Misapplication Of M21- 138 Cfr

[Josh]

Hi Berta

You suggested to include this statement but I am unsure what it means and its implications.

"I preserve for appeal all errors of law and fact, any misapplication of M21- 138 CFR "

In an Intenst learning mode now... Already ask for a 2 week extension on getting the form in as they sent it to a previous address although t was recorded and on file what the new address is. We will se but it is not yet a hot issue.

For others ... Gio and I are chugging on here.. They completely ignored all previous evidence I submitted the first NOD. NOt even mentioned.

Josh

[Guest Berta]

This statement is recommended by NVLSP (National Veterans Legal Service Program) to be put on the I-9 form before stating the reasons that the claimants feels the VA decided the case wrong (# 10)

Lent my VBM book out but here is what I put on my I-9:

I take exception to and preserve for appeal ALL errors the VARO may have made or the Board hereafter might could make in deciding this appeal. This includes all legal errors, all factual errors, failure to follow M21-1,all due process errors and any failures to discharge the duty to assist as violation of basic VA laws and regulations within 38 USCS and 38 CFR.

I feel any statement that covers the exception to all errors- sort of triggers them to take note that the claimant will not let these errors slide by-

I thought my appeal form (the I-9) is what generated action at the VA last month- I was wrong-

I always suggest responding to SOCs and SSOCs and it was my SSOC response in January that got them moving.

When I got a letter saying they would use this Response as my formal appeal I certainly didnt trust them and filed the formal I-9 anyhow.

As I read over that response it was very strong in it's points and both the response and the formal I-9 identified some of the errors that have occurred already in their handling of my claim.

When a valid claim with good evidence is denied, one can assume that they have failed to read the evidence

or have misinterpreted it. Or ignored it.

If I can believe what the 800# people said last month- they made a decision based on my SSOC response and then the formal appeal came in and more action was taken on that.

My Response included more medical evidence.Also I typed it onto copies of my two IMOS which they still have not addressed yet.

Also I advise adding statements like-

"A reasonable mind could conclude that my undisputable and irrefutable medical evidence is well beyond the criteria for Relative Equipoise (Doctrine of Reasonable Doubt) 38 CFR 3.102 and I request full application of that specific regulation."

Tell them like it is and be firm and confident in your belief in your claim.

[Josh]

My appeals current introductory paragraph Berta.. Your comments appreciated very much. The more I read the mre I see you are very well versed in the regs. Berta, you are quite the girl.. smile

Josh

Box 10

Reading the SOC dated February 16, 2006, it is noted that Compensation is payable which results from VA hospitalization, medical or surgical treatment, vocational rehabilitation, or as the result of having submitted to a V.A. medical examination. Furthermore, it is indicated that merely showing the Veteran has increased disability is not sufficient to establish causation. However, in this submission, not only will it be shown the evidence contained within the medical records substantially exceeds the 38 CFR 3.102 (reasonable doubt) threshold for granting this 38 USC 1151 claim, but that the VA medical staff, as well as the VA claim reviewers repeatedly overlooked and disregarded direct medical evidence previously submitted which fully supports granting this claim. In this presentation, we will examine in detail the medical evidence and tests performed which irrefutable show an untreated cerebral infection most likely evolved into an encephalomyelitic condition which was mistakenly identified as MS. These two medical conditions although virtually indistinguishable are identifiable with several key tests and features. Tests and features that were clearly performed but were totally ignored not only by the original treating physicians but also by the medical reviewer as evidenced in his analysis and comments.

Edited March 10, 2006 by Josh

[Guest Berta]

Thanks Josh- I used to be 'normal' but over the last ten years the 'regs' are what I live for!

I love them.

"In this presentation, we will examine in detail the medical evidence and tests performed which irrefutable show an untreated cerebral infection most likely evolved into an encephalomyelitic condition which was mistakenly identified as MS. These two medical conditions although virtually indistinguishable are identifiable with several key tests and features. Tests and features that were clearly performed but were totally ignored not only by the original treating physicians but also by the medical reviewer as evidenced in his analysis and comments." most likely evolved into an encephalomyelitic condition

Very well stated- but remember you are dealing mainly with people without medical training-who breeze over as fast as they can- whatever we send them---

Your claim is very similiar to the one I had in 1994-

" untreated cerebral infection "- hit them again with the medical documentation of this-refer to it and enclose it again-

and this "mistakenly identified as MS" -the medical documentation of this fact-the MS diagnosis-enclose that again-

and anything whatsoever that proves- "most likely evolved into an encephalomyelitic condition"

(I would take out the most likely part and put that "the untreated infection obviously evolved into an encephalomyelic condition which caused me additional disability due to VA medical error.")

Even though they have it all- send what medical evidence supports this statement again-

"Tests and features that were clearly performed but were totally ignored not only by the original treating physicians but also by the medical reviewer as evidenced in his analysis and comments."

Hate to say this but resend proof of all this again-

List and Number or give alphabet initial to each piece of evidence and a reference to the number or Exhibit A, B. C etc in your statement.

Boy- been there-- done that all before- more than once-for the same claim--

I had to clearly state and restate (with the med recs)

that my husband collapsed in 1988 at the VA while employed and was rushed to the ER-

The medical certificate (which I had to send many times to get them to read it)

showed R/O CAD, W/U CAD next week, yet they diagnosed sinus conditon and prescribed sudafed.

They never mentioned the ECG results. Never gave him a W/U CAD which I finally discovered meant 'work up for coronary arterial disease.' They continued the sudafed for 6 years. I found a sinus x ray that showed clear sinuses.

The ECG results , in the med recs,which were abnormal- clearly indicated that they should

R/O CAD and W/U for CAD next week-I resent the ECG.

The veteran's autopsy reveal significant major heart disease with prior cardial scar in 1994.

In 1992 the veteran had ECHO and another abnormal ECG.

I was told there was "nothing" wrong with his heart.(by the head VA cardiologist at this VAMC.)

I proved to the VA that the "scar" was from the 1988 heart attack-

quite obvious from the Med Certificate and notations.

The VA agreed that the improper sudafed raised Rod's BP and was one contributing medical errors among many others that caused his death.

I focused solely on what I had- The ER med recs , the ECGs, an ECHO, 6 years prescription of sudafed, and unfortunately the autopsy.

I stated this as simply as I could to them-and kept it as short as I could. Athough they gave me two VA med opinions against the claim- I could quickly tell what they withheld from the VA doctor and knocked these opinions down immediately.And resent what they ignored.

I kept their focus solely on the VA medical evidence in the c file-I can't stress that enough-

Their SSOCs failed to address the crucial dcumentation,as well as their VA 'expert'.

I watch lawyers on TV a lot- I have been a pro se lawyer-many times-

A good lawyer will state and restate the facts over and over again-

They wont allow a witness to get tangential. They control the focus on the evidence.

Do not accept anything a VA doctor (they state tagential stuff sometimes)says against the claim without a valid rebuttal.

The evidence you have that shows (1)documentation of the wrong diagnosis,(2)the resulting correct diagnosis and (3)proof that the erroneous medical diagnosis caused additional disability- is the sole focus of your claim and what they have to be literally hit over the head with-

until they get it.

[Guest Berta]

PS- you probably have this but:

http://www.ninds.nih.gov/disorders/acute_e...alomyelitis.htm

This condition can present itself as possible MS at first but this article clearly shows that this condition has resulting disability that is not consistent with an MS diagnosis.

I used to raise horses.Equine encephalitis is much like the human form of this condition.

Our horses had to be vacinnated every year to prevent this and proof of vaccination had to be produced if they went to horse shows or were sold.

It certainly comes from cerebral infection. I think the equine community knows more about this than the VA does. Horses however are not mistakenly diagnosed with MS if they contract this condition.

It seems to me that the standard medical community certainly has had enough knowledge for years that would provoke them to attempt to rule out MS first , when treating and properly diagnosing this condition.