The Ultimate Key That Opens The Door

[Josh]

I can absolutely not believe it but I have just pulled out of my files a document that I just in the last hour realized I had. Anindependant review by a neurosurgeon that has never been submitted for anybodies review ever in the VA.... Totally forgot I had it because it had been packed away in a archive plastic Case.

Check these out Carlie and Berta, this is it.... the initial moves are over and will be decided in the final play on the game. Check these out!!!

[Josh]

Imagine These have never been submitted before and had it been done so we probably never would have come t his far.

I cannot find the originals with stamp and sig but will have JC to that this week.

Edited July 9, 2011 by Josh

[carlie]

Josh,

These reports need to get to the BVA pronto -

if nothing else won't they also have to apply the benefit of the doubt being that,

(as I see it) the totality of the medical evidence falls into relative equipoise and

that means time to apply the BOD.

That is if, the BOD is for application in this type of claim.

IT is an 1151 claim at the BVA level - right ?

If so, as I remember, an 1151 claim follows most of the same regs

as a regular VA claim - once additional disability due to mal practice / negligence

has factually been established and conceded by VA.

[Josh]

Yes Carlie it is at the BVA level.... Atached is another file which again reinforces the untreated encephalitic that eventuually culminated in Bacterial encephalomyelitis. That Disease is the laboratory equivalent to MS EXCEPT, and I do not know if there are clinical studies with MS Patients and hematology population studies, but dam, I was able to walk again after getting antibiodics, and the disease that I was diagnosedwith (intermitent leukocytosis does not exist. Trust me on this.

Carlie I have approxmiatly 20 days before this needs to be in the PVA Adjudicating officers hand and The docs have basically provided all I need,,,, Just need to stay alive...

Edited July 9, 2011 by Josh

[Berta]

Carlie -that is sure an intriguing question-

"That is if, the BOD is for application in this type of claim.

IT is an 1151 claim at the BVA level - right ?"

I just read some 1151 awards at the BVA that never mention BOD or Relative Equipoise.

I read my original 1151 award and it only states the negligence as cause of death-and nothing about BOD.

It also does not appear in a local vet's 1151 award letter I have.

However when I re-opened in 2003, it was because I had missed another malpracticed disability in the original 1151 claim.

Another reason I sure wished I had obtained an IMO in those days. But IMOs were not something even vet reps would suggest in the 1990s..My DAV rep just told me I would never succeed, and never said maybe an IMO would help.

When I won the 2003 claim last year, (which was technically an additional 1151 issue but under a new claim for direct SC due to AO,

the BVA stated the medical evidence had raised "at least" to the level of Relative Equipoise. I was hoping they would say "preponderance"

but what they said was sure good enough.

So although this claim was for misdiagnosed and untreated DMII from AO contributing to death of my husband ,I did not raise 1151 at all because I already get DIC under 1151,so I had to raise the claim for direct SC DIC due to AO.

I had an unusual situation but then again this info might help someone here.

The VA at first sqwacked about my re- open saying you already get DIC and we cant award it twice as there is no monetary benefit under direct SC that you don't get under 1151.

I reminded them they would owe me a 5 figure FTCA offset if the new claim succeeded.It was 5 or 6 years or more of withheld DIC.

Then a VA 800 # told me 3 years ago, when I asked for status, that the claim would be denied because I already get DIC. When I tried to explain the claim to her she gave me a very hard time so I called VACO and raised hell and faxed them a written complaint.The Public Affairs director handed my written complaint on her to Shinseki.(they probably gave her a promotion!)

So- my long point here is- although I had an additional 1151 issue,the 2010 award was under BOD- only because direct SC renders 1151 DIC a moot issue.

I have never recalled seeing a 1151 award under BOD.But am still searching the BVA for one.

We have a few 1151ers here but I forget who and maybe they can add input to your question.It is a good one.

I have nothing more to offer on Josh's claim so I wish him the very best with it.

Edited July 9, 2011 by Berta

[Josh]

Berta and Carlie,,,,, A hand goes up in the class room and says, "My all knowing Professors, WHAT is BOD? In the back of his head a voice thinks "Does not ring any bells except for when I was walking down the beach years ago thinking..."what a hot BOD." Woof

Stupid thing to even say ... but really, what is BOD? Now I see "Benefit of Doubt"

Edited July 9, 2011 by Josh

[carlie]

http://www.va.gov/ve...es6/1047605.txt

The Board must assess the credibility and weight of all the evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. See Masors v. Derwinski, 2 Vet. App. 181 (1992); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992); Hatlestad v. Derwinski, 1 Vet. App. 164 (1991). Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value.When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the benefit of the doubt shall be given to the claimant. 38 U.S.C.A. § 5107(b). When a reasonable doubt arises regarding service origin, such doubt will be resolved in the favor of the claimant. Reasonable doubt is doubt which exists because of an approximate balance of positive and negative evidence which does not satisfactorily prove or disprove the claim. 38 C.F.R. § 3.102. The question is whether the evidence supports the claim or is in relative equipoise, with the claimant prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which event the claim must be denied. See Gilbert v. Derwinski, 1 Vet. App. 49, 53-54 (1990).

3.102

http://edocket.access.gpo.gov/cfr_2009/julqtr/38cfr3.102.htm