ptsd To Berta: Bva Second Remand In Two Years.

[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 February 23, 2009 by lu12

[lu12]

"How do I challenge - VA Examiner & Wrong Dx's. Is there any place in the CFR where I can get inf in regards to regulation and law relating to this specific matter."

As long as you have a correct documented diagnosis (and John gave great advise too)

and the correct diagonpsis is what it should have been in a past final decision- then the diagnostic code in that decision was most likely wrong and the rating -if wrong due to that error-and by established medical evidence in the clinical record-is where the CUE lies.

That is their legal error.

Seems to me they are still actively working on your pending claim- a separate issue from any potential CUE claim.

Hello Berta,

I'm about to start writing my SSOC response to the AMC SOC, my question is, should I start my response referring first to the errors made on the 2009 AMC SOC or should I start referring to the original 1998 C&P VA Examiner wrongfully diagnoses and VARO claim examiner wrongfully classification of the diagnoses? Could you recommend the chronology that I should use here.

Thank you,

lu12

[Berta]

In a response to an SSOC I would focus solely on what they said in the SSOC, and why they are wrong.

I read them line by line and rebutt everything I can-

I have a response due too within a few weeks- need to get to that myself-

as I understand the 30 day letter- if the box is checked for more time- I think the cliock starts running for 60 days, from the date of receipt of the 30 day letter-

not the day you send them back the election form-

not sure but a vet or widow cant take any chances on these deadlines-

If any past SOC is pertinent to your response, mention that in the response.

A CUE claim however is a separate issue but still- past SOCs can be important to present SSOCS.

The main thing a SSOC rebuttal should do is to tell them exactly why the C & P examiner or whatever it is has led to an incorrect decision.

AMC told me (because I raised a hoopla with the HVAC) that a post decisional coach has my file and awaits my response.

Maybe my format for my SSOC response will help you-

1.My BVA remand was violated.

In my case and perhaps yours-this could be your initial statement of attack - if they violated the remand.Tell them why.

2.Then the C & P examiner did not have all of the evidence and his opinion was ludicrous -in light of the medical records I had highlighted for the VA as well as my 3 IMOs.

His credentials and experience were far out weighed by my IMO docs.I used the SSOC evidence list itself to support that statement.

3.The VA failed to consider my IMOS and other evidence again -even though the remand specifically told them too-

and I highlighted what the IMOS revealed (and attached them again)

4.The SSOC Decision and the C & P doc also failed to consider that the veterans was a proven victim of VA malpractice and misdiagnosis already (FTCA,1151) and that it is more than likely they could not

properly diagnose the veteran's AO condition anyhow- as the recent C & P examiner's report shows.

Basically this is a sort of format- in order to attack a SOC that is wrong.

I always add evidence that I refer to in SSOCs responses and always put an evidence list with it.

I try to keep it all as short as I can because they cant handle much.

The clock ticks on these responses-

I really have to get mine done here-

what is really taken my time is copying years of what they destroyed for my formal charges under the October Incident.

[Berta]

PS all-on this type of response- the C & P exam report has to be read over very very carefully-

you can often use abstracts or any standard medical literature to prove the examiner has made inaccurate medical statements as well as your own medical records-

And dont forget -the SSOC can be a parsed version of the actual C & P report-leaving out a little something here and there-and that omitted part could be the good stuff.

You dont have to be a medical profession either- to use common sense when you respond to this stuff.

A C & P PA seemed to have used the same terms a former opining VA doc in 2005 (whose opinion was knocked down already) for his recent brief statement for my AO claim.

I already used common sense and the med recs themselves to knock down the older 2005 opinion -BVA disregarded it completely-

these things are what you have to look for.

They can show that the C & P examiner did NOT consider the med recs properly.They are doing these C & P reports as carelessly as the ROs are handling our claims.

[lu12]

Hello Berta,

I been looking for a recent post related to either a cova or bva case, in which they relate to IMO's careful consideration. do you have this case or maybe it was post by Tbird or some body else not sure. I would like to have this information so that I can include the same on my SSOC closing statement response to the AMC.

Thank,

lu12

[Berta]

Hello Berta,

I been looking for a recent post related to either a cova or bva case, in which they relate to IMO's careful consideration. do you have this case or maybe it was post by Tbird or some body else not sure. I would like to have this information so that I can include the same on my SSOC closing statement response to the AMC.

Thank,

lu12

I dont remember the specific case.

IMOs need to be weighed properly by the VA, they cannot be ignored unless they do not comply with the IMO criteria.

Evidentiary VA case law is within 38 USC 4.3,4.6 and M21-1MR-

Maybe I mentioned something like this from my remand. For some reason my Sept 2008 remand still has not been posted at the BVA web site.

Here is page 8 of it-(Page 7 reiterates that the VA had not only these IMOs (3) but also considerable competent lay mdical evidence from me.All had been ignored.)

"A Remand is required to ensure that this evidence has been fully and fairly considered at the RO Level."

The opiner they (AMC) got was a PA and not a doctor -nor versed at all in what they ordered them to be.I have FOIAed the VA where he did the report and asked just what evidence he actually had to base his opinion on.His opinion was that he didnt have enough to base his opinion on what the remand asked for.I charged the AMC with destroying all the evidence that came back with my remand as well as two additional statements I made that AGAIN included the IMos and the evidence.

Havent heard back yet-on that.

The VARO in Seattle that the AMC farmed this out to AGAIN failed to base their opinion on the entire record.I have raised all sorts of Hell.The AMC got a letter from COngressman Filner and shipped the claim back to the BVA same day.

Then again the BVA- when they get this all back -can read.

I am preparing the records for an additional opinion.Four IMOs against one quack equals SC direct death award.Three should-but the VA refuses to read these IMOs.

My point is I made a full response to their deficient SSOC and again sent them the medical evidence.

The AMC didnt care.The BVA will care.

They violated the remand.

You must bring up any VCAA or remand violations and tell them in youir response (which they might not even read) as to how they did not consider or weigh your IMOs properly.

Did your IMO doc outweight the credentials of their doc?

Did your IMO doc give full medical rationale and also references to abstracts or treatises for their opinion?

Did your IMO doctor fully access and consider all available pertinent medical records?

How did they word the way they knocked down your IMO? Or did they simply ignore it?

If the AMC fails to act on your SSOC response-make sure that it is geared to the BVA-to lawyers who will take note of any violations of ypour rights (usually) but it helps a lot to tell them exactly what rights the VA has violated in their denial.

Remand_page_8.doc