Bell V Derwinski Would Play Into That Type Of Cue Heavily

[Josephine]

However Bell V Derwinski would play into that type of CUE heavily-

the medical evidence awarding any potential service connection at this point-would all have to have been in VA's "constructive" possession in 1978 at time of alleged CUE occurring.(Bell)

I am thinking the 1978 denial was possibly based on "not well grounded "claim-

dont know-

Berta,

Please explain what you are talking about. I am not too familar with Va. law? I am having surgery Monday, bad time with being at the end of this claim. must be though!

Thanks,

Josephine

Edited December 14, 2006 by Josephine

[Objee]

Berta,

Please explain what you are talking about. I am not too familar with Va. law? I am having surgery Monday, bad time with being at the end of this claim. must be though!

Thanks,

Josephine

Josephine,

If you're talking about "constructive receipt" it means that the records were reasonably available to you even though you never obtained them and you are charged with knowing what was in them. "Actual receipt" is exactly what you think - you got the records in your hot little hands so there's no excuse for ignoring them.

Ralph

[Josephine]

If you're talking about "constructive receipt" it means that the records were reasonably available to you even though you never obtained them and you are charged with knowing what was in them. "Actual receipt" is exactly what you think - you got the records in your hot little hands so there's no excuse for ignoring them.

Ralph,

Things were a little different in 1978 when I first filed. Yes, I told the counselor to acquire my comptency review records and he said fine I will get them.

Well, he didn't do it. In about 6 weeks, I received a letter stating" No service connection".

I didn't receive any statement of the case, no chance to appeal anything. Bingo it was over!

I never signed off on the psychiatric records, had no ideal of what they said. I assumed that the Va would secure all of my military records and I was to provide them with my private medical records.

I told them that they were there and after 14 years, The Va. knew that they were in the St. Louis Archives.

They knew this again in 2002 when I re-filed, but history repeated itself.

When I went to the Va after the awarding of the pension, I ask to see that dumb file.

Vince the counselor told me that there was never a competency review board and certainly not in my records.

I wrote to the Archives myself and they mailed all the psychiatric consultations and the letter by the commanding officer.

Now, I find out that no one ever acquired any of my Adminstrative Records, but found out from the AMC they arrived in Washington Today by Aimme - stat by AMC lawyers.

Thanks,

Josephine

Edited December 15, 2006 by Josephine

[Josephine]

Thanks Ralph,

The posting is messed up or something?

josephine

[Hoppy]

Josephine,

CUE is a multi step proceedure. Not only do you have to show that they did not obtain records you identified and such records were obtainable. The records that were not reviewed would need to have changed the outcome of the original decision by establishing a diagnosis of a service connectable condition at the time of the original denial. I do not recall that the reports established a solid diagnosis. As a matter of fact they still have not resolved a diagnosis of a service connectable condition. There are other laws that affect the Bell decision. Your claim could be very different from Bell if the Bell decision was for a condition that was considered service connectable at the time of the denial. Terry and Berta know a lot more about this than me.

They are not going to obtain any records when the reason for your discharge was for a non service connectable condition. That is why they repeated the error. I think that at some point somebody should have formally disputed the diagnosis of personality disorder in order for your claim to advance. I hope I am wrong on this. However, based on the diagnosis of record the VA might not have had any obligation to consider your claim. I am curious how the original claim was worded. Considering the diagnosis at the time of your discharge there would have needed to be significant development and a change of diagnosis to get service connected.

There might be another issue as to whether or not the reports not reviewed by the VA were reviewed by the board that made the diagnosis used for your discharge. The diagnosis at the time of your discharge was for a non service connectable condition. Additionally, the diagnostic requirements may have changed for your condition over the years. The fact that the diagnostic criteria has changed could work in your favor for service connection at this time. Your claim is not as simple as a broken arm.

[Josephine]

They are not going to obtain any records when the reason for your discharge was for a non service connectable condition.

The AMC is doing an investigation to see how and why I was given the code of 460, when the physchiatric consulations state- no personality conflicts.

What I have in my record is vascular v tension headaches - caffergot not effective - librium 4 times daily.

Psychiatric consulation for nervousness, headaches and irratability with a change of efficiency. Dis-satisfied with working conditions and foul mouth people. Felt that the recruiters lied to her.

Second psychiatric consutation- symptoms the same. no personality conflicts recommends early discharge.

Evaluation Board of 4 sign off for discharge by reason of unsuitability.

Headaches, Nervousness, Librium and Caffergot - How does this equal a Personality Disorder?

The AMC lawyers want to know how Nervousness, Headaches, Librium and Caffergot = a Discharge Code of 460 with Emotional Immaturity.

My first claim of 1978, was filed for nerousness, headaches and high blood pressure. Stressor the swimming pool.

Received letter within 6 weeks - no service connection.

No doctor in service diagnosed me with any personality disorder only nervousness and headaches.

I have no ideal of what the AMC is going to do with the filing of service connection for headaches.

In 1978 and 2002- if I tell the counselor to acquire the Compentecy Review Psychiatric Records- are they still not obligated to get them from the Archives?

Thanks,

Josephine

Edited December 15, 2006 by Josephine

[Berta]

"Your claim could be very different from Bell if the Bell decision was for a condition that was considered service connectable at the time of the denial."

Hoppy is correct- without any SC at this point- CUE is a moot issue.

But once the claim is granted- then the older denial should be carefully read to see if they committed legal error and should have awarded on the older claim-based on medical evidence they had at that time.

I agree with Hoppy - that the "personality disorder" diagnosis should be disputed with a complete psychiatric medical opinion, proper diagnosis , and current treatment records for the diagnosed condition.

The VA attempted to try to say my husband's death was due to cocaine-among other ludicrous statements-

they tried every possible thing they could to get out of my Sec 1151 claim.I know how frustrating this all is for you.

However the veteran's prepoderance of medical evidence certainly demolished all of their crapola.

I did not have an IMO-fought this all myself- but

in those days they were reading the actual med evidence better-any every response I made to their SOCs.

I was fully able to break down their so-called expert's "rationale" with the established record itself-

I never even thought to nor did the DAV suggest that I get an IMO.

Things have changed a lot- since then-In your case - I feel the only way out of their war game is to get an IMO from a psychiatrist.

But at this point I do not know if an IMO can be submitted-to the AMC -I have no experience at all with the AMC.

I am of the impression that CAVC does not consider new evidence but bases their decision solely on the record, as they get it. ??? any input on that from anyone ? I could be wrong.