ptsd Akwidow

[e4766]

Yahoo!! From what I've read, no one is more deserving.

e4766/Carolyn

[akwidow]

here it comes...it was easier to paste into this window than to pdf it today...tired I guess.

Hope it helps someone -

November 12, 2009

21-4138 Notice of Disagreement

I am filing a Notice of Disagreement for my case for DIC presently at AMC in Washington DC. I am asking for the reconsideration on this issue today, and have that be done at the BVA. 38 CFR 20.202 specifically provides that the board is required to construe an appellant's arguments "in a liberal manner for purposes of determining whether they raise issues on appeal." See Robinson v. Peake, 21 Vet. App. 545, 552 (2008) ("[T]he Board is required to consider all issues raised either by the claimant or by the evidence of record.") See Hughes v. Rowe, 449 U.S. 5, 15 (1980) (Pleadings drafted by pro se litigants should be held to a lesser standard than those drafted by lawyers since "[a]n unrepresented litigant should not be punished for his failure to recognize subtle factual or legal deficiencies in his claims."); Forshey, 284 F.3d at 1357 ("n situations where a party appeared pro se before the lower court, a court of appeals may appropriately be less stringent in requiring that the issue have been raised explicitly below.").

I received a SSOC dated October 20, 2009, giving me 30 days to respond and include information relevant to this case. In the decision given on page 8 of the SSOC in the DECISION heading, paragraph #1 denied service connection for cause of veteran's death. The veteran will generally be presumed to be seeking the maximum benefit allowed by law and regulation (AB v. Brown).

In the Reasons and Bases section on page 8 of the SSOC, paragraph it states: “We received a letter requesting additional records for the veteran’s medical care in Vietnam in 1968. We responded to your letter on April 11, 2008.” What I received back in response was induction and exit medical exams. (I included them here because although the entrance exam was silent for asthma, the exit exam was not, and therefore pertinent to my claim.) There were no medical records from Vietnam, although there was a document from Ft. Hamilton in 1972 noting “Acute Respiratory Disease” (to be construed as asthma); and that the records from Vietnam were on the way.

“We received you letter and DVD. We made prints from the DVD you submitted. Upon review of the prints (documents it is determined as not pertinent to the issues on appeal.” In actual fact, the data contained on the DVD was all pertinent to PTSD being a contributing cause of death, but not listed by the AMC in the SSOC authored October 20, 2009. Under 38 C.F.R. ù 3.312(a) and ©, a veteran's death will be considered service connected when a service-connected condition was a "

contributory" cause of death, that is, where the service-connected condition or conditions were causally connected to the death and "contributed substantially or materially" to the death, "combined to cause death", "aided or lent assistance to the production of death", or had "a material influence in accelerating death".

Under the paragraph at the bottom of page 8 - Entitlement to service connection for the cause of the Veteran's death, the writer goes on to say that SC "...when the evidence established that such disability was either the primary or contributory cause of death". Under ù 3.312©(3) and (4), special consideration must be given to a service-connected disease process affecting a vital organ to determine if that disease process was a contributory cause (his brain) of death or had a material influence in accelerating death. In Dr. Shabetai's 1982 testimony, he stated unequivocally that the veteran's service-connected restrictive lung disease combined with the veteran's COPD to produce a more severe breathing problem than either one would have produced alone, and Dr. Shabetai identified the veteran's breathing problem as a factor that made it difficult to keep the veteran out of heart failure (the ultimate cause of death). R. at 700-01.

In Grottveit, supra, the claimant presented only lay evidence of causation, and presented no medical evidence of causation whatsoever. In the instant case, the appellant did present medical evidence -- indeed considerable such evidence -- relating to causation: Dr. Shabetai's 1982 testimony and the statements of four other physicians as to the possibility of a causal link between the appellant's service-connected condition and his heart failure due to idiopathic cardiomyopathy. Whether or not such medical evidence would be enough to reopen a claim, see Robinette, supra, the Court holds that this medical evidence, coupled with the special emphasis VA regulation ù 3.312©(3) places on "careful consideration" of the possibility that service-connected injuries "affecting vital organs" may have resulted in "debilitating effects . . . that would render the person materially less capable of resisting the

effects of other disease or injury primarily causing death", is enough to make the claim "plausible", "capable of substantiation", under Grottveit and Murphy, both supra. The Court thus holds that the claim was well grounded.

The writer goes on to say on page 9, paragraph 2, "The evidence of records does not show that the primary and overwhelming cause of death, metastatic colon cancer, was incurred in service, manifested within any presumptive period after service, is related to herbicide exposure in service, or was caused by a service connected condition." The SSOC says nothing about the PTSD contributing to or causing an early death to the Veteran or about any benefit of the doubt held therein. In fact, this case was remanded in part because Benefit of the Doubt was not given in this case to begin with. I ask for that consideration now. The Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the veteran. See Gabrielson v. Brown , 7 Vet.App. 36, 39-40 (1994); Smith (Morgan) v. Derwinski, 2 Vet.App. 137, 141 (1992) (Board is not free to ignore opinion of a treating physician).

My case is based on PTSD being the major secondary contributory cause of death in that his suffering of PTSD affected his psychological ability to manage his health care, manage his relationships, manage his life. My late husband did claim Agent Orange connection in May of 2003. Furthermore, where there is "significant" evidence in support of the appellant's claim, the Board "must provide a satisfactory explanation as to why the evidence was not in equipoise". Williams (Willie) v. Brown , 4 Vet.App. 270, 273-74 (1993) (citing Gilbert v. Derwinski, 1 Vet.App. 49, 53 (1990)). In Gilbert, 1 Vet.App. at 59, the Court held that the Board must evaluate the positive evidence, weigh the positive and negative evidence, and give more than a conclusory statement that the benefit-of-the-doubt rule does not apply. The SSOC did not address this issue, and the information I sent in twice to support my claim was not reviewed as it was not listed in the SSOC. This information was sent to AMC December 26, 2007 return receipt and in DVD format on December 23, 2008 as a back-up by return receipt.

There is no evidence section in the SSOC document dated October 20, 2009. I will include the documents listed below to the best of my ability. I will send them with this Notice of Disagreement in paper form, and on a DVD as a back-up that shows everything that I have included.

I have submitted proof of PTSD avoidance and denial by my late husband’s in his medical records, in VA records , in my observations and those of the people who wrote buddy letters, and in his own words. These PTSD avoidance and denial characteristics has been documented in records pertaining to diagnosis’s including but not limited to asthma, proteinuria, heart health (EEG) lipid tests and cancer screening. The threshold of plausibility to make a claim well grounded is considerably lower than the threshold for new and material evidence to justify reopening a claim. See Robinette v. Brown , __ Vet.App. __, __, No. 93-985, slip op. at 10-11 (Sept. 12, 1994), mot. for recons. granted on other grounds (Oct. 11, 1994).

Therefore, I will again list the evidence and its relevance to my deceased husbands PTSD symptoms that include avoidance and denial related to his health care. This will include letters written by my deceased husband while in country RVN, diary written in 1971 by him while in Europe after college, and pertinent medical records (or lack of) from the early 70’s to his death January 15, 2004. This evidence will include statements by doctors who treated the Veteran. This evidence will include buddy letters. This evidence will include my observations. Where the determinative issue involves either medical causation or a medical diagnosis, competent medical evidence is required to fulfill the well-grounded-claim requirement of section 5107(a); where the determinative issue does not require medical expertise, lay testimony may suffice by itself. See Grottveit v. Brown , 5 Vet.App. 91, 93 (1993); see also Espiritu v. Derwinski, 2 Vet.App. 492, 494-95 (1992).

I would like to point out additional support for PTSD being a contributing cause of my husband’s death. If you take away the asthma treatment records and look at what is left, you will see remaining - catastrophic injury treatment, and a history of not doing what his doctors tell him. You will see that without the asthma treatment, my late husband went to the doctor when the military made him – entrance and exit physicals; and for lumbago in 1975 a broken finger in 1978; an hand injured by anger in 1983; a seriously cut leg in the 80’s; frostbite incurred on National Guard training in 1989, and a car wreck in 2003. This would lead a common person to say he did not take any prophylactic care of his body, but only treated it when he saw blood or rot. "A well-grounded claim is a plausible claim, one which is meritorious on its own or capable of substantiation. Such a claim need not be conclusive but only possible to satisfy the initial burden of [section 5107(a)]." Murphy v. Derwinski, 1 Vet.App. 78, 81 (1990). In addition, the Court held in Tirpak v. Derwinski, 2 Vet.App. 609, 611 (1992) (quoting section 5107(a)), that to be well grounded a claim must be accompanied by supportive evidence and that such evidence "must 'justify a belief by a fair and impartial individual' that the claim is plausible." When doctors who did treat him for asthma found other maladies that needed treatment, you will find that the death causing issues – cancer and asthma - were what The Veteran allowed treatment of. Another classic example of PTSD is that he ignored demands for proteinuria testing, hyper lipid testing,(Cholesterol) FOBT testing before the blackmail in February 2003, and heart testing after his abnormal EKG in 1995 at a entrance test for joining Air National Guard.

When you take into consideration the fact that researchers have found a connection between asthma and PTSD; and taking this discovery into consideration, and The Veteran’s history of SC PTSD into consideration, one could easily see that PTSD found and followed The Veteran from the time he was taken down with tear gas in Vietnam in 1968 (see letter from Vietnam July 3, 1968 item 4), and was part of his life from then on. The study that links PTSD to asthma in 2007 also adds weight to this argument.

The inclusion of the transcribed 1971 diary written to an old girlfriend, item 8, shows an abnormal obsession type attitude for his bowel habits. In this diary he also talks about his drug use and escapism, his inability to concentrate, and how he “goes away” at times in his mind, and how the Vietnam War affected him. This diary illustrated his SC PTSD. I quote page two, paragraph three of a study titled “PTSD Among Vietnam Veteran Recent research findings”: “We consider the possible role of prewar risk or vulnerabilities that might, in addition to his Vietnam experience, contribute to the veteran’s PTSD symptoms. A very important element was the age of the veteran when he went to Vietnam. As we all know, younger men were more likely to be of lower rank, and thus prone to directly experience the heavier combat. This indirect link of the veteran's age through combat may not be particularly revealing, but we also documented a direct link between the veteran’s age at entry to Vietnam and his reported PTSD symptoms. This finding is suggestive of a maturation-based explanation: The younger the veteran was when he served in Vietnam, the less he was capable of "working through" his experience and the more PTSD symptoms he felt when he returned”. (The Veteran was 20 at induction)

“Another risk factor for PTSD was the veteran's history of exposure to traumatic events prior to entering the military. By trauma history, we mean being in a serious auto accident, being a victim of assault, being in a house fire, and other similar kinds of experiences. Prewar trauma history operated in a very interesting way to produce PTSD symptoms. Those men who were in heavy combat and had a history of prewar exposure to traumatic events reported higher levels of PTSD symptoms while those in heavy combat without a prior trauma history reported fewer symptoms. This difference in reported PTSD symptoms did not occur for veterans who were exposed to low levels of combat. So, there seems to be a kind of "piling on" effect--a prewar trauma history plus exposure to heavy combat can lead to more PTSD symptoms.” (The Veteran is the child of WWII Nazi concentration camp survivors; mother became possible paranoid schizophrenic and his father died in 1955 when he was seven years old, which in The Veteran’s mind was an emotional abandonment)

The above noted evidentiary citations, along with his notations on his exit exam which note asthma, shortness of breath and pain or pressure in chest and piles or rectal disease, and his mention of his asthma in his 1971 personal diary 5 times and 24 mentions of his very prominent distress over his bowel function to a short time girl friend (which is before his August 1972 release from Army Reserves) directly connect his asthma and bowel function problems to military service time periods.

Another classic example of PTSD are my observations as to his bowel habits from 1992 to his death in 2004 can confirm that he still had hyperawareness problems with his bowels which led up to his adamant refusal to have a colonoscopy to screen for colon cancer. Add the Asthma connection to the equation and one could see without a medical degree that this man suffered PTSD continually from his military service until his death; and his control issues kept him from revealing his true feelings to psychological professionals other than the very astute highly educated VA employed psychiatrists who recognized he was sandbagging his problems.

“Roberson requires . . . that the VA give a sympathetic reading to the veteran’s filings by ‘determin[ing] all potential claims raised by the evidence, applying all relevant laws and regulations.’” 357 F.3d at 1373 (quoting Roberson, 251 F.3d at 1384) (alteration in original). This duty applies “with respect to all pro se pleadings” before the VA. Id. "

It is noted in VA’s own records that The Veteran suffered from SC PTSD in at least 12 documents. It is also listed on hundreds of pages of medical records of VA production that The Veteran is service connected 50 – 100% before his diagnosis in November 2003, and with the submitted evidence displaying the classic symptoms of SC PTSD there is a preponderance of evidence that SC PTSD was the secondary contributing factor to his death. This more than meets the Benefit of the Doubt doctrine held by the VA and also proves that it was more likely than not that his SC PTSD contributed to his death. I therefore ask that you find in favor of this DIC claim.

Thank you for hearing my case and I look forward to the BVA decision.

name

1. Record of Induction January 12, 1967 lists loose medial meniscus in left knee and flat feet as only physical defects.

2. Entrance Exam January 18, 1967 at Ft. Hamilton, NY. Lists scar on left knee and left knee injury, and blister on left big toe as only anomalies and is accepted into the Army.

3. Diagnosis 4750 Acute respiratory disease Feb. 8, 1968 at Ft. Jackson, SC. This was before he went to Vietnam.

4. Page three of letter written by The Veteran ---- July 31, 1968 to friend in NYC. He says in part: “I really feel for Barbara and her asthma attack. I recently walked into some very potent CS gas and had to spend 3 days in an oxygen tank because I had not only consumed so much of it but also I am allergic to the stuff and needless to say I was a pitiful sight lying there clutching for air. The entire platoon caught the gas but I was point and about 50 meters in front of everybody. When they realized that I was not among their number they went back after me – but I thought for sure that I had had it and my number was up.” This is evidence of the PTSD and it’s intertwining with asthma, which he was plagued with from then until the day he died.

5. A study from Columbia University researchers published November 15, 2007 on Vietnam Vets shows an association of PTSD and Asthma. Study attached.

6. Page three of letter written August 31, 1968: “I’ve been thinking about sending you pictures of bombs bursting in air and the rockets’ red glare but that aint the same as in the song. Every time I see a bomb explode I thing of the poor bastards that are receiving all of the shrapnel and shit and dying. Its at first thought how pretty they are and how many of ‘them’ each bomb kills. Then I called in an artillery barrage and just like in the movies I threw up.” Killing the enemy was a traumatic action for my late husband, and became one of his PTSD triggers

7. Exit Exam Jan. 8, 1969 on page one The Veteran lists Asthma, hay fever, shortness of breath, pain or pressure in chest, cramps in your legs, piles or rectal disease, and foot trouble under #20 of the examination form. In #39 on form – doctor’s comments, doctor states veteran has callus right foot; hay fever “asthma” one year ago; can ascend stairs; left knee pain; and “no hemorrhoids now”.

8. 1971 Diary pages noting bowel irregularities 24 times and mentions his asthma five times. 25 pages transcribed. I sent parts of this diary in my previous submission. I chose to transcribe it for your ease of use in this submission of data in my request for reconsideration.

9. 1972 August 09 The Veteran was released from the Army Reserves in New York.

10. 1974 The Veteran was allergy tested at Ft Richardson, AK and found to have allergic asthma, given shots. 9 pages. Scratch test for allergies – 10/31/1974

11. 03/07/1975 Treated for asthma Anchorage Same page 09/29/1977 Chronic Asthma 10 days in hospital, and application for medical benefits 02/18/1975

12. 1978 January Application for medical benefits.

13. 4/18/1978 Application for Medical Benefits Veteran reports he was treated at Fort Richardson in 1974, 1975 and 1976

14. 5/20/1978 Broken finger Application for Medical Benefit

15. 1978 Large asthma attack at Elmendorf AFB - Big attack, .3 EPI injection given

16. January through May 1978 Medical record from Dr---------- diagnosis of exogenous asthma

17. 05/07/1978 Admission to Alaska Hospital and Medical Center for severe asthma. Diagnosed Asthma, moderately severe.

18. Application for Medical Benefits 12/23/1978 ----------- Hospital. Note he does not cite treatment since Vietnam in item 21.

19. Application for Medical Benefits 01/01/1979 P----------- Hospital note he does not cite treatment since Vietnam in item 21

20. Diagnosis of Severe asthma 03-09-0979; ER record of 01/01/1979

21. Diagnosis of severe asthma 01/09/1979

22. 12/19/1980 Chronic Asthma ----------- Hospital

23. 05/07/1983 Application for Medical Benefits slammed his hand on table in fit of anger

24. Treatment records for angry hand slam on table 05/07/1983

25. 1984 Request for records from Vet to Va 1984

26. 01/27/1985 Application for Medical Benefits for prescriptions for asthma

27. 05/15/1985 Registration at Vet Center in ---------- College educated as a teacher but pounding nails??? Very bad for his asthma.

28. 04/28/1986 Application for Medical Benefits Denies being treated by VA.

29. 06/08/1986 ----------- Vet Center application for PTSD SC

30. 1988 Counseling records from Vet Center

31. 1988 counseling record notes denial, unreliable, demonstrates symptomology of PTSD. Notes Vet most likely has a grand case of PTSD

32. 1988 Counseling record----------- Vet Center. Notes The Veteran is disinterested, distant, happy with the way he is, nothing wrong with him. His asthma is worse when he gets upset; has no regular job.

33. 1988 Counseling record ----------Vet Center. No resolution to his problems

34. 01/20/1989 Dr. --------- says no follow-up on frostbite incurred during N Guard Brim Frost training

35. 06-28-91 through 01/02/1992 4 pages Counseling record --------Vet Center PTSD, etc

36. 1991 and 1992 Counseling record ---------- Vet Center list of counseling visits

37. Counseling record -------- Vet Center Intake form

38. 1991 Treatment record mentions PTSD, obsession, wife brought in vet

39. 1991 Counseling record ---------- Vet Center 4 pages

40. 07/01/1992 VA requests The Veteran’s PTSD records – affirmation and recognition of PTSD

41. 07/10/1992 release of records to VA for counseling records

42. 04/03/1992 through 05/21/1992 Counseling records --------- Vet Center notes PTSD, divorce, Depression and anxiety

43. 06/01/1992 submission of corrected financial worksheet. Poverty level 3 pages

44. 10/02/1992 Appl for Med Benefits notes change of address and telephone number 5 pages

45. 1993 treatment record from --------- Vet center notes PTSD among problems

46. 05/03/1993 ---------Hospital note Theophylline level low

47. 04/23/1993 Hospitalized for asthma Dr --------- and ---------Hospital 4 pages

48. 06/01/1993 Hospitalized for asthma

49. 06/22/1993 Dr --------- record Asthma

50. 09/17/1993 to 11/16/1993 Dr --------- sees him for asthma med renewals

51. 03/03/1994 Dr --------- sees him for asthma med renewals

52. 03/08/1994 Blood test showing Theophylline level is low again.

53. 07/14/1993 Dr. --------- treatment records notes The Veteran’s avoidance in thoughts and feelings, diminished interest, detachment, and restricts affect, persistent symptoms of increased arousal, anger – reacts to loss of control of others, concentration – can only handle one issue at a time, hyper vigilance – loud noises.

54. 07/14/1993 Treatment plan from --------- Vet Center

55. 12/02/1994 The Veteran tells Dr. --------- that as long as he takes his meds, he is fine – if only he would have….

56. 05/23/1995 Wife calls VA for theophylline

57. 05/25/1995 Theophylline level test result low

58. 05/25/1995 Dr. --------- treats asthma -

59. 10/30/1995 National Guard Physical, noted abnormal EKG and prostate. I as wife never say any follow-up on these problems, not mention of them by my late husband

10/30/1995 While filling out a medical history for NG, The Veteran first denied asthma, then added it as a problem

60. 06/06/1996 Dr. --------- treats asthma with letter for light duty

61. 06/07/1996 Dr --------- treats for asthma; 09/27/1996 Dr. --------- treats for asthma

62. 08/26/1996 Diagnosis of a 60% lung capacity. Tested for ability to wear a supp. Air respirator

63. 01/03/1997 <A name=OLE_LINK1>Dr --------- treats The Veteran for asthma; 02/03/1997 Dr --------- treats The Veteran for asthma; 03/05/1997 Dr --------- treats The Veteran for asthma

64. 03/10/1997 Dr --------- treats The Veteran for asthma – letter to NG asking for substitution of alternate PT from running

65. 08/15/1997 Dr --------- treats The Veteran for asthma; 11/14/1997 Dr --------- treats The Veteran for asthma – sick, but than had no show

66. 11/14/1997 Triage note about asthma treatment allowed at Dr. --------- in ---------

67. 11/25/1997 Came in for Asthma meds. Advised by VA to have cholesterol and PSA done by primary provider in ---------; admits constipation and diarrhea; 11/25/1997 The Veteran Denies hearing problems on VA questionnaire; 11/25/1997 The Veteran refuses healthy eating advice from VA

68. 11/25/1997 FOBT kit given and not returned 11/25/1997 The Veteran refuses PTSD screening by VA; 11/25/1997 denies allergies to VA

69. 11/25/1997 notes constipation and diarrhea to National Guard

70. 11/25/1997 The Veteran admits to being in live fire combat, accidents, threatened with a weapon, somebody badly injured, but denies PTSD

71. 01/07/1999 Dr --------- treats The Veteran for asthma and flu; 07/30/1999 Dr --------- treats The Veteran for asthma and URI

72. 08/23/1999 FOBT kit given at VA, not returned. Colon cancer screen refused.

73. 10/18/1999 VA Lab tests shows high cholesterol; he never told me or sought treatment; 10/18/1999 Va list – he refuses weight control counseling; refuses FOBT kit

74. 12/09/1999 No show for a lab test at VA

75.

[cowgirl]

Akwidow that is alot of nearly identifiable personal detail - bless you for posting this NOD, my heart goes out to you fighting to get 'whats due' you. I encourage you to do something really nice for yourself - massage, hair, nails, a beautiful peice of real jewelry or even a short cruise - cause you're amazing.

Peace.

Cg

[akwidow]

yes - nearly.... identifiable.

I actually had 120 citations on that list. I don't know why the other 45 did not post, but maybe there was a limit to the length of the post. But the legal citations are all there, so one should get the idea.

Thank you cowgirl - I did do something for myself. I thanked myself for never giving up, put two years of money in an IRA, and bought backpacking equipment to go out on overnight hikes in Alaska to see the wonder of it all.

The rest of it is just sitting there until I decide how to use it. Darn saving accounts don't pay hardly any interest these days!

Edited March 19, 2010 by akwidow

[carlie]

and bought backpacking equipment to go out on overnight hikes in Alaska to see the wonder of it all.

akwidow,

Be sure to check your state benefits as I believe,you should be able to find

some discounts for state and federal park admissions.

I think at 100% you pay nothing but they may also have a discount for

a vet that is SC'd.

carlie

[chr49]

AKWidow

Thank you so much for sharing your information with us. There is a lot to be learned from your experience. Congratulations on your 'hard earned' success.