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 (see edit history)

[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 (see edit history)

[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 (see edit history)

[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 (see edit history)

[Hoppy]

Bob,

We got really good news today. A VA psychologist who has curriculum vitae that is awesome including performing C&P exams looked at my summary of the claim and decided to get involved. I got a preliminary draft of the report the examiner plans to write and it is pretty much a slam dunk. This is the strongest case of panic disorder while in the military I have ever read on the BVA. I guess this is why the psychologist decided to get involved.

The vet centers can be of a tremendous help on mental health claims. I found this clinician at a vet center.

To answer your question. I am trying to find out the procedure by which federal court decisions get codified into the M-21. The fact that this claim was adjudicated as though it was an attempt to re-open a previously closed claim is in direct defiance of a federal court decision that reversed a CAVC decision and was specifically based on a review of VA procedures.

I am going to write a letter to the director of the RO advising him that the claim was adjudicated on the misapplication of the law that caused the process to be fatally flawed and that the claim should never have been adjudicated in a manner that contradicts a federal court decision that was made many years ago. I am going to state that due to the fact the error caused the circumvention of the applicants primary means of obtaining evidence to support the claim. As such the claim should be immediately re-adjudicated in a proper manner. This is not a question of weighing the evidence for or against the claim. The decision to require new and material evidence effects the entire course as to the development of a claim. As such this decision should be taken very seriously.

I am going to suggest to the congress and the federal court that made the original decision that special procedures be developed to ensure that this very important initial decision is not performed by undertrained or incompetent staff. I also am of the opinion that an investigation needs to be initiated to determine how frequently this mistake has been occurring and a determination made whether or not there is an ongoing series of errors which represents willful circumvention of the courts intent.

I am going to advise the director that it appears to me that this was a failure to perform an elementary requirement of the rater’s job duties. As such my training as an insurance fraud investigator would require notification of all interested parties of the possibility of a willful act that caused the claimants civil rights to be violated. How such notification works in the VA system is unknown to me. However, my intent at this time is to notify my local senator and the clerk of the federal court which made the original ruling.

[Papa]

Hobby

Hope life finds you well. I would like to run something by you to get your and whomever else would like to chime in. I have Angioedema, the hereditary form. While it would be next to impossible to make it direct; how hard would it be to prove thtat it was aggravated? I have also been rated for PTSD, now a lot of the symthoms of PTSD are triggers for Angioedema attacks. Would this be a good bases for a claim PTSD aggravating my Angioedema?

Papa

[Hoppy]

Papa,

If you are rated for PTSD as service connected then secondary angioedema is a valid position. This is because angioedema is known to be triggered by any event that increases what is called circulating immune complexes. Stress causes an increase in circulating immune complexes.

File a claim for angioedema attacks as secondary to the PTSD. There is some confusion that might occur if the angioedma was denied on a direct service connection basis. The confusion would be that they won;t schedule a C&P. Ask your SO to file the claim. If they do not schedule a C&P the confusion can be dealt with by getting a statement from a doctor that the PTSD has caused either an increase in frequency or severity of the aangioedema.

They will not give much weight to your statements of frequency or severity. You absolutely need to go to the doctor every time you have symptoms of angioedema and tell the doctor what you think the trigger was. Your claim will rest heavily on the medical reports from treating doctors. If you have no reports from treating doctor it will make it impossible for a C&P examiner to verify your symptoms during a single exam. I never had a C&P when I won my angioedema claim. However, I had a stack of treatment reports that went back twenty years.

[Papa]

Hobby,

Thanks for the valuable information. I actually have an appontment with a Doctor tomorrow that is suppose to be the leading authority on Angioedema. Several years ago I was suppose to have major surgery for Obstructive Sleep Apnea. My Primary Doctor sent me to him for consultation, and he highly recommended that I do not do the surgery, and recommended that I use the CPAP machine even if they had to have the settings up real high. I have made a major error in that the only time that I go for medical treatment (Emerency Room) is when it affects my throat area. My arms and hands I just suffer through it like when I was a kid. Not anymore.

I don't know if this has ever happened to you, but about 6 months ago, I had to go to a Peradontists so he could operate on my gums. I wrote down that I had Angioedema, and told him verbally about it. Well during the procedure apparently I stopped breathing. They got me breathing again, but I stopped, and restarted... My wife said the Doctor was in tears because he admitted that he did not pay attention to what was written or told to him.

Papa

[Papa]

Just had a very interesting week at my Hemotogoist. He could not believe that he had someone in his office with Hereditary Angioedema (HAE), and I guess that I have never realized how rare this was. He said that I was the only person in San Antonio with this. The first day they took 10 tubes of blood from me as I did not fast, and 10 more the next day after I did fast. They are sending this to the Mayo Clinic for testing and Genetic mapping, etc. He wants to make sure that this is what I actually have, and wants to pin point the exact Gene??? God, I hope my insurance covers this Mayo thing :P . I also ask him about the connection of HAE and PTSD, and he said that if HAE has an emotional element to it, then there is a connection. But, he wants to wait for the test results come back from the Mayo Clinic. Now, how in the world would the VA rate something like this if this is so rare? This doctor ask me how did I get in the military, I was walking upright and breathing B) .

Papa

[Papa]

Bump

[sharon]

Just had a very interesting week at my Hemotogoist. He could not believe that he had someone in his office with Hereditary Angioedema (HAE), and I guess that I have never realized how rare this was. He said that I was the only person in San Antonio with this. The first day they took 10 tubes of blood from me as I did not fast, and 10 more the next day after I did fast. They are sending this to the Mayo Clinic for testing and Genetic mapping, etc. He wants to make sure that this is what I actually have, and wants to pin point the exact Gene??? God, I hope my insurance covers this Mayo thing . I also ask him about the connection of HAE and PTSD, and he said that if HAE has an emotional element to it, then there is a connection. But, he wants to wait for the test results come back from the Mayo Clinic. Now, how in the world would the VA rate something like this if this is so rare? This doctor ask me how did I get in the military, I was walking upright and breathing :D .

Papa

http://www.hereditaryangioedema.com/pamphlet.php#q1

www.va.gov/ogc/docs/1990/PREC_82-90.doc

tells speaks of congenital diseases and service connection.

[Papa]

Sharon,

Thank you so very much. I'm familiar with the HAE Association, and should be more active. When they talk about "Incurred" in the service, are they talking about havng attacks in the service? Which I most certainly did. I don't thank they could mean that it started in the military! How would they rate something like this? My Hemotiologist said that the PTSD could have an affect on my HAE if it has an emotional attachment to it, and it does.

Papa

[deltaj]

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.

This seems like a deemed denied claim. The landmark case on this is Deshotel (spelling?).

[Commander Bob]

This seems like a deemed denied claim. The landmark case on this is Deshotel (spelling?).

This can get confusing because of the twists and turns in the original mistake of a wrong claim being processed. It would of been nice if the vet filed a NOD within that year and said he did not submit a respiratory claim. It was his intentions to file an anxiety disorder claim. Well that didn't happen, The vet chose to not respond to a VA letter telling him how a respiratory claim was being processed for him.. then one day he got a denial letter. The vet "abandoned" the respiratory claim by not responding to the denial letter within that one year window. Is that how it happened?

[Pete53]

Read my signature. It tells the whole story. Military Service can exacerbate a condition that you have when you enter.

[deltaj]

http://www.hereditaryangioedema.com/pamphlet.php#q1

www.va.gov/ogc/docs/1990/PREC_82-90.doc

tells speaks of congenital diseases and service connection.

I did not read the pamphlet but I checked online and there are a lot of causes of angioedema. One of those causes is hepatitis. I mention this because V.A took a lot of blood from you and because right now hepatitis is in the news because improperly sterilized equipment at V.A. has caused hepatitis in some veterans. Please make a written request for copies of your medical records right away.

[Papa]

You all are getting Angioedema mixed up with Hereditary Angioedema (HAE). I have the HAE variety and it is very rare. I did file incorrectly, well it was filed by my DAV SO, but it is my claim. I thought that he had filed not as SC, but it being aggravated by the service. The Specialist that I saw a few weeks ago did state that if the HAE has an emotional issue attached to it, then the PTSD would play a big part in it. HAE does have an emotional issue called "stress".

Papa