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13+ years to get the proper decision - Hooray

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Hoppy

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  • HadIt.com Elder

Persistence combined with happenstance wins another claim. The veteran originally filed for PTSD in 2002. He had been “addicted” to psychotropic drugs since 1995 and was getting them from the VA. In 2002 he is seeing a marriage counselor with his wife (her idea). The counselor tells the veteran he has PTSD. He goes to the VA and they tell him he needs a “buddy letter”.  He gets the letter and files a claim.  The claim is denied because they say they could not corroborate the buddy letter with any other evidence in the file. They said the file was silent for any reference to an assault. There is no legal basis to impeach a buddy letter due to lack of corroboration. They need to show inconsistencies and other flaws to impeach a buddy letter.

 

The veteran gives up on the claim.  He is still ‘addicted” to psychotropic drugs and continues to get his drugs from the VA.  He goes to an appointment to get this prescription refilled and the doctor wants to know what the problem is and why he takes these drugs.  He tells the doctor his wife’s therapist told him he had PTSD. The doctor gets all the details as explained in the veteran’s buddy letter and says that the PTSD was “as likely as not” caused by the event described by the witness”. However, the veteran had already given up on the claim and does nothing. Three years later I am talking with him and he shows me the letter. By the way this is not a veteran who I had been helping with a claim.  He was a friend of the family. At a party he told me about this denied claim. I told him to bring me a copy of the decision. This happens five years after the denial and three years after the doctor made the diagnosis of PTSD. I read the evidence and told him, “let's get this reopened”.

 

The buddy letter was written by an officer in the USN. A DRO dismisses everything saying that the event in the buddy letter was not an assault. As it turns out the event described in the buddy letter could have gotten the perpetrator three years in Leavenworth. The argument is advanced that it is not a question of whether the DRO thinks it is an assault or not.  It is a question as to whether or not the event is considered a PTSD stressor by a medical professional. I point out that it had already been determined by a medical professional and cite the existing doctors report. The DRO reads the response to his denial and realizes he screwed up. Maybe he did not read the doctors letter saying it was a PTSD stressor. He immediately reschedules another personal hearing. The officer who wrote the buddy letter is furious that they impeached his original statement and shows up at the DRO hearing. He had recently retired as a Commanding Officer of a unit about 80 miles from where the DRO hearing was being held. The DRO is now surrounded by evidence he can’t refute and awards the claim.   The veteran calls me today and tells me he was service connected at 70% for PTSD.  It took 13 years for the veteran to get a proper decision.  During that 13 year period he was a dumpster diver living on $300.00 a month.

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Congratulations, and thank you Hoppy!  Unfortuantely, this kind of thing happens far too often at VA.  

While you did not indicate that this Veteran was "homeless" as a dumpster diver living on 300 per month, he easily could have been if he was not.  I just can not understand how the VA can say they are serving Vets, when it takes 13 years to deliver benefits.    

Interestingly, I relate to this, as I applied in 2002, and lost my home to foreclousure in 2005.  The VA denied my hearing loss claim even tho the examiner opined, "The hearing loss was at least as likely as not due to noise exposure in service".   The solid nexus did not help, the VA decided it was "too long" since military service, where "time since military service" is not a criteria.   Its a made up denial.   Worse, the VA sidetracked me and "ignored" the other issues, not bothering to adjuticate TDIU until 6 years later, in 2008.  

When I appealed the 2002 decision, I assumed it was appealing IU, too, but no.   While I won my benefits in 2009, I am still fighting them for the "lost years" 2002-2007, that is, an earlier effective date back to when I applied.  

Had I gotten my benefits timely, I would have not lost my home, and probably not lost my spouse who was devastated by the forclosure and soon took off.  My kids still suffer from the divorce.  

I have pulled through it, but many are not so lucky.   Im expecting my 3rd BVA decision in weeks or even days, and have had none less than 19 VARO decisions, with gross errors in each one.  The first BVA decision was a "complete grant of benefit sought", which the VARO decided was zero percent.   I did not appeal the board decsion, why would I appeal an award, even tho they misstated the issues?  I was not aware until much later the Board had misstated the issues, that is, ignored the important ones.  

The board misstated the issues because the RO did the same on my initial decision.  Its taken more than a decade and 18 ro decisions and its still not fixed.  I expect to have to hire an attorney and go to CAVC, and that will likely take 5 to 10 more years.   

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This is Wonderful News Hoppy!

"The DRO reads the response to his denial and realizes he screwed up. Maybe he did not read the doctors letter saying it was a PTSD stressor."

I wonder if there would be any CUE basis in the original denial.

38 CFR 4.6 has become my favorite regulation.

If the VA ignored probative evidence, they have committed a CUE.

Did they send him a TDIU form or  is he employed?

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  • HadIt.com Elder

Berta, 

The service officer I got for the veteran is really into this claim and has already started to push the TDIU issue. There are some potential CUE issues.  However, it is very complex. I am really not up on CUE's.  I have worked mostly on developing medical evidence and rebutting false objective standards of law. A term and set of circumstances I learned from a lawyer I worked with on Workman's comp.  RO adjudicators are really good at inventing arguments to deny a claim that have no, legal foundation. The original denial in 2004 had no foundation in the law. The reasons they gave for impeaching the buddy letter were based on criteria that is a false objective standard of law. As a result of the impeachment of the buddy letter the claim was not developed and there was no C&P and no specific diagnosis of PTSD until 2008. Because of the 2004 denial the veteran gave up.  He did not get a medical opinion linking his PTSD to service until 2008.  This diagnosis came from a treating clinician. I did not get involved until 2011. I immediately research the doctor who wrote the report in 2008 and found out he was a department head and he performed C&P exams The notes he put in the treatment records were very detailed and covered all the bases, That is when we reopened the claim. The DRO hearing I am talking about was in 2014 after we reopened the claim. When the claim was awarded the claim date was the 2011 re-opening. Thus, any mistake the DRO made is mute because the veteran is getting retro back to 2011. The original denial by the DRO was based on false objective standards of law and the DRO rebutted a medical opinion with his own opinion.  When he saw the letter I wrote in response to his denial he immediately trashed his own decision, scheduled a personal hearing and actually admitted to the SO I got for the veteran that he blew it. In 2014 I think we talked about a way to get a 930 review or some other way of getting another decision immediately.  The DRO denial made absolutely no sense. The letter I wrote worked and we were back on track real quick.  Then the VA went into slowmo. It took another 15 months to get a C&P and the award. I sure would like to get it CUED back to 2004.  However, I think the lack of a diagnosis until 2008 is a roadblock. I have not seen the award letter.  I am sure they figured out some way to blow smoke over the issue of the illegal impeachment of the buddy letter in 2004.

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  • HadIt.com Elder
On 1/20/2016 at 8:32 AM, Berta said:

This is Wonderful News Hoppy!

"The DRO reads the response to his denial and realizes he screwed up. Maybe he did not read the doctors letter saying it was a PTSD stressor."

I wonder if there would be any CUE basis in the original denial.

38 CFR 4.6 has become my favorite regulation.

If the VA ignored probative evidence, they have committed a CUE.

Did they send him a TDIU form or  is he employed?

"If the VA ignored probative evidence, they have committed a CUE."

As I see it, the fight might be that the VA cited the evidence, but failed to give it any credence.

Or, cites some reason not based in law to deny. (I've got one of these in my case file.)

It looks like the BVA is trying to pass the buck back to the RO, even though it's clearly a CUE mistake.

Who knows, it might actually make it through the RO before I croak!

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