Jump to content
VA Disability Community via Hadit.com

VA Disability Claims Articles

Ask Your VA Claims Question | Current Forum Posts Search | Rules | View All Forums
VA Disability Articles | Chats and Other Events | Donate | Blogs | New Users

  • hohomepage-banner-2024-2.png

  • 27-year-anniversary-leaderboard.png

    advice-disclaimer.jpg

  • donate-be-a-hero.png

  • 0

Buddy Letter-Wife Statement-Doctor Statement

Rate this question


add55p

Question

Va denied to use my buddy letter from a fellow soldier that was stationed and witness my in service accident, my wife statement, who has was married to me and witnessed my multiple in service hospital visits, and my current physician statement, who wrote that it was likely that my current condition was related to my in service trauma.

To discount my buddy letter and wife statement, the VA stated Sanchez v. West "That pain alone, without a diagnosis or underlying malady or condition, does not in and of itself constitute a disability for which service connection may be granted".

To discount my physician´s statement, the VA stated "There is no evidence that you were injured on active duty as Service Medical Records were unavailable for review".

How do you recommend that I proceed. I have 11 months and 10 days to respond to the decision.

Thanks

Link to comment
Share on other sites

Recommended Posts

  • 0

get your smr's.

they are accepting your wifes/buddies statement that you were in an accident and hospitalized but there is no "medical evidence" of a diagnosis of a condition, ie ,broken arm/leg whatever.

I'm assuming your Dr. did not review your smr's and they discounted his statement because of that.

get your smr's and have your dr write a note saying that he reviewed tehn and that your current condition is likeley related to the condition that is in your smrs.

Link to comment
Share on other sites

  • 0

Add55p needs a diagnosis of a specific injury. A nebulous reference to pain (Sanchez v. West) without a diagnosis of a specific injury is his problem. VA is fond of asking you what you are filing for. If you are vague, they will "construe" it for you. Here, they construed Mr. add55p simply suffers from some unidentified pain and nothing more. No investigation into what the etiology of the injury was is not an excuse not to perform duty to assist and gather the evidence. In the same vein, it is a two-way street in that the Veteran needs to present some form of medical proof that he currently suffers from a disease or injury. Simply claiming it does not prove it. We are all aware of the Caluza triangle or Shedden elements needed to prove a claim. Since there is no Diagnostic code for pain, add55p loses. VA says they have no medrecs. Unless he served after WWII and before 1963 in the Air Force and his last name started with A-H, the records did not burn up in 1973. It's a classic Mexican standoff. add55p has no injury (just pain) so he loses. VA has not (and will not) make an attempt to investigate what the pain is because add55p was not specific.

As for where the medical records are, if VA cannot come up with them, then the buddy letter has much to offer. I would not accept the VA's claim the records are "gone". Often, they get left at the last base you served at. You need to go in search of them. I suggest the internet. If you were an in-patient, there is another file of medical records apart from SMRs in St. Louis. There are three different files on each Vet. Inpatient (hospitalized records), outpaitient SMRs (or now STRs), and your actual military records. SMRs only deal with out-patient, sick call events.

A word on the buddy letter. You have to stick with it now since it is in the record. Your buddy can supplement it with a newer letter and make sure it only discusses what he could have perceived with his five senses of vision, hearing, etc. at the time it happened. He is not a doctor but is allowed to testify as to what he saw, heard, smelled, tasted or felt with his hands. (Layno v. Brown 1994). Same for the wife. A word to the wise. The "new" revised buddy letters must not contradict anything already said or they will be tossed out as lacking credibility. That also throws the first letter in the trash can along with the second one.

add55p's chances of winning at a DRO review would be increased dramatically if the buddy could personally testify at a DRO hearing in view of the lack of STRs. Ditto for his wife. But most of all, Add55p needs a bonafide diagnosis of something specific broken, bent, twisted, and permanently damaged that was caused by the accident in service that the buddy witnessed personally. Whoever determines that also needs to write a nexus letter that says it's at least as likely as not that the injury was related to the incident in service. Second-hand hearsay in a buddy letter will not put the bacon in the sandwich either. Watch a few Judge Judys to get the feel for how VA views hearsay conversations.

.

Best of luck on the endeavor, add55p. And thank you for being so unselfish with your time. Few hear the call. Fewer yet sign the line.

Knowledge talks. Wisdom listens. Ignorance preaches. I read that on a sign today. I don't know where this one fits into the formula. I'm not the sharpest tool in the shed.

Link to comment
Share on other sites

  • 0

Asknod

thank you for the clear and to the point reply.

In respnse, I woukd like to state that the doctor that wrote the statement did diagnos a condition.

VA is stating that there was not a diagnose condition to suport the buddy letter and wife statement regarding in service ocurrennce.

The starnge thing is that I was sent a chronological letter, and in the letter VA stated that they were unable to receive my service treatment records from the Service Department and another statement that said that a response from RMC(?), it stated "that the veterans SMRs were sent to your activity, in response to an ealier inquiry"

After receiving that information, I submitted the alternate information, i.e buddy letter, wife statement, and doctor statement with diagnosis and opinion that was based on my interview,the buddy letter, and wife statement.two VA examinations, VA treatment records and and post service U.S Army Hospital treatment records.

The two VA examinations which were positive of my condition, but without an opinion, was never mentioned as evidence in the denied decision.

Thank you again for the fedback and information.. ,

Link to comment
Share on other sites

  • 0

The two VA examinations which were positive of my condition, but without an opinion, was never mentioned as evidence in the denied decision.

I think this is the problem. You need, injury in service (check), current injury (check), and doctor's nexus (IMO) tying the two events to one another with supporting logic and a nuanced argument. Simply getting a doctor to say you are injured and in pain is elementary. Getting him to link the two is the cement that will hold it together (Caluza , Shedden or Hickson).

VA is stating that there was not a diagnose condition to suport the buddy letter and wife statement regarding in service ocurrennce.

For the record, you are not required to have your buddy or wife diagnose what your doctor diagnosed. They have no medical training to do so in any event. Each piece of evidence in a claim must be salient and contribute to a decision in order to be "material." If anything, you (or VA ) has it backwards. A doctor's diagnosis does not have to support the lay testimony of a buddy. Conversely, a buddy's (or wife's) letter can support a doctor's diagnosis. That would be the purpose, would it not? Each piece of evidence you submit builds the bridge to your claim. All you are missing is the Independent Medical Opinion (IMO) to complete it. Look more closely at the diagnosis. It is the crux of the issue. Degenerative disc disease? Arthritis? Then connect the diagnosis to what happened in service. I don't know what "RMC" is but if you have anything saying VA has the STRs, then that is the smoking "constructive possession" gun. Medrecs at VA do not disappear. Well, maybe in Dayton. They sometimes end up in a file closest to yours alphabetically though. My C-file has numerous misfilings of other Vets' info in it.

My advice is rather elementary. Find the medrecs pronto. If VA has them, make them produce them or explain why not.

When the records are missing, by law VA has a special obligation to go overboard to help you. All I've seen are "special denials" when this happens since I started doing this. You would also need a letter from NPRC saying "Not it! We gave them to VA." They only hand out copies now (2013) but used to send the original file to the VA in the 80s. VA has gotten a shady reputation of late because they lose a lot of stuff. Or at least that's what I've heard. Good luck.

Edited by asknod
Link to comment
Share on other sites

  • 0
  • Moderator

You need to appeal, and, to begin that, you file a NOD. Since Proper Preperation Prevents Poor Performance, you will increase your chances of success by properly preparing your NOD.

In short, you need to "refute" VA's reasons and bases for denial.

You also need a "current diagnosis". Do you have one? No current diagnosis = no service connected compensation.

You also need to relate that current diagnosis to the symptoms your buddy reported in service. (in other words, a valid nexis, or link between your in service event and your current diagnosis)

The good news is that they have accepted your buddy statement as credible!!! This is very good news!! Your buddy statement is credible, its just not competent. There is a difference.

Credibile means that you did not lie, that your statements are plausable. However, a lay person is not competent to make a medical diagnosis. "I think I have diabetes"..wont cut it You can be honest and "think" you have diabetes, but the doctor must run medical tests, such as blood sugar, and make the diagnosis. . The doctor has to think you have diabetes.

Link to comment
Share on other sites

  • 0
  • Moderator

In order to "refute" Va's R and B for denial, you attack each one.

1. For example, if the C and P examiner did not review the medical history, why did the VA not order another GOOD C and P exam where the examiner reviewed the history instead of just denying it if review of your history was required by Va of the exam? The remedy for a faulty C and P exam is not denial, but rather a new exam! The VA blames the Veteran for everything, including this faulty exam.

2. To refute the "no diagnosis" portion may mean you need an IMO. If you read your C file, (The VA raters often do not, they often "top sheet" them), you may well find that diagnosis that The VA rater could not find. Then, you could simply cite, "According to Dr. Whodunnit, the Veterans VA physician, a diagnosis of xxxxxxxx was made on 1-23-04 when the medication ...............was prescribed." (If the VA doc prescribes "Zoloft", then you can assume the doc diagnosed you with a mental disorder, and did not use Zololoft to treat a kidney infection, UNLESS, the doc stated that he was prescribing Zoloft for your kidney infection)

Edited by broncovet
Link to comment
Share on other sites

Create an account or sign in to comment

You need to be a member in order to leave a comment

Create an account

Sign up for a new account in our community. It's easy!

Register a new account

Sign in

Already have an account? Sign in here.

Sign In Now
×
×
  • Create New...

Important Information

Guidelines and Terms of Use