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

[akwidow]

SSOC tells me I have 30 days to respond or the case will go back to the BVA. I have a year to submit new evidence either way. I planned to submit and respond both within 30 days.

[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/

AK, I don't think, that the application of 38 CFR 3.312( c) would not preclude your PTSD/colon cancer DIC claim. When you read Judge Kramer's full dissenting opinion (provided below in brief), he does take note of the fact that 3.312( c)(2) specifically cites the word "generally" as meaning not precluding or prohibiting major disabilities (as opposed to minor disabilities); and 50% SC PTSD is NOT a minoor disability! Take note of the formal or informal requirements of a medical opinion: review of the records, cite the records, provide medical rationale, and cite his or her medical expertise! Keep us posted ;-) ~Wings

The death of a veteran is considered as having been due to

service when the evidence establishes that a service-

connected disability was either the principal or contributory

cause of death. 38 C.F.R. § 3.312(a) (1999).

A disability is considered the "principal" cause of death when that

disability, "singly or jointly with some other condition,

was the immediate or underlying cause of death or was

etiologically related thereto." Id. § 3.312(b).

A "contributory" cause of death must have "contributed

substantially or materially" to death, must have "combined

to cause death," or must have "aided or lent assistance to

the production of death." Id. § 3.312©.

Where a cause of death claim is premised on 38 U.S.C.A. § 1310 (West 1991),

issues pertaining to whether a particular disease or injury

was the principal or contributory cause of death are decided

without regard to any disposition of those issues during the

veteran's lifetime. 38 C.F.R. § 20.1106 (1999).

x

x

x

e-CFR Data is current as of October 29, 2009

Title 38: Pensions, Bonuses, and Veterans' Relief

PART 3—ADJUDICATION

Subpart A—Pension, Compensation, and Dependency and Indemnity Compensation

Ratings and Evaluations; Service Connection

§ 3.312 Cause of death.

(a) General. The death of a veteran will be considered as having been due to a service-connected disability when the evidence establishes that such disability was either the principal or a contributory cause of death. The issue involved will be determined by exercise of sound judgment, without recourse to speculation, after a careful analysis has been made of all the facts and circumstances surrounding the death of the veteran, including, particularly, autopsy reports.

(b) Principal cause of death. The service-connected disability will be considered as the principal (primary) cause of death when such disability, singly or jointly with some other condition, was the immediate or underlying cause of death or was etiologically related thereto.

© Contributory cause of death. (1) 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.

(2) Generally, minor service-connected disabilities, particularly those of a static nature or not materially affecting a vital organ, would not be held to have contributed to death primarily due to unrelated disability. In the same category there would be included service-connected disease or injuries of any evaluation (even though evaluated as 100 percent disabling) but of a quiescent or static nature involving muscular or skeletal functions and not materially affecting other vital body functions.

(3) Service-connected diseases or injuries involving active processes affecting vital organs should receive careful consideration as a contributory cause of death, the primary cause being unrelated, from the viewpoint of whether there were resulting debilitating effects and general impairment of health to an extent that would render the person materially less capable of resisting the effects of other disease or injury primarily causing death. Where the service-connected condition affects vital organs as distinguished from muscular or skeletal functions and is evaluated as 100 percent disabling, debilitation may be assumed.

(4) There are primary causes of death which by their very nature are so overwhelming that eventual death can be anticipated irrespective of coexisting conditions, but, even in such cases, there is for consideration whether there may be a reasonable basis for holding that a service-connected condition was of such severity as to have a material influence in accelerating death. In this situation, however, it would not generally be reasonable to hold that a service-connected condition accelerated death unless such condition affected a vital organ and was of itself of a progressive or debilitating nature.

Cross References:

Reasonable doubt. See §3.102.

Service connection for mental unsoundness in suicide. See §3.302.

[26 FR 1582, Feb. 24, 1961, as amended at 54 FR 34981, Aug. 23, 1989; 54 FR 42803, Oct. 18, 1989]

[akwidow]

The magnitude of this fight at times paralyzes me. I find myself swinging up and down emotionally, which freezes my brain and I can't find the "think and process data" button. Then I go back over the material I sent to them before they sent me the last denial, and I realize - those rubber stampers are trying to beat me down and get me to give up.

Then I go back and read gain, and realize that the PTSD manifested itself toward more than his health care in regard to colon cancer, but exhibited itself toward other aspects of his health which are illustrated in VA medical records by his non compliance to testing for proteinuria and cholestral and in his chronic and acute asthma care, which was btw recorded for posterity by a letter of his from RVN in 1968 where he talks about when he was hit by tear gas so bad he was put in an oxygen tank for three days...but that is another story and another claim.

When I talk to Ken Carpenter's paralegal on November 12, I will ask the hopefully correct questions, and send in either a NOD or Request for Reconsideration, based on the errors in the SSOC and the lack of listing of informatkon they received and apparently did not review the last time, OR NOT, because of what the attorney's staff tells me.

Thanks again for all of your time and work, and I will keep Hadit up on the saga.

[akwidow]

I have been going through all my papers - two bankers boxes and about 6 inches of records to catalog once again - the first batch with the second...when I found the brief that got me the remand at BVA...Mr. MOPH lawyer based his brief on Benefit of the Doubt...how I didn't get it, and got me a remand. Of course, it was denied at AMC just last month...I sent in 170 pages of supporting documents all about PTSD, which they said did not apply to the remand! They did not list them either...

I looked around and said - What, do they think I am stupid and will give up?

I feel even better now, 'cause they in no way addressed the remand instructions, and broke their own rules.

Hello Mr. Carpenter, I will have it all lined up for you....

[Wings]

I have been going through all my papers - two bankers boxes and about 6 inches of records to catalog once again - the first batch with the second...when I found the brief that got me the remand at BVA...Mr. MOPH lawyer based his brief on Benefit of the Doubt...how I didn't get it, and got me a remand. Of course, it was denied at AMC just last month...I sent in 170 pages of supporting documents all about PTSD, which they said did not apply to the remand! They did not list them either...

I looked around and said - What, do they think I am stupid and will give up?

I feel even better now, 'cause they in no way addressed the remand instructions, and broke their own rules.

Hello Mr. Carpenter, I will have it all lined up for you....

Atta Girl, Keep fighting!! Let us know how it goes with Carpenter? Hang in there!! ~Wings

[akwidow]

Well, I had my phone call with Carpenter's office today, and was told I had to have filed a NOD sometime in 2007 or later because of changes in Veteran law. So they told me to call back when I get denied at BVA and he will consider taking my case to the next level.

In the mean time I have been organizing like a whirlwind and will have my request for consideration sent to the AMC by Saturday, which beats my 30 day deadline. I am sending them every paper they didn't look at the last time, along with a cvouple of studies I found on PTSD that directly relate to my case. I'll be glad to post them if anybody is interested.

Thanks for all of your support, and I will continue the saga as news appears.

AkWidow

We finally got a couple inches of snow -