Duty To Assist: Should/does Va Routinely Consider Sc For Aggravation Of Conditions

[acesup]

I'm still waiting for my DRO review/hearing, since my NOVA attorney filed N.O.D. 4 1/2 months ago on 11/15/11.

In my claim for various secondary conditions to my SC lumbar spine problems including chronic low back strain and Degenerative Disk Disease as well as spinal canal stenosis and more, I was turned down for everything, including some no-brainers like sciatica and other nerve disorders of the lower extremities, as well as O.S.A, depression, Chronic Pain Disorder. and some problems caused by medications for my SC condition.

As I've complained in previous posts, the VA did list evidence they received from me, including expert medical opinions/nexus letters, lay evidence, etc. But the decision for each condition only referred to the C&P examiners' opinions, and in each case, stated "there is no evidence" supporting my claim for service connection, aggravation, etc... Well, there certainly is/was evidence, they simply chose to disregard it and rubber stamp the C&P opinions.

It is well-documented, and the VA doesn't disagree, that I certainly have every one of the conditions that I claim.

However, I have a question; why did the C&P examiners not opine on "aggravation", (or if they do, NOT offer any rationale as to why it wouldn't be aggravated?) and how can the VARO not REALISTICALLY examine that angle under "Duty to Assist"?

Even though VA arbitrarily dismisses my claimed conditions as anything but SC, how can they possibly get away with ignoring "aggravation". For instance, my lower extremities having serious nerve function problems; what idiot wouldn't realize that it HAS to be aggravated by the nature of D.D.D.? How could Depression or Chronic Pain Disorder NOT be aggravated by the lumbar condition?

My attorney does address this in the N.O.D. I hope someday soon to be getting a date with the DRO, but until then, just seeking answers.

[john999]

Carlie

You can go to the CAVC and look up my 2012 case under King,John. It will show you the latest BVA decision where they go into a lot of BS, but they do admit I have a valid CUE because the VA had a medical report on record that they excluded from the original rating decision. However, my claim was denied because they said I could not meet the third branch of a CUE in that I could not show it was "undebatable" that this error they made would have resulted in a higher rating. So the BVA denied my CUE and now it is at the CAVC to be reargued again. What the VA is saying now is that any claim that can be debatable can not be a CUE. If a psychiatrist with 20 years experience makes a DX and prognosis and then a VA employee who is just an nurse's aide makes a comments suce as " patient seems calm today" this make the claim debatable. So the patient may have been hypomanic for a year and all this has been documented by a shrink and it means nothing because it is debatable due to statement by someone with no credentials.

John

[Teac]

Carlie

You can go to the CAVC and look up my 2012 case under King,John. It will show you the latest BVA decision where they go into a lot of BS, but they do admit I have a valid CUE because the VA had a medical report on record that they excluded from the original rating decision. However, my claim was denied because they said I could not meet the third branch of a CUE in that I could not show it was "undebatable" that this error they made would have resulted in a higher rating. So the BVA denied my CUE and now it is at the CAVC to be reargued again. What the VA is saying now is that any claim that can be debatable can not be a CUE. If a psychiatrist with 20 years experience makes a DX and prognosis and then a VA employee who is just an nurse's aide makes a comments suce as " patient seems calm today" this make the claim debatable. So the patient may have been hypomanic for a year and all this has been documented by a shrink and it means nothing because it is debatable due to statement by someone with no credentials.

John

John this is nothing new, the CUE claims have always been undebatable..

The Court has held that for there to be a valid claim of CUE, there must have been an error in the prior adjudication of

the claim. See Russell v. Principi, 3 Vet. App. 310, 313 (1992) (en banc). Either the correct facts, as they were

known at the time, were not before the adjudicator or the statutory or regulatory provisions extant at the time were

improperly applied. Id. CUE is error that is undebatable so that it can be said that reasonable minds could only conclude

that the original decision was fatally flawed at the time it was made. Id. at 313-14. A determination that there was CUE

must be based on the record and law that existed at the time of the prior adjudication in question. Id. at 314.

[john999]

Teac

In my claim my lawyer, and my psychologist, whose report was excluded, believe that reasonable minds would find it undebateable that a two page report made on a now extinct VA medical form would not find it debatable that one line in a night log made by an attendant is somehow equal to testimony under oath by a state certified clinical psychologist. Everything is debatable otherwise except death, and that is debatable now that a person can be brain dead but be kept alive for years to harvest organs. The words "undebatable", "reasonable minds" are really concepts that could be discussed and argued about for a thousand years. Reasonable minds went to war many times in the 20th century and killed about 100 million people. That is the opposite of reasonable but they ran the world governments then and run them today.

[Teac]

Teac

In my claim my lawyer, and my psychologist, whose report was excluded, believe that reasonable minds would find it undebateable that a two page report made on a now extinct VA medical form would not find it debatable that one line in a night log made by an attendant is somehow equal to testimony under oath by a state certified clinical psychologist. Everything is debatable otherwise except death, and that is debatable now that a person can be brain dead but be kept alive for years to harvest organs. The words "undebatable", "reasonable minds" are really concepts that could be discussed and argued about for a thousand years. Reasonable minds went to war many times in the 20th century and killed about 100 million people. That is the opposite of reasonable but they ran the world governments then and run them today.

John,

I just quoted you what the va states everytime they deny a CUE claim. That doesn't mean I agree with it, but the truth is the COVA almost never over turns a denied CUE. As you know I was denied a cue claim in Jan 2010, and I am still waiting on my de novo apeal... I think the va gets away with screwing far to many veterans but it is what it is......

[john999]

Teac

My lawyer has said if we lose at CAVC we will appeal to Federal Court because of issues involved.

In my case the VA allowed itself the right to exclude all evidence that would tend to demonstrate for a much higher rating. They allowed all evidence that supported a lower rating even notes from unqualified people. My rights to due process were violated at least. It would be as if you went to court and the prosecution was allowed to put on it case and you were not allowed to put on the case for the defense. If that is what CUE is about then it is just a farce.

Teac

My lawyer has said if we lose at CAVC we will appeal to Federal Court because of issues involved.

In my case the VA allowed itself the right to exclude all evidence that would tend to demonstrate for a much higher rating. They allowed all evidence that supported a lower rating even notes from unqualified people. My rights to due process were violated at least. It would be as if you went to court and the prosecution was allowed to put on it case and you were not allowed to put on the case for the defense. If that is what CUE is about then it is just a farce.