ptsd Interesting Bva Citations---

[Berta]

"The duty to assist is not

always a one-way street. Woods v. Gober, 14 Vet. App. 214,

224 (2000); see also Hurd v. West, 13 Vet. App. 449, 452

(2000) (veteran cannot passively wait for help from VA). "

The veteran had filed this claim prior to the VCAA however the VA did give ample notice of want he needed to prove his case.

"The Board also notes that the United States Court of Appeals

for Veterans Claims (Court) has held that the plain language

of 38 U.S.C.A. § 5103(a) (West 2002), requires that notice to

a claimant pursuant to the VCAA be provided "at the time"

that, or "immediately after," VA receives a complete or

substantially complete application for VA-administered

benefits. Pelegrini v. Principi, 18 Vet. App. 112, 119

(2004). The Court further held that VA failed to demonstrate

that, "lack of such a pre-AOJ-decision notice was not

prejudicial to the appellant, see 38 U.S.C. § 7261((2) (as

amended by the Veterans Benefits Act of 2002, Pub. L. No.

107-330, § 401, 116 Stat. 2820, 2832) (providing that "n

making the determinations under [section 7261(a)], the Court

shall . . . take due account of the rule of prejudicial

error")." Id. at 121. However, the Court also stated that

the failure to provide such notice in connection with

adjudications prior to the enactment of the VCAA was not

error and that in such cases, the claimant is entitled to

"VCAA-content complying notice and proper subsequent VA

process." Id. at 120."

and

"The

preponderance of the medical evidence favors the conclusion

that the veteran does not have PTSD or any other acquired

psychiatric disorder that is etiologically related to his

military service. Accordingly, the benefit-of-the-doubt

doctrine is not applicable and the claim must be denied.

(CONTINUED ON NEXT PAGE)

ORDER

Service connection for psychiatric disability, to include

PTSD, is denied."

What is interesting is that I fully believe that the BVA is so correct- it is not a one way street- DTA-and if a vet waits passively,for VA help, they can end up with Nada.

An Odd claim-and these types of claims sure take up the VA's time-

Also this supports one of my past posts-

lack of sending the VCAA letter before the claim is denied is error-

in my case I believe it is a non-prejudicial error because I used a BVA decision in order to see what my VCAA letter should have said-

The BVA told a widow who didnt get one, it should ask her to get an IMO regarding her husband's death- that is what I got.

In many cases however, a failure to send a claimant a VCAA and then to deny the claim-is a legal error on VA's part. (Not cueable but an error that a good vet rep, or SO, or the vet themselves should pounce on right away.)

at http://www.va.gov/vetapp06/files2/0608171.txt

[Hoppy]

Berta,

This is scary. It takes us back to the days when the VA made denials using vague language as not to tip off the veteran as to how to advance their claim. Then the VA just routinely forgets to send the VCAA notice. They will not do this on all claims. Just the ones they dislike. As the DAV stated in their testimony to congress prior to the VCAA. The VA does have certian classes of claims and has become adveserial to these claims.

It does not make sense to me that that CUE is not applicable if the only thing that turns a losing claim into a valid claim is that the veteran does something at a latter date that should have been on a VCAA letter that was not sent. It is the old application of the document that was in the file but not read taken up a notch to include the document that should have been generated by anybody sufficiently knowledegable to have suggest that the nrw document be procured by the veteran. Basically it souinds to me like they took the VCAA and gave it such little relevence in the process that the VCAA is now in the trash.

Is their a point where giving up and doing nothing except passively waiting and even letting appeal time statutes lapse as the result of insane road blocks made by adjudicators with agendas actually the only road open to a veteran. Then he finds out that he did not get a VCAA letter, demands a VCAA letter and he does the stuff on the VCAA letter and gets service connected. By making decisions that a lack of a VCAA letter is not CUEABLE the courts are just keeping the doors open for the VA to be adversarial any old time they choose. What is CUEABLE and what is not CUEABLE is the result of arbitray decisions on the courts. Have they ever developed and objective standard by which a CUE is applicable. Or, is it just some vague referrence in the law to generalized types of events. It is my recollection that case law is what is determining CUEABLE mistakes. Failure to assist is not CUEABLE, because two out of three judges decided that it was not CUEABLE.

Should a veteran be required to become so familiar with the law that he has to keep track of his POA. We hear on hadit know that the way to cover your A__ is to become familiar with the VA laws. However, I would think if a POA is so lame as not to catch the fact that the VCAA letter was not filed that they should be reprimanded by being sent home without pay. In a valid claim they should be sued for losses.

On my claim the VA sent the denial to an address that had been changed on their computer a year earlier. The unopened and returned denial sat on a shelf for nine months before they told me it was returned. The entire time I went in every three months and asked what was going on with my claim. They said that my file was in DC for an earlier appeal and noting was pending at the RO. Then the claim was denied for idiotic reasons. The adjudicators cited false objective standards of law. They turned medical isssues into legal issues and denied the claim without getting medial opinions to support their "legal issues". I could not predict what idiotic reasoning was going on in their heads so I could not get a doctor to write letters addressing their vague and idiotic denials. The denial were written in such a manner that there was no evidence that could be provided that would win the case. The denials were "close out" statements designed to make me give up. All this proved to me that I had one of those claims the DAV was talking about. My claim was for a systemic disease that the VA ususally did not service connect because most people can easily control the disease. Unfortunately, my condition was harder to keep under control and thus it was ratable. With some help from the folks on hadit and running into the right doctor I got a letter that the VA had no way around.

[Berta]

Hoppy- well stated -

You sure are right on the lack of VCAA Notice not being Cueable-

The BVA has to take note of the lack of VCAA and then remand the claims-

As I wrote to Chairman Craig and my VARO-I called this is a growing practice as a stall tactic and the BVA remands prove it-

In M21-1 or in the VCAA regs-(I need to find this today)

it clearly stated that the lack of VCAA Notification is an error on VA's part.

If a claim is denied before the vet gets a VCAA specific to their claim- the vet has one hand tied behind their back already-not knowing what the VA wants in order to succeed.

What I got on a main claim was a reason and bases Blah blah- yet it did not tell me to get an IMO- but I got two-

I had to read BVA decisions to see what a VCAA letter would say to a widow -

the BVA said the VCAA letter should advise the widow to get an IMO-(for direct SC death claim)

The VCAA letter- Jangrin helped me by scanning a real one and I was surprised to see what it looks like after 3 1/2 years-

You are right- these vet reps and SOs are picking and choosing-

also that IG report shows us that only 39% of them at the VAROs know what they are doing or have the time to do it-

Without service org representation that calls the VA on these errors in the VCAA right from the git go- and then

per the IG survey- the chances are your claim might go to someone in the 61 percentile of fed paid VARO employees who dont have a clue--the vet has Both arms tied behind their back-

The AL and the DAV have been very vocal about these problems- yet-it is their top notch people in their Service Departments that know what is going on.

There isnt much oversight on the many local vet reps from these orgs that perpetuate every day what these org's higher ups are trying to resolve.

To be a national service officer -you take the course by NVLSP and go to a Seminar-

maybe then periodically other seminars crop up-

Some of these Sos are stuck on what they learned at a seminar in the 1990s- they take no time to fully keep up with VA regs and the Schedule of Ratings-

CAVC and BVA decisions on the web alone can help a SO work a claim well-

My vet rep was stunned to see I have M21-1 on my computer-hell I want to know what they are all supposed to do-at the VARO-doesn't he?

But this is wrong- I agree with you in this regard too-

veterans should not have to know all this crap-

these rep and RO people are all getting paid to know it--

I often wonder -since the electronic community of vets started in the 1980s-

how many claims were really resolved by vets helping vets instead of SOs or vet reps.