ptsd Grrr - I Got Another Rubber Stamp Denial

[akwidow]

AMC came through with a SSOC in todays mail. Once again, I am denied for DIC.

They did not list my evidence. (spoilation?) Rubber stamp again!

They did not address my issue - that PTSD contributed to my hubbys death. (denial made while not condiserating my position)

As an aside, they mentioned the DVD I sent them with the second set of papers but did not list the evidence, and never mentioned the original documents I sent...(spoilation?)

I have thirty days to respond, which I will, with the full gamut of information I have already supplied. They said if I do not respond within 30 days, they will send the file back to the BVA. Is that good for me or bad?

GRRR I am angry.

Should I ask for a reconsideration, or make a NOD?

I had already connected the dots, supplied IMO for PTSD, and copied them with their documents pertaining to his PTSD.

My friends here are telling me to get out of the loop and get congressional intervention, even though I told them about the retribution that it can cause.... any thoughts?

Thanks, please forgive me for venting,

AkWidow

[Wings]

I sent the NOD last Saturday, Nov 14 by express mail return receipt.

I realize that the bolded commernts you put in your last post are about another malady...I got them from a supporting citation. I used them to enhance my point...not to say that cardio issues were relevant to my case. The study about PTSD and asthma -

http://health.usnews.com/usnews/health/hea...ma-and-ptsd.htm

provides the causal connection of the two maladies and the doctor IMO not listed in SSOC provides the PTSD proof, along with the 2003 C&P which states that the veteran suffered from PTSD for years but would not open up to earlier examiners due to trust and control issues sufered by the vet. Proof of asthma is in SMR's from 1968 through 2003. I also found another study that shows that PTSD is enhanced by youth and by pre-service stressors -

http://www.3-4cav.com/ptsd.htm

Since I am not a lawyer, I had to go with what I was able to put together, which includes what you found and supplied to me. If I erred because I am a pro se litigant without the legal skills needed to make a clear and concise argument, I apologize. That is why I put in the legal citation about allowing lattitude to pro se litigants.

I still feel that the fact that the lack of evidence section in the 2009 AMC SSOC supports my opinion that I did not receive Benefit of the Doubt as ordered in my remand.

I can only hope I am right.

AK Widow, I'm glad that your NOD was "timely filed". Good on you!! Your NOD was a little difficult to follow during the first few paragraphs, but it picked up clarity and purpose as you continued on ... Good luck and God Bless.

I am still waiting to hear from the Board on my Motion for Reconsideration. I sent my Request mid-July 2009, and I'm thinking that by December 1st I'll have a green light to either venue: a full panel BVA reconsideration, or a clear path to the COAVC. Hang in there --keep in touch with Carpenter. ~Wings

[akwidow]

I am sorry if I came across sharply...if you only knew how I agonized over this last go around! I realize all the participation of the contributors is on a voluntary basis...and I am grateful for all the "wisdom of the ages" that has accumulated over the extensive time of fighting for a righteous outcome of these claims.

I hope that your claim is successful too - I'll keep a watch - I have been here every day since the day I found Hadit!

BTW, I am still a little confused about submitting further evidence. In this last submission, I met the 30 day deadline...but I remember seeing something in the VCAA letter that said I could submit additional evidence within a year - if that is the case I could buy another IMO and submit it, right? I don't expect them to get to my case for ages as it is...it has only been 5.5 years. I would reread it but I am out of town until tomorrow and on another computer.

Anyway, I don't expect anybody to be a mind reader, but thought maybe there was an ironclad rule to go by.

Thanks again -

[Berta]

In my opinion I feel you should consider getting another IMO.

Or have the IMO doctors who were mentioned in the BVA denial amend their opinions and give a full medical rationale.

One can never have enough IMOs for difficult claims like yours.

I ordered IMO number four and sent the money only to learn that I had won my claim.I dont feel it was a waste of money-

but the IMOs I had were very strong and had never been challenged at all by the VARO-just ignored.

You have a difficult argument you are making for DIC.

Perhaps a good IMO doctor would see another way you could go for DIC.

[akwidow]

Thank you Berta. I will call the Psych Dr. I was recommended in Anchorage.

[Wings]

x

x

x

AK,

I don't know that you will win this round of appeal with the BVA, without first obtaining a bullett-proof Independent Medical Opinion (IMO) with NEXUS.

The IMO must provide a strong Nexus statement, Linking your veteran's service-connected disabilities (PTSD among them), to the cause of death under 38 CFR 3.312; and all other applicable laws.

3.312( c) Contributory cause of death. Contributory cause of death is inherently one not related to the principal cause. In determining whether the service-connected disability contributed to death, it must be shown that it contributed substantially or materially; that it combined to cause death; that it aided or lent assistance to the production of death. It is not sufficient to show that it casually shared in producing death, but rather it must be shown that there was a causal connection.

What I think the BVA might do, is Remand again to the AMC, with further remand instructions to accomplish what they did not accomplish in the first set of remand instructions from the BVA.

If they deny your claim at the BVA, count your blessings! That denial would become the perfect opportunity to hire an attorney, and advance your claim to the veteran's court (CAVC). Even the Court is not the final say-so; from the CAVC, you can appeal to the Federal Circuit. You have time.

In this discussion thread, there are case references --that show you what an IMO must have, in order to assign proper weight and credibility.

There really is no deadline, per se, on submitting additional evidence to the VARO or BVA level of ajudication. The genereal rules are, you must raise all of your Issues at the lower fact-finding administrative or appellate body, or those same issues can not be considered by the Court. In other words, once your claim gets to the Court, it becomes a "case", and the case becomes adverserial (as if it isn't already!).

Hang in there! Never give up --and keep talkin' to us!! HUGS!! ~Wings

Edited November 18, 2009 by Wings

[Wings]

x

x

x

What I want to know is ---has the Board complied with this rule of law, enacted 01/08/2008. ~Wings

-CITE-

38 USC Sec. 5103 01/08/2008

-EXPCITE-

TITLE 38 - VETERANS' BENEFITS

PART IV - GENERAL ADMINISTRATIVE PROVISIONS

CHAPTER 51 - CLAIMS, EFFECTIVE DATES, AND PAYMENTS

SUBCHAPTER I - CLAIMS

-HEAD-

Sec. 5103. Notice to claimants of required information and evidence

-STATUTE-

(a) Required Information and Evidence. - Upon receipt of a

complete or substantially complete application, the Secretary shall

notify the claimant and the claimant's representative, if any, of

any information, and any medical or lay evidence, not previously

provided to the Secretary that is necessary to substantiate the

claim. As part of that notice, the Secretary shall indicate which

portion of that information and evidence, if any, is to be provided

by the claimant and which portion, if any, the Secretary, in

accordance with section 5103A of this title and any other

applicable provisions of law, will attempt to obtain on behalf of

the claimant.

(b) Time Limitation. - (1) In the case of information or evidence

that the claimant is notified under subsection (a) is to be

provided by the claimant, such information or evidence must be

received by the Secretary within one year from the date such notice

is sent.

(2) This subsection shall not apply to any application or claim

for Government life insurance benefits.

(3) Nothing in paragraph (1) shall be construed to prohibit the

Secretary from making a decision on a claim before the expiration

of the period referred to in that subsection.

-SOURCE-

(Added Pub. L. 106-475, Sec. 3(a), Nov. 9, 2000, 114 Stat. 2096;

amended Pub. L. 107-14, Sec. 8(a)(12), June 5, 2001, 115 Stat. 35;

Pub. L. 108-183, title VII, Sec. 701(b), Dec. 16, 2003, 117 Stat.

2670.)

-MISC1-

PRIOR PROVISIONS

A prior section 5103, Pub. L. 85-857, Sept. 2, 1958, 72 Stat.

1225, Sec. 3003; Pub. L. 99-570, title XI, Sec. 11007(a)(1), Oct.

27, 1986, 100 Stat. 3207-170; renumbered Sec. 5103, Pub. L. 102-40,

title IV, Sec. 402(b)(1), May 7, 1991, 105 Stat. 238; Pub. L. 102-

83, Sec. 4(a)(1), (b)(1), (2)(E), Aug. 6, 1991, 105 Stat. 403-405,

related to incomplete applications, prior to repeal by Pub. L. 106-

475, Sec. 3(a), Nov. 9, 2000, 114 Stat. 2096.

Another prior section 5103 was renumbered section 8303 of this

title.

AMENDMENTS

2003 - Subsec. (b)(1). Pub. L. 108-183, Sec. 701(b)(1),

substituted "such information or evidence must be received by the

Secretary within one year from the date such notice is sent" for

"if such information or evidence is not received by the Secretary

within one year from the date of such notification, no benefit may

be paid or furnished by reason of the claimant's application".

Subsec. (b)(3). Pub. L. 108-183, Sec. 701(b)(2), added par. (3).

2001 - Subsec. (b)(1). Pub. L. 107-14 substituted "one year" for

"1 year".

EFFECTIVE DATE OF 2003 AMENDMENT

Amendment effective as if enacted Nov. 9, 2000, immediately after

the enactment of the Veterans Claims Assistance Act of 2000, Pub.

L. 106-475, see section 701© of Pub. L. 108-183, set out as a

note under section 5102 of this title.

READJUDICATION OF CERTAIN CLAIMS; NOTICE

Pub. L. 108-183, title VII, Sec. 701(d), (e), Dec. 16, 2003, 117

Stat. 2670, 2671, provided that:

"(d) Procedures for Readjudication of Certain Claims. - (1) The

Secretary of Veterans Affairs shall readjudicate a claim of a

qualified claimant if the request for such readjudication is

received not later than the end of the one-year period that begins

on the date of the enactment of this Act [Dec. 16, 2003].

"(2) For purposes of this subsection, a claimant is qualified

within the meaning of paragraph (1) if the claimant -

"(A) received notice under section 5103(a) of title 38, United

States Code, requesting information or evidence to substantiate a

claim;

"(B) did not submit such information or evidence within a year

after the date such notice was sent;

"© did not file a timely appeal to the Board of Veterans'

Appeals or the United States Court of Appeals for Veterans

Claims; and

"(D) submits such information or evidence during the one-year

period referred to in paragraph (1).

"(3) If the decision of the Secretary on a readjudication under

this subsection is in favor of the qualified claimant, the award of

the grant shall take effect as if the prior decision by the

Secretary on the claim had not been made.

"(4) Nothing in this subsection shall be construed to establish a

duty on the part of the Secretary to identify or readjudicate any

claim that -

"(A) is not submitted during the one-year period referred to in

paragraph (1); or

"(B) has been the subject of a timely appeal to the Board of

Veterans' Appeals or the United States Court of Appeals for

Veterans Claims.

"(e) Construction on Providing Renotification. - Nothing in this

section [amending this section and section 5102 of this title and

enacting provisions set out as a note under section 5102 of this

title], or the amendments made by this section, shall be construed

to require the Secretary of Veterans Affairs -

"(1) to provide notice under section 5103(a) of such title with

respect to a claim insofar as the Secretary has previously

provided such notice; or

"(2) to provide for a special notice with respect to this

section and the amendments made by this section."

Edited November 18, 2009 by Wings