ptsd I Could Use Some Help With This.

[FirstOldOne]

WHAT I BELIEVE TO BE THE FACTS RELATING TO MY 2010 ISCHEMIC HEART DISEASE AND POST TRAUMATIC STRESS DISORDER CLAIMS.

• Reference 38 U.S.C. § 503, 38 U.S.C. § 5103, 38 U.S.C. § 5103A, 38 C.F.R. § 3.102, 38 C.F.R. § 3.103, 38 C.F.R. § 3.104, 38 C.F.R. § 3.151, 38 C.F.R. § 3.154, 38 C.F.R. § 3.155, 38 C.F.R. § 3.156, 38 C.F.R. § 3.157, 38 C.F.R. § 3.159, 38 C.F.R. § 3.307, 38 C.F.R. § 3.309, M21-1MR, Part IV, Subpart ii, Chapter 1, Section H

I filed a claim for IHD and PTSD on 08-20-2010.

The 08-20-2010 IHD claim has not been adjudicated. I believe this constitutes a C&UE as I have explained later in this document.

The 08-20-2010 PTSD claim has not been adjudicated. I believe this constitutes a C&UE as I have explained later in this document.

To my knowledge, I have not been provided with a C&P examination for IHD prior to the 06-05-2012 heart cauterization by the VA. I have found NO document in my "C" file or my personal records of a C&P examination for IHD. I believe this constitutes a C&UE based on CFR 3.159 ©(4)(i) and maybe other CFR's as well as M21-1MR, Part I, Chapter 1, Section A and M21-1MR, Part I, Chapter 1, Section C .

A VA employee from the RO did provided me with a form 21-0820 which has a contact date of 07-19-2012, which also has a note stating “It should be noted that an EP 681 was originally established on 08-20-2010 and canceled with no explanation. The veteran submitted two VA Form 21-4138's on that day. We only have 1 4238 received on 08-20-2010 that does not mention IHD; however, it had to be there or an EP 681 would not have been established. Earlier effective date may be warranted.”

I have not received any other communication from the VA about the 08-20-2010 IHD claim to date. I believe this constitutes a C&UE based on M21-1MR, Part I, Chapter 1, Section B,.

I was informed by my VSO and on multiple occasions by VA personnel, that there was no IHD claim, dating 08-20-2010, in my VA records prior to the provisional decision but after the provisional decision I have been informed on multiple occasions, by VA personnel, that the 08-20- 2010 IHD claim is in my VA records. I believe this constitutes a C&UE based on multiple CFR's.

Beginning on 06-21-2012, I have requested, on multiple occasions, that the VA provide me a copy of the 08-20-2010 IHD claim and I have not received a copy to date. On 06-21-2012, I was instructed, by a VA employee, to refile for IHD & PTSD without the VA resolving the 08-20-2010 claim for IHD and PTSD. I believe this constitutes a C&UE for not complying with multiple CFR's.

From 08-20-2010 to 06-05-2012, the date of the heart cauterization, I wasn't examined for IHD, due to my having filed an IHD claim, as I believe CFR 3.159 ©(4)(i) requires, especially when it is a NEHMER claim which to my understanding, has priority and as I understand “include a duty to conduct a thorough and contemporaneous medical examination. Proscelle v. Derwinski, 2 Vet. App. 629, 632 (1992); Green v. Derwinski, 1 Vet. App. 121, 124 (1991).. I believe this constitutes a C&UE.

I received a decision letter dated, 09-10-2012, granting for IHD for the date of, June 20, 2012, this was the second IHD claim where I was instructed, by a VA employee, to file without the VA addressing the original 08-20-2010 IHD claim in this decision. I believe this constitutes a C&UE.

I received a provisional decision letter dated, 08-14-2013, granting for an increase on IHD for the date of, June 20, 2012, as well as PTIU for my overall service connected disabilities. Again, without addressing the original 08-20-2010 IHD claim in this decision also. I believe this constitutes a C&UE.

I have not been provided with a C&P examination for the 08-20-2010 PTSD claim nor for the 06- 21-2012 PTSD claim that I was instructed to file, by a VA employee, without addressing the original 08-20-2010 PTSD claim. I believe this constitutes a C&UE.

The only communication I have had from the VA on the second PTSD claim, dated 06-21-2012, was in the provisional decision letter, dated 08-14-2013, under item #16, stating “The evidence does not show a confirmed diagnosis of post-traumatic stress disorder which would permit a finding of service connection.”. PTSD was not addressed in the 07-18-2011 decision letter or the 09-10-2012 decision letter. I have not been evaluated for over 4 years now although two separate PTSD claims have been filed, therefore there could not be a diagnosis because the VA is my only care provider. I believe this constitutes a C&UE.

Beginning on 06-21-2012, I have requested, on multiple occasions, that the VA provide me a copy of the 08-20-2010 PTSD claim and I have not received a copy to date. On 06-21-2012, I was instructed, by a VA employee, to refile for IHD & PTSD without the VA resolving the 08-20-2010 claim for IHD and PTSD.

I can provide greater detail on this.

[jbasser]

This cant be a cue claim. It is an unadjudicated claim. It needs to be adjudicated. You need to contact Bob Mcdonald.

CUE is on a final decision.

Get an attorney or these people are going to eat your lunch.

J

[Berta]

Did you contact NVLSP when the IHD claim was filed?

"I was informed by my VSO and on multiple occasions by VA personnel, that there was no IHD claim, dating 08-20-2010, in my VA records prior to the provisional decision but after the provisional decision I have been informed on multiple occasions, by VA personnel, that the 08-20- 2010 IHD claim is in my VA records. I believe this constitutes a C&UE based on multiple CFR's."

"The 08-20-2010 PTSD claim has not been adjudicated." Therefore there would be no CUE because their is no decision yet.

Were these claims two separate filings ,and do you have proof of mailing?

"received a provisional decision letter dated, 08-14-2013, granting for an increase on IHD for the date of, June 20, 2012,"

Can you scan and attach the Reasonand Bases part of that decision" (cover personal stuff first---C file number, name, address etc.
And The Evidence list they used.

"Beginning on 06-21-2012, I have requested, on multiple occasions, that the VA provide me a copy of the 08-20-2010 PTSD claim and I have not received a copy to date."
Are you asking, to confirm they have it, or because you dont have a copy of it.

" On 06-21-2012, I was instructed, by a VA employee, to refile for IHD & PTSD without the VA resolving the 08-20-2010 claim for IHD and PTSD."

Do you have any email documentation of that? That is pretty absurd advise.

They lost my AO IHD claim for months, then sent it to the wrong VARo, then awarded it at the Phila VARO. What VARO made the IHD AO decision?

"The only communication I have had from the VA on the second PTSD claim, dated 06-21-2012, was in the provisional decision letter, dated 08-14-2013, under item #16, stating “The evidence does not show a confirmed diagnosis of post-traumatic stress disorder which would permit a finding of service connection.”. PTSD was not addressed in the 07-18-2011 decision letter or the 09-10-2012 decision letter. I have not been evaluated for over 4 years now although two separate PTSD claims have been filed, therefore there could not be a diagnosis because the VA is my only care provider. I believe this constitutes a C&UE. "

Do you mean you have never had a PTSD C & P exam?

Or you had a C & P exam and the examiner did not diagnose you with PTSD?

dated 08-14-2013"

Can you scan and attach that decision here as well..........have you filed a Notice of Disagreement yet on that decision?

[broncovet]

This is one of the VERY bad things wrong with VA. They dont have to adjuticate your claim, they can simply forget it until you die. This said, you dont have to take this treatment lying down.

Try these things:

1. Send an IRIS email asking your status on IHD claim.

2. Send a 21-4138 asking for your status, and reference your earlier claim date, sending a copy if necessary. Send the new one, to one of the 2 RO's where they scan em in. I beleive those are called data management centers.

3. Send an email to Robert McDonald, or Allison Hickey.

4. Call em.

5. Show up at your RO and ask why this 5 year old claim has not been adjuticated.

6. Resubmit the claim, if necessary, and reference and copy your initial claim for an eed.

7. You can also consider a Writ of Mandamus at CAVC requesting an adjutication.

8. If none of these things are productive, contact your congressman.

The CAVC has something called a "deemed denial" because what you indicate happens often enough that they even have a name for it. However, there have been more recent cases that "deemed denials" must indicate you got a decision and the decision led reasonably indicates a denial. You can appeal a case on a faulty "reasons and bases", that is, they denied it and did not give a reason. You could try appealing the deemed denial.

Edited February 14, 2015 by broncovet

[Fat]

Good info BroncoVet...........

[FirstOldOne]

Jbasser

Thank you for responding.

I have provided a copy of a fast letter that seems to support what you have said but I have not located, in the MR21-1MR or elsewhere, where it address a NEHMER claim that has not been adjudicate to include [NO COMMUNICATIONS, NO EXAMINATIONS or WHERE “for all intents and purposes a claim was trashed, sh!t canned or swept under the rug” and was given a EP code #681 that was established and canceled and was not developed], is when an "undebatable" error has occurred in my opinion.

Does it become a “Claims for Retroactive Benefits Where There Was a Deemed Denied Claim”?

So, I ask you if this is what I should do again, file a NOD but worded as follows in #1?

#1

I disagree with all issues resolved or ignored by the decision dated 09-10-2012 and the provisional decision dated 06-20-2012 and wish appellate review. Recent Federal Circuit decisions hold that if a veteran files more than one claim with the RO at the same time, and the RO’s decision acts (favorably or unfavorably) on one of the claims but fails to specifically address the other claim, the second claim is deemed denied, and the appeal begins to run. Therefore, I file this notice of disagreement to protect my rights against the failure of the VA to adjudicate all my claims and the failure of the VA to notify me under 38 U.S.C. § 5104.

Or, file the following in #2?

#2

In Richardson v. Nicholson, 20 Vet. App. 64 (2006), the CAVC held that appellants can argue that the failure to adjudicate a claim constitutes CUE. The Court held that the VA is required to determine whether the claim was or was not adjudicated. If the claim was adjudicated then the VA is required to consider the current CUE claim. If a claim should have been adjudicated but was not then the VA is required to now adjudicate that claim. This is a notice of disagreement because an earlier effective date should have been established because the rating decision dated 09-10-2012 and the provisional decision dated 06-20-2012 should have adjudicated this issue. If you determine that the above cited rating did consider this issue, the appellant contends that the failure of the rating to adjudicate this claim constitutes clear and unmistakable error. Please note that the appellant was never provided specific notice of this decision. See 38 U.S.C. § 5104. In the alternative, the appellant argues that the claim was still pending from the original date of claim when benefits were eventually granted. The veteran seeks appellate review.

CUE, Richardson v. Nicholson, No. 03-2100, sympathetic reading to veteran’s earlier filings.

“The Federal Circuit held that, upon receipt of a request for revision on the basis of CUE, “VA must give a sympathetic reading to the veteran’s filings in that earlier proceeding to determine the scope of the claims.” Id.; see also Moody v. Principi, 360 F.3d 1306, 1310 (Fed. Cir. 2004).”

First, the CUE aspect of Andrews is inapplicable to cases in which an RO decision or certain subsequent procedural rights were never provided with regard to a claim for VA benefits or the pleadings of a claimant for VA benefits. In such cases, the entire claim for benefits and all aspects of that claim remain open – in an unadjudicated status – and the claim can be pursued in a non-CUE context. See Tablazon v. Brown, 8 Vet.App. 359, 361 (1995) (allowing claimant pursuing claim to reopen to assert that his original claim was never final because no Statement of the Case (SOC) had been provided); Hauck v. Brown, 6 Vet.App. 518, 519 (1994) (allowing claimant pursuing an increased rating claim to assert that his claim was never final because the Secretary failed to mail him a copy of the Board decision pursuant to 38 U.S.C. 7104(e)); Kuo v. Derwinski, 2 Vet.App. 662, 666 (1992) (allowing claimant pursuing an increased rating claim to assert that he was entitled to an earlier effective date because no SOC had been provided); Ashley v. Derwinski, 2 Vet.App. 307, 311 (1992) (finding claim in non-final status when the Secretary failed to mail a claimant a copy of the Board decision pursuant to 38 U.S.C. 7104(e)(3)); see also Cook v. Principi, 318 F.3d 1334, 1340 (2002) (citing favorably Tablazon, Hauck, Kuo, and Ashley, all supra, and finding a non-final claim occurs when “the time for appealing either an RO or a Board decision did not run where the [secretary] failed to provide the veteran with information or material critical to the appellate process”); Woznick v. Nicholson, 19 Vet.App. 198, 201-02 (2005) (directing the Secretary to issue an SOC as to the appellant’s claim).

Because I was not given an opportunity to respond, as allowed by the CFR's, because I was not provide with any information about this 08-20-2010 IHD claim until I discovered that it was missing from my VA records, where does the law provide the recourse for the veteran in this instance?

File some other document and go through the same obstacle course again. The veteran that has a claim issue with the VA, where the VA failed to follow the law, should have priority in the decision process and the VA should pull out all of the stops to correct it's mistake.

I find volumes upon volumes where the veteran has to comply and rule upon rule that seems to protect the people that are suppose to apply the law but when the law wasn't followed and the veteran is the only one to suffer, where does the veteran turn?

My ONLY CONTRUBITION, to all of this, was the filing of claims and all of the confusion, failures and mistakes afterwards, were and are by the VA. It is now upon me to prove that the VA failed me when they have been made aware, multiply times, of these failures in not processing my claims as they have processed those where they did not fail the veteran by having correctly processed a veterans claim/claims.

NOTE: The EP code #681, at the time that I filed my IHD and PTSD claims, represented one of three NEHMER covered disease's of which IHD was one of them.

By the sole fact that it is a NEHMER claim, it brings into play several CFR's that must be applied to the claim with priority and immediately in my opinion.

Other than the one VA document that has a contact date of 07-19-2012, which has a note stating “It should be noted that an EP 681 was originally established on 08-20-2010 and canceled with no explanation. The veteran submitted two VA Form 21-4138's on that day. We only have 1 4238 received on 08-20-2010 that does not mention IHD; however, it had to be there or an EP 681 would not have been established. Earlier effective date may be warranted.”, I have had no admission, from the VA, that the IHD & PTSD dated 08-20-2010 exist other than verbally.

TL 09-04 is rescinded due to issuance of this FL

May 20, 2013 Director (00/21) In Reply Refer To: 212A

All VBA Regional Offices and Centers Fast Letter 13-10

SUBJ:Guidance on Date of Claim Issues

Purpose

This fast letter provides guidance for establishing dates of claim including guidance for previously unadjudicated claims that are found or “discovered” in the claims folder.

Date of Claim Establishment

VA regional office staff should document claim receipt dates in claim folders and in the electronic systems in accordance with M21-1MR. III.ii.1.B.5 and M21-1MR.III.ii.1.C.10.

The date of claim for claims establishment purposes is as follows:

 For first or third party information, the earliest date the information is received in any Department of Veterans Affairs facility. This date should be identified from the earliest VA date stamp. Date stamps can be from any VA entity, including but not limited to, Regional Office (RO), Pension Management Center (PMC), Veterans Affairs Medical Center (VAMC) or Records Management Center (RMC). (M21-1MR III.i.1.2.b).

Exception: Use the date a previously unadjudicated claim is discovered as the date of claim for system control purposes. The earliest date stamp shown on the discovered document shall not be used as the date of claim for purposes of establishing the EP, but it must be considered when determining the effective date if benefits are granted. This will ensure that the claimant is paid properly.

Important: A contention-level special issue has been created in MAP-D titled “Unadjudicated Claims Discovered” that should be used when establishing EPs for these claims.

Page 2.

Director (00/21)

 For messages generated as a result of matching programs and BDN write-outs, the date shown on the message, or if no date is shown, the date of the review. (M21-1 V.III., 19.10).

 Exception: BDN write-outs and 800 Series Work Items with the legend "Processing Date - Cycle XX, Month/Year" will use the Hines cycle schedule for date of claim purposes. Please see the Hines Cycle Schedule for more information.

 For due process, the date the notice of proposed adverse action is sent. (M21- 1MR.I.2.B.7.b)

 For EP 930 that is established to (a) correct a case worked erroneously or (b) to control an EP that was cleared prematurely, use the same date of claim of the underlying EP prematurely cleared or incorrectly processed. (M21-4, Appendix C, Section II, and M21-1MR III.i.1.2.b)

Previously Unadjudicated Claims Discovered in Claims Folder

Authorization to establish a date of claim for a previously unadjudicated claim or “discovered” claim will be approved by the RO Director, or his/her designee, which will be no lower than an Assistant Director. The claim’s establishment must be notated on the document by the Director, or his/her designee. This applies to either a paper notation in the claims folder or an electronic notation in the electronic record. After the claim is adjudicated, the Director must send an email to Compensation Service at VAVBAWAS/CO/212A with “Unadjudicated Claim Discovered” in the subject line and the following information concerning the claim:

 SSN or claim number

 Claimant name

 End product

 Date of claim (reflecting the date of discovery of the unadjudicated claimed issues)

 Effective date (reflecting the effective date for payment purposes, if applicable)

CUE and Effective Date The instructions provided in this fast letter do not govern assignment of effective dates for claim decision purposes or claims for clear and unmistakable error (CUE). In order for a CUE to occur, a decision has to have been made on a claim. Any newly “discovered” claims discussed above have never been decided; therefore, CUE is not applicable in these cases. See 38 CFR 3.105(a) for more information on CUEs.

Page 3.

Director (00/21)

Effective date guidance is covered in 38 U.S.C. § 5110, 38 CFR 3.400 and 38 CFR §3.157. Please refer to this guidance when deciding the correct effective date to be assigned.

Berta

Thank you for your response.

Your 1^st question. No I have not contacted NVLSP, but I'm beginning to think that I should.

As to it being a C&UE or not due to the original IHD and PTSD claims not being adjudicated but a subsequent claim for IHD was decided with a decision date of 06-20-2012 and then a provisional decision dated 09-10-2012 based on my challenging of the 06-20-2012 IHD decision. From what little I have read in citations, it seems to be a yes & no depending on specific determinations of what did or did not occur and when. I did not find a citation with the specific failure's by the VA that I have noted.

Your 2^nd question. My IHD & PTSD claims were filed on the same form 21-4138 and there is no proof of mailing.

At the time that all of this started, I had no clue about any of this VA stuff.

When my CBOC discovered I was a Diabetic in late 2010, my PCG, at the CBOC, suggested that I seek the advise of a Veteran who had been helping Veterans with the filing of claims because Diabetes was one of the presumed diseases from Agent Orange of which I knew nothing about these matters at that time.

The 2^nd day, after my first contact with the VA in almost 40 years, I was instructed to do a fasting for a A1c by my PCG in order to determine what treatment was needed. I was told that day to report anything unusual with my health and they would take it from there.

The following morning, when I was to have the A1c blood test, I woke up with chest pains, sweating, breathing fast, weak and it felt like I had a child sitting on my chest. When I arrived, I reported this to my PCG and in a flash I had 6 people working on me. I was given 2 EKG's about 4 hours apart and both were abnormal.

Because the PCG had been consulting with a cardiologist at the JAXVAMC during this time, I was then sent to the JAXVAMC ER by my PCG, to have a stress test done that afternoon or stay over and have it done the following day. The JAXVAMC ER doctor sent me home with 2 bottles of Mylanta.

I reported this, in person, to my PCG the next morning at 8:00AM. That afternoon I received a telephone call from the ER doctor, 1:30PM, informing me of a stress test being scheduled for few days later.

A few days after all of this I met with the Veteran and he helped me fill out a 21-4138 for Diabetes. When he finished I remembered that I hadn't told him about the heart stuff and he filled out another 21-4138 for IHD and he began asking me question and then said that I needed to file for PTSD also and placed that on the same form.

Now to answer your question, no I do not have a copy of my IHD & PTSD claims because he had no means to provide copies at the time. I do have a copy of my Diabetes claim that I got from my “C” file.

I do have this document, [Mr. Talley, with the VA, provided me with a form 21-0820 which has a contact date of 07-19-2012, which also has a note stating “It should be noted that an EP 681 was originally established on 08-20-2010 and canceled with no explanation. The veteran submitted two VA Form 21-4138's on that day. We only have 1 4238 received on 08-20-2010 that does not mention IHD; however, it had to be there or an EP 681 would not have been established. Earlier effective date may be warranted.” ].

Your 3^rd question. First IHD decision dated 06-20-2012

I tried to post the scans but can not, don't know how here.

Provisional decision

Your ^4th question. I demand evidence that they DO have it on file although it is not in my “C” file as I will explain later.

Your ^5th question. No, this was done in person at the RO, but I have a copy of the claim she typed out. The person ( Public Contact Representative) did not sign the document but they are doing so now.

Your^6th question. I have never had a PTSD examination or C&P for PTSD to my knowledge or a copy of such in my records unless the 12 week CPT counts. I was sent to the 12 week CPT by my PCG at the CBOC and as I understand things now, this was under the heading of treatment.

Your^7th question. I have filed, through my VSO, a lot of documents asking for this to be resolved. I asked him to file a NOD, C&UE and a Request for Reconsideration and this is where I am at.

BTW: He was aware of all of this and when I received the provisional decision, part of his advise was “not to rock the boat”. I called him and asked for him to help me before the time ran out on the provisional decision and he had his secretary inform me that he could not help me and for me to refer to my decision letter. I wanted his help on resolving the PTSD claim and at that time was not going to challenge the IHD provisional decision, now I don't care if they take it all back or what it cost me because no Veteran should be dealt with in this manner and how many others have been or will be?

Again, my only contribution to this was my filing claims, I have met every appointment (215 to date and I asked for only one, all of the rest were scheduled by the VA), responded to every letter and continued with every treatment the VA has given me.

Broncovet

Thank you for responding. Your advise will be taken into account shortly.

As I understand the citations I have read, a “deemed denial” is applied to a claim that received a decision but wasn't an original claim that hadn't been adjudicate as with my circumstances, by which I was denied all of the CFR's afforded to a veteran filing a claim, that are a fact of VA records.

****************************************************************************************************************************************************************************************************************

It is my understanding that NEHMER claims has/had priority in the development and processing of claims. The following is why I believe my IHD effective date should be 08-20-2010.

As my VA records indicate, it seemed to be a priority in the development process with my Diabetes claim that I filed on 08-20-2010 of which I was awarded service-connection for this NEHMER claim on 07-18-2011, which is less than a year from the time that I filed the claim.

During this time I was scheduled for C&P, 10-05-2010, Neurological; C&P, 10-05-2010, Diabetes; C&P, 10-21-2010, General medical; C&P, 11-05-2010, Neurological; and then awarded service- connection for Diabetes on 07-18-2011.

During this time, I was being given treatment, by the VA, for the results from the examinations, by the VA, which had confirmed that I was a Diabetic. The VA records will indicate that the VA care givers placed an urgency on the proper care and treatment of my Diabetes.

However, my records, and “C” file, do not indicate that I was scheduled a C&P for my 08-20-2010 IHD claim or my 08-20-2010 PTSD claim, therefore I did not have examinations or receive treatment for IHD, as I did after a C&P examination for Diabetes. Apparently, no priority was assigned to the IHD claim and NO evaluation for PTSD to date. See CFR 3.159 ©(4)(i).

My records do not indicate that I was notified, for any reason, having to do with an IHD claim until after the heart surgery on 08-09-2012 or for a PTSD claim as of the date of this document. See #20, last paragraph.

For 22 months the only treatment I received for IHD, was heart dosage aspirin and nitrogen pills that was ordered by my CBOC primary care giver just after the two abnormal EKG's that were done in JULY of 2010.

Because I was in-trusting the VA with my health care by filing claims and was under the impression that the VA was processing the IHD & PTSD claims per CFR's, I was at risk of health and life for almost a two year period of time for IHD.

It is also reasonable to assume that if I had been scheduled for an examination for a heart problem per Title 38 CFR 3.159, I may not have had to have a CABG but some other less invasive and risky procedure or just medications only. It is also reasonable to assume that the blockages were present in 2010 and that they would have been discovered allowing for an earlier treatment and effective date on the IHD claim. This may invoke CFR 3.154 Injury due to hospital treatment, etc.

• 1. On 06-06-2012, I contacted my VSO and asked him to check on my 08-20-2010 IHD claim after the heart cauterization was done at the JAXVAMC on 06-05-2012, and he informed me that I didn't have a IHD or PTSD claim in my VA records. This was the beginning of all of the following.

  [10 days later]

• 2. On 06-16-2012, I met with Mr. Nathan Talley, MSC from the JAXVARO, who discovered that the VA has an electronic file on me that has a entry of "EP 681 claim ESTABLISHED and CANCELLED with no explanation" dated as 08-20-2010.

[5 days later]

• 3. On 06-21-2012, I met with a Public Contact Representative (PCR) at the JAXVARO and I asked her to help me locate my 2010 IHD claim. She retrieved my “C” file and we went through it but we didn't locate my 2010 IHD or PTSD claim in my “C” file. She then checked the VA computer system and didn't locate it there either. I asked her what I should do and she instructed me to file for everything I thought was a medical issue and to refile for IHD and PTSD, I agreed and she hand wrote the PTSD on the form 21-4138 that she had typed the other issues on that we had discussed. I also requested a copy of my “C” file.

  [ 28 days later]

• 4. Mr. Talley provided me with a form 21-0820 which has a contact date of 07-19-2012, which also has a note stating “It should be noted that an EP 681 was originally established on 08-20-2010 and canceled with no explanation. The veteran submitted two VA Form 21-4138's on that day. We only have 1 4238 received on 08-20-2010 that does not mention IHD; however, it had to be there or an EP 681 would not have been established. Earlier effective date may be warranted.”

• 5. Did this canceling of the EP 681 stop the development of the IHD claim?

• 6. I must point out that it was almost two years (over 22 months) from the first indication of a heart problem, which was detected by abnormal EKG's on 07-21-2010 at the Hattiesburg CBOC, until a heart cauterization was done at the JAXVAMC on 06-05-2012.

• 7. The 06-05-2012 heart cauterization was due to me going to the JAXVAMC ER five day's after another abnormal EKG was detected at the Hattiesburg CBOC on 05-17-2012. I believe it was the cardiologist on duty at the JAXVAMC ER that night (around 1:00 AM) at the JAXVAMC ER, who refused to schedule a heart cauterization, but one was scheduled by my CBOC primary care giver afterwards and the JAXVAMC scheduled for it to be done on 06-05-2012.

  [ 65 days later]

• 8. On 08-09-2012, I had bypass surgery at the Houston VAMC.

• 9. I believe this document from Mr. Talley constitutes an informal claim dating 08-20-2010, as I understand CFR 3.155 Informal claims ((a) Any communication or action, indicating an intent to apply for one or more benefits under the laws administered by the Department of Veterans Affairs, from a claimant, his or her duly authorized representative, a Member of Congress, or some person acting as next friend of a claimant who is not sui juris may be considered an informal claim.) , should my original IHD and PTSD claims be missing that were submitted on a Form 21-4138I on 08-20-2010.

• 10. I ask, what were and when were any actions taken, by the VA, on the 2010 IHD and PTSD claims that I had submitted in August of 2010 from 08-20-2010 until 08-09-2012? I am also requesting copies of any actions taken, by the VA, on the 2010 IHD and PTSD claims that I had submitted in August of 2010 from 08-20-2010 until 08-09-2012?

• 11. I will also add that the form 21-0820, with a contact date of 07-19-2012, notes “PTSD – new” and Ischemic heart disease due to Agent Orange exposure*** - (new)”, although I have now been informed, by several different JAXVARO PCR's on several different occasions, that my VA records do indeed indicate that both the IHD and PTSD claims, dated 08-20-2010, were received with no record of any communications with me afterwards. I have filed a request with the JAXVARO for copies of the 2010 IHD & PTSD claims as well as the claim of mine that had been assigned an “EP code 681 and was "ESTABLISHED & CANCELLED WITHOUT EXPLANATION".

• 12. In the decision letter dated 09-10-2012, it states “We made a decision on your claim for service connected compensation received on August 3, 2011.”. I have no copy of a claim with that date.

• 13. No reference is made to the original 08-20-2010 IHD claim in the 09-10-2012 decision letter. In this same decision letter it states under the heading “What We Decided”, “ Service connection for ischemic heart disease associated with herbicide exposure is granted with a 10 percent evaluation effective June 20, 2012. An evaluation of 100 percent is assigned from August 9, 2012. An evaluation of 10 percent is assigned from December 1, 2012.

We have granted service-connection for ischemic heart condition effective June 20, 2012, the date we received your claim.” This date is in contradiction with the previous “We made a decision on your claim for service connected compensation received on August 3, 2011.”. I need clarification of these dates.

• I have read and it has been explained to me that the federal statute clearly states:

  When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of the matter, the Secretary shall give the benefit of the doubt to the claimant. Per 38 U.S.C. 5107(b).

• and

  As the United States Court of Appeals for veterans Claims explained in Gilbert v. Derwinski, 1 Vet. App. 49, 53-55 (1990):

  • Citation Nr: 0814816, Decision Date: 05/05/08, Archive Date: 05/12/08, DOCKET NO. 07-06 244A
  • General Legal Criteria
  • Service connection may be granted for disability resulting

from disease or injury incurred in or aggravated by active

service. 38 U.S.C.A. § 1131; 38 C.F.R. § 3.303. (see also) 38 U.S.C.A. § 5107 (West 2002)

(also) To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54.

I have read and it has been explained to me that the federal statute clearly states:

• • The VA does not have the discretion to ignore the substantive obligations owed to veteran, as provided by law. See Schafrath v. Derwinski, 1 Vet. App. 589, 592-3 (199) (The VA must strictly perform duties imposed by statute or regulation. It has no discretion to act or not to act.); See also Bradford v. Nicholson, 20 Vet. App. 200 (2006) (Failure to follow regulations warrants remand if unable to ascertain such failure to be non-prejudicial to the veteran).

• (A.) I have now been informed that the “EP code 681, ESTABLISHED and CANCELED WITHOUT EXPLAINATION ” WAS A REVIEW AND NOT A CLAIM that was CANCELLED. I was also informed that the EP code 681, at that time, was only applicable to NEHMER claims.

• (B). I was informed that the IHD claims, at the time that I filed my IHD claim, were being sent to the Muskogee office and the Muskogee office was under a court ordered to process all agent orange claims by September 30^th, 2010. I submitted a claim for service connection for IHD & for PTSD on 08-20-2010 on a single form 21-41-38. I am of the opinion that this is when my problem with the 2010 IHD and PTSD claim began.

• (C.) Did this canceling stop the development of the IHD claim?

• [ NOTE-I HAD A CONVERSATION, BY TELEPHONE, WITH JAXVARO PCR ON 12-17-14 AND I ASKED FOR A DRO MEETING. I WAS INFORMED THAT THE IHD & PTSD CLAIMS DO EXIST AND ARE IN MY VA RECORDS AS BEING ACTED UPON IN 2010 AND I WAS INFORMED THAT A DRO MEETING WAS NOT QUAILIFIED BECAUSE A DECISION WAS NOT MADE ON THE TWO 2010 CLAIMS.]

• (D.) Because a PROVISIONAL DECISION WAS MADE ON BOTH THE IHD & PTSD CLAIMS after the decision letter dated 09-10-2012 for the 06-20-2012 IHD claim, I have been informed that I can not request a NOD, CUE, DRO or APPEAL this provisional decision or the original IHD and PTSD claims of 2010.

• The decision letter dated 09-10-2012, for the 06-20-2012 IHD claim, did grant a 10% rating for IHD effective December 1, 2012.

• It is my understanding that the Provisional Decision is for the 09-10-2012 decision, therefore a NOD, CUE, DRO or APPEAL should be available to me based on the 09-10-2012 decision.

(15) I believe I was denied the assistance, per CFR 3.103 Procedural due process and appellate rights, CFR 3.104 Finality of decisions. and CFR 3.159 Department of Veterans Affairs assistance in developing claims , in having these 2010 claims adjudicated when I brought it to the attention of a veterans service officer on 07-19-2012 and a PCR at the JAXVARO on June 20, 2012 at 9:11 AM and was instructed to refile my IHD and PTSD claims? Decisions have been made on IHD and PTSD claims without adjudicating the original 08-20-2010 IHD and PTSD claims.

• (E.) I have no record of any heart EXAMINATIONS, a C&P being scheduled for IHD or any notification of any kind, from 08-20-2010 until 05-30-2012, due to an IHD claim being processed, which would have occurred if Title 38 CFR 3.159 had been applied specifically 38 CFR 3.159 ©(4)(i).

  • Title 38 CFR 3.159 Department of Veterans Affairs assistance in developing claims.

    • (b) VA's duty to notify claimants of necessary information or evidence.

      • (1) When VA receives a complete or substantially complete application for benefits, it will notify the claimant of any information and medical or lay evidence that is necessary to substantiate the claim (hereafter in this paragraph referred to as the ‘‘notice’’)

      • (2) If VA receives an incomplete application for benefits, it will notify the claimant of the information necessary to complete the application and will defer assistance until the claimant submits this information. (Authority: 38 U.S.C. 5102(b), 5103A(3))

    • © VA's duty to assist claimants in obtaining evidence.

      • (4) Providing medical examinations or obtaining medical opinions.

        • (i) In a claim for disability compensation, VA will provide a medical examination or obtain a medical opinion based upon a review of the evidence of record if VA determines it is necessary to decide the VerDate Mar<15>2010 08:43 Sep 01, 2011 Jkt 223141 PO 00000 Frm 00203 Fmt 8010 Sfmt 8010 Y:\SGML\223141.XXX 223141 erowe on DSK5CLS3C1PROD with CFR194 claim. (the IHD claim was a NEHMER claim) A medical examination or medical opinion is necessary if the information and evidence of record does not contain sufficient competent medical evidence to decided the claim, but:

          • Contains competent lay or medical evidence of a current diagnosed disability or

          • (B) Establishes that the veteran suffered an event, injury or disease in service, or has a disease or symptoms of a disease listed in §3.309, §3.313, §3.316, and §3.317 manifesting during an applicable presumptive period provided the claimant has the required service or triggering event to qualify for that presumption; and

          • © Indicates that the claimed disability or symptoms may be associated with the established event, injury, or disease in service or with another service-connected disability.

• (F.) My records indicate the following C&P appointments:

  • C&P, 10-05-2010, Neurological

  • C&P, 10-05-2010, Diabetes

  • C&P, 10-21-2010, General medical

  • C&P, 11-05-2010, Neurological

  • C&P, 08-10-2011, Audio

  • C&P, 08-18-2011, Neurological

  • C&P, 08-24-2011, Neurological EMG

  • C&P, 09-08-2011, Neurological

• (G.) As indicated in (F), the VA was quickly scheduling C&P examinations for the Diabetes, Neurological and Audio claims but none for a heart problem. This indicates to me that the 08-20-2010 IHD claim was not being processed.

  • C&P, 07-20-2013, ?

  • C&P, 07-22-2013, ? Two on this day

  • C&P, 07-25-2013, ? Four on this day

  • C&P, 07-30-2013, ?

• (H.) The eight (8) C&P examinations above were scheduled after the surgery and just prior to the provisional decision dated 08-12-2013.

• (I.) 08-06-2013, I received a telephone call (six days before the date of the provisional decision) from a lady at the JAXVARO explaining that if I kept my request for a DRO meeting that it would delay the decision and I instructed her to canceled the request for a DRO meeting.

• (J.) 08-14-2013, I received the provisional decision.

  • (14) I assert that the Jackson Veterans Administration Regional Office failed to develop the 08-20-2010 IHD & PTSD claims, as I understand the CFR's.

  • "The Agency of original jurisdiction must provide, along with the mailing of the decision, a notification of the appellant of his or her procedural due process and appellate rights." See Mendenhall v Brown, 7 Vet.App. 271, 274 (1994); U.S.C. 7105(d)(1); 38CFR 3.103, 19.25(1999). "Where VA has failed to procedurally comply with statutorily mandated requirements, a claim does not become final for purposes of appeal to the Court." See Lanao v Brown, 8 Vet.App. 361, 365(1995)”. THIS WAS NOT DONE for the 2010 IHD & PTSD claims because I believe they were not processed per the CFR's.

  • • Fulfillment of the VA statutory duty to assist the veteran

    • includes the procurement and consideration of any relevant VA

    • or other medical records. Murphy v. Derwinski, 1 Vet. App.

    • 78 (1990); Ferraro v. Derwinski, 1 Vet. App. 326 (1991);

    • Littke v. Derwinski, 1 Vet. App. 90 (1990).

    • Was MR21-1MR not applied?

  • (16) As I understand the CFR's, a clear and unmistakable error was made by not properly adjudicating the original 08-20-2010 IHD and PTSD claims as I have explained in #20. This is why I have asked that I be granted an effective date of September 2010 for my IHD claim and PTSD claim per CFR 3.105 Revision of Decisions based on a CLEAR and UNMISTAKABLE ERROR. (multiple)

    • (1.) Explain the following;

      • Was I denied the required notification, written or otherwise per CFR 3.103 Procedural due process and appellate rights, of an action or inaction on my original 08-20-2010 IHD and PTSD claims , by the JAXVARO, if these claims were not processed per the CFR's by the JAXVARO, especially when the IHD claim is a NEHMER claim?

      • Was I denied the required CFR 3.102 Reasonable doubt.

      • Was I denied the required CFR 3.151 Claims for disability benefits.

    • • Was I denied the required CFR 3.155 Informal claims ((a) Any communication or action, indicating an intent to apply for one or more benefits under the laws administered by the Department of Veterans Affairs, from a claimant, his or her duly authorized representative, a Member of Congress, or some person acting as next friend of a claimant who is not sui juris may be considered an informal claim.),

      • Was I denied the required CFR 3.156 New and material evidence when I reported what I believed to be an error in the processing of my 2010 IHD and PTSD claims on 06-21-2012.

      • Was I denied the required

        • CFR 3.157 Report of examination or hospitalization as claim for increase or reopen

          • (a) A report of examination or hospitalization which meets the requirements of this section will be accepted as an informal claim for benefits under an existing law or for benefits under a liberalizing law or Department of Veterans Affairs issue, if the report relates to a disability which may establish entitlement.

          • (b),(1) Report of examination or hospitalization by Department of Veterans Affairs or uniformed services. The date of outpatient or hospital examination or date of admission to a VA or uniformed services hospital will be accepted as the date of receipt of a claim., Would this be an informal claim for meeting the VA scheduled appointment for a stress test which was canceled by the ER doctor at the JAXVAMC on 07-21-2010 but was done a few day's later

    • (17) I believe that by not properly processing my 2010 IHD & PTSD claims without complying with Title 38 CFR 1.03, that I was denied the:

      §3.156 New and material evidence.

      (b) Pending claim. New and material evidence received prior to the expiration of the appeal period, or prior to the appellate decision if a timely appeal has been filed (including evidence received prior to an appellate decision and referred to the agency of original jurisdiction by the Board of Veterans Appeals without consideration in that decision in accordance with the provisions of §20.1304(b)(1) of this chapter), will be considered as having been filed in connection with the claim which was pending at the beginning of the appeal period. (Authority: 38 U.S.C. 501)

      • Title 38 CFR 3.159 Department of Veterans Affairs assistance in developing claims.

        • (b) VA's duty to notify claimants of necessary information or evidence.

        • © VA's duty to assist claimants in obtaining evidence.

          • (4) Providing medical examinations or obtaining medical opinions.

            • (i) In a claim for disability compensation, VA will provide a medical examination or obtain a medical opinion based upon a review of the evidence of record if VA determines it is necessary to decide the claim. (the IHD claim is a NEHMER claim) A medical examination or medical opinion is necessary if the information and evidence of record does not contain sufficient competent medical evidence to decided the claim.

      • I believe these decisions address the issue of application of the prejudicial error rule in the context of the VCAA and apply to my 08-20-2010 IHD and PTSD claims:

      • Sanders v. Nicholoson, 467 F.3d 881 (Fed. Cir. 2007), and Sanders v. Nicholoson, 467 F.3d 892 (Fed. Cir. 2007).

      • Sanders v. Nicholson, 487 F. 3d 881, 889 (2007).

        • Was I denied the required CFR 3.154 Injury due to hospital treatment, etc. (No examination was given for either claim per CFR's which may have resulted in a less invasive and risky procedure other than a CABG for the IHD claim and no examination/evaluation for PTSD as of the date of this document), because the IHD claim is a NEHMER CLAIM?

        • Fulfillment of the VA statutory duty to assist the veteran

        • includes the procurement and consideration of any relevant VA

        • or other medical records. Murphy v. Derwinski, 1 Vet. App.

        • 78 (1990); Ferraro v. Derwinski, 1 Vet. App. 326 (1991);

        • Littke v. Derwinski, 1 Vet. App. 90 (1990).

        • Moreover, the

        • United States Court of Appeals for Veterans Claims (Court)

        • has stated that the duty to assist claimants in developing

        • the facts pertinent to their claims may, under appropriate

        • circumstances, include a duty to conduct a thorough and

        • contemporaneous medical examination. Proscelle v. Derwinski,

        • 2 Vet. App. 629, 632 (1992); Green v. Derwinski, 1 Vet. App.

          • 121, 124 (1991).

        • • My 2010 claims were done on a form 21-4138 and I read in the MR21-1MR " Consider a claim not filed on the prescribed form an informal claim ", and " any communication or action that shows an intent to apply for benefits under laws administered by the Department of Veterans Affairs (VA)", that they would be an informal claim.

          • I believe this would apply even if I had not filed the 2010 IHD & PTSD claims because I was sent to the JAXVAMC ER for a heart problem, by the CBOC at the direction of a JAXVAMC cardiologist, for a stress test to be done that afternoon or the following day but instead, I was sent home by the ER doctor and the stress test was scheduled and done a few days later at the direction of the JAXVAMC after my PCG at the CBOC had contacted the JAXVAMC the day after the ER visit.

        • (18) I assert that there was no final decision on the 2010 IHD & PTSD claims per Title 38 CFR 3.104 because there was no written notice in accordance with 38 U. S. C. 5104. Title 38 CFR 3.104 Finality of Decisions.

          • (a) A decision of a duly constituted rating agency or other agency of original jurisdiction shall be final and binding on all field offices of the Department of Veterans Affairs as to conclusions based on the evidence on file at the time VA issues written notification in accordance with 38 U. S. C. 5104. The action taken by not processing these claims, per the CFR's, was for all intents and purpose a FINALY DECISION because I was denied any further action or knowledge as required by the CFR's due to no notification or scheduled examination for a NEHMER CLAIM having been filed.

        • (19) As I understand these CFR's, the action that I believe was taken by the JAXVARO in not properly processing a claim for IHD & PTSD, without complying with Title 38 CFR 3.103, was a decision but not a final decision per Title 38 CFR 3.104, which indicates to me that the original 2010 IHD & PTSD claims remain open and undecided.

        • (20) I assert that the failure of the VARO to comply with Title 38 CFR 3.103 is a clear and unmistakable error as stated in:

        • Title 38 CFR 3.105 Revision of Decisions.

          • (a) Error Previous determinations which are final and binding, including decisions of service connection, degree of disability, age, marriage, relationship, service, dependency, line of duty, and other issues, will be accepted as correct in the absence of clear and unmistakable error. (There was no decision on the 2010 IHD & PTSD claims which falls under the heading of "Previous determinations" because a provisional decision was made on the 2012 IHD claim without processing the 08-20-2010 IHD claim. Although the required written notification was not given which would meet the requirements of Title 38 CFR 3.104 as a final decision but it was a final decision and binding for all intents and purpose because I was not aware of this action as required by Title 38 CFR 3.103 and therefore I could not respond as allowed by the CFR's).

        • Where evidence establishes such error, the prior decision will be reversed or amended. For the purpose of authorizing benefits, the rating or other adjudicative decision which constitutes a reversal of a prior decision on the grounds of clear and unmistakable error has the same effect as if the corrected decision had been made on the date of the reversed decision.

          ************************************************************************************************

          (I ask that this be applied to award an earlier effective date for IHD and also whenever I have an evaluation for my PTSD claims and a final decision on PTSD is made.)

          ************************************************************************************************

        • (21) I assert that by not properly processing my 2010 IHD & PTSD claims without complying with Title 38 CFR 1.03, that I was denied the Title 38 CFR 3.157 Report of examination or hospitalization as claim for increase or reopen.

          • (b) Claim.

            • (2) Evidence from a private physician or layman. As was done by the (CBOC).

        • (22) I was denied my the right to provide any evidence to substantiate my 08-20-2010 claim for IHD for over 22 months or to date for PTSD.

      • (23) I had provided the JAXVARO the information about the 2010 IHD & PTSD claims and that a claim of mine had been assigned an EP code 681 and was "ESTABLISHED & CANCELLED WITHOUT EXPLANATION", and I had no other claim dated 08-20-2010 but the IHD & PTSD claim of which there has not been a decision made.

      • (24) Until the provisional decision, each time I questioned someone in the VA about my original IHD & PTSD claims, I was told that there were no 08-20-2010 IHD & PTSD claims in the VA system. When I ask now, I am told that they are in the VA system and each time that I ask I also ask for copies but none to date have been provided.

        • (25) This was prior to the Provisional Decision in which I was granted a 60% rating on my heart condition and also granting me 100% PT-IU on my overall service connected disabilities with an effective date of 07-21-2012. This effective date was based on the second claim dated 1-31-2012 when I was instructed, by a JAXVARO PCR person, to file again for IHD & PTSD but the person, after informing her, would not and did not attempt to resolve the issue of the earlier IHD & PTSD claims of 2010 to my knowledge.

[broncovet]

If you meet the criteria as a "Nehmer" Vet, then NVLSP will review your case and represent you for free. They were supposed to have reviewed the Nehmer cases, but it looks like yours likely fell through the cracks.

This is complex and you are best advised to enlist the services of a professional (NVLSP lawyers) to get the best result for you. I would not go it alone or have a VSO. The attorney fees, if NVLSP takes your case (Nehmer or no nehmer) will be paid for EAJA act and you wont pay anything.