VIETNAM PTSD CLAIM

[VietnamVetSis]

I'm new here and am re-posting under this topic as it may be a more appropriate forum.   

First off, let me say this site has been extremely helpful to me in developing my brother's VA claim.  He's a former Marine - served in Vietnam 1969-70 and was WIA by tripping a grenade booby trap - Purple Heart.  He was unemployed for approximately 4 years of the first 8 years he was back.  Then in the 8th year, he attempted suicide, taken away in a straight jacket, hospitalized and diagnosed with Schizophrenia, Paranoid Type.  In the 5 years that followed, he underwent long-term mental health therapy, was incarcerated for hitting a police officer with his truck (charged with intent to maim/kill), received a Felony conviction, put on Probation, and lost his license.   There were many other bizarre behaviors too numerous to list here.   My father filed a VA claim for his "nervous condition" in 1982 - The VA denied it saying "evidence did not establish service connection for PTSD - and disorder not shown by the evidence of record - your nervous condition not shown to have been incurred in service."   With my parents now gone, my husband (retired USA LTC) and I now financially support my brother, who lives below the US Census Poverty level.   His only income is SS retirement.  He's on food stamps.   This prompted me to re-file his claim.  They came back with "disabilities claimed" of PTSD - reopen; Non-service connected Pension - new; Schizophrenia, residual type, competent;  Scars - increase; Compentency - new; and Special Monthly Pension - new.   

My biggest obstacle has been gathering medical evidence for this claim.   I was only able to submit the written diagnosis from his hospital for schizophrenia in 1978 (quite detailed though citing suicide attempt, paranoia, second coming of Christ hallucinations and all that); emergency center invoice from the local County Community Mental Health center in 1982, a physician's report of medical status (schizophrenia-form episode with depressive symptoms) in 1983.  I also submitted relevant documents including the Probation Officer's consult with his mental health therapist agreeing his behavior arose from Vietnam combat experience, a Circuit Court judge probation condition that he undergo a year of mental health treatment, and a DMV suspension letter indicating license would only be reinstated on the condition that he file a psychiatric evaluation annually.    I've reached out to the hospital, the mental health center, even the County Court reporter to get further documentation.   All records have been destroyed in accordance with the state record destruction policy because it's been so long.

The VA has now come back asking for "medical evidence of his permanent inability to obtain/maintain gainful employment".   They didn't ask for a medical exam, they didn't offer a medical exam or Field Examination.  They made no reference to PTSD or Schizophrenia.   (Are they planning to deny it outright or are they perhaps accepting it based on his booby trap trauma??)  There is no other medical documentary evidence to be had!  I am creating a time line of sorts for them - showing his below poverty earnings and unemployment correlating to the times he was hospitalized and undergoing mental health therapy.    DOES HADIT or ANY VET out there have any other suggestions for me as to how to tackle this lack of evidence in my response to the VA?  Please come back to me --- they are asking for my response back within 3 weeks.  Would greatly appreciate any comments.   

[VietnamVetSis]

@Berta and @Buck52 -- Here's the Denial letter to my brother.  They received his claim 11/17/82.   They denied it May 25, 1983.   I'm thinking of passing it along to ASKNOD regarding a possible CUE sooner than later.   What do you think ? 

 

 

 

Edited March 19, 2016 by VietnamVetSis

[broncovet]

Vetsis

   That is amazing!  A 1983 denial~.  This is a 33 year old claim. This is my reccommendation:

My first take on this is that you want to reopen due to new and material evidence, 38CFR 3.156, and, new service records could win you benefits back to 1983, but I would not even think of doing that until you hired a competent law firm.   Reopening can be tricky...if possible you want a reopen due to 38cfr 3.156 C which is new service records.  

1.  You need to understand the stakes are very high here...The retro potential, if service connected for 33 years at 100 percent is roughly a million dollars.  I promise the VA wont throw down on this one without a HUGE fight.  

2.  You need to make sure all I's are dotted and T's crossed.  Therefore, get ye to a lawyer, and take the entire file.  It must be a NOVA lawyer..someone with experience such as Ken Carpenter, CCK, Glover Luck, Bergman and Moore.  Its a virtual certainty, IMHO, this will have to be settled at the CAVC level.  The Board probably isnt going to hand out million dollar checks like they are lolipops at a parade.  The sooner you have professional help, the better chance you have at winning the big bucks.  

 3.156 New and material evidence.

(a) General. A claimant may reopen a finally adjudicated claim by submitting new and material evidence. New evidence means existing evidence not previously submitted to agency decisionmakers. Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim.

(Authority: 38 U.S.C. 501, 5103A(f), 5108)

(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)

(c) Service department records.

(1) Notwithstanding any other section in this part, at any time after VA issues a decision on a claim, if VA receives or associates with the claims file relevant official service department records that existed and had not been associated with the claims file when VA first decided the claim, VA will reconsider the claim, notwithstanding paragraph (a) of this section. Such records include, but are not limited to:

(i) Service records that are related to a claimed in-service event, injury, or disease, regardless of whether such records mention the veteran by name, as long as the other requirements of paragraph (c) of this section are met;

(ii) Additional service records forwarded by the Department of Defense or the service department to VA any time after VA's original request for service records; and

(iii) Declassified records that could not have been obtained because the records were classified when VA decided the claim.

(2) Paragraph (c)(1) of this section does not apply to records that VA could not have obtained when it decided the claim because the records did not exist when VA decided the claim, or because the claimant failed to provide sufficient information for VA to identify and obtain the records from the respective service department, the Joint Services Records Research Center, or from any other official source.

(3) An award made based all or in part on the records identified by paragraph (c)(1) of this section is effective on the date entitlement arose or the date VA received the previously decided claim, whichever is later, or such other date as may be authorized by the provisions of this part applicable to the previously decided claim.

(4) A retroactive evaluation of disability resulting from disease or injury subsequently service connected on the basis of the new evidence from the service department must be supported adequately by medical evidence. Where such records clearly support the assignment of a specific rating over a part or the entire period of time involved, a retroactive evaluation will be assigned accordingly, except as it may be affected by the filing date of the original claim.

[broncovet]

To determine if this denial is CUE would take serious effort looking into this.  You see, the first thing you have to do is reserach the laws in 1982-1983 because Cue is based on the laws AT the time, not on todays laws.  

There is another remedy if the lawyer thinks "a favorable change in regulations" occurred. (likely).  

Its also highly likely you will need to invest in an IME/IMO.  I have heard of a few law firms who have advanced the Veteran the funds needed for an important IME/IMO.  

[VietnamVetSis]

I DID SUBMIT NEW SERVICE RECORDS!   I found the Command Chronology by his USMC Commanding Officer that gave a daily accounting of significant events that not only specifically cited the time and date of my brother tripping the grenade booby trap, but also lots of narrative summary on the sharp rise in rocket and mortar attacks and booby traps by the VC that month.  I included all of this with his claim under "Traumatic Event".   They definitely were in existence when the VA decided the claim.  OMG --- maybe we've got this ???

[VietnamVetSis]

Yes, we're going to hire an Attorney.   Looks like Ken Carpenter is the Dream Team lawyer ... but has a current caseload of 400 Vet claims.  - hate the thought of waiting for years for comp when my brother doesn't have enough income to cover his rent . . .   and I just found more medical evidence of IHD and Diabetes from his Agent Orange exposure . . .   

[Berta]

I think it is too soon to think about an IMO/IME and a lawyer.

The claim has not been denied yet.

It is quite possible that his C file might reveal that they never even tried to get his SMRs. I wonder if they even had a copy of his DD 214.(CUE violation of 38 CFR 4.6) but I think it is too soon to focus on  a CUE basis.

He needs to get a SC PTSD award first.

" I just found more medical evidence of IHD and Diabetes from his Agent Orange exposure "

Was this diagnosis and treatment found in his VA health care records, or is a private doctor treating him for DMII/IHD.?

If he gets private medical care be sure to tell VA where these treatment records would be.

They will send him an authorization form so that they can obtain them.

If he has IHD and DMII,  with the proof of incountry Vietnam service, those claims should be easy for VA to award.

What I mean about 'too soon' and of course you can do what you feel is best (we have interviewed some vet lawyers at the Radio Blog site and a few are members here) and Bob Walsh is one of my favorites (Asknod's too I am Sure)

is that it is their documented words on paper that helps us fight the VA . And it is possible that when they handle this claim, they will see that errors might have been in the older decision....an error like maybe the VA at that time never obtained his Military service records at all, therefore did not even know of the stressor. They could possibly call a CUE on themselves if that happened.

But it is also possible that prior to the denial you posted, they had contacted your brother for more information and that he never responded. His C file might reveal that.

In the many years he has been unemployed has he received either SSI or SSDI?

If so what specifically is that for?