dr. L.N., Psy. Dx: Recurrent Depression.
    Aug 2005 Dr. L.N., Psy. Dx: Depression, *nos.
    Aug 2006 Dr. L.N., Psy. Dx: Depression, *nos.
    Mar 2007 Dr. L.N., Psy Dx: MD, Recurrent.
    Apr 2007 Dr. L.N., Psy. Dx: MD, Recurrent.
    Jul 2007. Dr. R.R., Psy. Dx: Chronic pain affects Depression.
    Oct 2007 Dr. R.R., Psy. Dx: Pain syndrome due to neuropathy increase depressive syndrome.
    Oct 2007 Dr. M.T., clinical pharmacist comments: Pt. with chronic pain and MDD, incomplete response to previous Rx /change to new Rx: trial.
    Dec 2007 Dr. R.R., Psy. Dx: Chronic Pain, Anxiety Attack GAF 50.
    Jan 2008 Dr. R.R., Psy. Dx: chronic pain and medical complications that increases depressive' symptoms. GAF 50.
    Apr 2008 Dr. R.R., Psyc. Dx: MDD.
    Jul 2008 Dr. R.R., Psy. Dx: Poor adjustment to chronic illness, Pain Syndrome, Depression.


    IV IMO's

    2001 IMO: Dr. Cesar Padilla, Psychiatric, PTSD.
    2003 IMO: Dr. S.G. diagnosis: PTSD, Anxiety, and Depression. Cervical Pain associated with Anxiety.
    2004 IMO: Dr. Moraima Velez Diagnosis: PTSD, Anxiety, and Depression. The Anxiety might and could be related to his service connected conditions.
    2004 IMO: Dr. Alberto Rodríguez Robles, Psychiatric: diagnostic code 296.23 (DSM IV).
    2005 IMO: Dr Cesar Cubano, Psychiatric, diagnostic: Axis I: 296.23 (DSM IV); Axis IV: Occupational Problems; Axis IV: GAF 50.
    2006 IMO: Dr. Hiram Luigi, Ortho-surgeon diagnosis: PTSD, Anxiety, and Depression. Medical opinion, "all conditions may be related to service connected conditions."
    2007 IMO: Dr. Ibzan Pérez Muñoz, Psychiatric. Diagnostic DSM IV: Axis I: Major chronic depression and anxiety due to chronic physical medical conditions. Axis IV: physical, labor and emotional disability; Axis IV: GAF 50.

    unfortunately the aforementioned evidence was ignored again on FEB 10, 2009 by a different VARO.

lu12,

Edited by lu12
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Berta, I will appreciate if you can point me to a right direction on how can I challenge the VA new rating based on a different diagnosis other than the one that I first file for back in 1998.

Also if you can comment on this other matter, if you complaint during a VA Exam about other medical conditions you believe are related to the scd condition for what you are been evaluated and if you claim to the examiner that you want that condition to also be evaluated and consider as well, the examiner respond that he can not do that but documented those conditions by name(diagnosis) Could this be consider as a an informal claim for benefits?

thank you.

lu12

Any comment on how should I start this new action is truly appreciated due to the fact that I'm exhausted.

Filed my claim for service connection back in 1998 for depression. In April 1996 on a C&P orthopedic exam it was reported that I was experiencing anxiety problems, in August 1996 was medically treated again by the VHA for the same problem, anxiety. Late in 1998 my claim was denied.

1998 VA examiner and claim decisions makers label the psy. disorder as Dysthymia. Dysthymia is a "less severe form of depression // is a disorder characterized by symptoms of mild depression.

My case went before the Board in 2006, the Board remanded my case and came back early 2008 with a 30 percent rating for a Dysthymic disorder. Filed a NOD, the Board remanded my case one more time. I base my NOD on the following facts:

1998 Examiner did not consider evidence of record from VHA system and private sector including numerous IME-IMO's. 1998 VARO claim examiners and decisions makers also failed to consider supportive and objective evidence available at that time.

2008 Examiner and (AMC) base their opinions and diagnosis on 1998 VARO changed diagnosis classified as "DYSTHYMIA" and it is my believe that been classified with a different diagnoses affected the out come of the new service connection and recent rating of 30% and a 2008 GAF: 55-60

2009 VARO-SOC denied my claim for entitlement for a higher evaluation in excess of 30 percent.

I've been diagnosed Since early 1996 with recurrent mayor depression, Chronic long lasting anxiety, PTSD secondary to multiples surgical procedure and pain disorder.

2007-2008 VHA attending PSY. Current Dx's: MDD, anxiety and pain disorders GAF: 50

2006-2007 most recent IMO's refer to the following Dx's: MDD, anxiety, GAF:50 this evidence were rejected by VA Examiner during the psychiatric evaluation. evidence not mentioned by the Board second remand nor by 2009 VARO denial decision and new VA-SOC

I know that you can only be rated for one condition, but my contention is that I filed my first claim under a different diagnosis "DEPRESSION" because that was the diagnosis that I was given them by independent private physicians. In addition to the facts that the PTSD and pain disorders are residual effects of my MDD and Chronic Anxiety. Facts that serve to prove aggravation of the Psychiatric conditions for the past 19 years.

BVA in 2006 recognized and consider the evidence since my presumptive period to present, 19 years of cumulative evidence, yet the Board remanded my case for a second time in early 2008.

Along with the 2009 denial decision, the new VARO gave me 60 days to submit more arguments, a VA form 9, and to point out the facts in their SOC in which I disagree with and the error I believe they made in applying the law, matter of fact that it all started with a Wrong Diagnosis.

In regards to entitlement to sc for a cervical spine disorder this issue was also remanded by the Board due to the facts That the Examiner did not reconcile his opinion with other opinions of the record per remand by the Board, in addition to the fact the the examiner estated that there was no evidence of any cervical Dx's or other evidence of record when the BVA identified almost every piece of evidence and multiples Dx's related to the cervical condition .

I'm still waiting to hear about this issue, due to the fact that it was sent to a different VARO-VAMC for further development.

cordially,

lu12

Edited by lu12
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Do you have an IMO regarding the new diagnosis and does that IMO cover your evidence as to warranting a higher rating?

f VA had rejected any IMos from you in the past it might certainly take another one.

Why did thy reject the past IMOs.

Did the VA even consider all of your evidence? It not you might consider th template below on the OCtober Incident.

My answer to your second question is No.

If others disagree they will reply.

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Hello Berta,

I was denied sc for depression in 1998 in addition to the denial VA examiner then downgraded the condition from depression to Dysthymia. In 1998 examiner and VARO x2 eluded evidence of record when my IMO related to recurrent depression and chronic anxiety secondary to my SC'd.

BVA recognized evidence of record since the presumptive period, BVA remand my claim now the examiner cannot walk away from the evidence per remand instruction and BVA analysis.

Instead 2007 VA psy. examiner based her opinion on 1998 first VA/C&P psy. evaluation and opinions that have my claim denied and Dx's downgraded.

2007 provided a favorable opinion of "more likely than not" secondary and related to SC'd. But rejected new IMO during the VA evaluation.

Then 2007 Examiner failed to consider new evidence that sustained the correct Dx's of Recurrent Depression, now Diagnosed as Major and Recurrent Depression and anxiety.

Furthermore, 2007 examiner did not referred to any of the VHA mental health clinic current records and contemporaneous Dx's. My point is that my condition was classified, and rated based under an erroneous Dx's which resulted in a lower rating.

How do I challenge a wrong classification and a downgraded diagnosis?

Thanks,

lu12

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"How do I challenge a wrong classification and a downgraded diagnosis?"

If the initial denied claim with wrong Diagnostic code caused you to lose retro or comp you can file a CUE claim against the final unappealed decision.

Tell them the date of that decision and attach copy of it.

Tell them the DC code they used and why,by medical evidence in VA's possession at that time, it is wrong and then tell them their error manifestedly altered the outcome in that decision to your detriment.

If the claim is still in the appellate process-keep track of the status via IRIS.

If they are not listing your evidence in the last SOC and have never addressed any of it, file a Consideration Request under VA Fast Letter # 08-41 "October Incident".

Read the fast letter carefully so you know exactly how to prepare this letter and what to send to them. I posted a template here at hadit for it.Shape it to the situation described in the fast letter and enclose what you need to send to them again. Get Proof of mailing too.

I am faxing to VA director as well as mailing my October Incident letter.I might even enclose it in an IRIS too- to make sure they get it.

CUES filed against BVA decision must be in form of CUE Motion and sent to the BVA. RO CUEd

decisions get the CUE claim.

I have posted here and so has Carly actual cases of CUE similiar to yours. They should be carefully studied as well as the actual CUE regs.

etc-

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Hello Berta,

"CUES filed against BVA decision must be in form of CUE Motion and sent to the BVA. RO CUEd

decisions get the CUE claim."

My claim/appeal is back to a different VARO, Board 2nd remand asked the RO for a SOC, due to my (NOD)based on a faulty VA exam sent to the AMC and the BVA even thought I got a 30 percent. RO sent me a SOC with a new denial decision. To be honest with you I'm confuse, because the RO sent me a form - 9 and in addition suggested that I can submit more argument and to state why It's that I believe that the new decision is wrong. In addition to that and if I understand you right you mean that I can also submit a cue in regards to the recent denial. Remember that the Board remand this appeal for a second time. the the should be addressed to the VARO decision or should be addressed also to the Board.

lu12.

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