ptsd Vietnam Veterans Avoiding All Va/government Contact

[BlakePaigeStone]

To: HadIt.Com

From: Sonny

Re: Avoidance Issues, (PTSD-related), of Vietnam veterans ...from all VA/Government contact; even if it concerned a needed time-limit deadline reply.

Has anyone heard anything, (including court cases), of how returning Vietnam veterans ...who suffered from PTSD, wanted to avoid any, and all, associations with, (authority figures), the VA, or any other government agency.

I'm particularly interested in cases where... 'the veteran's condition even resulted in the refusal, by the veteran, to respond to time-limits ...by which a timely appeal is determined?!'

I have just received my VARO-Honolulu notification, after submitting my NOD in May, 2011 ...that they saw my request for a 'DRO review' of my original 'CUE claim,' of May, 2010 ...for initial, (1995), rating-decision increase.

[Berta]

Refusal to respond might not be a compelling circumstance to warrant an extension of a deadline.

What type of decision did the Veteran fail to respond to?

This is the Supreme Court decision in Henderson:

http://vetlawyers.com/vetblog/index.php/2011/03/united-states-v-henderson-562-u-s-___-2011/

“Mr. Henderson had a 100 percent disability rating for paranoid schizophrenia since 1992.  In 2001, he filed a claim for supplemental benefits based on his need for in-home care.  The VA Regional Office and the Board of Veterans’ Appeals both denied Mr. Henderson’s claim.  In January 2005, Mr. Henderson filed a notice of appeal with the Court of Appeals for Veterans’ Claims (CAVC), but he missed the 120-day filing deadline by 15 days.  Shortly thereafter, CAVC ordered Mr. Henderson to explain why his late appeal should not be dismissed.  “

and:

“The Supreme Court’s decision means that there is no jurisdictional bar to the application of the doctrine of equitable tolling in appeals to the Court of Appeals for Veterans Claims.  In other words, CAVC is legally able to apply the doctrine should it deem it appropriate in a particular case.  While the decision in the Henderson case is favorable to Veterans, the Supreme Court was still careful to point out that the 120-day filing deadline to CAVC is “nevertheless an important procedural rule.”  Thus, it is still imperative that Veterans wishing to appeal to CAVC pay strict attention to the filing deadline.  While the door is open for equitable tolling to apply, it would only be applied sparingly in cases with truly compelling circumstances. “

This does not seem to apply to the vet you mentioned here but it pays to bring up Henderson from time to time.

In June there was a newspaper story regarding a ridiculous CUE a VARO committed to deny a veteran their comp-many of us advocates raised so much hell with VA (and others) that this error was corrected very fast.If the story had not been done in a newspaper, he would still be without his comp./ His SO ( a director of a vet org) told me the decision the VA had made was Correct and he was completely wrong-didnt know some basic VA case law.

My point- part of this specific vet's problem was he had missed a BVA hearing.

He had been hospitalized when the hearing occurred and BVA still denied his claim.

Then the VA determined the circumstances were "compelling" that he missed this hearing for a unexpected medical problem.

So my point is things must be VERY compelling for VA to overlook a missed deadline. I dont see anything here that would warrant that type of situation.

Most Vietnam vets I know are wary of authorative figures and have avoidance issues.

"I'm particularly interested in cases where... 'the veteran's condition even resulted in the refusal, by the veteran, to respond to time-limits ...by which a timely appeal is determined?!'"

Perhaps he could get an Independent medical opinion that states with full medical rationale that his PTSD resulted in the veteran's refusing to respond to a VA deadline."

I dont think that would fly however as the BVA has stated many times that the claims process is not a two way street.

He could re-open the claim with New and Material evidence or try to see if they committed a CUE in any past unppaealed decision.

pp

[broncovet]

Good answer, Berta.

While Henderson would allow equitable tolling in a limited number of cases where the Veteran had a compelling reason, I am not sure this applies here. The Veteran is not asking for a time extenstion, he is simply avoiding the docs and the authorities. While I certainly can understand how a PTSD Vet, for example, would "not trust the government (authorities)" because those authorities are the very ones, in general, whose decisions resulted in inflicting this malady upon him. Some PTSD Vets have paranoia, where they are suspicious of food or pills they are given causing these maladies they are inflicted with.

My guess would be that Berta is on the right track. If you could show that the Veteran suffered some sort of "authority paranoia" as a result of his PTSD, causing him to fear attending a C and P exam, then the courts would at least need to listen. However, the Vets lawyer is going to need to answer the question as to why the Veteran was not afraid of the Doctor offering the IMO/IME, but somehow WAS afraid of the C and P doc. In the instance of the IMO, it would not apply, because the IMO doc does not examine the Veteran, but instead just reviews the medical records and offers a professional medical opinion.

Its an interesting question, one that will probably take years of legal maneuvering by both sides to decide. The 64,000 dollar question is, tho, why doesnt the VA just "concede" this point to the ailing Vet, and leave him alone? Why do they insist on hiring 400 lawyers so that they can pay Vets the absolute minimum amount possible, and then take ten years to go through the courts to do this? Is the VA not chartered by congress to be a "pro claimant", ex parte system, where Veterans are given the benefit of the doubt. How is it "ex parte" if the VA hires lawyers to fight us tooth and nail on everything?

ex parte, defination: Done by, for, or on the application of one party alone.

The "ex parte" system suggests that the government does not "oppose" the Veteran. This is why, at hearings, the attorney for the VA does not "drill" the Veteran when he testifies, as what often happens in criminal court. The prosecutor will sometimes try to get the witness/defendant to make a mistake on the stand, and offer conflicting stories so that he may be discredited. At the VA, the judge/attorneys are not supposed to go on a fishing trip trying to uncover any discrepency in the Veterans sometimes decades old medical records.

The reality, tho, is that the government DOES oppose the Veteran, in other ways. I do think it is true, that if the Veteran wins benefits at the BVA or CAVC level, the government can not appeal, only the Veteran can. However, at the higher court levels, the government can/does appeal.

[Berta]

You are right Broncovet -good point-and if this vet's claim comes under the new PTSD regs- VA might not even consider any IMO at this point.

I searched the BVA under “missed deadline” and found this case:

http://www.va.gov/vetapp07/Files3/0725309.txt

In Part:

“In Barrett v. Principi, 363, F.3d 1316 (Fed. Cir. 2004), the

U.S. Court of Appeals for the Federal Circuit held that, for

the purposes of determining whether a claimant timely

appealed to that particular court, equitable tolling is

available where a veteran is able to show that the failure to

file was the direct result of a mental illness that rendered

him incapable of rational thought or deliberate decision

making, or incapable of handling his own affairs or unable to

function in society. Id. At 1321.”

However there is this catch in this vet's decision:

“Here, the record contains

no indication that the veteran was so incapacitated by mental

illness that he could not manage his affairs, to include

being unable to file the required evidence or forms.”

In another case I read BVA pointed out that the veteran (who said she missed her I-9 deadline due to inclement weather and mental illness, was competent and therefore

capable of filing the appeal on time.

Barrett V Principi might offer more help if the appeal for the vet mentioned by Blake actually filed an appeal but it was not timely.

[evandc]

Missing a deadline or a C & P is about the biggest NO NO in the VA Claims System. Dig up all the legal crap you can because this is not going to be an easy fight. I do have a heart & I know that there are cases that should be given extra consideration, but just think if the VA had thousands of these cases we would never get a decision even for people who followed the guidlines to the letter. JMHO most of the cases are crap & used to cover up for some slack ass vets that have some real problems that have nothing to do with service. Anyone understand what I'm trying to say?

[john999]

I think a lot of Vietnam vets avoided the VA in the early days. I don't think they are avoiding it now especially with presumptive AO claims. I avoided the VA for about 20 years but when my disability got worse I started trying to get justice.

[chr49]

I think a lot of Vietnam vets avoided the VA in the early days. I don't think they are avoiding it now especially with presumptive AO claims. I avoided the VA for about 20 years but when my disability got worse I started trying to get justice.

I agree with John's statement. My story is similar to John's only it took me 35 years to admit that I needed to get help. Luckily the right person was there to guide me.

My doctor told me that earlier vets (WWI, WWlI, Korean, Vietnam) were not always diagnosed with problems. PTSD was not a diagnosis back then. She worked in a California VA hospital in the late 60's thru the early 70's and saw many returning Vietnam vets. According to her, the vets that were seen were most often diagnosed with Schizophrenia for lack of any other diagnosis.

Everybody that knew me back then will tell you that I came home a completely different person. When I was discharged I was asked if I had any medical issues & I told them I was fine. All I wanted was to get out. I was offered a government job when I returned and turned it down. I didn't want anything to do with the VA, government or any authority. I had a new reality and avoidance was the name of my game.

Edited August 16, 2011 by chr49