ptsd My Dic Case Hinges On Ptsd

[akwidow]

So I read along, and read along, watchng and reading, about those of you who have C&P exams, and about how when you file a claim for disability benefits, the VA makes you an appointment for a C&P to examine you and your symptoms.

Has it always been this way? When my late husband filed for PTSD in the 80's, they never scheduled him a C&P and he was denied; and when he filed in the 90's there never was one then either and he was denied. There were however, counseling records at the local vet center that the VA procured, and gave me a copy when I filed for DIC that clearly showed that he was suffering from PTSD.

Isn't their not offering him a C&P for PTSD a violation of their own rules? Did I say that right?

When he filed for PTSD in 2003, he was in the hospital for cancer, and he had his Psych C&P there at the hospital, was given a gaf of 45 and granted 50% SC.

Since there were records of diagnosis of PTSD that the VA procured from the vet center counselors even though he did not have a C&P, those records should have counted as evidence for the Veteran, shouldn't they?

I brought to VA attention in my brief in 2007 that they in fact had the counseling records, but I didn't know about the logical assignment of a C&P at each filing. I told them in my brief that they should have granted him SC based on the counseling records and diagnosis they held therein in the earlier applications for PTSD SC. Instead, they of course rubber stamp denied him and he didn't know how to fight, nor did he involve me in the process.

Is the fact that I accused them of CUE in so many words in my brief, -will it have any bearing on my claim for DIC? I basically told them that he should have been PTSD rated, and should have had a higher rating many years ago. In fact, the ten year rule has some relevance if they grant earlier connection.

Will the fact that I CUE'd them in my brief cause them to pay attention to their errors on earlier rulings? The diagnosis of PTSD existed in the counseling records at the time of denials in earlier years....

I want to add that he also filed for AO in 2003, for which I later (5 years later) found symptoms of DMII and heart issues in his SMR's which you of course know are secondary AO ailments. If I am understanding what I read this is a clear case of 1151 undiagnosed illness. He was denied at the time, and then he died, and it has taken me years to understand the ramifications of what I can do to ressurect the AO claim.

It is just killing me that I do not have a copy of his C-file, but I have held off in asking for one after reading the advice of the elders here. In fact, I didn't even know I could have one until I found Hadit. Our DIC case is at AMC after a denial, denial, and remand at CAVC in Sept 2007. Should I ask for the C-file and maybe shake the tree and get an apple to drop on somebody's head? At least then human fingers will touch the file..... B) maybe I can ask my MOPH rep to get me a copy? Is that possible?

Thanks so much for all the help here,

Akwidow

Edited October 7, 2009 by akwidow

[Berta]

Can you give us docket number for the BVA cases and also a link at US CAVC to the remand?

The exact wording of any VA decision can help us give better advice as to how to proceed.

"I want to add that he also filed for AO in 2003, for which I later (5 years later) found symptoms of DMII and heart issues in his SMR's which you of course know are secondary AO ailments. If I am understanding what I read this is a clear case of 1151 undiagnosed illness. He was denied at the time, and then he died, and it has taken me years to understand the ramifications of what I can do to ressurect the AO claim."

This would be basis for Sec 1151 claim only if the VA itself ignored documented medical evidence in his clinical VA record of DMII.Was he fornmally diagnosed with DMII and treated for it before he died?

Did the DMII lend to any complications that contributed to his death-as listed on the death certificate?

And for 1151 DIC purposes-DMII would only relevant if the undiagnosed DMII contributed to his death.

Was he autopsied? Do you have copy of autopsy?

If not -what is the exact wording on the death certificate as cause of death?

You should attempt to get his C file and all available medical records.

Hypothetical DIC reguations have changed considerably as to the 10 year rule.

The Federal Circuit held that claims filed for DIC between Feb 1997 and January 2000 have no hypothetical basis.(Rodriquez V Peake, Tarver V Shenseki)

The MOPH should have the most recent version of 38 USC 1318 that shows how DIC can be granted.

I feel there isnt enough info here to really give you good advise.

If you can share the US CAVC docket number or link to the remand as well as the BVA denial Docket and Citation number- and also tell us what the cause of death was-we could help more.

[Berta]

It took me some time to find the older posts and I have better picture of what you mean here-

I think I found the BVA remand:

http://www.va.gov/vetapp08/files2/0811271.txt

Did the VA send you a VCAA letter and were you able to comply with any evidence they said they needed?

Was your husband's type of cancer (I assume this caused or contributed to his death?) a form of an STS cancer- Soft Tissue Sarcoma?

Soft tissue sarcomas are on the AO Presumptive list.There are about 34 types of STS cancers that are presumptive due to Agent Orange.

Are these claims mentioned here as to the PTSD and asthma still pending?

Have you received any VCAA letter or any other letters at all regarding them from the VA?

“The appellant's December 2007 correspondence further raises the issues of entitlement to service connection for asthma, and a higher rating for service-connected post-traumatic stress disorder (PTSD), both presumably for accrued benefits purposes. These claims, however, are not currently before the Board. See 38 C.F.R. § 20.200 (2007). Whereas these claims have not been adjudicated by the RO in the first instance, to include the question of whether they were timely filed pursuant to 38 C.F.R. § 3.1000© (2007), they are referred to the RO for appropriate development and consideration.” Did you file these 2 claims within one year after the veteran's death? BVA is presuming these were accrued benefit claims and therefore they must have been filed within one year of the veteran's death.

Are these claims -PTSD for higher rating and asthma-still open and pending issues before the VA?

The VCAA letter should have been very specific in telling you exactly what evidence the VA still needed.

Are you sure that they received the evidence they asked for and have it in the C file?

[akwidow]

Yes, that is the correct remand.

it is going to take me a while to answer all of your questions, but this I can answer -

The appellant's December 2007 correspondence further raises the issues of entitlement to service connection for asthma, and a higher rating for service-connected post-traumatic stress disorder (PTSD), both presumably for accrued benefits purposes. These claims, however, are not currently before the Board. See 38 C.F.R. § 20.200 (2007). Whereas these claims have not been adjudicated by the RO in the first instance, to include the question of whether they were timely filed pursuant to 38 C.F.R. § 3.1000© (2007), they are referred to the RO for appropriate development and consideration.” Did you file these 2 claims within one year after the veteran's death? BVA is presuming these were accrued benefit claims and therefore they must have been filed within one year of the veteran's death.

it says these claims have not been adjudicated in the first instance....where do they think I found these claims? Do they mean my initial DIC claim? Do they mean the claims for AO and PTSD were never before the RO ever? Or were never filed at all? The ambiguous structure of the statement now starts to confuse me...

Other than the fact that I feel they committed CUE in the 80's and 90's PTSD claims, I don't know if I claimed asthma and ptsd for accrued benefits until I look back at my early filings. The fact that they ignored the 2003 AO claim and did not do a C&P before denial is also in the forefront of my things to do list.

Thanks, Berta, I'll be back

[akwidow]

He was not diagnosed with DMII before he died,and it was not on his death cert. I found symptoms of DMII in his VA med records after reading your earlier posts about your own cases.

He had counseling records with diagnosis of ptsd in the 80's and 90's, and the VA got those counseling records and denied him both times.

The VA send me a vcaa letter with the remand. I had already sent in a brief with medical documentation long before I got the VCAA letter. Just to make sure, I sent another copy of everything after the remand was a year old, and this was also before the VCAA letter for the remand.

his cancer was not an AO presumptive item - it was colon cancer...adenocarcinoma.

AO and PTSD are old denied claims that I never took action on...just told VA they were wrong and included evidence as to why they were wrong with the remand packet I sent.

I did sent in another statement telling VA to cue themselves for these old issues. This document was sent over a year after the CAVC decision and before I received the VCAA letter.

No, I am not sure they have information I sent even though I sent it twice, as I have not asked for a copy of the c-file yet. They did have the counseling records, as they sent them to me! I included them in the aforementioned remand packet, all documents which I send cert mail return receipt, and the cue paper I hand carried to the RO and got a date stamped copy.

[akwidow]

I really appreciate all the brains beheld by all the members here who have worked so hard and memorized or bookmarked pertinent data for the inquiries posted on this forum. I don't expect anybody to do anything for me, I realize I am responsible for myself. So if my previous posts were construed as otherwise, I apologize.

These are my basic questions. I will gladly look up the answers if I have a clue which regulation to look at...and I need your help.

Is there a cut and dried regulation relating to C&P exams being automatically assigned before the VCAA act?

Is my only recourse a cue for the issues that my late husband applied for and was denied, since I did not reopen the claim(s) within one year of his death?

Since he opened an AO claim in 2003 and did not recieve a C&P and was denied (yes, I found symptoms of presumptive heart disease and DMII in his SMR's), and I did not address the issue within a year of his death, is my only option a cue?

Does a 1151 claim need to be insitgated within one year of the vet's death?

Thanks for all your time and dedication to ths forum. I hope someday to have enough knowledge to help another vet myself some day.

Akwidow