1998 Appeal Won A Remand Of All Issues At Cavc

[allan]

My 1998 appeal won a remand of all issues at CAVC. I just recieved it.

Now to see what the BVA will do. The CAVC judge didn't let them get away with blowing off three favorable medical opinions.

He stated the board must give adequate reasons why these three opinions were given no to little weight or probative value.

[deltaj]

Allan, V.A.'s capacity to ignore and overlook evidence amazes me. My husband for many years tried to get copies of his C file but those written requests for copies of his C file are now missing from his claims folder. My husband finally filed a form with V.A. requesting that V.A. send copies of his records to his non V.A. psychiatrist. V.A. did send an INCOMPLETE copy of the C file to that psychiatrist six years ago but we didn't learn that until last week. Six years ago husband and I met with that psychiatrist and he graciously gave the box of records to my husband. That box of records yielded one earlier effective date because of clear and unmistakable error concerning new and material evidence received during an appeal period in support of a pending claim under 38 CFR 3.156 and 38 CFR 3.400 (q).

Recently I had my husband sign a written request recently which was sent to a VARO in California for copies of his records. Soon after that written request for records as received by VARO in California, we received a phone call from VARO in Montana, the state where we now live. Early in that recent telephone call the service officer from VARO asked me, "Do you want me to send your husband a copy of his C file? I said no and told him we already had a copy of the C file which had been sent to his doctor. We spoke for a few minutes about some of the issues in his file and including V.A.'s failure to obtain records from a particular hospital in support of his claim and I became increasingly frustrated with his attitude. That V.A. employee's final words to me were, "ARE YOU SURE THAT YOU DON'T WANT ME TO SEND YOUR HUSBAND A COPY OF HIS C FILE?" I suspected he was trying to tell me something and I said, "Sure go ahead and send him a copy." My husband received those records which appear to have an earlier unadjudicated pending claim which V.A. did not make a rating decision on. V.A. gave the veteran [who later became my husband] a deadline of one year to submit evidence in support of it. As far as I know that one year deadline applies only to finally adjudicated claim not pending claims. After that he wait about six years before he filed another claim requesting reevaluation while he was hospitalized for a non service connected disability. The claim explained he was hospitalized then at a particular hospital. The notation for my SCD was added to the claim and it was denied. During the appeal period, V.A. received new and material evidence in support of that claim and years later V.A. received evidence showing he was receiving Social Security Disability when he made the claim and that evidence was considered because of continuous prosecution of the claim [38 CFR 3.400 (Q)]. V.A. had given him a 100% rating back to the date of that second claim but i think that the first claim is still pending. V.A. had made a series of denials after receipt of the second claim despite the fact that the medical evidence of record at the time of each decision stated clearly that this veteran was unemployable. V.A. made the second denial on grounds that the veteran had not provided evidence of a permanent increase in disability when there was no requirement in the rating schedule that required provide evidence of a permanent increase in disability. After the second denial, one of this veteran's doctors sent this veteran a letter stating that he had reviewed records at a particular V.A. hospital and those records showed that his medical condition was so severe that he could not be vocationally rehabilitated. A couple of years later this veteran who was then married to me told V.A. in writing to get copies of his records from that hospital but V.A. never did get those records. I believe that VARO knew those medical records would have supported the earlier pending claim. MY HUSBAND'S MISTAKE WAS NOT MAKING A WRITTEN REQUEST PERSONALLY TO THAT V.A. HOSPITAL FOR COPIES OF HIS RECORDS. HE HAD NEVER DONE THAT UNTIL RECENTLY AND 30 years after that first claim for increase it is unlikely the records in support of that pending claim still exist.

Edited April 9, 2011 by deltaj

[allan]

After I sent the BVA Dr Bash's medical opinions, they claimed he couldn't have reviewed my c-file prior to giving his opinion. According to them in the denial, they claimed I had "NEVER" requested a copy of the c-file.

So I sent the BVA, over a dozen unanswered, written requests starting in 1975 when my American Legion SO requested it. Up to one yr before Dr Bash reviewed the file the VARO just sent me. They had Dr Bash review their copy because "VETS" can alter any records they want, is what my SO informed me.

Dr Bash again stated these are the same records he already reviewed and said his medical opinion was unchanged. So they did what they always do, they Dr shopped for another opinion they wanted from one of their staff consultants. Dr bash sent in another IMO stating their consultant doesn't come close to having his training and expertice and explained in even more medical rational why my issues are service connected. The Judge pointed out they have to except all the favorable evidence or be specific why they don't.

I hope it ties their hands, but we all know the VA raters can do as they damn well please and deny till you die. Letting us die fighting appeals is their way of saving funding.

The excuse of backlogs, is how they cover their butts for their dishonerable treatment of veterans in this country.

[halos2]

• You have to win it at this step. I hope they pay you back to the beginning when you applied, and not have to "Make a Deal." and settle for 1 yr retro vs over 6 yrs. Take it now 100% P&T and disappear and never file another claim ever, or we will hold you up with exams forever and denials...I hope No one ever has to make this decision, especially YOU!

[alphahec]

Congrats!!!