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

[Wings]

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

x

x

x

Carlie, Glad to share the same understanding of the issues involved ;-) ~Wings

[deltaj]

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

Wings, Could you provide us with the full name of the Morton case, the case number, the name of the court that decided it, the date decided, etc.?

[Wings]

Wings, Could you provide us with the full name of the Morton case, the case number, the name of the court that decided it, the date decided, etc.?

x

x

x

Yes Mam! CAVC SEARCH: http://search.uscourts.cavc.gov/ ~~~~Wings

Morton v. West

96-1517 Jack W. Morton, Appellant, I. BACKGROUND The appellant, Jack W. Morton, served in the U.S.

[14 Jul 1999] http://search.uscourts.cavc.gov/isysquery/...4e17692/22/doc/

96-1517 Jack W. Morton, Appellant, the right upper extremity were not well grounded. Morton v. West , __ we voted for, a full Court decision in Morton v. West [29 Jul 1999]

http://search.uscourts.cavc.gov/isysquery/...4e17692/23/doc/

Morton Overturned

On November 9, 2000, the President signed into law the Veterans

Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475,

114 Stat. 2096 (2000).

Among other things, this law eliminates the concept of a

well-grounded claim, redefines the obligations of VA with

respect to the duty to assist, and supersedes the decision of

the CAVC in Morton v. West, 12 Vet. App. 477 (1999) withdrawn

sub nom. Morton v. Gober , 14 Vet. App. 174 (2000) (per

curiam order), which had held that VA cannot assist in the

development of a claim that is not well grounded.

This change in the law is applicable to all claims filed on

or after the date of enactment of the VCAA, or filed before

the date of enactment and not yet final as of that date.

VCAA, Pub. L. No. 106-475, ง 7(b), 114 Stat. 2096, 2099-2100

(2000), 38 U.S.C.A. ง 5107 note (Effective and Applicability

Provisions); see generally Holliday v. Principi, 14 Vet.

App. 280 (2001); see also Karnas v. Derwinski, 1 Vet.

App. 308 (1991). On August 29, 2001, the final regulations

implementing the VCAA were published in the Federal Register.

The portion of these regulations pertaining to the duty to

notify and the duty to assist are also effective as of the

date of the enactment of the VCAA, November 9, 2000. 66 Fed.

Reg. 45,620, 45,630-45,632 (August 29, 2001) (to be codified

as 38 C.F.R. 3.159).

Where the law and regulations change while a case is pending,

the version more favorable to the veteran applies, absent

congressional intent to the contrary. Karnas v. Derwinski, 1

Vet. App. 308, 312-313 (1991).

The Board is of the opinion that the new duty to assist law

has expanded VA's duty to assist (e.g., by providing specific

provisions requiring notice of what is required to

substantiate a claim), and is therefore more favorable to the

veteran. Therefore, the amended duty to assist law applies.

Id.

During the pendency of the veteran's claim, the United States

Court of Appeals for the Federal Circuit (CAFC) overturned

and vacated some parts of the development regulations. See

Disabled American Veterans et al. v. Secretary of Veterans

Affairs, Nos. 02-7304, -7305, -7316 (Fed. Cir. May 1, 2003).

[Wings]

x

x

x

Note for Hoppy:

VCAA http://frwebgate.access.gpo.gov/cgi-bin/ge...publ475.106.pdf

Duty to assist claimants

(d) MEDICAL EXAMINATIONS FOR COMPENSATION CLAIMS.—(1)

In the case of a claim for disability compensation, the assistance

provided by the Secretary under subsection (a) shall include providing

a medical examination or obtaining a medical opinion when

such an examination or opinion is necessary to make a decision

on the claim.

[akwidow]

Thank you Wings. I find this citation very relevant to my case as well. VCAA was enacted in 2000, correct? What was the rule on assigning a C&P for investigating a claim before that? My late husband filed for and was denied for PTSD in the 80's and the 90's, and granted in 2003 six months before he died. He only received one C&P, in 2003.

Akwidow

[Wings]

Thank you Wings. I find this citation very relevant to my case as well. VCAA was enacted in 2000, correct? What was the rule on assigning a C&P for investigating a claim before that? My late husband filed for and was denied for PTSD in the 80's and the 90's, and granted in 2003 six months before he died. He only received one C&P, in 2003.

Akwidow

The question you ask here, is the same question I thought Hoppy was asking about. I am certain there were "rules" for C&P examinations, but they may not have become "law" until the VCAA. I am so curious about this issue, that I will do some more research. SInce my claim was filed in 1999, I had to present a well grounded claim.

In Hoppy's case at issue here, I am thinking the veteran's claim "status" is also at Issue. IMHO, I think that veteran's claim for PTSD is still "pending"! ~~~Wings