ptsd Update on old claim and question

[Hoppy]

For those who do not know me check my post in roll call and search “Hoppy”.  There should still be some stuff in claims and research that will come up.  Also people referenced my position papers in success stories.  This is an update on a claim I talked about several years ago. It is quit long.  If you make to the end there is an interesting set of circumstances causing a new DRO hearing and events at the hearing. The claim was originally filed in 2002.  It was denied due to the VA’s impeachment of a buddy letter.  The way the letter was impeached had no foundation in the law.  I got involved in the claim in 2011 when the veteran showed me a medical report written by a department head at a VA hospital. The claim has been reopened and is continuing. Here are some of the gory details showing how far the VA will go to delay and deny. Update-the original unfounded impeachment of the buddy letter has been overturned. I got the veteran a really good VSO. She is very motivated. The veteran had been waiting a year and a half for a personal hearing. One day last November he got a decision letter saying that the hearing had been scheduled and that he was a no show. The veteran said he did not get a notice of the hearing. The claim was denied. The veteran filed the medical report as new and material evidence. A DRO determined that it was not material because it did not do anything to overturn the impeachment of the witness statement. The DRO went on to say that even if the buddy letter was verified the veteran still had no valid claim. The veteran’s service officer said she had not been notified of a hearing.  The lack of notification was brought to the attention of the DRO with a letter written by me rebutting the continuance of impeachment of the buddy letter and explaining that the DRO,s determination that even if the buddy letter was verified the veteran still had no claim. As it turns out in my opinion the claim should have been awarded even though the veteran was a no show.  The evidence of record justified an award of service connection. The service office told the veteran that my letter put the DRO on notice that he was dealing with people who were not messing around. The DRO rescheduled the hearing within two weeks of getting my letter. In the decision, the DRO claimed that the evidence of record showed that the incident the veteran was calling an assault was just a confrontation and not an assault. I notified the DRO that I was prepared to get a statement from a retired Judge a Advocate that the event described by the veteran and the witness was an assault while brandishing a weapon and the perb. Could have went to Leavenworth for three years. As such his (DRO) determination that even if the buddy letter was verified it would not result in a valid claim would need to be readdressed. I requested that he identify any adjudication law defining an assault that would justify his position.  Otherwise his determination was a false objective standard of law.  More importantly, the head of the department who wrote the medical evidence included a statement of the assault that was totally consistent with the statement from the witness. The clinician determined that the event was a PTSD stressor and that it was, as likely as not, the cause of the veterans current PTSD. Thus if the buddy letter was verified it is not a question as to the legal definition of an assault v. a confrontation. Rather the issue is whether or not the DRO rebutted a valid medical opinion with a false objective standard of law. In so doing the DRO was playing doctor. As I said earlier the validity of the witness statement had been established.  Thus, the claim could be awarded.  This is how the buddy letter was established as being valid.  It was argued that the buddy letter was impeached without any legal foundation.  Additionally since 2002 the M-21 has clarified procedures for impeaching buddy letters and that the m-21 actually gives reason to allow the letter. Additionally, the  guy who wrote the buddy letter considered the veteran a lifelong friend who had a very positive influence on him while they were on active duty.  At the time the buddy witnessed the assault he was an E3 in the USN.  He wrote the buddy letter 10 years later.  At the time he wrote the letter he was a LTJG. A month before the rescheduled hearing the veteran got a letter from his old friend telling him that his old friend was retiring from the USN as a Commander and the CO of a unit in California.  He invited the veteran to his retirement. When the Commander found out that the VA impeached his letter he flipped out.  He made it a point of driving 90 miles  to show up at the DRO hearing and got in the face of the DRO for about one minute. The commander was pissed. After a minute the DRO said that the letter was in fact credible and that it is no longer an issue. A question arises why did the DRO not tell anyone about the hearing.  Did he think that the veteran was out of gas and would just go away. In any event the DRO scheduled a new C&P and reopened the claim. Here’s the question. What’s going on with the VA.  I will ask this again in a short post for those who do not read this far. The C&P was in January of 2015.  The veteran has heard nothing.  Are they really this backlogged or are they continuing with some game to delay and deny?

 

 

Edited November 2, 2015 by Hoppy

[Vync]

The appeals lane actually has become slower. Over the past couple of years, due to the mounting scandals, the media, veterans, and veterans organizations have turned up the heat. The VA's response was to try and clear out the initial claim backlog. In many instances, this many rubber stamp ratings resulted in bad claims and the number of appeals skyrocketed. DRO wait times and response times have also suffered. I waited over 18 months for my DRO appointment, but in the end I had to call the 202 number to get them to look into it. I'm not sure if this will help, but it might be worth a call to see if they can at least provide a status.

[Hoppy]

Vync  You bring up an interesting point.  I was talking to a lady who has a boat on my dock.  She is a secretary for the director of the local RO. She said they were clearing out the new claims before they were working on appeals. The idea that there are two lanes one for new claims and one for appeals threw me. I thought there was just one lane called "claim date". Maybe it is the DRO's that go by claim date since all they do is appeals. I told the lady I thought it was unfair to put appeals behind new claims. Especially when the claim is being appealed based on misapplication of the law. When my claim went to the DRO way back when, it was awarded about six months after the C&P the DRO scheduled. It is going on 10 months for the veteran now. I will look into the 202 number

[Vync]

The public and the press are starting to sound the alarm on this, but the VA still runs propaganda advertisements boasting how they have cut waiting times for "claims" - without being specific about it.