A New Va Low And Ridiculous Reason To Support Denial

[Sergeant G]

The other day I came across an internal memo from someone at the Appeals Management Center. The memo was submitted to the Director of the Compensation and Pension Service as a recommendation for denial of extra-schedular IU, and I could not believe what I read. The author of the memo was apparently hell bent on NOT recommending IU to the Director, and the “reasons” were absolutely ridiculous and show malicious intent from the author. So much for the VA’s so-called pro-claimant, non-adversarial claims process.

First, let me provide a little background information. I was awarded 70 percent with IU for bipolar disorder effective on the date I originally filed my claim in December 2007. It took several appeals to finally get the IU, and to get my current effective date, which was ultimately awarded by the BVA in November 2012. In the same decision from the BVA, it denied my claim for an even earlier effective date (one year) for the 70 percent rating and IU. (38 USC 5110(b)(2) allows for an EED—up to one year—if evidence shows an increase in disability in the year prior to a claim being filed.) The BVA also remanded my appeal and directed the AMC to refer my claim for consideration of an EED for IU on an extra-schedular basis. I am claiming that I am entitled to an EED because my disability increased to the point where I met the criteria for IU prior to my current effective date. I was initially misdiagnosed with depression and rated at only 10 percent; therefore, until my diagnosis was corrected in October 2007, my treatment providers didn’t recognize the manic component of bipolar disorder. Also, I didn’t know that I was experiencing manic symptoms, so I did not know or have the insight to report the symptoms to my providers.

I have a lot medical and lay evidence supporting my EED claims for 70 percent and IU, but the BVA ignored it (as is often the case with the VA in general). I appealed the 2012 denial to the USCAVC and my appeal was remanded to the BVA for a few reasons, including the BVA’s failure to consider the evidence I presented, or at least explain why it did not find such evidence to be persuasive. So now I have an appeal at the BVA for an EED for 70 percent and schedular IU, and claim with the AMC for EED for 70 percent and extra-schedular IU. (Actually, the later claim is now with the BVA for review.)

(Back to the reason for my post.) The remand order from the BVA directed the AMC to issue a supplemental statement of the case (SSOC) for any issues denied. Unsurprisingly, I did indeed receive an SSOC because all issues were denied. Again, the VA failed to consider the abundant amount of evidence supporting my claims/appeals. The SSOC basically said there was no evidence supporting my claims for both 70 percent and extra-schedular IU, without providing reasons as to how they arrived at that conclusion, nor did they cite any independent medical evidence against my claim. While drafting my response to the SSOC, I came across the above-referenced memo.

The reasons and bases section of the memo consisted of eight paragraphs, and all but one paragraph—the one merely citing the procedural history of the appeal—were wrong. Not only was the content inaccurate, the author’s clear intent was to fabricate reasons for denial. Therefore, the C&P Director was not fully or accurately informed regarding the merits of my case. (Who knows if it would have made a difference anyway, even if the memo were legitimate.)

The most ridiculous “reason” the author gave to support his/her recommendation for denial is because, in the author’s opinion, the evidence I submitted to the BVA, “written in [my] own hand” shows my ability to write a “concise and well documented legal brief.” I am totally pissed off about this. Basically, I am being penalized for being well informed and articulate. Also, the author reviewed my 20-page “brief” enough to opine that it is well documented, yet does not address any of the content, and has the audacity to use my own evidence against me. I did attend law school and briefly practiced at one point—over 10 years ago—and the author uses this as “evidence” against me as well. He/she seems to imply that I am able to churn out “legal briefs” consistently and efficiently, and therefore, I must not disabled. That is not the case. Thanks to all the appeals I’ve had to file because most people at the VA do not do their jobs, I have had the “benefit” of almost seven years to acquire the knowledge pertinent to my claims, and a lot of the content in the documents I submit is copy and pasted from earlier documents because no one ever bothers to read the evidence. With every document I submit, I present my case in a thorough and organized manner, include excerpts from medical records supporting my claim (along with specific dates, providers, etc.), and cite pertinent statutes, case law, and VA regulations, and apply them to the facts of my case. I do this to make it easier for whomever reviews my 2,000-page claim file. All they have to do is read the document and verify the content of the treatment notes, if they so choose. So, for some a$$hole to use the evidence I submit to make it easier on him/her to their job against me adds insult to injury.

The author also had the audacity to use my mother’s three-page lay statement against me. In the second paragraph of her statement, she briefly remarked how I graduated from law school and passed the bar exam on my first attempt (in 2002). The entire point of mentioning this was to show the difference between how I was functioning at a high level before my disability drastically increased and how I was unable to function afterward. I graduated from law school and passed the bar exam over four years prior to the time period being considered for the EED; therefore, this fact is irrelevant. He/she disregarded the rest of the detailed statement, which is supported by medical evidence.

The memo also improperly relied in part on the portion of the BVA’s 2012 decision denying the EED for 70 percent and IU—the same part that was the primary reason for the USCAVC remanding it to the BVA. Furthermore, evidence from the relevant time frame that should have been under review is between December 2006 and December 2007. Yet, the author notes that I was able to graduate from law school and pass the bar exam—again, over four years before the time period in question—and also notes that I didn’t start receiving SSDI until January 2010. This is also irrelevant and it seems like the author is implying that I must not have been unemployable since I didn’t start receiving SSDI until then. I didn’t apply until July 2009 because I had been trying to work, but ultimately was unable to work in a gainful capacity. Social Security approved my application the first time. For the year in question, due to my disability, I was only marginally employed and earned less than $3,000. My medical records—from the VA, nonetheless—confirm that my “severe psychiatric impairment” was responsible for my inability to work in a gainful capacity for several years, including all of 2007. My VA therapist even expressly stated that in her opinion, I met the criteria for IU during this time.

I won’t get into the problems with the other three paragraphs since this post is so long, but I’ll note that he/she did not include even one piece of positive evidence in the memo, nor was any included in the SSOC.

I will definitely be addressing these issues in the memo—none of which were reasons included in the SSOC—when I submit my response to the SSOC to the BVA.

I didn’t mean to write such a long post, but I just had to vent. Thanks to all for reading and for any input.

G

[bobz]

I agree this is ridiculous! The fact you got a copy of the idiots reasoning is amazing usually they "lose" something like that. Have you considered getting your congressperson involved? Good luck to you keep up the good fight Sarge.

[carlie]

The decision maker has no authority to opine on medical evidence

as to whether they deny IU because THEY feel that if you can write a sensible legal brief

then you are able to hold substantial gainful employment.

All you need is an opinion from a doc stating that your SC'd disabilities prevent you from holding

employment and support their opinion with full medical rationale.

[Pete53]

Many misunderstand the rule that requires the VA to give benefit of doubt. To win you need evidence and when you don't have evidence you need a good Doctor

[Navy04]

Sad, but you are right on Pete.

[ArNG11]

if only that were completely true. You can have all the evidence right there laid out for them to include the citing of specific regulation, laws, evidence, and they, the VA, will still regurgitate a denial. It's only when you get up higher on the food chain that you will have the real success. It is all a numbers game sadly. Gotta save a buck to pay for that Bentley. It is a long fight. The war will have costs. But stay true. Stay strong. Kick the evidence, regs, and law back at them. Shove it down their throats until they turn blue, don't stop until their pupils have no life in them and are dead to the rest of the world.

[broncovet]

The VA has to rate you on the criteria listed in the regulations. This is established precedence. Many BVA decisions use the phrase

, "The criteria for xxx condition have(or have not) been met".

The statement means the BVA made a factual determination as to whether you met the criteria, and, if you do indeed meet the criteria, the benefits will be awarded.

You should argue that "the ability to form a sentence" or "organize your claim" is NOT one of the criteria for IU, and, that you meet the criteria because (your doc says you meet the criteria). That is your nexus. No docs nexus, no benefits. Neither YOUR opinion, nor the rating specialist, can make a medical determination, only the doc can do that. If your doc says you are unemployable, then you should pound them with the criteria, pointing out they do not have medical expertise to make a valid opinion of your suitablity for employment, only the doc can do that, and he has done so they must award benefits.

The VA does this on purpose..rates you on "non criteria". The VA can not say, "We are denying your claim because you wore a red shirt, and have long hair, and we dont like people who wear red shirts and have long hair." because red shirts and long hair are not part of the rating criteria. They still rate on non criteria, but we need to call them on that legal error.

Remember, of course, if you do NOT have a doctor's statement saying you are unemployable, you will need to get another docs opinion, such as an IME/IMO or you wont be getting benefits. Your decision turns on the nexus.

Edited August 20, 2014 by broncovet