ptsd Runaround -delay Or Just Sluffing It Off?

[Guest jangrin]

Berta,

I moved this topic to a new post so we didn't hi-jack Jim's PTSD post....

Also, I took some snipets of your post and pasted it here.

Berta stated, This is another thing I dont understand Jangrin-

In the beginning of 2006 my AO claim went through numerous hands at the VARO-

from January to July- appeals team, predetermination team, in and out of rating board, Dro to coach, back to adjudication, 3 authorizations on three different days- supervisor ,coach, and then rating again- and then to my POA----at one point in March an 800 vet rep who always seems on the ball told me it looked like I would have a decision in days-he said the 3 signatures showed it had not been denied.But then more action took place for 4 more months-

How can -in some cases- a claim isn't stagnant but is getting some sort of attention as it goes from person to person- yet the evidence still remains unread?

The only way this can happen is if the VA employees are passing this claim from desk to desk and from department to department just to avoid having to work on the claim. This could be intentional or it could be because it is percieved to be a difficult case on no-one wants to tackle it.

When the claim came back they immediately appeared to start working on it again-appeals team, rating, coach, regional counsel, rating, RC, rating board, appeals team- sameo sameo-

The case finally got farmed out but then was immediately back on the road again going from desk to desk.???

In all this time I supplied more evidence and now have 3 IMOs to support the AO claim yet have no idea whether any of it has actually been read yet. By Feb it will be 4 years since they got this claim.

Still no one has read or rated or done anything of substance with this claim. ummm?

Berta,

Four (4) years is a very long time time to wait for a determination on a claim. I can't help but think the problem here is not the "meat" or "substance" of your claim. I am sure you have provided ample evidense to support every aspect of this claim in order for a rightful determination to be made.

I believe that there is a problem with "sorting through some cases". Either the cases are too complex for the adjustor, who is over loaded with claims and he doesn't have time to sort through the evidense or,

the files are full of too many very old records and the adjustors don't want to work the file sorting through the SMRs for service connection, or the file is percieved as being just toooo difficult.

The idea of having a file float from office to office so it is percieved as being worked on, with an ocasional computer notation, does not seem too far fetched to me. With everyone hopeing like crazy someone else will finally work that darn claim.

There is no penalty to these people, employees, adjusters, raters, file clerks, government benefit job types ,

for not doing their job. This file is perceived as being too complex and too difficult to rate with too many secondarys for the claims people to sort out. It is far easier to shuffle the file.

If you remember back a few years, I'm not sure if you would have heard about this or not. But the same thing happened in the California court system. There were somany filed law suits that would never be brought to court, because the people involved just kept postphoning the trial date, or asking the court to put off discovery, or for a bunch of different reasons. The cases just never got through the system and it was clogging up the whole legal system in the state.

What happened is the state filed some new admistration laws for the court system and we ended up with what was called FAST TRACT. This made the court cases move through the system whether the attorneys were ready or not. By implementing Fast Tract, the court calenders started to clear out and there were openings for scheduling trials and criminals were once again being prosecuted and trials began proceeding through the courts.

I believe that is the problem with your claim and many others. There are so many difficult cases that they are clogging up the system. The claims people are afraid to try and work the file, or it's easier to bury the file on a desk than to work it, or move it around so it looks like it is being worked. Ask any lawyer how they build a case or work a file. Someone is ultimately responsible for maintaining the file and logging the information so the file can be prepared for trial or settlement.

It seems that there are a lot of people in the file but no one who is ultimately responsible to answer for the condition of the information or the status of its readiness to proceed for rating.

THERE NEEDS TO BE EITHER A PENALTY FOR NOT PROCESSING THE CLAIMS WITHIN A SPECIFIC TIME PERIOD OR THERE NEEDS TO BE AN IMPLEMENTATION OF FAST TRACT TO START MOVING THESE CLAIMS THROUGH THE SYSTEM

I think your claim is too difficult and the people are afraid to rate it. They keep hopeing someone else will work your file. There has got to be some way to make the VA work the claim?

Is there anything that we are missing??? Any laws or regulation with time limits??? I have never heard of a system that does not have time limitations for making decisions.

Jangrin

Edited November 30, 2006 by jangrin

[Guest jangrin]

Oh John999,

You my good friend are too Kind. LOL -- When put so elequently, I must agree.

Dogs ??? Did you say DOGS ????

Jangrin

[Guest jangrin]

Berta,

That was a long post so I didn't reprint it. I have some additional questions about your claims and the system If you dont't mind. I think this response got lost in the shuffle so I posted it again as a direct response to you post rather than just to the topic. Did you understand that?, cuz I'm not sure I did. lol

Berta,

Thank you very much for answering those questions.I am still trying to sort through all the legal lingo that we use here at Hadit. Also the sequence of events and the remedies of each filing and remand. So still alot of this is just figuring out who has jurisdiction over what and then where does the file go. It is a bit overwhelming for us who are involved with our very first claim and the first time dealing with the VA and military, ever.

So once again, I fired off alot of questions but I do thank you for taking the time to reply. Just a few more questions for you, please.

The cue claims are on the 1151, wronful death case that you won. When you won the 1151 do you get a lump sum settlement amount or is this based on a rating of disability such as 70% and then based from the time you filed or the time of the initial determined VA blunder and missed diagnosis as decided by the court?

He was promoted some time ago and he is the one who told me he had presented my initial IMos to the DRO and she could not understand the medical info (she was a new DRO) so he suggested getting a VA opinion. But he assured me by phone that the VA doctor would be given my IMOs- she wasn't.

So the VA got their own IMO of your husbands condition (cause of death) without ever seeing the IMO's that you provided to the VA?

Also, does this mean that if you win your cue claim, would that give the 1151 case, retro to military discharge as a SMC (service medical condition?)? If this is correct that is one cue, what is the other cue?

If your IMO's were never mentioned in the ssoc for the cue for 1151 smc, then don't you have another cue for not having considered all the evidence for the of the 1151 initial cue?

1. one cue taking the case back to SMC.\

2. second cue for not considering the evisdence supporting the cue for the 1151?

Is this correct or am I messed up here?

I have more questions but I am going to get this clarified first. Than we will move on. If thats OK with you. Thanks Berta.

Jangrin

Edited December 2, 2006 by jangrin

[Berta]

The CUES are on legal error the VA made in their award for accrued benefits under Sec 1151 under the regs for SMC -Special Monthly Comp.-in a final unappealed decision of 1998.

Oddly enough since filing this claim the VA again stated in 2004 that the veteran was not eligible for SMC under any circumstance.

But VA case law says he was. Because he himself had filed the original Sec 1151 claim.

They are trying to act like I filed it as a new Sec 1151 claim -but it was a re-open of his claim.

FTCA paid me a lump sum.(General COunsel-DC)

The DIC VARO award went back to date of his death but they offset a portion of the FTCA award.

Right- in spite of my vet rep's assurance that the VA dco would have the IMOs--the VA doctor rendered an opinion without the IMOs I had and only used a few medical records.It made it very easy for Dr. Bash to render an additional opinion to knock down theirs but this is not the way it was supposed to go.

The SMC CUE would provide 2 years of accrued benefits under SMC. I already told them I don't want the "S" award- the veteran was over 100% disabled by their medical errors-a higher level of SMC than "S".

Yet "S" they could award very easily as the vet was 100% SC plus 100% Sec 1151-

The additional CUE was lack of rating for the veteran's heart disease.

The VA agreed his heart disease had been misdiagnosed for 6 years. They never rated it- they have to rate this to also add to the Sec 1151 100% due to the 1151 CVA. Then they have to add a rating for diabetes-misdiagnosed.

The VA has to rate every condition a veteran has.The fact that they misdiagosed the veteran is moot as VA internal documents in their possession since 1995 show their knowledge of the veteran's heart disease (plus the med recs-since 1988)

When they properly consider the IMOs (and I will get more if needed) they have to pay accrued SMC for 2 years (Sec 1151) and then the Nehmer decision will kick in for accrued under direct SC.I have to contact NVLSP on that.

"If your IMO's were never mentioned in the ssoc for the cue for 1151 smc, then don't you have another cue for not having considered all the evidence for the of the 1151 initial cue"

I think my 2004 CUE claims covered all that-

But the fact that the VARO re-opened another 1998 CUE in my behalf might cover that too-

Someone at the VARO- it seems- after all these years is actually trying to figure this all out-

The veteran's initial Sec 1151 claim included PTSD as being misdiagnosed. I re-opened word for word what his 1151 claim said.

The VA said in January by letter that they satisfied the PTSD issue under the Sec. 1151 award.(I had filed a claim on this)

But they never mentioned the PTSD component of the 1151 claim until a few months ago.

In the letter from the VSM (JAnuary 2006) she stated that this was included in the Section 1151 award.

They said "ALL" misdiagnosed conditions had contributed to his death-in that award letter.

I promptly responded with a big thank you- as I stated she herself , the VSM of the RO, agreed that the veteran's PTSD had been one of "all" misdiagnosed conditions(they never admitted that before and I was thrilled)that had "hastened the veteran's death."(per 1998 award letter)

and now I wanted a proper decision ,based on her statement, on an additional claim I had filed -that the misdiagnosed PTSD had contributed to Rod's death.

I thought her statement was dynamite!

This is what I believe what prompted them to Motion the BVA to re-open the 1998 CUE claim I had.

The more they make statements in letters and SSOCs the more they can put their foot in their mouth.

Rod believed that his PTSD was treated completely wrong medically -totally unlike standard PTSD treatment in the real medical community-but every attempt we made to change his PTSD treatment was stifled until our Congressman got involved.

No other hospital around or any clinic treats PTSD in this area.There are no PTSD docs around except for the local VAMC. PTSD put him into harms way as -had he not incurred PTSD from Vietnam he would not have gone to the VA in the first place. And therefore would not have had all of his physical disabilities misdiagnosed-by VA- therefore PTSD contributed to causing his death.

My 1998 CUE was denied at the BVA -based on his same issue-and I just never pursued it.

There is plenty of medical evidence (and Congressional evidence)to support that the veteran's PTSD was improperly treated and this contributed to his death-the basis of that 1998 CUE claim I had.

Their own VSM ,in her letter to me, gave me more evidence for that older CUE claim.

As well as an additional claim I filed in 2004 for direct SC death due to PTSD contributing under Sec 1151 that has not been decided yet.

They could grant the CUE 1998 re-open or they could grant the claim I filed on the issue of PTSD contributing to death under Section 1151-but for proper award of direct SC death.

When a service connected disability contributes to the death of the veteran -the death is directly service connected.

Edited December 2, 2006 by Berta

[Guest jangrin]

Berta,

The CUES are on legal error the VA made in their award for accrued benefits under Sec 1151 under the regs for SMC -Special Monthly Comp.-in a final unappealed decision of 1998.

OK, the 1151 wrongful death suit = you re-opened Rod's original 1151 case. Then you won the wrongful death 1151, and were awarded a liump sum. Under the 1151 decision, there is a section for acccrued benefits. Although they did figure some benefits, they did not consider all that they should have? So then you file a CUE for the benefits they did not list/nor consider as part of the decision in the 1151= retro for the SMC.?

Oddly enough since filing this claim the VA again stated in 2004 that the veteran was not eligible for SMC under any circumstance.

You have documented case law that covers this matter following an 1151 claim?

But VA case law says he was. Because he himself had filed the original Sec 1151 claim.

They are trying to act like I filed it as a new Sec 1151 claim -but it was a re-open of his claim.

Are the copies of Rod's original 1151 claim (paperwork) in the Cfile?

FTCA paid me a lump sum.(General COunsel-DC)

The DIC VARO award went back to date of his death but they offset a portion of the FTCA award.

Becasue of the award for DIC (widows benefits) they offset some of the 1151 award. I would think that the 1151 award is like a personal injury award. Doesn't it stand seperate from other benefits. You said, that the VA has to rate all of the veterans SC conditions, so wouldn't that make the wrongful death seperate from the fact that the veteran had many dibilatating conditions?

Right- in spite of my vet rep's assurance that the VA dco would have the IMOs--the VA doctor rendered an opinion without the IMOs I had and only used a few medical records.It made it very easy for Dr. Bash to render an additional opinion to knock down theirs but this is not the way it was supposed to go.

I would think that sending a doctor less than all the records would be a major problem later on. Sending minimal records only puts the VA doctors opinion in a bad light as it will eventually be revealed that there were other IMOs that show the vets problems in quite a different light. Why not send all the records? It makes no sense not to.

The SMC CUE would provide 2 years of accrued benefits under SMC. I already told them I don't want the "S" award- the veteran was over 100% disabled by their medical errors-a higher level of SMC than "S".

If the VA MUST SC all the veterans illnesses, then would this also be retro back to the date of the 1151 or when?

Yet "S" they could award very easily as the vet was 100% SC plus 100% Sec 1151-

If vet is 100% service connected following an 1151 decision, what will the effective date be, and if there is retro will the offset the DIC again or what?

The additional CUE was lack of rating for the veteran's heart disease.

The VA agreed his heart disease had been misdiagnosed for 6 years. They never rated it- they have to rate this to also add to the Sec 1151 100% due to the 1151 CVA. Then they have to add a rating for diabetes-misdiagnosed.

Are not these issues, settled with the finding of the 1151 claim. Or did the VA drop the ball in this?

The VA has to rate every condition a veteran has.The fact that they misdiagosed the veteran is moot as VA internal documents in their possession since 1995 show their knowledge of the veteran's heart disease (plus the med recs-since 1988)

When they properly consider the IMOs (and I will get more if needed) they have to pay accrued SMC for 2 years (Sec 1151) and then the Nehmer decision will kick in for accrued under direct SC.I have to contact NVLSP on that.

"If your IMO's were never mentioned in the ssoc for the cue for 1151 smc, then don't you have another cue for not having considered all the evidence for the of the 1151 initial cue"

I think my 2004 CUE claims covered all that-

But the fact that the VARO re-opened another 1998 CUE in my behalf might cover that too-

Someone at the VARO- it seems- after all these years is actually trying to figure this all out-

The veteran's initial Sec 1151 claim included PTSD as being misdiagnosed. I re-opened word for word what his 1151 claim said.

The VA said in January by letter that they satisfied the PTSD issue under the Sec. 1151 award.(I had filed a claim on this)

But they never mentioned the PTSD component of the 1151 claim until a few months ago.

In the letter from the VSM (JAnuary 2006) she stated that this was included in the Section 1151 award.

They said "ALL" misdiagnosed conditions had contributed to his death-in that award letter.

I promptly responded with a big thank you- as I stated she herself , the VSM of the RO, agreed that the veteran's PTSD had been one of "all" misdiagnosed conditions(they never admitted that before and I was thrilled)that had "hastened the veteran's death."(per 1998 award letter)

and now I wanted a proper decision ,based on her statement, on an additional claim I had filed -that the misdiagnosed PTSD had contributed to Rod's death.

I thought her statement was dynamite!

This is what I believe what prompted them to Motion the BVA to re-open the 1998 CUE claim I had.

The more they make statements in letters and SSOCs the more they can put their foot in their mouth.

Rod believed that his PTSD was treated completely wrong medically -totally unlike standard PTSD treatment in the real medical community-but every attempt we made to change his PTSD treatment was stifled until our Congressman got involved.

No other hospital around or any clinic treats PTSD in this area.There are no PTSD docs around except for the local VAMC. PTSD put him into harms way as -had he not incurred PTSD from Vietnam he would not have gone to the VA in the first place. And therefore would not have had all of his physical disabilities misdiagnosed-by VA- therefore PTSD contributed to causing his death.

My 1998 CUE was denied at the BVA -based on his same issue-and I just never pursued it.

There is plenty of medical evidence (and Congressional evidence)to support that the veteran's PTSD was improperly treated and this contributed to his death-the basis of that 1998 CUE claim I had.

Their own VSM ,in her letter to me, gave me more evidence for that older CUE claim.

As well as an additional claim I filed in 2004 for direct SC death due to PTSD contributing under Sec 1151 that has not been decided yet.

They could grant the CUE 1998 re-open or they could grant the claim I filed on the issue of PTSD contributing to death under Section 1151-but for proper award of direct SC death.

When a service connected disability contributes to the death of the veteran -the death is directly service connected.

Why isn't Rod's death directly SCd when they admit that they caused his death. If they admit malpractice and cause of his death aren't they admitting that his actually had the ailments that caused his death?

Berta have you ever provided a chronological synopsis of yours and Rods claims, cue, the whole thing.

I know you have for yourself, but have you ever, been asked or approacheed by the VA to aid in filtering the file in an attempt to resolve this? Are there laws against the VA claims representatives talking to a claimant? Somethings are just not jiving with me. The VA is suppose to aid the veterans in developement and eventual granting of a SC ailment. Why do they keep themselves and the process at arms length from the people they are trying to help.

What is going on here???? It's like talking out of both sides of their mouth, double speak.

Jangrin

[Guest jangrin]

Berta,

please see the post below. For some reason the forum posted this weird.-Jangrin

[Berta]

"You have documented case law that covers this matter following an 1151 claim?"

Yes- an Office of General Counsel Pres op,showing Sec1151 vets get SMC consideration and awards under SMC, 5 BVA decisions that show how the Pres op works on 1151 claims, and M21-1 regulations that pertain to this issue.

"Although they did figure some benefits, they did not consider all that they should have" Right-

my vet rep said 'that's funny-they didn't pay accrued for the 1151 disabilities' (he meant SMC) but then he just shrugged his shoulders and went on to ask me how I got this award.

I was dumb in those days as to SMC. He should have told me to file a NOD on this decision.

"Are the copies of Rod's original 1151 claim (paperwork) in the Cfile" Yes, that claim has been the c file for 14 years.

At first I couldnt find my copy and called the DAV on the POA at that time-

but I had sued my DAV NSO and they told me they had destroyed my DAV files.

I wrote to the former RO VSM for copy of the c file and the 1151 with the PO cert number was right in the c file.I save everything and I am sure the green cert card is right in my green card stack.The day the veteran died he called for a status on his PTSD claim and his 1151 claim. They said it all had been in a rating board for 3 months and was still there.

Section 1151 claims almost always go back to the date of the claim for retro.

But the veteran, my husband, predicted his own death due to VA health care in his Sec 1151 claim.

He died due to VA health care. They went back to the date of his death for DIC.

But only because I re-opened the claim. The DAV told me I had no claim. They were wrong.

They also said I had no claim under accrued SC benefits. They were wrong there too.

The VA did award me accrued benefits for the veterans posthumous 100% SC award for PTSD.This was a 1997 decision that also denied the SMC.

"Are not these issues, settled with the finding of the 1151 claim. Or did the VA drop the ball in this"

They dropped the ball big time---

I already had a lengthy discussion with Regional Counsel about that.

This is the exact and chilling statement in the Section 1151 award letter I received. It still makes me sick.

"Multiple deviations in a usual standard of care occurred and all of these deviations hastened the veteran's death."

The VACO report is even worse than that.It is too horrible to post.

I have a legal background and explained to VA counsel that this report does mention many misdiagnosed conditions and did not include all of them-yet it covered all of them. This report does not limit the misdiagnoses.The word 'multiple' excluded my ability to file an additional FTCA claim because they already paid for wrongful death.But did not prevent a claim for direct SC due to misdiagnosed diabetes. Regional counsel completely got my point. Dr. Bash also provided a statement to cover the VACO report. The VA itself never questioned the basis of the claim.

Actually the misdiagnosis of diabetes is not the fundamental issue-that has been proven by my IMOs and the medical records.

(plus the documented fact that VA doctors could not diagnose any of the veteran's other conditions correctly so how could they diagnose diabetes)

This is a claim for direct SC due to AO diabetes which caused the veteran additional disability (CAD and CVAs) and ultimately caused his death.

I hope all this helps someone out there----my kid made me file this claim- she sort of badgered me for over 4 months to at least read the med recs again to see if dad had diabetes misdiagnosed-too-

I did not want to deal with the VA or those horrible med recs ever again. 5 years had passed since looking at them. But I knew much more about diabetes because of it went on the presumptive list.

As soon as I looked at his blood chem records I knew she was right.

Dad had diabetes and they never treated it.It caused his numerous strokes and heart disease and his fatal heart attack.His exposure to Agent Orange was confirmed by Judge Richland many years ago and the VA has already conceded that fact.

I filed the claim in Feb 2003.

Edited December 2, 2006 by Berta