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

[Hoppy]

Wings,

The veteran filed a claim in 2005 for PTSD. He abandoned the claim and thus it was denied. In 2008 he file the claim for panic disorder. The VA determined that the claim or panic disorder was an attempt to reopen the previously denied PTSD claim. As such, he received a letter in January of 2009 that new and material evidence was necessary prior to any scheduling of a C&P exam. This was explained to the veteran in a letter he received.

I did some research and found that in order for a new claim to be considered an attempt to reopen a previously denied and closed claim the new claim must have the same factual basis as the old claim. I found another federal court decision stating that the factual basis of a claim as the diagnosis not the symptoms. The PTSD claim was denied because the veteran did not submit a diagnosis of PTSD nor identify a stressor. No other development was indicated in the denial.

I have found quite a few BVA cases were claims for PTSD were considered different and unrelated and not based on the same factual merits of claims for other psychiatric conditions. In these cases the BVA cited the federal courts instruction regarding the factual basis of each claim and a determination that new and material evidence was not necessary.

The laws governing new material evidence and the procedure for reopening a previously closed claim are quite specific. I am not sure there is any way to get around them. Even if there is other laws requiring C&P exam I am not sure they will dominate specific requirements for reopening a previously closed claim. However, I appreciate your continued research and input I will keep my ears open to what you have to say.

My posts can get quite wordy. I have a new voice to text program and I can type 100 words a minute if I could talk that fast. But I really can't think that fast. So it only types as fast as I can think and spit the words out.

By the way, I did get a comprehensive review of all the records performed by a VA staff clinician who is a clinical psychologist and has performed C&P exams. The report is very favorable and states that the veteran had a panic disorder prior to discharge. I'm not sure if you've been following the posts were I discussed this report. The veteran had been seen for a period of 16 months for re-current symptoms of what is now called panic disorder. All this occurred in 1977 which was prior to panic disorder appearing in the DSM. The symptoms were clearly documented in the SMR.

I'm not as concerned that he will not be given future C&P exams. My focus at this time is how to get the new evidence from the clinical psychologist before a rater as fast as possible. I am confident the VA will schedule a C&P as a result of this new report. The VA will need to rebut the report I obtained otherwise her report is a slamdunk winner. The veteran was discharged and a military psychiatrist stated that the individual would not benefit from treatment. There was no logic explaining why treatment would not be beneficial. Not only can treatment be effective for panic disorder, untreated panic disorder and untreated panic attacks are the focus of much research which has determined untreated panic disorder and panic attacks not only causes panic attacks to worsen it also puts an individual at a high risk to develop major depressive disorder. Individuals with untreated panic attacks develop MDD at a rate six times higher than the general public. The veteran is diagnosed in 2005, 2008, and 2009 with panic disorder with comorbid major depressive disorder. The new report I obtained is three pages long and explains in detail with support of logic that the veteran has suffered a lifetime of continued panic attacks and major depression as a result of the military's failure to refer the individual treatment.

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[Hoppy]

Wings,

read my previous post first

This is why I think new and material is required prior to the scheduling of a C&P. It says a claim cannot even be considered until new and material evidence is established.

As a general rule, "when a claim is disallowed by the Board, the claim may not thereafter be reopened and allowed and a claim based upon the same factual basis may not be considered." 38 U.S.C. § 7104(B) (emphasis added). The purpose of § 7104(:D is "to preserve the finality of Board decisions." Dittrich v. West, 163 F.3d 1349, 1351 (Fed. Cir. 1998). There are only two statutorily created exceptions to the rule of finality for veterans claims in § 7104(:D. Cook v. Principi, 318 F.3d 1334, 1337 (Fed. Cir. 2002) (en banc). First, under 38 U.S.C. § 5108, "f new and material evidence is presented or secured with respect to a claim which has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim." See also 38 C.F.R. § 3.156; Barnett v. Brown, 83 F.3d 1380, 1383 (Fed. Cir. 1996) ("[T]he Board does not have jurisdiction to consider a claim which it previously adjudicated unless new and material evidence is presented, and before the Board may reopen such a claim, it must so find."). Second, a final decision "is subject to revision on the grounds of clear and unmistakable error." Cook, 318 F.3d at 1337 (quoting 38 U.S.C. §§ 5109A (decision by the Secretary) & 7111 (decision by the Board)). Thus, absent a claim of clear and unmistakable error, a veteran must present new and material evidence to support any claim for service connection that rests upon the same factual basis as an earlier claim that has been denied by the Board.

[Wings]

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Is there specific law --that states the VA must order a C@P exam prior to a denial of claim. ~Wings

[bufloguy]

Just wondering if this would apply to me?

Here is my history:

- In 1989, while on active duty I was involved in 2 separate car accidents, both involving injuries to my back, neck & head.

- The second accident was considered poly-traumatic; I was unconscious for several hours, lost 3 days of memories, sever whip-lash, broken rib, clavicle, fractured shoulder blades ect.

- The accident and all my injuries were well documented in my SMR's, including 2 years of pt for my back and neck.

- Unknowingly I was suffering from TBI & PTSD, and did not re-enlist after 6 years.

- I was granted 10% in 1991 for week foot condition, and during the VA examination - I brought up the car accident to the examiners attention, and was advised that since it didn’t happen during work it was not covered.

- Within a year of separation I started seeing a chiropractor for back & neck pain.

- In 1995, I filed an unassisted claim for back, neck, poor memory, and sever fatigue.

(I do not even remember filing this claim until I got my C-file)

- The claim was denied without a C& P being performed; they had the evidence of the accidents in my claim file& documentation from my chiropractor. What they didn’t have in my file was a nexus letter sent by my chiro to the RO. I happened to find a copy of the letter in my records.

I have not been SC for any of these issues yet, but I have had C&P exams for back , neck & TBI; for the back & neck the examiner stated more likely than not, and the TBI examiner stated is directly caused by accident.

Now once I get SC for these conditions, do you think that this thread would apply to me as well? Thanks in advance!

[Wings]

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Hoppy,

In trying to size your question down to the bare bones, what I hear you saying is that --the first, original claim for PTSD was abandoned by the vet; therefore denied by default.

The second, original claim was for Panic Disorder: two separate, original, distinct claims. Both classisfied as Mental Disorders.

The Claim for Panic Disorder was NOT a claim for PTSD, and should have been evaluated as a new claim, not as an attempt to re-open the original PTSD claim.

How am I doing lol! ~Wings

See 38 CFR 3.160 Status of claims.

[carlie]

Wings,

Welcome back !

I'm also understanding this claim as new for Panic Disorder

and not a re-open of PTSD.

Bufloguy,

Please start a new topic thread with your question.

Thanks,

carlie