Dro Hearing

[carlie]

I've got another DRO Hearing Wed AM and I am a freaking wreck.

They have these damned issues so discombobulated it's a freaking

mess.

Damn - I'll be reading something and realize it's an SSOC

say from 2008 and it will state something like some material difference

from the SSOC dated 2006.

I start looking thru the evidence and it will say something like,

additional evidence contained in the SOC dated 2005 and evidence submitted

with you NOD on XXX 2004, and all evidence contained in the

Rating Decision dated 2001.

It's a friggin bunch of BS we are put through - right now I am just so

fed up and filled with hate and rage at the freaking bas*@#ds that

don't take any pride in doing adjudication or working in the mail room,

the pre-determination team, or the C&P examiners.

If it weren't for the half azzed work that is done most of the damned

back log would not exist - but hey I guess that's job security.

I just recently had 2 issues SC by BVA - one goes back to 1999.

The VARO figured the effective dates for staged ratings but they

only went by the PFT findings. The decision listed in the evidence 8 different

PFT findings to support their staged ratings - but the bas&$@( that did this

negated to look over or list any of my Echos from 1999 forward, which support

a single 100% rating from 2000 - which would also provide me SMC S from 2000.

OH but hell no - they can't do the Fing job right so now even after all the BS,

I'll have to NOD the damned VARO's poor decision because they did not bother

to adjudicate all of the evidence.

SOB's - I just want to rip the sheet out of something - I am soooooooo glad

I don't drink booze any more or for sure - I would be a bad azz drunk right now.

[retiredat44]

That was my point in my comments in hthe thread in the social chat part of these forums,, if the VA were doing their job, there would not be such as a great need for forums like these for people to get help and advice... we should be able to tell them that in our medical records we were treated for x,y,z, and the condition stil exists, has gotten much worse... and out lifes have been turned up-side down and destroyed because of the injuries and illness suffered while serving...

at that point the rater should give us our rating, then the next person (clown) should sign the check, let us get the healthcare to jeep us patched up and living, and allow our children the education benefits that are part of the package..

instead, everything the VA is uspposed to do is bungled and rubber stamped denied... then we all have to file appealed, then there becomes this nightmare backlog because the clowns there refuse to do their jobs properly... then they get promotoions, and their lives continue with new homes, cars, vacations, and their children get fed and schooled, and we get frakkked...

people like me lay in bed for 20 years taking morphine and I can't say the rest because I don't want to gross people out, but it is a miserable existance I go through everyday of my life while they continue to bungle our lives.. I bet that if the jerkoffs at the VA, lived one week in my shoes, they would put a 12 gauge in their mouth and pull the trigger because living like this is hell...

I've got another DRO Hearing Wed AM and I am a freaking wreck.

They have these damned issues so discombobulated it's a freaking

mess.

Damn - I'll be reading something and realize it's an SSOC

say from 2008 and it will state something like some material difference

from the SSOC dated 2006.

I start looking thru the evidence and it will say something like,

additional evidence contained in the SOC dated 2005 and evidence submitted

with you NOD on XXX 2004, and all evidence contained in the

Rating Decision dated 2001.

It's a friggin bunch of BS we are put through - right now I am just so

fed up and filled with hate and rage at the freaking bas*@#ds that

don't take any pride in doing adjudication or working in the mail room,

the pre-determination team, or the C&P examiners.

If it weren't for the half azzed work that is done most of the damned

back log would not exist - but hey I guess that's job security.

I just recently had 2 issues SC by BVA - one goes back to 1999.

The VARO figured the effective dates for staged ratings but they

only went by the PFT findings. The decision listed in the evidence 8 different

PFT findings to support their staged ratings - but the bas&$@( that did this

negated to look over or list any of my Echos from 1999 forward, which support

a single 100% rating from 2000 - which would also provide me SMC S from 2000.

OH but hell no - they can't do the Fing job right so now even after all the BS,

I'll have to NOD the damned VARO's poor decision because they did not bother

to adjudicate all of the evidence.

SOB's - I just want to rip the sheet out of something - I am soooooooo glad

I don't drink booze any more or for sure - I would be a bad azz drunk right now.

[retiredat44]

btw, I did ask the dro at my dro hearing why the people at the VA do not read the job descriptions for the vets that file... and he said something back that he, knew my job because he was a mechanic'.. I told him that someone at the VA did not know my job or else I would hot have had to have a hearing to tell them why they got it all wrong.. they ignore evidence, do not understand the jobs people held, never bother to even look up what the jobs are..

I suspect that the employees are on drugs and have no clue what the hell they are doing at the VA... the impression they leave me is a bunch of stupid people who have no clue what they are doing and some big boss is telling them that their goal each month is to deny everyone because they want to show their bosses they are keeping the benefits locked down and held back to show they are not giving anything away to anyone..

[carlie]

Well, I'm back from this Hearing.

The DRO was a knock - out.

Probably about 25 - 28 years old, beautiful, real short

pretty mini dress and white pumps about 6 inches high.

That's the physical description.

There were 4 specific issue to discuss.

1 - I withdrew as it was moot.

I read off my prepared verbiage.

A buddy that went with me said he was watching her and she

appeared to be listening.

We discussed several issue that were different than the 4 the DRO

was held for.

Below is a draft of the material and argument's I submitted.

Also, she did say that in briefly looking at the recent rating for

respiratory disability, the medical evidence by echo of pulmonary hypertension

that there was an error, but could make no promises at this time, etc...

They can tell you anything when your sitting there but once you leave

it can all just go out the window like nothing.

Here's a copy of my draft.

DRO OUTLINE AND CHECK LIST - MAY 18, 2011

Claimant :

Phone:

Claim #

The following would satisfy the claimant as to a complete grant of all issues

currently on appeal.

1) Grant the veteran either 100 scheduler, Permanent and Total with no

future exams along with SMC S, (due to a single 100 % (DC6600) P&T plus 60%) with an

effective date of 2/28/2000.

OR

Grant the veteran TDIU Permanent and Total with no future exams along with SMC S,

effective date 2/28/2000.

Some communications from the VARO and the BVA have stated that the issue of TDIU

was not disagreed with in a timely manner.

According to my date stamped copy (21-4138), submitted to the VARO on Feb 10, 2006,

this was disagreed with,timely as to the December 13, 2005 SSOC, as such this issue IS still on appeal.

IF THE ABOVE ADJUDICATION IS GRANTED THE VETERAN WILL CONSIDER THIS

AS A COMPLETE GRANT OF ALL OF THE ISSUES CURRENTLY ON APPEAL TO INCLUDE

REMANDED ISSUES FROM PRIOR BVA DECISIONS.

IF THE ABOVE IS NOT POSSIBLE THEN THE VETERAN REQUEST'S :

1) Re-adjudicate and correction of error in the November 16, 2010 VARO Rating Decision per:

Issue - Lung Condition - DC 6600

Service connection for this issue was granted by BVA, see Decisions dated May 19,2010

and August 17,2010.

VARO rating Decision dated November 16, 2010 assigned the effective dates and staged ratings,

but negated to apply all of the medical evidence of record to the schedule of ratings,for the staged ratings.

The decision maker only applied the evidence shown by the PFT and DLCO readings and negated

to factor in the medical evidence of record,shown by Echocardiogram dated 2/28/2000.

This Echo clearly states, "Mild Pulmonary Hypertension (PAP 35 MMHG).

This Echo is both probative and credible medical evidence that supports an evaluation

of a single 100 percent rating, for this issue alone.

A copy of this Echo is also being submitted even though it is clearly already of record.

DC6600:

6600 Bronchitis, chronic:

FEV-1 less than 40 percent of predicted value, or; the

ratio of Forced Expiratory Volume in one second to Forced

Vital Capacity (FEV-1/FVC) less than 40 percent, or;

Diffusion Capacity of the Lung for Carbon Monoxide by the

Single Breath Method (DLCO (SB)) less than 40-percent

predicted, or; maximum exercise capacity less than 15 ml/

kg/min oxygen consumption (with cardiac or respiratory

limitation), or; cor pulmonale (right heart failure), or;

right ventricular hypertrophy, or; pulmonary hypertension

(shown by Echo or cardiac catheterization), or; episode(s)

of acute respiratory failure, or; requires outpatient

oxygen therapy... 100 percent

The VARO Rating Decision dated November 16, 2010 clearly erred in assigning the correct

percentage evaluation for this disability. This error can be easily remedied by correcting the

percentage evaluation as follows.

Keep the 10 percent that was assigned August 26, 1999.

Correct this error by re-adjudication or a finding of clear and unmistakable error, and applying the rating criteria

correctly, to the medical evidence of record during the specified time period.

Thus granting a single evaluation of 100 percent, per the medical evidence of Pulmonary Hypertension

as shown by VAMC Echo dated 2/28/2000.

With the correction of this error please note the veteran would also be entitled to SMC S

as of 2/28/2000.

The Decision Review Officer may take jurisdiction over this issue (and other's) as the percentage evaluation granted

and effective dates are subordinate,downstream issue's of prior Notice of Disagreement's and DRO Decision's

in relationship to the disability at issue. (M21-1MR)

The error discussed above, is certainly one that rises to the level of a clear and unmistakable error.

The Schedule of Rating Disability's (38 CFR - Part 4 - DC 6600) was clearly and most certainly, incorrectly applied,

in relation to the medical evidence of record.

This error does not contain any question as to how the evidence was weighed nor any question regarding a

difference of opinion, as neither is relevant to a clear and unmistakable error.

Due to this error the veteran is not in receipt of the full benefits allowed by 38 CFR and 38 USC.

The Decision Review Officer has full and complete, single signature authority to adjudicate a clear and

unmistakable error was made. (38 CFR 3.105(a), 3.2600, M21-1MR)

The Decision Review Officer has the authority to prevent a continuance of

piece-meal adjudication of this veteran's claim issues, thereby helping to reduce the current backlog of claims

found both at the local VARO and BVA in Washington.

To do anything less would be nothing more than adding to these increasing difficulty's experienced by

both the claimant and the Veterans Benefits Administration.

ISSUES ON APPEAL:

1)

Service connection of right wrist injury with scar and problems with fingers and hand

secondary to service connected seizures.

From Rating Decision dated January 28, 2008.

"The Va examiner could not provide an opinion regarding the relationship between

your right wrist strain with scar (claimed as right wrist injury with scar and problems

with fingers and hand) and your idiopathic seizure disorder without resorting to

speculation, service connection is denied."

The decision maker failed to consider all of the medical evidence and opinion, provider by

this same examiner, done on the same day.

See EVIDENCE dated :

"Jan 10, 2008 - C&P examination for SCARS.

Jan 10, 2008 - C&P examination Hand, thumb and fingers.

SEE JOINT WORKSHEET FOR CLAIM ABOUT WRIST INJURY.

OPINION : SCAR ON THE RIGHT FOREARM FROM LACERATION IS AT LEAST AS LIKELY AS NOT

DUE TO SERVICE CONNECTED SEIZURE DISORDER .

OPINION: Regarding right wrist strain with decreased range of motion and pain & Symptoms of numbness

and pain in the right hand in the ulnar distribution, but no objective evidence of disease for the symptoms

and laceration of the right forearm in 1979; I cannot offer an opinion because any opinion would be speculation.

Discussion: Unable to make a direct connection between the laceration of the right forearm 1979

and the symptoms she is reporting. No documentation that these symptoms started with the laceration of

the right arm in 1979. She also has cervical spine disease that can cause radiculopathy."

Evidence in the examination shows the scar itself to be as likely as not due to the service connected seizure

disorder.

I contend that the C&P examiner's two separate examination, (one for scars and one

for residual injury of my wrist) when considered together, brings the medical evidence into relative equipoise as

there has been no evidence, to the contrary of any other injury to result in this residual disability of decreased

range of motion, pain and symptoms of numbness and pain in the right hand in the ulnar distribution.

When evidence is found to be in elate equipoise the Benefit Of Doubt is for application.

(38 CFR 3.102, 3.303)

The examiner's comment that the veteran also has cervical spine disease that can cause radiculopathy is relevant

to this issue as the veteran is service connected for cervical spine disease.

I contend that the scar should be service connected, secondary to the seizure disorder as opined on by

the C&P examiner,then these two separate conditions should be rated as one (as analogous; 38 CFR 4.20),

under Diagnostic Code 7804 - Scars,and be granted a 10 percent evaluation due to the painful and decreased

range of motion in the wrist.

2)

Major Depressive Disorder - claimed as depression.

Rating Decision datedJanuary 28, 2008 states,

"On the report of contact with you dated October 10, 2006, you stated that you are

claiming major depression (chronic and clinical) secondary to seizure disorder.

Your treatment reports from Bay Pines VA Medical Center dated October 5, 1978, April 18, 1979,

April 12, 2000 through April 13, 2000, and September 18, 2007 through December 6, 2007 were reviewed.

These records show you have received on-going mental health therapy for your recurrent major depressive disorder.

The VA Mental Disorders examination report from Bay Pines VA Medical Center, dated

December 20,2007 shows you stated your depressive symptoms started soon after you left the military,

but they resolved for the most part prior to your reported post-military sexual assault.

The report shows that after this assault, you reported development of significant depressive symptoms.

The examiner diagnosed you with major depressive disorder and stated that your depression is

less likely as not due to your service - connected disabilities.

The rationale for said opinion was that your depressive symptoms were essentially in remission

at the time of your reported assault, and were therefore precipitated by the reported post-military sexual assault.

As the evidence does not show that your major depressive disorder is secondary to your

service connected idiopathic seizure disorder, service connection is denied."

Of record is probative and credible medical evidence which supports that

Major Depressive Disorder/Depression is related to all of the following factors:

1) Medical conditions/ illness, that are service connected.

2) Personal trauma on active duty related to military sexual trauma.

3) Assault by VAMC - ENT doctor that was settled through mediation during a Federal Tort Claim.

The VARO has considered and stated that factor 3 above is moot to my claim issues

and I agree that is correct - but only moot when viewed in context for a claim under 1151.

To re-iterate from prior correspondence and adjudication - this claim issue is for PTSD comorbid

with Depression, directly due to active duty personnel assault.

Listed in the EVIDENCE SECTIONS of the combined Decisions/ SOC/or SSOC's are all of my VAMC Medical Records.

The following is Evidence of Record that has NOT been addressed in the REASONS AND BASES SECTIONS

or mentioned in ANY WAY, other than to be listed in the EVIDENCE SECTIONS in the above Decisions and Supplements.

1)

Progress Notes dated 01/10/2001 - PC - Dr. XXXX

"Patient is here today doing quite poorly with her depression related to her medical illnesses."

The Progress Note states "we had extensive conversation on all aspects of my care", to include

Seizures, Migraines, Bronchitis.

"She is unable to hold employment due to recurrent episodes of bronchitis and asthmatic conditions which

I feel is related to conditions she had in the military."

I contend this to be probable and credible medical evidence in relation to both claims for Depression

and an increased evaluation for TDIU.

2)

Memorandum To DVA VARO - FROM Dr. XXXX - dated 01/12/2001:

"Seizures: She is SC for them and is still having episodes which impacts her ability to work."

I contend this to be probable and credible medical evidence in relation to the claim issue of TDIU.

3)

TREATING PSYCHIATRIST / PSYCHOLOGIST MENTAL HEALTH REPORT

From Provider - VET CENTER - Dr. XXXXX Psy,D. - Dated 04/25/2000

1. Detailed current Mental Status to include examples of:

A. Mood and affect - "Depressed Due To Medical Condition"

5. "Patient has been dealing with physical limitations posed by her heart and lung condition."

I contend the above to be probable and credible medical evidence in relation to Depression.

4)

MENTAL HEALTH EVALUATION - Dr XXXXX, PH.D.., PA - dated March 10, 2004

"Much of Ms. XXXXX symptoms seem related to her sexual attacks in the military and by the physician,"

I contend the above to be probative and credible medical evidence in relation to Depression.

I continue to request service connection to be granted for Depression as the medial evidence shows it

to be comorbid with service connected medical conditions and the result of active duty personnel trauma.

3)

GERD -

This was denied as examiner stated Gerd was due solely to Hiatal Hernia and not NASID's.

Examiner stated GERD could be secondary to steroid usage but the veteran is not service connected

for a disability that requires steroids.

I am Rx'd NASIDS's to take daily for service connected headaches and pain.

I am also RX'd daily and weekly steroids now for a newly service connected disability (DC6600)

effective date Aug 1999.

4)

PTSD - Personal Assault - MST - Active Duty:

The VARO adjudications have continued to encompass PTSD in relation to the prior 1151 claim.

The claim for PTSD has clearly not been a claim for PTSD based on 38 CFR 1151

since at least 2003.

Per instruction contained in M21-1MR:

To establish service connection for PTSD as a result of active duty personnel assault,

there must be credible evidence to support the Veteran's assertion that the stressful event occurred. This does

not mean that the evidence actually proves that the incident occurred, but that there is at least an approximate

balance of positive and negative evidence that the event did occur.

I have submitted correspondence to my VARO and the BVA stating the prior claim for PTSD under 1151 was void.

A specific claim for SC of PTSD from personnel assault during active duty is clearly of record.

A Rating Decision I have found that address this issue is an

SSOC dated : 03/04/2005.

This SSOC states, "Review of your SMR's and personnel records do not

show evidence of complaint for sexual harassment nor treatment for a mental condition

associated with the alleged attacks. We also reviewed your SMR's and personnel file for

markers which are isolated events, by themselves have no specific relationship to the traumatic event,

but take on a meaning when viewed in context of other facts and circumstances contemporary

to your claims trauma or harassment. There are no markers in your records to associate with

sexual trauma.

Entitlement to compensation is denied because the evidence fails to establish that VA medical care

or educational services were the proximate cause of additional disability.

Additionally, service connection is denied because there is no evidence of the claimed event or in service markers

to support the claim, nor was it shown to have occurred in service.

WHAT THE RATING DECISION FAILED TO CONSIDER :

1) PTSD QUESTIONNAIRE -

Completed , signed and submitted to the VARO Sept, 2003, with my answers and details to the questions.

The details included who attacked me sexually and where we were stationed when the events happened.

2) A signed ROI was submitted for the VARO to obtain Vet Center records - which the VARO

did not fulfill their duty to assist in - thus I obtained the information and submitted it in person at the VARO.

VA regulations provide that VA will

not deny a PTSD claim that is based on in-service personal

trauma without first advising the claimant that evidence from

sources other than the Veteran's service records or evidence

of behavior changes may constitute credible supporting

evidence of the stressor and allowing her or him the

opportunity to furnish this type of evidence or advise VA of

potential sources of such evidence. See 38 C.F.R. §

3.304(f)(3); Patton v. West, 12 Vet. App. 272, 278 (1999).

Specifically, alternative evidence of an inservice personal trauma

If the military record contains no documentation that personal trauma, including in-service sexual assault, occurred, alternative

evidence might still establish an in-service stressful incident.

Sources of such evidence include

a rape crisis center or center for domestic abuse

a counseling facility or health clinic

family members or roommates

a faculty member

civilian police reports

medical reports from civilian physicians or caregivers who treated the veteran immediately or sometime later

a chaplain or clergy

fellow service persons, and

personal diaries or journals.

Service connection for PTSD requires a medical diagnosis of

the disorder, credible supporting evidence that the claimed

in-service stressor occurred, and a link, as established by

medical evidence, between the current symptomatology and the

claimed in-service stressor. 38 C.F.R. § 3.304(f).

VA will not deny a PTSD claim that is based on in-service personal assault without

first advising the claimant that evidence from sources other than the Veteran's service

records or evidence of behavior

changes may constitute credible supporting evidence of the

stressor and allowing him or her the opportunity to furnish

this type of evidence or advise VA of potential sources of

such evidence. VA may submit any evidence that it receives

to an appropriate medical or mental health professional for

an opinion as to whether it indicates that a personal assault

occurred. 38 C.F.R. § 3.304(f)(3) (2008).

In Patton v. West, 12 Vet. App. 272 (1999), the Court held

that special consideration must be given to claims for PTSD

based on personal assault. In particular, the Court held

that the provisions in M21-1R, Part IV, Subpart ii, Section

D, Chapter 17, which address PTSD claims based on personal

assault, are substantive rules that are the equivalent of VA

regulations and must be considered. See also YR v. West, 11

Vet. App. 393, 398-99 (1998). (The Board notes that the

aforementioned are the current provisions related to PTSD

claims based on personal assault).

M21-1R, Part IV, Subpart ii, Section D, Chapter 17 states

that, in cases of sexual assault, development of alternate

sources for information is critical. There is provided an

extensive list of alternative sources competent to provide

credible evidence that may support the conclusion that the

event occurred, to include medical records, military or

civilian police reports, reports from crisis intervention

centers, testimonial statements from confidants, and copies

of personal diaries or journals.

From M21-1MR :

a. Considering Stressors When Making the Decision

When determining the occurrence of stressors to establish service connection for PTSD, consider the following:

PTSD does not need to have its onset as a result of combat (for example, vehicular or airplane crashes, large fires, floods, earthquakes, and other disasters evoke significant distress in most involved persons)

the trauma may be experienced alone, such as in cases of rape or assault, or in the company of groups of people, such as in military combat

do not limit a stressor to just one single episode; a group of experiences also may affect an individual, leading to the development of PTSD

PTSD can be caused by events that occur before, during, or after service, and

PTSD can develop hours, months, or years after a stressor.

Notes:

The relationship between stressors during military service and current problems/symptoms will govern the question of service connection.

Despite the possibly long latent period, PTSD may be recognizable by a relevant association between the stressor and the current presentation of symptoms.

Important: Symptoms must have a clear relationship to the military stressor as described in the medical report

Alternative evidence from my Godmother (Grace XXXXXXXXXXXXX) has been submitted twice.

1) A letter, notarized and dated July 29, 2004 from the family member above,was submitted during a DRO Hearing

regarding this issue.

2) Sworn testimony was provided by the above at my BVA hearing in Sept 2009.

Testimony supports clear knowledge of active duty personnel assault's of military sexual trauma.

To establish service connection for PTSD due to active duty personnel trauma, there must be credible evidence

to support the Veteran's assertion that the stressful event occurred.

This does not mean that the evidence actually proves that the incident occurred, but that there is at least an

approximate balance of positive and negative evidence that the event did occur. (M21-1MR).

Also of importance, consideration has yet to be provided to VAMC Progress Notes dated 1/18/1979,

while an inpatient at Hames Haley VAMC. This happened less than one year after separation from active duty

and shows evidence of being in fear of a male patient, etc…

I am also submitting at this time another letter from the Vet Center dated May 13, 2011,

authored by XXXXX XXXXX LCSW. This medical evidence is in relationship to claims for Depression and

PTSD,active duty personnel assault, military sexual trauma.

I contend that there is sufficient evidence of record to support my allegation of the active duty stressor's

of personnel assault.

5)

Dependent pay for daughter. Never received.

6)

Clear and Unmistakable error of effective date granted for headaches.

The BVA dismissed this CUE claim.

[Pete53]

Good job now just sit back and relax.

Best of luck maybe you got a good one?

[jbasser]

Oh Yeah. Good presentation. I sure believe it went well and you wont have to wait too long for the VA's bell to get rung.

J

[Berta]

Yes, Carlie covered the issues here in a spectacular way-

why don't we have vet reps this good??????