ptsd New Claim V. Re-opened Claim

[Hoppy]

This is how the VA confuses and delays claims.

The veteran I am helping filed a claim for anxiety disorder when I advised him that the only post service diagnosis he has is for panic disorder with major depression. The RO made a determination that the claim for anxiety disorder was an attempt to re-open a previously denied and closed claim for a respiratory condition. They stated this in a letter a continued to say that they could not schedule any C&P exams until new and material evidence is submitted.

The problem is that there are formal considerations required by law that need to be addressed when making the determination a claim is an attempt to re-open a previously closed claim. The letter did not explain any of the diagnoses that were used to make the determination that the new claim was an attempt to re-open an old claim. No subsequent decision has identified the diagnoses, laws or logic as to how the determination was made that the claim for anxiety disorder is an attempt to re-open a claim for respiratory condition. The veteran has not been notified of any process to appeal this secret decision. The determination that new and material evidence was needed to re-open the claim has resulted in a failure to provided a C&P that would otherwise been required by the VCAA, The RO is making it a difficult as possible for this veteran even if it means obvious defiance of Federal Circuit Court decisions.

This is the way the BVA writes it up.

The United States Court of Appeals for the Federal Circuit has held that claims that were based upon distinctly diagnosed diseases or injuries should be considered distinct claims for the purposes of 38 U.S.C.A. § 7104(:D (West 2002). Boggs v. Peake, 520 F.3d. 1330, 1336 (Fed. Cir. 2008). In his current claim, the Veteran appears to be seeking service connection for a disability that is a distinctly different diagnosis than the one at issue in his prior claim, which was denied in January 1997. See Ephraim v. Brown, 82 F.3d 399 (Fed. Cir. 1996).

In view of the Board's determination that the Veteran has presented evidence of a distinctly diagnosed disorder (PTSD) that is different from one claimed previously (nervous condition), and the RO's adjudication of the Veteran's current claim as a new claim, the Board finds that new and material evidence is not required to reopen the claim. Accordingly, it will proceed to a discussion of the merits.

[Stretch]

In my case I did make a claim to back injury, while in service, and was denied. The VA failed to diagnose and actually misdiagnosed these conditions refusing to look at any evidence in support of the claim.

The VA has accepted my Current MRI, Cat scan, Xrays, and diagnosis by neurologist and radiologist as new evidence and stated that the claim is "Reopened". This reopen has been going for more than one year.

It is clear that there was a misdiagnosis. It has been proven, in detail, that the injury did happen and what the consequences of the injury have been.

New Evidence can include MRI's and technology that was unavailable at the time of original claims years ago. My back claims were before the CAVC inception in 1987, the claim is held in limbo, because the VA got caught up in their own BS and does not know what to do with the claim.

My original Claim was for low back, mid back, and upper back pain.

How was I to know that it was L4-L5, L5-L6, and L6-S1. Most people do not even have a 6 lumbar. How was I to know that my C and T lumbars were also part of the injury. I had to have a current VA neurologist and radiologist explain what problems had been in existence since the injury while in service.

It is my opinion that failure to diagnose (think 1151?) a condition properly, is a problem with the VA, in which the VA should be held accountable. There were other ways of detecting these problems even back then in the 70's. The problems stick out like a sore thumb with new technologies. The doctors now have to tell the truth or suffer the consequences.

The VA might try to hide behind the "We did not have this evidence at the time of decision" (BS), but it will not stand up in court.

In this way the VA's old "The Veteran is not a qualified to give a medical Opinion", should be used against the VA in a failure to diagnose. There needs to be a new class action.

Failure to Diagnose

1151__failure_to_diagnose_1_.doc

[broncovet]

Hoppy

This is my 2 cents. Although I can not recall where I read this, I recall reading about some of the higher courts scolding the VA on this particular issue. The VARO's LOVE to divide the claim up into multiple little claims..(you know..divide and conquer). However, the higher courts have stated that the Veteran is applying for benefits..and is seeking the maximum benefit whenever he/she files.

By "chopping up the Veterans claim into little pieces" the RO wants to view it as One claim for depression, another for hearing loss, another for arthritis, etc. Even tho the higher courts do not buy this "chop job", the RO continiously keep doing it because it takes the Veteran years of appeals to get past it, and may not even notice they did that in the first place and never appeal.

This benefits "chop job" has the net result in reducing the Veterans benefits. (You applied for hearing loss in May, 2002, but did not apply for PTSD until April, 2004 kind of a thing)

You see, the higher courts do not expect the Veteran to be a doctor, and/or a doctor of VA benefits. He goes to his VA hospital and/or VSO and asks for benefits, often with no good ideas of what is wrong with him. Is he supposed to know that he needs to file a seperate application for hearing loss, arthritis, PTSD, etc. etc? The higher courts says he doesnt have to. It is the RO's job to "assist him" getting his maximum benefit allowed by law. They are not supposed to "look the other way" when he tells his Psyc doc that he got fired from his job and is unemployed, goes off on his wife, etc. etc..that is symptoms of TDIU, depression, possible PTSD. He does not know what TDIU, NOD, EED, or ALS, PTSD, or any of those other terms means, so he talks to his VSO and tells them he needs help. Then, he goes to his doc as he has trouble sleeping, goes off on his wife, and got fired from his job.

This Veteran is seeking benefits..the MAXIMUM benefit. He is not required by law to be able to diagnose his own PTSD..and to know that TDIU is available to him because he has MDD. It is the VA's duty to assist responsibility to take his claim for benefits, and determine that when he told his doc hes was unemployed and got fired from his job for going off on his boss, thats an informal claim for TDIU.

So, the RO recognizes this as a costly claim, so they chop it up. He is "merely" seeking hearing loss. PTSD and depression are seperate claims and he has to start the whole formal application all over again for each condition sought. Not so, says the higher courts..this poor Vet served his country and didnt even know he had PTSD and TDIU....how is he supposed to know to apply for it? Well, he doesnt need to know...VA claims specialists are supposed to get his medical records and say, "gee, this Vet is not only hard of hearing, but he is depressed and seeking TDIU also, because his statement to his docs are informal claims"...but the VARO's DONT DO THIS.

They deny his "hearing loss claim" which was really a claim for benefits of MDD, hearing loss, PTSD, and TDIU. Or, the VARO may even award 0 percent for hearing loss, and simply ignore his informal claims for PTSD, TDIU, MDD. Then the Vet has a ten year appeal process that he has to endure to try to get his benefits, and he is probably just too depressed to even endure that..so, he becomes homeless and or committs suicide. I think the VSO's often buy into the RO's "chop up the benefits into multiple claims" theory, too, often because they havent been around long enough to actually see a Veteran get awarded PTSD, TDIU...etc on informal claims appeal after ten years. Its a tragedy.

Edited August 18, 2009 by broncovet

[carlie]

Hoppy,

Maybe there's some help or answers in here.

carlie

http://www.va.gov/vetapp92/files2/9213867.txt

Although the Board finds the record adequate to adjudicate

the issue of timeliness of the substantive appeal, such a

determination now by the Board would be subject to judicial

review, and could result in piece meal litigation in light

of the issues REMANDED herein. As such, a determination

regarding the timeliness issue is deferred, pending

completion of action requested in this REMAND.

http://www.va.gov/vetapp08/files5/0835769.txt

Also, the Court has held that

advancing different arguments at successive stages of the appellate process does not serve the interests of the parties or the Court,

and that such a practice hinders the decision-making process and

raises the undesirable specter of piecemeal litigation. See Harris v.

Derwinski, 1 Vet. App. 180, 183 (1991) ("Court will [not]

review BVA decisions in a piecemeal fashion");

see also Fugere v. Derwinski, 1 Vet. App. 103, 105 (1990),

aff'd, 972 F.2d 331 (Fed. Cir. 1992) ("[a]dvancing different

arguments at successive stages of the appellate process does

not serve the interests of the parties or the Court").

So to avoid potential piece meal adjudication of the

veteran's appeal, keeping in mind that he also is in the

process of trying to reopen his claims for service connection

for seborrheic dermatitis and acne vulgaris on the basis of

new and material evidence (conditions that he is alleging are

secondary to his service-connected pseudofolliculitis

barbae), the Board will remand this appeal for a current

examination and then adjudicate the claim for a higher rating

for the pseudofolliculitis barbae considering all applicable

legal theories and precedents, including, as mentioned, Hart.

http://www.va.gov/vetapp08/files5/0841738.txt

The veteran was denied service connection for a cervical

spine disability by a February 2003 rating decision, with

which the veteran disagreed in May 2003. The RO then issued

the veteran a letter in August 2003 stating that the veteran

had been denied service connection for a cervical spine

disability, that the claim had become final, and that new and

material evidence was required to reopen the claim.

The veteran objected, noting both that the appeal period had not

in fact expired and referencing his May 2003 notice of

disagreement. In April 2004, the RO issued another rating

decision stating that the previous indication that the claim

had become final was in error, but that as of the date of

that rating decision the appeal period had closed, and new

and material evidence would be needed. This statement is

also in error, as the RO was required to issue a statement of

the case.

This did not occur until June 2004, after which

the veteran submitted a timely substantive appeal. The Board

will accordingly review the veteran's claim de novo. In May 2002, the veteran filed for service connection for

peripheral neuropathy as a result of Agent Orange exposure.

As with his claim of entitlement to service connection for a

cervical spine disability,

the veteran was denied by a rating

decision in February 2003; he filed a notice of disagreement

in May 2003; and was issued a letter in August 2003 stating

that he had been denied service connection for peripheral

neuropathy, that the claim had become final, and that new and

material evidence was required to reopen the claim. The

veteran objected and in

April 2004 the RO issued another

rating decision indicating that the previous indication that

the claim had become final was in error, but that as of the

date of that rating decision the appeal period had closed,

and new and material evidence would be needed. This

statement is also in error, as the RO was required to issue a

statement of the case.

The RO did issue the statement of the

case in June 2004, and the veteran timely perfected his

appeal. In the present case, a letters dated in July 2002, October

2004, May 2006, and June 2007, satisfied the elements

required by the Pelegrini II Court as stated above.

Likewise, to the extent such

piece meal notice is not compliant with the controlling requirements for proper notice, the veteran's submissions and testimony reflect an

understanding of the claim's process, such that any error in

this regard is harmless.

Edited August 18, 2009 by carlie

[Commander Bob]

This is how the VA confuses and delays claims.

The veteran I am helping filed a claim for anxiety disorder when I advised him that the only post service diagnosis he has is for panic disorder with major depression. The RO made a determination that the claim for anxiety disorder was an attempt to re-open a previously denied and closed claim for a respiratory condition. They stated this in a letter a continued to say that they could not schedule any C&P exams until new and material evidence is submitted.

I don't get it. Was there anything related to a respiratory condition that you submitted with the anxiety/depression filing?

I'm trying to understand what an anxiety disorder has to do with a respiratory condition???? It appears to be a distinctly different dignosis. Are you going to resubmit the claim with the Boggs v. Peake,and the Ephraim v. Brown citations, that you posted here? Congratulation on finding the case law to support your vet's new claim. The claim date should go back to the original filing date. Way to go Hoppy...

Also, is this grounds for a NOD on the RO's determination, or would it be in the form of a reconsideration request???

Edited August 18, 2009 by Commander Bob 92-93

[Hoppy]

Bob,

The veteran never had a respititory condition. The claim was filed in error by a previous SO. The respiritory claim was abandoned by the veteran, He never submitted evidence and no exams were performed.

I am saying the anxiety claim is new has nothing to do with the respiritory claim and the RO should schedule a C&P based on the VCAA. The RO is saying they are not going to schedule a C&P until the veteran submits new and material evidence, Right now the veteran has recieved quotes of $2,500.00 for an IMO. We got the primary doctor to write a nexus letter. However, they denied the claim finding fault with his lack of references to specific diagnoses used in the SMR. No diagnoses from the SMR were stated.

On one hand they tewll us we need to adddress specific diagnoses on a nexus letter and then they make a decision about a new claim V. re-opened claim ignoring the requirement of a distinct diagnosis. There aare no diagnoses of a respiritory conditn.

[Commander Bob]

Amazing.... It makes one wonder if there is any supervision at the VARO. Have you considered passing this one over to a congressman's office? It sounds like a classic example of the VA run-a-round.

Edited August 18, 2009 by Commander Bob 92-93