VA Refusing to ReOpen Claimed Disabilities Even With Undeniable New and Material Proof of Service Connection Attached to Claim..Need Help!

[StretchBones]

 So, I finally got my Big Envelope two days ago. I had already had my change on my disability rating and my back pay for 70% dated back to an effective date of 12 March 2017, which was the date that I was started work on the claim. The Big Envelope had been sent to the Tuscaloosa VAMC where I had been inpatient from Jan-May of this year and then forwarded back to me so it was only a tad longer than I hoped. But boy was I PISSED OFF when I finally read it. First let me go through the good parts of the packet concerning my Fully Developed Claim.

1.Post Traumatic Stress Disorder  and Major Depressive Disorder (also claimed as anxiety condition, major depression, sleep disturbances, memory loss, and insomnia)              - 70%
2.Tinnitus - Deferred- C&P Exam Scheduled for June 29, 2017
3.Hearing Loss - Deferred C&P Exam Scheduled for June 29, 2017
4.Hepatitis C and Liver Function Disorder - Deferred C&P Exam Scheduled for June 29, 2017
5.Respiratory Disorder and Distress Secondary to Exposure to Open Burn Pits and Airborne Hazards - Deferred C&P Exam Scheduled for June 29, 2017

Now for two that were denied Service Connection; one with a C&P. and one without.

6.Alcohol and Drug Abuse (secondary to PTSD)
   -Service Connection for alcohol and drug abuse due to PTSD-Combat because this condition neither occured in nor was caused by the service.
   -We received your medical evidence which discusses the symptoms of your medical condition and military service. The evidence does not show that your condition resulted from, or was aggravated by, a service connected disability
7. Color Blindness
   -Service Connection for Color Blindness is denied because this condition neither occured in nor was caused by the service.
   -We received your medical evidence which discusses the symptoms of your medical condition. We did not find a link between your medical records and military service. Your service treatment records do not contain complaints, treatment,
     or diagnosis for this condition.

Here are the claims that the VA refused to reopen...they were all given the same explanation on why they weren't reopened.

8. Back Pain now Claimed as Low Back Condition
9. Long Thoracic Nerve Palsy now Claimed as Long Thoracic Nerve Paralysis
10. Erectile Dysfunction with Right Testicular Pain now Claimed as Male Erectile Disorder and Right Testicular Condition
11. Right Shoulder Impingement with Winged Scapula now Claimed as Right Shoulder (Major)
      -A claimant may reopen a finally adjudicated claim by submitting new and material evidence. New means that the evidence has not been considered before and material means it applies to the specific issue for which you were previously denied.
       New and material evidence must raise a reasonable possibility, that when considered with all the evidence on record (both new and old) that the outcome (conclusion) would change. The evidence can't be simply redundant (repetitive) or cumulative of that 
        which we had when we previously filed your claim.
      -The evidence from you submitted in connection with the current claim does not constitute new and material evidence because it does not relate to an unestablished fact necessary to substantiate the claim and does not raise a reasonable possibility of
        substantiating the claim.
       -The evidence you submitted is not new and material. Therefore, your claim is not reopened. It is not material because it does not relate to an unestablished fact necessary to substantiate the claim and/or does not raise a reasonable possibility of 
         substantiating the claim.

      Under: Evidence Considered there are only two things that are listed that would be in regards to the four claims which were filed to be Reopened.
           1. Service Treatment Records from 06/13/2009 to 06/25/2010 Received March 19, 2017
           2. Medical Treatment Record - Non Government Facility, received on May 17, 2017

Also of note under Evidence Considered, only 2 of my 3 DD214s were considered (even though I submitted all 3 myself) and the Military Personnel Record from 02/27/2011 to 08/09/2013 was considered. My OMPF should read 09/09/2005 - 01/07/2017. The portal on E-Benefits which works every other blue moon allowed me to get my OMPF and it only had like 6 documents in it. I still have access to my Army Human Resources Site so I was able to download all of my Awards and NCOERs in order to upload for my PTSD claim.

Here is the big 800LB gorilla in the room. I never once filed these four claims to begin with. The first time that I ever logged onto EBenefits myself was in February 2017. But when I go to start filing, there they are...the four listed above and also Insomnia claimed..on June 26, 2010 was the date it was submitted. That was the day that I came off orders and was at home after Operation Iraqi Freedom. Apparently, sometime in 2011 when I was back on Active Duty and had gotten PCS orders to move, there was a C&P Exam which I never knew about. Because I was a no-show all were listed as Non Service Connected. I was literally just finding all of this information out this year. I had someone checking my mail until i could get my address changed to the Fort I moved to, and they never once informed me of anything from the VA. No Big Envelope either...and nothing about this was mailed to my new address either. I am going to call the 1-800 number today and ask if there is any way that they could send me the Big Envelope from the 2011 decisions. The only thing that I could imagine happened is the lady who enrolled me into the VA at the Camp Shelby, MS Demob Center must have put them in. I mean I legitimately was affected by all of these after a tough deployment, but I was wanting to keep my medical readiness Green because I wanted to go back on Active Duty or another Deployment, fast! Disability was the farthest thing from my mind at that moment. But you know as hard as I try to remember, I don't have any recollection of anyone walking me through the claims process. I do remember actually enrolling in the VA and getting the Benefits handbook, but that is all. All of the disabilities filed in 2010 were ones that I had an LOD,(Line of Duty Injury Report) for. I deployed as a medical NCO and I always kept as many of my own records as possible. Our head nurse had actually been getting these LOD Investigation Packets lined up well before we demobilized from Iraq. I never turned any of those in to anyone at Demob, that I know for a fact. So when this claim was submitted in 2010, I myself submitted ZERO records as evidence because I did not file this claim or ask for it. It would be 3-4 more months before I would see a VA doctor for the first time. The disabilities claimed, however, were diagnosed, had imaging to confirm, and treated within less than half a year of being back from combat.

So the key issue here is that the documentation has to be "new" and "material" and I know that I submitted plenty of documents which met the criteria for both definitions. One big problem is the fact that the VA had pulled my Deployment Service Treatment Records from their source, not from myself. But, I worked as a senior Medical NCOIC and I know for a FACT that the ALHTA-T and other military documentation platforms were "in theory" supposed to allow access to the VA for in theater treatment records. But, we could not even get the networks in Iraq to be able to transfer information from BIAP to Camp Liberty or from the Green Zone to VBC. When I had my very first appointment with a VA doc, I asked him if his agency actually could get deployment medical records through the ALTHA flowchart...and he just looked at me and asked if I was joking, before realizing that I was not and he gave me a direct "no, not to my knowledge".

Anyway, I uploaded the individual records that I have on hand from June09-Jun10 and labeled them by which disability that they referred to. This included multiple times where I was diagnosed of a claimed illness and treated for a claimed illness in Iraq. This even included a Permanent Profile, from the former head of all Orthopedics at Walter Reed, Colonel Paul Pasquina. In this profile he stated that I should not ever do push-ups again, pull-ups, or overhead lifting. In the note where he diagnosed me he went all the way back to my AIT at Signal School at Ft. Gordon in 2006 up until the current time in 2010. He made very detailed notes in which he states that all of the multiple shoulder and back complaints that I have had are a result of my service in the Army. So, when the VA claims that they used my Service Treatment Records from this timeframe, how did they possibly miss this information? At the header of every page is the active problem list, which includes my diagnoses. If they had a true copy of my record these claimed disabilities would appear all through it. Also the statement that came in the Big Envelope does not mention ANY of the over 35 pages of medical notes from Iraq, which were submitted with this claim, as being considered as evidence. Also among the documents that I uploaded
that were not on the Considered Evidence list were the LOD Investigation Packets in which field grade medical officers made the decision that these injuries/illnesses were indeed accrued in the line of duty and that they may result in a future claim against the federal government.

I also submitted some additional evidence, which they actually put on the Evidence Considered list, that I had to be treated for my testicular condition while on Active Duty Special Work Orders with the National Guard.

Also submitted on this claim were about 30 documents from my active duty time at Ft. Gordon in 2006, which included an ER visit for back injury, xray reports, follow-up visits, and weeks of physical therapy reports, all from my Service Treatment Records. None of these were listed as Evidence Considered. Also, I know that I am not going to get a percentage for Color Blindness, but the VA stated that my service treatment records never show complaints, treatment, or diagnosis...which couldn't be any further from the truth. I kept failing color vision tests at MEPS and almost didn't get to join at that time, until a doc had some sympathy on me and gave me a real easy "Red, Green, White" test. When I got to Fort Gordon the following year, I made the appointments myself with optometry and complained how I was only allowed to be a radio operator at the moment because of my color vision, but I wanted to be a medic very bad. I was retested twice, and on the second test a very sympathetic Major who used to be an enlisted medic himself, wrote up a Memorandum for Record saying that my color vision tests were now good and that I was to be considered medically fit for any MOS re-classing. So yeah....there a TON of Color Blindness notes in my Service Treatment Records early on in my career, and they were even uploaded to this claim and the VA still states that I have never complained of, been diagnosed with, or treated for.

I still have other records from the Service that are relative to these four disabilities that have not been submitted yet. But in my opinion, there was BONAFIDE, NEW and MATERIAL information submitted with this claim and it was never even considered according to the paperwork that I have. 

So where do I go from here??? Do I try to file again and attempt to have it reopened? The lady on the 1-800 number said that she could put it in for a Reconsideration if I signed something for her, but I am wary of that. I am also rather wary of going through the appeals process due to how long it takes..I am just frustrated because having these disabilities really does affect my ability to work and I have 100% proof that they occurred in the service. Hell, I just got out in Jan of this year, a Soldier is all I have every been since I was 20 years old and I'm 32 now. It is so damn frustrating for people who have never served to tell me that this or that condition isn't service related...like the VA diagnosed me with a torn rotator cuff, winged scapula, long thoracic nerve palsy, Hill-Sachs lesion, multiple bulging disc, multiple discs with DDD, multiple discs with protrusions and annular tear, bilateral hydroceles, right epididymal cysts, chronic epididymitis, and male erecticle disorder within the first 6 months of me being home from combat yet it is not service connected. My SRP records from before I went over show me at probably the best health of my life. But hell the VA claimed that they received my Service Treatment Records just a few days after my intent to file was signed (only the records for 1 of my 12 years of service btw) and that they didn't see any service connection. I am trying to remain calm, but it is just disheartening to think about. I have disabilities that were claimed without my consent seven years ago, and when I file to have the claims reopened and attach undeniable proof of service connection, that has never been submitted as evidence for these disabilities, and practically only one xxxxxxx form that I submit actually makes it to the "Evidence Considered" list.

I am all ears, and thanks to all of those who stuck it out to read all of this. The only thing I would like to say is that at this time I can't afford an attorney, but hopefully this isn't at the point where one would need one..So thanks in advance for any words of wisdom or advice you can send me in this matter.

 

 

[StretchBones]

Also of note...when I filed this claim I had put Male Erectile Disorder as its own disability, yet it was lumped in together with my Right Testicular Condition claim without my consent. Is this normal for the VA to combine claimed disabilities into one?

[broncovet]

You need to file a nod at a minimum, disputing the denail to reopen due to n and m evidence 38 cfr 3.156.  Remember, too, the very real possiblity that this evidence WAS with your file, but VARO failed to  read it.  

"New and Material Evidence" is defined by the regulations.  "New" means not prevously considered by VA, and "material" means that they considered the "new" evidence, but it did not change the outocme.  

VA should have supplied a reasons and bases as to why this evidence you submitted apparently fell short of their standards by at least one of these standards:  They are alleging they either already had that evidence, or, they did not have it but the new evidence was not outcome determinatve.  Then you proceed from there.  

You could offer "new" evidence that you had a bad cold in service, for example.  Well, that probably wont change the outcome, whether or not you had a bad cold wont change the outcome.  VA would then "deny" reopening due to N and m evidence citing that, while your evidence of a bad cold in service was new, it did not change the outcome.  

As usual, order a copy of your cfile, read your evidence, read and reread the decision, especially the reasons and bases, and use that to determine your next move.  

[MikeHunt]

1 hour ago, StretchBones said:

there was a C&P Exam which I never knew about.

Ask for another exam.

VA's fav tactic, upload letter, but don't send it.

[StretchBones]

I have a feeling that they didn't look at the Service Treatment Records that I submitted. What they said about Color Blindness not appearing anywhere in my records is what fully convinced me of that. Also there is the fact that only one of dozens of documents made it in the list of Evidence Considered. I was hoping to get these rated to help out my TDIU claim that I plan to follow soon.

I guess that I am going to go ahead and file the NOD. But after that I am not sure...maybe an appeal would be my best bet. But then again I keep trying to tell myself to just file again on these, but I just don't see them reopening these claims. Man...this stuff is frustrating sometimes.

[StretchBones]

Sooo....I am making a trip to the local VA office in about an hour to take the DD214 of a close family friend who had no close family to settle his affairs. I am going to inquire about a veteran's headstone, as he was a decorated Marine in Vietnam.

After I take care of my "uncle" I am going to make some inquires into these claims that were denied a reopening and see if I can find out just who filed a claim, that I never asked for, in my behalf in 2010. I will post an update after this meeting.

[StretchBones]

Update

When I visited my local VA office a few days ago the lady who reviewed my paperwork encouraged me to go ahead and sign a NOD, which I did. It was marked for Decision Review Officer Review Process and that I was in disagreement over the issue of Service Connection.

She told me to submit a Statement in Support of Claim form that details the circumstances behind the original 2010 claim being filed without my consent. I was told that I should also submit to her:

1) Copy of VA Correspondence from 2010 showing proof that attempts to contact me regarding C&P Exam were mailed to wrong address and contained incorrect dates.

2) Copy of most recent claim decision packet where it shows that the Service Treatment Records that I submitted with this claim were not included in the list of documents that the VA considered as evidence to support their decision.

3. Copies of all evidence that I feel warrrants a second review as it meets the VA definition of new and material evidence, yet was not listed by the VA as being among the evidence used in consideration of the decision. This only includes documentation that was submitted with the claim when I submitted it April 2017.

I should have this done by Monday so more updates will be forthcoming.