Request To Revisit A Previous Decision.

[Hoppy]

In the continuing saga of a veteran who I am helping a service officer suggested that I request the RO to revisit a previous denial. I recently obtained a medical opinion from a licensed clinical psychologist who was a staff clinician at a local VA hospital. This clinician stated in her report that she has treated hundreds of cases of panic disorder while working for the VA or the last 15+ years. The clinician also stated that she has performed compensation and pension examinations. The veteran's claim was previously denied without a C&P exam, which forced me to obtain the report from this staff clinician.

The staff clinician summarily stated that the veteran currently has a panic disorder subsequent to a progression of symptoms noted by qualified examiners while serving in the military meeting the DSM IV criteria for panic disorder and the condition was of such prolonged development and lack of treatment resulted in a chronic condition prior to discharge. The full report is three pages long. I intend to submit this report as evidence in support of the claim.

I am upset that this veteran's claim was denied illegally without a C&P exam. I have explained to the service officer that had the VA followed the law the exam that I obtained would have been developed through the C&P process. I told the service officer that the failure to provide a C&P exam was in direct defiance of federal circuit court instructions involving cases whereby the VA determines that new and material evidence is required because the VA has wrongly confused the material facts of a new claim with a previously denied and closed claim.

I am advancing the position that new and material evidence should not have been a requirement and the position taken by the VA that they could not schedule a C&P exam until the veteran obtain a new and material evidence created an illegal and unnecessary delay. This type of delay is atypical in that it requires extensive and sometimes expensive reports and totally circumvents any development of a claim by the VA prior to a denial. This type of decision should be given full and careful consideration. A denial of a C&P exam can create undue hardship and expense. As such, a separate expedited appeal process should be available. The fact that the BVA in many cases is citing the federal circuit court decision and remanding C&P exams on claims that were denied without a C&P by this RO and other RO's should be investigated to determine if the RO's are willfully circumventing the requirements detailed by the federal circuit court. Understanding and implementing the court's decision could be interpreted as an elementary duty of an individual's job. Failure to perform elementary duties of a job has been determined to be gross incompetence. Additionally, due to the fact that the veteran at the time he was notified that he needed new and material evidence was not given any explanation as to his rights to appeal the determination that he needed new and material evidence the claim should now be expedited to put it back on schedule as though a C&P exam had been properly obtained prior to the denial.

Initially the service officer told me there was nothing I could do except appeal the denial. After I got done explaining to her my position as I described above the service officer tells me to advance a request to revisit the claim.

Edited October 1, 2009 by Hoppy

[akwidow]

I seriously doubt my late husband had any exams for ptsd, or agent orange either when he was denied. He made the AO claim in 2003, during the period he was having cancer treatment....and had floods of medical records at VAMC. No-body did any agent orange exam on him......

[Hoppy]

Sharon a wings please help.

I do recall that the VA was required to re-adjudicate all claims denied as not well grounded after Morton V West. My memory is that there was a two year period to re-file. I am looking for any references as to how and what priorities were given to the re-adjudicated claims. If you keep reading you will see that I could benefit from relating this current claim to the group of claims that were re-adjudicated. This all came down about the time of the VCAA. I remember it because my claim was denied as well grounded in 1996.

Jbasser.

Panic Disorder has no preferred etiology. A stressor is not required. The clinician addressed the etiology issue in her report. Also all the symptoms are noted in the SMR.

Broncovet

The United States Congress has reviewed and isolated individual laws and made special considerations giving priorities to claims that have been impacted by a single specific law. One such action by Congress involved the same exact outcome of the problem I'm facing with my veterans current claim. A prior situation occurred in that a law produced an outcome whereby veterans claims were denied without the benefit of a C&P exam. That is the exact problem in my veterans current claim. I am merely suggesting the same resolution to my veterans current claim that was afforded to large classes of veterans impacted similarly by previous law.

I know we have discussed Morton versus West and the development of the VC AA in the past. I do not recall that we did discuss a significant action caused by Congress at that time. The Congress was very concerned that veterans claims were being denied without a C&P exam. Morton versus West was a law that the VA interpreted in such a manner that they were denying claims as “not well grounded” prior to scheduling of the CNP exam. Congress took action to undo the effect Morton versus West was having on veterans claims.

The memorandums and laws that went out redirecting the veterans administration occurred so long ago that they have been lost when previous computers I owned crashed. For now I will go on my recollection of the actions that Congress took. I'm pretty involved with two cases and when I get the time I will dig up the old documentation and post it for you. However, this is what I recall, this is my story and I'm sticking with.

The Congress required that the VA re-adjudicated all claims denied for not being well grounded from 1995 to 2000. The re-adjudication was not spontaneously invoked. The veteran had to re-file the claim within a two-year period. This period of time probably ended around 2003. If the claim was not re-filed during that grace period then the veteran's administration was not required to re-adjudicate the claim. When a veteran re-filed the claim it was given special consideration. The re-filed claim was adjudicated de novo. No new material evidence was required. The original claim date remained intact. A claim denied in 1996 than re-filed in 2003 had a claim date of 1996. Additionally, claims were adjudicated based on the claim date. A 1996 claim re-filed in 2003 was processed prior to other claims filed in 2002.

As you can see the special considerations I am requesting in my veterans claim are no different than those afforded to other veterans whose claims have been denied without the benefit of a C&P exam. I maintain that the failure provide a C&P exam is a significant failure in the adjudication process. My interpretation is not that one law is given favor over another. My interpretation is that some adjudication processes are more detrimental to a fair outcome than others. As such, the process needs to be re-established rather than giving one law favor over another.

I'm really glad you made your post. The thing I like most about hadit is that difference of opinion causes the individuals to focus. I really hadn't given much thought to the actions taken by Congress back when claims were being denied for not being well grounded. I probably would have overlooked this when developing the arguments I plan to take up with the director of the RO, Congress and the federal court.

One issue that also makes this case unique is that the process the VA failed to apply has specifically been addressed by a previous federal court decision. I have read case decisions whereby the federal court makes a ruling that sets procedures for adjudicating a claim and later a claim is appealed to the federal courts that ignored the prior ruling made by the court. The federal courts response when they determine that the VA ignored the prior ruling and has advanced a second case to the court is not pretty. The federal court does not like repeating itself. They become very upset and make it quite clear that they do not appreciate the VA's position. I am not going to wait for this case to be appealed all the way to the federal court. I am of the opinion the VA could be intentionally ignoring the court decision. I will invoke an investigation into the possibility. It will cause the VA more time and effort to deal with a potential investigation then it will to revisit this claim.

I initiated a similar investigation into the denial of a Social Security claim. The individual had been denied Social Security in a complex claim. It was obvious that the case was so unusual that it required special attention. However, the claim was routinely denied. The individual obtained an attorney who stated that it would take 18 months and require a determination from a law judge to obtain Social Security benefits. A few days later I wrote a letter to the Social Security administration indicating a routine review of this particular claim was not adequate and the person making the decision should have sought expert advice prior to the denial. I threatened to have the procedure used to deny the claim and the individual signing the denial investigated. Within three weeks the individual received a letter stating that his claim had been forwarded to an attorney advisor. The attorney advisor awarded Social Security. Entire process took six weeks. When the individual went back to the attorney and told her he got a Social Security the attorney was dumbfounded. The attorney stated that she had processed over 20,000 Social Security claims while heading a program for the County of Los Angeles designed to obtain Social Security benefits for individuals on general release welfare. The attorney stated she knew the Social Security Administration had attorney advisor. However, she had never heard of a case being sent to such an advisor. I have heard that the VA also has attorney advisors. My point being that squeaky wheel gets the oil. When the VA blows off federal court decisions and makes determinations denying a C&P exam prior to a decision every wheel on this buggy will be squeaky.

Edited October 3, 2009 by Hoppy

[Pete53]

Go get them Hoppy!!!!!!

[Hoppy]

It took two hours and gave me a headache.

"Rules for Claims the Denial of Which Became Final After the Court of Appeals for Veterans Claims Decision in the Morton Case." This section requires the Secretary to, upon request, readjudicate claims denied between July 14, 1999, and November 9, 2000, as not well grounded "as if the denial or dismissal had not been made."

My SO told me told me that "dismisal had not been made", gave the claim denied under Morton all priorities associated with the original claim date. I was off on the dates. It only involved claims for a period of a year and a half.

In the process of finding this there were tons of GAO reports on how readjuducation of these claims jammed the system.

[Wings]

It took two hours and gave me a headache.

"Rules for Claims the Denial of Which Became Final After the Court of Appeals for Veterans Claims Decision in the Morton Case." This section requires the Secretary to, upon request, readjudicate claims denied between July 14, 1999, and November 9, 2000, as not well grounded "as if the denial or dismissal had not been made."

My SO told me told me that "dismisal had not been made", gave the claim denied under Morton all priorities associated with the original claim date. I was off on the dates. It only involved claims for a period of a year and a half.

In the process of finding this there were tons of GAO reports on how readjuducation of these claims jammed the system.

x

x

x

Hoppy, What was the YEAR (date) of your vet's original claim; wherein he was denied a compensation or pension/disability examination? At that point in time or year(s), was he ever provided a general examination under Chapter 17, VA Medical Benefits package? ~Wings

[sharon]

Hoppy,

This may help.

http://www.gao.gov/new.items/d02412.pdf