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]

Wings you are wonderful! Thank you so much for that case law!

Yes, the VA has a copy of the death certificate.

Now here is a good question. Does that IMO have to be made by a famous doctor? My local professional already said that PTSD had a direct connection to my husband's death. He didn't say early death however in his statement. If his word will be enough, I can go back to him as ask for another statement that says 'early death' with a dot by dot connection, notarized of course. I have all the records to show the doctor, along with the statements of the other professionals who treated my late hubby and/or observed him over the years...

My spirit has been raised by your work, and I salute you~!

#@@#$%%!!

I hit the wrong button and just deleted my very long post! Drats! I'll re-write it again tonight. First things first, you need to locate Lathan v. Brown, 7 Vet. App. 359 (1995), and see if that case can be liberally construed as applied a colon cancer; and not narrowly applied to vital organ. I do not know if the colon is considered a vital organ ... More later. ~Wings

Edited November 1, 2009 by Wings

[Wings]

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I though this was very intelligent and well written on the part of CAVC Judge, Kramer DISSENTING - - read it closely. You need to STUDY 38 CFR 3.312 in it's entirety, as well as STUDY the regulations' application to contemporary case law --as provided below. ~Wings

USCAVC No. 93-289, Wray v. Brown, USCAVC No. 93-289 (1995)

KRAMER, Judge, dissenting:

As the majority correctly points out, one way of establishing service

connection for the cause of the veteran's death would be "if it were shown

that the [veteran's] service-connected disabilities 'contributed

substantially or materially' to cause death; 'that [they] combined to

cause death; that [they] aided or lent assistance to the production of

death.' See 38 C.F.R. 3.312( c)(1)."

While, admittedly, paragraphs ( c)(2) and ( c)(4) of 38 C.F.R. 3.312

throw a damper on the appellant's ability to use the veteran's static

service-connected disabilities resulting from musculoskeletal injuries as

a basis for demonstrating that such disabilities contributed substantially

or materially to cause or hasten the veteran's death, nevertheless, those

paragraphs are worded in terms of "generally," and thus do not establish a

strict rule. Thus, based on this standard, the evidence in this case

requires a remand.

There are three medical opinions of record which support the

appellant's contention that the veteran's service-connected disabilities

contributed to cause or hasten the veteran's death.

First, Dr. Richardson, who was the veteran's attending doctor at

the time of his death, wrote a July 1989 letter which stated as follows:

Although his death was presumed to be cardiac, [the veteran]

had a history of an old injury to his leg that occurred while

he was in the Army. [The veteran] was also very anxious and

suffered from insomnia for a good many years. I think it was

entirely possible that these conditions contributed to his demise.

R. at 161. The following notation was at the bottom of Dr. Richardson's

letter: "Addendum to death certificate." Ibid.

Second, Dr. Joyce wrote a January 1990 letter which stated as follows:

I treated [the veteran] for hypertension, diabetes mellitus,

pylorspasm [sic], multiple joint pain and anxiety. X-rays in

1985 revealed degenerative changes of left knee. It is my opinion

that these conditions could have contributed to his death on May 20, 1989. R. at 244.

Third, Dr. Williams wrote a May 1990 letter which stated as

follows:

[T]o a reasonable degree of medical certainty, it is my expert

opinion . . . that [the veteran's] chronic pain condition

resulting from his service[-]connected injury did indeed

contribute to the hastening of his death. R. at 251.

The majority relies on Dr. Abrams' January 1992 report to support the

Board's conclusion that the veteran's service-connected disabilities did

not substantially or materially contribute to cause or hasten the

veteran's death. However, a close examination of Dr. Abrams' report

reveals that his opinion cannot support the Board's conclusion.

Initially, it should be noted that Dr. Abrams was asked only whether the veteran's

service-connected disabilities "cause[d] or contribute[d] substantially to

the heart disorder which caused his death," R. at 583, but was not asked

whether the veteran's service-connected disabilities, irrespective of any

causal relationship to the heart disorder, contributed substantially or

materially to cause or hasten the veteran's death. See 38 C.F.R. 3.312

( c)(1) ("[c]ontributory cause of death is inherently one not related to the

principal cause"). In addition, Dr. Abrams' report does not reflect any opinion

about whether the veteran's service-connected disabilities contributed to

cause or hasten the veteran's death, nor does the majority or the Board

point to any such statement.

For the reasons stated above, I would remand to the Board for a

statement of reasons or bases as to why it rejected the above-referenced

evidence in support of the appellant's claim, see Gabrielson, supra, and

for a supplemental independent medical expert opinion addressing whether

the veteran's service-connected disabilities contributed substantially or

materially to cause or hasten the veteran's death. See 38 C.F.R. 3.312( c)(1).

[akwidow]

I found Lathan v Brown and am reading it. I will look for definition of 'vital organ'.

http://search.uscourts.cavc.gov/isysquery/...c3942f2d/5/doc/

[Berta]

The initial BVA denial contains many points-

the death certificate amended to include PTSD was given no weight at all by the BVA.

This is not unusual. The BVA sometimes accepts amended death certificates but many times they don't.

The addition of PTSD to the death certificate needs a full medical rationale before BVA would accept PTSD as copntributing to death.

Also your first denial:

http://www4.va.gov/vetapp06/files4/0620731.txt

states exactly why they rejected your medical opinion.

If you are attempting to get another medical opinion the doctor must state a full medical rationale as to why your husband's PTSD contributed to his cause of death.

The doctor should refer to any treatise or medical study as well as state his or her medical background that gives their opinion credibility.

I dont know how long you have to submit this evidence.

Do you have a deadline?

[Wings]

I found Lathan v Brown and am reading it. I will look for definition of 'vital organ'.

http://search.uscourts.cavc.gov/isysquery/...c3942f2d/5/doc/

Search CAVC for the exact term: "hasten the veteran's death"

Examples

1. USCAVC No. 93-289, Wray v. Brown (1995)

"... close examination of Dr. Abrams' report reveals that his opinion

cannot support the Board's conclusion. Initially,

it should be noted that Dr. Abrams was asked only whether the veteran's

service-connected disabilities "cause[d] or contribute[d] substantially to

the heart disorder which caused his death," R. at 583, but was not asked

whether the veteran's service-connected disabilities, irrespective of any

causal relationship to the heart disorder, contributed substantially or

materially to cause or hasten the veteran's death. See 38 C.F.R. 3.312

( c)(1) ("[c]ontributory cause of death is inherently one not related to the

principal cause"). In addition, Dr. Abrams' report does not reflect any opinion

about whether the veteran's service-connected disabilities contributed to

cause or hasten the veteran's death, nor does the majority or the Board

point to any such statement. For the reasons stated above, I would remand to the Board for a

statement of reasons or bases as to why it rejected the above-referenced

evidence in support of the appellant's claim, see Gabrielson, supra, and

for a supplemental independent medical expert opinion addressing whether

the veteran's service-connected disabilities contributed substantially or

materially to cause or hasten the veteran's death. See 38 C.F.R. 3.312( c)(1)."

2. USCAVC, No. 05-1469, Patterson v. Mansfield, (2007)

"The Board relied on Dr. Rudraraju's report to support its

conclusion that the veteran's service-connected disabilities did not

substantially or materially contribute to cause or hasten the veteran's

death. However, Dr. Rudraraju's report cannot support the Board's

conclusion. Dr. Rudraraju was asked only whether the veteran had

hypertension in service or whether his below-the-knee amputation caused

him to suffer from hypertension or other cardiovascular disease. R. at

383. He was not asked whether the veteran's service-connected

disabilities, irrespective of any causal relationship to the hypertension

or any other heart disorder, contributed substantially or materially to

cause or hasten the veteran's death. See 38 C.F.R. 3.312( c)(1)

("[c]ontributory cause of death is inherently one not

related to the principal cause"). Dr. Rudraraju expressed no

opinion about whether the veteran's service-connected disabilities

contributed to cause or hasten the veteran's death. The appellant argues

that Dr. Rudraraju's opinion was deficient because the opinion did

not address a key issue-whether the veteran's service-connected

disabilities "contributed substantially or materially" to cause

death. Appellant's Br. at 20-21. The Court agrees with the appellant

that Dr. Rudraraju's opinion is inadequate because it does not discuss

whether the appellant's service-connected disabilities contributed to his

death. Accordingly, a remand is appropriate because

the Board relied upon an inadequate medical opinion to deny the

appellant's claim. Barr v. Nicholson, 21 Vet.App. 303 (2007).

[Wings]

The initial BVA denial contains many points-

the death certificate amended to include PTSD was given no weight at all by the BVA.

This is not unusual. The BVA sometimes accepts amended death certificates but many times they don't.

The addition of PTSD to the death certificate needs a full medical rationale before BVA would accept PTSD as copntributing to death.

Also your first denial:

http://www4.va.gov/vetapp06/files4/0620731.txt

states exactly why they rejected your medical opinion.

If you are attempting to get another medical opinion the doctor must state a full medical rationale as to why your husband's PTSD contributed to his cause of death.

The doctor should refer to any treatise or medical study as well as state his or her medical background that gives their opinion credibility.

I dont know how long you have to submit this evidence.

Do you have a deadline?

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I wholeheartedly agree with Berta, that the Coroner (as well as any other medical opinions on the Issue) should provide expert medical rationale as to why PTSD contributed to the cause of death.

However, keep this in mind,

a) the medical opinion must undertake a review of the medical or clinical record,

b) the medical opinion must cite the medical or clinical record

c) the medical examiner must provide his or her credentials, or state that he or she has expertise in the matter.

d) These questions need to be answered by the medical opinion:

1. Whether the veteran's service-connected disabilities

[PTSD, psychiatric impairment] "caused or contributed substantially

to his death"

2. Whether the veteran's service-connected disabilities

[PTSD, psychiatric impairment], irrespective of any causal relationship

to the Colon Cancer, contributed substantially or materially to cause or hasten the

veteran's death. See 38 C.F.R. 3.312( c)(1) ("[c]ontributory cause of death

is inherently one not related to the principal cause")

3. In order to be a contributory cause of death, it must be

shown that there were "debilitating effects" due to a

service-connected disability that made the veteran

"materially less capable" of resisting the effects of the

fatal disease or that a service-connected disability had

"material influence in accelerating death," thereby

contributing substantially or materially to the cause of

death. See Lathan v. Brown, 7 Vet. App. 359 (1995);

38 C.F.R. § 3.312©(1).