hypertension Senseless Denial And Forced To Use An Attorney ! Unbelievable. !

[DocNyger]

Hello fellow vets, I hope all is well and still in the fight. I am new to the site and welcome any and all comments please... I served for 12 years , I've been involved in 3 wars. I separated in August 2003. In March 2005 I filled a claim for 4 contentions. I finally heard about my denial in Nov 2008. The reasoning that VA stated my denials were that even though the QTC doctors documented favorable statements , he didn't state it was from the military. ( I read the exact notes and he did state back issues, knee issues, hypertension, and depression were from my time in the military ). I also stated the locations on my original claims and sent in multiples documentation via hand delivery to my Regional office, faxing my VSO, and certified mail with Return Receipt. In the denial section the Va stated that there was nothing in my medical records. I filled a NOD in Feb 2009 and to date that appeal is still on phase 1...:(. I started to wonder if it's just me or does the Va really denies veterans for no reason..) So I'm waiting !!!!!

In Mar 2011 I filed for PTSD , and PFB (shaving). I've submitted documentation for both the same vehicles that I did before. I received countless messages from VA stating they need sudden information... The same info I sent.... So I called my VSO again, met with her and gave the same copies I sent in, she supposedly walked it up and personally put it in my C -file. Well later I finally got scheduled for a c and p for PTSD. Nothing for PFB. My initial exam was by a mental health doctor at the Va who verbally told my the she was new to the field and after the exam was over, she diagnosed me with major depression and hypertension, she stated that there were multiple symptom for ptsd but unsure if they meet criteria 1 for PTSD and referred me to a Va contracted mental doctor. My treatment started in the beginning of 2012. During his ignition evaluation, he diagnoses me with probable ptsd. He explained to me why, because he just met me and wanted to spend time with me. Well on Apr 25 2013 I was diagnoses with PTSD have severe symptoms. Now all my records were sent to Va and I once again hand delivered them and got the regional acceptance stamp. In the end of October I received a letter stating that the Va wanted me to go to another c and p for PTSD. I called my VSO and explained what was going on and she just stated " I guess you need to be there" ... Why do I have to go through four different evaluations.!!! I truly thought this was crazy. Well I reported to the c and p examination and I experience a very rude ,biased, and incompetent person I have ever dealt with in my 41 years of living. He asked me two question. Do I drink and how often? And how much do I spend on alcohol a month. That's it !!!! Nothing about PTSD symptoms or nothing. I filled out a form asking what are my symptoms which I stated everything from my treatment records. This guy didn't put anything that I verbally stated or written. He had this ( what ever attitude). Not even 10 min later he stated it's done. You probably won't get it... And left the room.

Well I finally left 5 minutes later when he didn't returned, later in Nov 2013 I received a denial letter stating I was denied because I don't have a current diagnosis of PTSD, even though my treatment notes states probable ptsd the recent ptsd exam did not diagnosis me with PTSD. I was floored !!! I ordered I copy of the exam to find out that the examiner diagnosis me with substance abuse... What !!! No one even looked at my records. I went to my regional office again and spoke to another VSO. I showed him the diagnosis from the contracted mental doctor for PTSD back in April and he supposedly walked it up to the raters. He came back and told me that they said there wasn't a signature from the doctor. I pointed out the electronically signature that many doctor uses, then the VSO stated that it does stated that it's a diagnosis, I stated and showed him in the right corner where it states Confirmed Diagnosis ptsd 309. Etc and severity of symptoms., then I was told that the raters said that they would challenge the diagnosis... At that point I said I'll get an attorney because this is not right and the VSO stated " why would you want to do that, they will take all your money" .. Of course I left and found a good attorney who took my case and was shocked how the Va handle my case. The attorney stated that the Va is famous for creating bad evidence to out way the good .. Is that true? What do you think about my case? I'm sorry for the long message .. Just need to vent and my wife is getting tired of the nightmares, isolation, and me talking about it... Thank all of you in advance for your comments and advice !!!

Edited May 19, 2014 by DocNyger

[carlie]

Thank you NavyWife, I just spoke to my attorney and I believe he doesn't have any faith at the RO level, he states I have a great case with great evidence. ( I personally think he just wants to go to court) .. Lol. I am hoping that someone can see that there was a mistake and grant it. Listening to the pod cast on IME and CUE's , I thing I could have went the CUE route also...

Also thank you asknod, my question is " is it really new evidence when it was in my c file the entire time?". I had to get an IME to offset that crazy QTC exam ... The original dx was always there....

If it wasn't of record and part of the decision perhaps 3.156c

http://www.ecfr.gov/cgi-bin/text-idx?SID=0c958773ce987235bb2fc1bb8ecc90e9&node=38:1.0.1.1.4.1.60.65&rgn=div8

[FormerMember]

Don't confuse "New" and "Material". They are two disparate items. Something that is "material" can exist in the records and be unrecognized as being material or probative enough to merit a review. Resubmitting it with illumination in conjunction with a "new" IMO can often be the lynchpin in an AOJ win. We have many things in our c- files. It is imperative that you have yours to ascertain what it is they should have but don't. Or, in the alternative, what they have but are not considering due to being dense or purposefully obtuse. RVSRs work off a computer-generated M21 1MR template and merely check boxes after doing a cursory survey of the c-file. Often, they rush through them and top sheet or use the older C&P that doesn't comport with the truth. Or, if there is only one negative C&P, they use that. The idea is to deny any claims that are tentatively speculative if possible to make room for other easy-to rate-claims. Two days ago, they hit the 2,000.000 mark on pending claims. They are overwhelmed. Raters are unaware they are harming you. They are constructing a claim like a rolling assembly line in Detroit. They only see the facet in front of them-never the whole picture. Whether this is purposeful or simply their idea of the perfect way to review the evidence is immaterial. The end result is flawed and they refuse to change.

The Court has defined "new evidence" as evidence that has never before seen the light of day that is pertinent and, in conjunction with other assembled evidence, might help prove the claim. It must be material in that it must pertain to the claim and have a bearing or help to illuminate the de novo decision in light of all the assembled evidence. The VA doesn't always interpolate it that way so what you and I clearly see as something that would be probative is often discounted or ignored in an effort to deny. The object being to dissuade you from appealing. Here's why. 1.4 million claims filed per year (and climbing) =928,000+ denied= 58,000+ appeals up to BVA= 22% of the 58 K win= 4,600 appeals to the CAVC= 63% remand rate for error. Do the math. VA is playing a game of poker and they bluff until called at the CAVC. Most of us fold before we get there because we refuse to see and call them. The only impediment is time and we certainly have lots of that. Some die waiting. You are dealing with an Insurance Co. that could care less. Win...or Die trying. God sends the right.

[63SIERRA]

maybe material evidence should be retermed to latent or " hidden" evidence.

Also maybe veterans should let them know up front, I plan to take my claim to the CAVC if needed, they might get the hint

Sooner or later they will have to realize that veterans are putting themselves wise and more and more claims will go the distance. which means they will be remanded, and the RO will have to dance with the claim yet again.

Edited June 27, 2014 by 63SIERRA

[kate7772]

Asknod

You stated:

"You are only allowed to submit that new and material info that is needed within one year of this decision in order to keep it at the AOJ."

But if the claim with the new evidence is not decided by the time the year is up, and you are forced to submit the NOD, then that is all out the window and you are starting all over time wise, right?

Thanks,

Kate

[FormerMember]

Kate

New and material evidence filed:

1) subsequent to the initial denial;

2) during the suspense time limit of one year following the initial denial, or

3) up to, but before, an appeal has been decided by the Board of Veterans Appeals

hall be considered as part and parcel of the appeal denied and is considered to be filed in connection with claim that was pending at the beginning of the one year window of the appeal period at the AOJ. Rarely, if ever nowadays, is a claim decided within a year following submittal of N&M E after a denial. I make the distinction thusly. You are free to submit new and material evidence following a denial without invoking an official Notice of Disagreement (NOD) during the 365 days following the receipt of the denial letter. You must, however, file a NOD before the 365 days expire or your filing date is lost-even a submittal of the N&M E that you are waiting on for a new decision. This is the Gordian Knot the VA has been unable to untie since the inception of the Fully Developed Claims path(FDC). Should you submit N&M E after a FDC denial, you are constrained to await a response. If that response is not received within the 365 days of the denial, you, must, by law, file a NOD to keep it alive before the cock crows on the 365th day. Once you do, your claim is no longer considered a FDC. It turns back into a traditional pumpkin with mice at midnight. At that point, you get in a new line behind all the smart feller's who filed a NOD with N&M E.

The FDC was a much ballyhooed path to a rapid resolution when it came out, but, like most gift horses, it has some cavities if you look in the mouth. Tried and true approaches to winning claims locally have come and gone over the years. One that has stood the test of time is 3.156(b). VA rarely pays attention to 38 USC or 38 CFR because they myopically focus on the tenets of the M21 and depend upon it as their Bible. This produces some interesting law such as what happened to me. In 1994, I submitted N&M E with a NOD which was simply not done then. Either you submitted N&M E to continue the claim via a de novo review or you filed the NOD and listed the reasons why you felt they were wrong. My filing with both produced a wrinkle. One month later VA proceeded to issue a SOC and awaited a Form 1- 9 Substantive Appeal form from me instead of looking at the N&M E. They did, however, make the mistake of acknowledging the receipt of the N&M E and promising a de novo review. That put the claim in limbo where it sat until I reopened it in 2007.In today's world, you obviously do not get a SOC a month after a NOD. The lag time is at least 16 months in most cases and perhaps longer. Even the FDC claims involving resubmittal of N&M E will hit the one year wall without a de novo review. That makes them as useless as nursing devices on male ungulates.

VA has a denial policy, unless no one had noticed, of approximately 85%. That in no way implies 85% of Veterans file frivolous claims, however. It merely reflects a predisposition to deny all but the most obvious claims like missing appendages. The rest of us are required to sit on the Group W (wait) bench and wend our way through the halls of justice at a very slow pace. Eventually we prevail as you can see from reading this website and mine. Evidence is king in this business. Without it, you are defenseless. VA has simply taken it to a new plane and ignores a large volume of the evidence for as long as it can legally, in a desperate attempt to get caught up. They have resorted to reinventing the way they classify "pending claims" several times to create ever more in-baskets to catch the overflow.

3.156(b) is merely a device to create more opportunities for "mini-reviews" of you claim without resorting to those cumbersome DRO reviews that are one of the in-boxes I just described above. In 1990, a DRO review was a critical reassessment of your claim by a well-educated (and often an ex-senior enlisted man) who was knowledgeable about the military process. Submittal of the N&M E often resulted in a swift reversal and a grant if the proffered evidence was on point. Nowadays, that cannot be said. Claims languish for years awaiting review. In the interim, there is no additional investigation. When the review resumes, things fall through the cracks. Old C&Ps become the basis for the re-rating. Failure to search the c-file for a newer one is the culprit. As much as the new VBMS is touted as the gold standard, very few VAROs have instituted it (18), the bandwidth is too narrow and/or high volume usage grinds it down to the speed of dial up internet. And like the ACA computer last fall, it crashes frequently.

The idea is to be poised with the N&M E sitting there waiting to be mailed in the event of a denial. Mail it in certified mail return receipt requested (green card). Follow it up with a query on IRIS that the rater will see shortly thereafter. Too many are losing e-filings on eBennies to the nether regions. If they (VA) don't have to sign for it, again, the common mailbox law is trotted out and it is presumed you never emailed it or never attached the .PDFs/.JPGs to it.

God forbid that the Presumption of Regularity ever attaches to emails because VA will start saying they notified you and it is presumed Google or Yahoo Mail delivered it.

Clear Prop!

[lotzaspotz]

Ditto Alex's statement about using certified mail vs. filing on the ebenefits site. I am, again, having to send in a copy of a certified mail receipt to the RO to prove that they did, in fact, receive a claim almost two months before they said they received it. In the past, I've had to do the same thing to establish that they received a claim at all.