1151 Soc Soon

[Josh]

I have recieved word that the 1151 claim originally filed in 2000 has been answered (denied)and in on the way. I had long suspected this would happen as the VARO would not have wanted to make a decision regarding this case. Afterall I had to come to Colombia South America to get IV Antibiotics of all things just to survive.

When I get the information I will post it to the board and be looking for your input.

This claim has never been before the BVA and cannot imagine it will be denied in the end as I have a VA Chief neurologist specifically writing there was infact an error in diagnosis that went untreated for years.

I wrote the Comgressional investigation contact point last week and it turns out the claim was sitting on sombodies desk in Florida while they were tryiing to figure out what to do with a possible exam in an embassy. That clearly fell through.......... Next step will soon be revealed..

I believe what is mssig on the claim is clear indication of what award I am seeking. I will need to put the claim information on a latter post to give those interested a ful view.

When that time comes I would appreciate any and all advise.

The note sent has been included below.........

-------------------------------------------------------------.

Mr. Hertrich:

Please be advised that we have been told two (2) different letters (both dated February 16, 2006; one (1) with a VA Form 9 attached and one (1) which states "IMPORTANT -- reply needed") have been mailed by this VA Regional Office to the Florida address you are currently using for your mail.

We have been advised to request that you return (preferably through our office but you can mail it direct to the VA if you wish) the completed and signed VA Form 9 attached to the one letter so that the VA Regional Office receives it BEFORE April 15, 2006 in order to protect your appeal.

Edited February 18, 2006 by Josh

[Guest Berta]

This is not at all over yet---

60 days for each response- they count weekends- so it is good to handle the response as soon as possible-

Joe- have they referred to the VA Neuro report that helps your claim at all????

When a VA doc says something positive for the claim- this is pretty staggering evidence-especially in a Section 1151 claim and they will try to ignore it.

Time to dig out your copy and be ready for the letter you are getting-

as you are correct-they need something (and they might even have it already but 1151 claims ---they 'misplace' a lot of evidence.)

Have you ever gotten a copy of your c file- ? Look for a Peer Review Assessment-it might be unsigned but dated-and stamped at the VA.

if they have done one your claim-you could possibly use it to support your claim but they are not supposed to send the veteran a copy of these Peer Assessments- confidential stuff--

I found the one they did for my 1151 right at the bottom of my c file-(2 years ago)it was not even supposed to be in that file---it totally supported my 1151- dated March 1995-

but they played around until 1998 anyhow on that.

Men and women -the following is a lot to read- only really for anyone who needs to file an I-9 in 60days------

The I-9--- I suggest you wait for the other letter to see how to approach the formal appeal statement-

this means you will get a docket number at the BVA BUT -your claim is still at the VARO level and you can still succeed there-

The I-9-this should be a concise statement of Attack- you must attack the rationale of any VA doc who has gone against the claim- you must highlight the expertise and rationale of the VA doctor or any IMO doctor who DID support the claim-

Ask them for proper application of 38 CFR 3.102 (Reasonable Doubt) and tell them how your evidence outweighs theirs.

If you have not received sufficient notice , under the VCAA, of what you actually need to succeed-tell them

their VCAA notice was deficient.(if you even got one-they are messing up the intent of the VCAA nationwide )

Add a statement that you preserve for appeal ALL errors of law and fact, all misapplication of M21-1, 38 CFR, and the VA's Duty to Assist, in any further decisions of the VARO or the BVA.

An I-9- form -- I suggest taking the first page and copying it-

Then -after you have prepared your written appeal and typed it-

take the first typed page and cut it to fit onto the !-9 copy and scotch tape it there-

Make sure you have left roon for your signature and the date-

Then you can edit the rest of it if you need more pages- which I think you will- not much room on the first I-9 Sheet-put your name, address, c file number and add page 2 of 4, 3 of 4 etc.

The inital sheet then can by copied, and it will look like you typed the first statement on the I-9-

and then you can sign and date this and mail it all certified or priority with tracking slip (I really recommend the Priority and Tracking slip- go to USPS and they have area to put in the track number and then you can get a receipt to print out that shows they got it.)Costs about $4.55.

In the small area after the Hearing blocks I cut and pasted in the statement to preserve all legal errors, etc--

Then this is what I mean-when they ask in # 10 "why I think the VA decided my case incorrectly":

"The Buffalo VARO , by consistently ignoring my irrefutable, undisputable, and probative medical evidence-to include an Independent Medical Opinion from Dr. Craig Bash whose area of Special Knowledge gives him a professional rationale for this opinion, and a statement from Dr. Hamid Rabiee, significant as to this doctor’s entries in the veteran’s VA medical records and conversation with the veteran and me, as former treating VA physician, along with evidence I submitted from the veteran’s medical records, FTCA documents, Section 1151 award, prior SOCs, and autopsy, which I correlated with medical information on diabetes known within the standard medical community and also within VA itself via VA Training Letter and C & P regarding diabetes, has continued to deny a claim that rests well within the Doctrine of Reasonable Doubt as the evidence I have submitted fully outweighs the rationale of the VA examiner, as found within the December SSOC, that I received on Dec 23rd,2005."

OK- that is Ten types single space lines in Arial 12 pt that will fit into the area before # 11 Signature , date etc.

One page two I immediately knocked down their examiner's report,and then referenced the veteran's medical records, the IMOs, the autopsy, prior SOc statements and the Sec 1151- etc.

Then I continued to attack each line of their so called 'expert's' report-

the VA doc had said there were no Reg flags to show Rod had DMII in the VA med recs.

I listed dates and description of 33 Reg Flag entries.(adding it was only some of them)

The VA doc said she only had a few blood chem reports when she prepared her opinion.(this is true- the local VAMC would NOT send the med recs back to the VARO) so how would she even know there were Red Flags or not.

I made the point that the med recs are RESPLENDENT with them.

I reminded that Dr. Bash had ALL of the veteran's med recs,prior SOC, and FTCA reports,MRIs,CTs, etc.

I reminded them again of the specific rationale and expertise he had for his IMO-NeuroRadiology-

The examiner had stated that I had misinterpreted "DVD" in the med records-as diabetic vascular disease-

I mentioned that I use Med-Lexicon and other med texts to interpret abbreviations and that this is how I won my FTCA claim against VA in 1997. I ended that part of issue # 1 with a statement requesting direct service connection due to the veteran's proven exposure to Agent Orange and his DVD, Diabetic Vascular Disease.(for spite)(this is a well -know abbreviation in the standard medical community-how dare she question that)

Then I addressed Issue #2 - which is a moot issue on appeal as I sent them a CUE to withdraw the initial claim-(if they had ever read my stuff they would have known that)-and then I added that I anxiously await the three VCAA letters promised to me by the VARO's service Manager on claims filed 2 years ago.

This appeal -the very day it arrived-generated a lot of hoopla up there-back and forth to DRO, appeals team, adjudicator- however I dont know any result of that and found that they now await something from OCG in Washington.Which I believe is what I told them to do with one of my other claims.

I have put this whole rigamorale story here because-

we are on a Battlefield- our weapons are our medical evidence-

THEY have to be put on the defensive-I filed this # 1 issue claim over 3 years ago-

my vet rep said it was definitely an award under 38 CFR 3.102 -and should have been awarded last year-

But I got stuck with a newby DRO-

but they needed a foot up their read end to get them to even read the evidence-

I sent them my IMOs 9 times and now I copy the IMO on the back of everything I send- I have more evidence-and will continue to support this claim until they properly resolve it-they have never commented on my IMOs or any of my evidence yet at all.(except for the medical abbreviations I took from THEIR med recs.)

Think very carefully about any I-9s you file out.Most of them never get to the BVA because the claims are finally resolved at VARO levels.

Rebutt their evidence or at least attempt to challenge it.

In my case the VA examiner stated my husband was "certainly a risk for diabetes'-I pounced on that and with Wikipedia definition of Risk- I stated that this emphatically supported my claim- as this Risk was determined only by the few med recs that were used-I copied and pasted the Wikipedia definition right into the appeal.The VA doc's whole point that triggered the I-9 was ONLY this single point- the VA could not have possibly misdiagnosed the veteran and overlooked his DMII- of course my other evidence from VA itself proves they misdiadnosed strokes , and heart disease, etc etc, so duh---- and I certainly threw all that in my appeal too---

and added that-in light of the significant statements by VA itself, in my Sec 1151 award , it is MOST likely they misdiagnosed DMII too-

(they never told the VA doctor anything at all about the history of this veteran-medically and through FTCA-that was unfair to this doctor and it gave me a very strong position to knock this opinion down)

My long point here is- Attack their statements that discount your claim-one by one-

get someone to read it at hadit or elsewhere to see if they can state something a little better for you-

in order to rebutt their decision as strongly as you can---

Common sense often has to be spelled out to them-

Look for what the VA doctor did NOT consider,

Get into the first paragraph of the appeal under # 10- something that catches their attention and sums it up enough that they will want to read the additional pages-carefully-by putting them on the defensive.

And NEVER let a SO or a vet rep do an I-9 for you---

In 1981 the VVA did one for me- it was one sentence- and I was so dumb in those days-I let that go-I did not even know I could have done that I-9 myself.ALWAYS prepare an I-9 appeal yourself.

Edited February 18, 2006 by Berta

[Pete53]

Don't give up.

[Josh]

Ok My feet are back on the ground now... I think I had a case of pre answer jitters ask can be seen with my previous posts here.

First off let me thank you very much Berta for the well written pages of advise. It reads like a walk through manual of great tips.. Definitely great reference material.

Still reviewing it but it is infornation that needs multiple reads to collect the full picture.

On another vein ..Berta I almost lost my cookies yesterday.. I am Better today ,,, tomorrow even better.

I still have not heard any more about the documents where they are or what the official reply says that was included. I will keep you up to date and be posting under this topic in the future.

[Guest Berta]

I think we all get antsy and the jitters sometimes Josh-

It seems to get worse when it looks like they are actually starting to do something serious with our claims-

I went through that myself lately- wondering what "documents" they sent to the General Counsel- as the PC screen said-last week-the vet rep didnt say it was my claim- just "documents"

But I had asked them to send one of my claims to GC last week-

no one at the VARO is capable of rendering a decision on it- they knew that when I filed it THREE years ago-

good thing I pressed them on it- they told my vet rep it was "in appeals" ,stated this in a letter to me last week, it is NOT at all in appeals-they never gave me a decision to appeal!I then went ballistic-typed up a response and corrected their letter and enclosed it-

and told them to get this claim down to VA counsel, where it should have been all along! It went there the day after they got that letter from me---I think- am calling down there to see what they got at Counsel's office-

otherwise I will just fret over whatever "documents" they said they sent-(maybe they didnt send anything and it is a new stall tactic-

we all get frazzled by dealing with them. The VA gave me PTSD.

[Josh]

Ok big breath and then back thanks Berta.. sigh.

20060221Hadit

HI Berta and others on Hadit

This is a long post regarding review and preparation for submitting a formal NOD to a claim currently active regard an 1151 Denial and intended reply:

I am going through the questions and points Berta made and will give you the low down. The first of Berta´s questions are in Bold

Joe- have they referred to the VA Neuro report that helps your claim at all????

Yes they did, but only in an indirect way. In the first Denial they did not refer to the Colombian Physicians clinical notes that were submitted to Dr Reynolds in order for him to concur there was an error. Since I am in a foreign country and although the records were translated by a legal certified/approved government translator. They had not yet been submitted through the recognized channels for inter-governmental documents.

We have those contacts and the original documents and will initiate that action this week.

Noted in the body of the text in the previous reasons for decision is the statement ; " The retrospective opinion from Dr. Reynolds while having the benefit of current findings does not provide definitive empirical evidence of mistreatment by the VA at the time of treatment"

The documents I am referring to are the Colombian Doctors clinical notes. Those notes are the clinical record which provides the empirical evidence… During the previous review they were not recognized (it would appear) based upon that statement. The Documents were also not included on any included documents or record list.

My contact in Florida has started receiving the denial information and will be scanning and sending them in the next days. Thank God above I have a contact there. Imagine this; Gio and I received a Christmas card sent last November, just last week. The letter said "Air Mail" It was by burro no doubt..

Have you ever gotten a copy of your c file- ?

No. I have only once been able to review my C-file. When I did review it I had still not been treated for the Cerebral infection and was too ill and hurting to really spend any time doing it. What I did see was that there where documents that supposedly I had signed and it was not my signature. Somebody tried to sign with my signature but it was a very poor attempt at forgery. I ask for a copy bit was told they could not provide it until the records I requested were approved by the VARO in Milwaukee, WI.

This next part is a very good piece of advise

Add a statement that you preserve for appeal ALL errors of law and fact, all misapplication of M21-1, 38 CFR, and the VA's Duty to Assist, in any further decisions of the VARO or the BVA.

Also I need more information on this next tidbit… In the small area after the Hearing blocks I cut and pasted in the statement to preserve all legal errors, etc--

Then this is what I mean-when they ask in # 10 "why I think the VA decided my case incorrectly":

I will get the details of this later OK

Thanks Berta,

We are on track here now after a moment of dizziness.. whew.

We will keep the board up to date as more information flows.

Joe

This is the document process needed from here

The Hague Convention abolishing the requirement of legalization for foreign documents dated October 5, 1961 entered into force for the United States on October 15, 1981. The Convention entered into force for Colombia on January 30, 2001. Documents originating in the United States require for recognition in Colombia an "Apostille" issued by competent U.S. authorities (see below for a listing of competent officials in the individual states for the issuance of Apostille).

Likewise, documents originating in Colombia require for recognition in the United States an "Apostille" issued by competent Colombian authorities. For Colombia, that authority is: Ministerio de Relaciones Exteriores, Oficina de Legalizaciones, Transv. 17A, #98-45, Bogota, Colombia. Documents legalized with the Ministerio's "Apostille" need no authentication by U.S. Consular Officers.

Edited March 2, 2006 by Josh

[Josh]

No Doubt Berta this definitlñey started PTSD in me to be sure.