How to deal with gross errors by VA?

[miked23]

In 2011 I filed an appeal with the VA.  In 2012 I filed a NOD and a form 9.  I called the VA several times and was assured my case "Was working its way through the process".  Then around 2015 I called and was told: "Your case has already been closed, but there is no reason why."  The VA then reopened my case.  Finally, it recently showed it was "Pending dispatch", but for the WRONG claims!  For example, I filed for Ehlers-Danlos syndrome but they then showed Lupus.  I filed for high blood pressure, and they showed Sciatica.  I called again and was told those were errors because my form 9 showed Ehlers-Danlos not Lupus etc.  How can I deal with this?  As far as I can tell, it is currently being decided, but for the wrong claims!  This is really frustrating, its hard to believe how incompetent they seem.  What should I do at this point?  The last thing I want to do is start the 7 1/2 year process all over.

[Berta]

Do you mean a BVA remand?

If so can you scan and attach it here?( cover C file # name, address prior to scanning it)

The other day the BVA was down for mainteance and today I found many decisions for this syndrome such as even a direct service connected award:

In part:

"In summation, the Veteran was diagnosed as having Ehlers-
Danlos syndrome during service.  Following a medical board 
due to Ehlers-Danlos syndrome, he was discharged from active 
duty in June 1986 after more than five years of service.  The 
April 2005 VA examiner found that the Veteran's Ehlers-Danlos 
syndrome manifested during service.  Current clinical 
evidence shows that he continues to suffer from Ehlers-Danlos 
syndrome.  In view of the foregoing, service connection for 
Ehlers-Danlos syndrome is warranted.  38 U.S.C.A. §§ 1131, 
5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.304.  


ORDER

Entitlement to service connection for Ehlers-Danlos syndrome 
is granted. " 

https://www.va.gov/vetapp10/files1/1001233.txt

If you dont have a scanner, your remand will probably be within this link somewhere:

https://www.index.va.gov/search/va/bva_search.jsp?QT=+Ehlers-Danlos&EW=&AT=Oakland+remand&ET=&RPP=10&DB=2018&DB=2017&DB=2016&DB=2015&DB=2014&DB=2013&DB=2012&DB=2011&DB=2010&DB=2009&DB=2008&DB=2007&DB=2006&DB=2005&DB=2004&DB=2003&DB=2002&DB=2001&DB=2000&DB=1999&DB=1998&DB=1997&DB=1996&DB=1995&DB=1994&DB=1993&DB=1992

And if you find the BVA case, please post the hyperlink here.

If you just put the Docket #. and Citation number into the BVA browser it might pop right up.

The link I posted to the award above states this important fact:

"In light of the VA General Counsel's holding that a hereditary disease may be considered incurred in service if first manifested inservice, the Board will evaluate the claim as one for in service incurrence. See VAOPGCPREC 67-90, supra."

 

Very few genetic or hereditary diseases ever first manifest themselves inn service. This VAOPGC # 67-90 is important for all of us advocates to know about.

Edited May 10, 2018 by Berta

[miked23]

Berta,

Per your request, here is a copy of the remand.  Sorry for the formatting, I don't know how to insert a PDF.

BOARD OF VETERANS' APPEALS
DEPARTMENT OF VETERANS AFFAIRS
WASHINGTON, DC 20420
IN THE APPEAL OF
MICHAEL
DOCKET NO. )
)
)
DATE
On appeal from the APR 26,2018 Department of Veterans Affairs Regional Office in Oakland, California
THE ISSUES
1. Entitlement to service connection for hypertension.
2. Entitlement to service connection for Ehlers-Danlos Syndrome type II (hypermobility type).
3. Entitlement to service connection for a neurological disorder.
4. Entitlement to service connection for osteoporosis.

REPRESENTATION
Veteran represented by: Valerie D. Metrakos, Attorney
ATTORNEYFORTHEBOARD
Donna D. Ebaugh, Counsel
IN THE APPEAL OF MICHAEL
INTRODUCTION
The Veteran served on active duty from December 1966 to December 1970.
These matters come before the Board of Veterans' Appeals (Board) on appeal from
an October 2011 rating decision of the RO in Oakland, California.
The Board notes that although the Veteran initially appealed six issues, following
the issuance of the statement of the case, he limited the appeal to the issues listed on
the title page above. See October 2014 Substantive Appeal Form 9. Thus, the
Board does not have jurisdiction over the issues of entitlement to service connection
for anemia and tinnitus.
The appeal is REMANDED to the Agency of Original Jurisdiction (A OJ). VA will
notify the appellant if further action is required.
REMAND
Although the Board regrets the additional delay, a remand is necessary to ensure
that due process is followed and that there is a complete record upon which to
decide the Veteran's claims so that he is afforded every possible consideration. 38
U.S.C. § 5103A (2012); 38 C.F.R. § 3.159 (2017).
Regarding service connection for hypertension, there is no dispute that the Veteran
has a current diagnosis of the same. The Veteran asserts that his hypertension is
either directly related to service, or secondary to his service-connected
posttraumatic stress disorder (PTSD). The Veteran has not yet been provided with a
VA medical opinion to determine whether his current hypertension is related to
service or service-connected disability.
The Board observes that the Veteran's separation examination revealed blood
pressure readings of 150/80 and 136/80. The 150/80 reading was noted to be a high
blood pressure reading at the time, although no diagnosis of hypertension was
-2-
IN THE APPEAL OF MICHAEL
rendered at that time or within one year of separation. Regarding secondary service
connection, the Veteran asserts that clinical study evidence suggests that PTSD
causes hypertension. See October 2014 Substantive Appeal Form 9. Given his
current diagnosis of hypertension and the incident of a high blood pressure reading
in service as well as statements regarding clinical studies relating hypertension to
PTSD, a VA opinion is necessary under McLendon v. Nicholson, 20 Vet. App. 79
(2006) to determine whether the Veteran's current disorder is causally related to
active service or service-connected disability.
Regarding the claim for service connection for Ehlers-Danlos syndrome, Type ill
(EDS), the Veteran asserts that the hypermobility syndrome preexisted his military
service and was aggravated by service. In this regard, the Veteran asserts that EDS
is a congenital disorder even though it was not diagnosed until many years after
service.
Generally, a veteran is presumed to be in sound condition when examined and
accepted into service except for defects or disorders noted at that time. 38 U.S.C. §
1111. The presumption is rebutted where clear and unmistakable evidence
demonstrates that the injury or disease existed before acceptance and enrollment
and was not aggravated by such service. "[T]he Government must show clear and
unmistakable evidence of both a preexisting condition and a lack of in-service
aggravation to overcome the presumption of soundness ... " Wagner v. Principi,
370 F.3d 1089, 1096 (Fed. Cir. 2004); see VAOPGCPREC 3-2003 (July 16, 2003)
(cited at 69 Fed. Reg. 25,178 (May 5, 2004)).
Significantly, the presumption of soundness applies to congenital diseases, but not
congenital defects. See Quirin v. Shinseki, 22 Vet. App. 390 (2009).
The Board observes that congenital and developmental defects are not "diseases or
injuries" in the meaning of applicable legislation for disability compensation
purposes. 38 C.P.R.§ 3.303 (c), 4.9. VA's General Counsel has held, however,
that service connection may be granted for diseases (but not defects) of congenital,
developmental or familial origin if the evidence as a whole shows that the
manifestations of the disease in service constituted "aggravation" of the disease
- 3-
IN THE APPEAL OF MICHAEL
within the meaning of applicable VA regulations. V AOPGCPREC 82-90 (July 18,
1990); 38 C.F.R. §§ 3.303 (c), 3.306. According to the VA General Counsel's
opinion; however, although service connection cannot be granted for a congenital or
developmental defect, such a defect can be subject to superimposed disease or
injury, and if that superimposed disease or injury occurs during military service,
service connection may be warranted for the resultant disability. V AOPGCPREC
82-90.
In this case, EDS was not noted on the Veteran's service entrance examination. The
Veteran asserts that EDS was present during service, even though it was not known
at the time, and that it was aggravated by the multiple shoulder and knee problems
in service. In a May 2012 VA examination undertaken for knee and shoulder
claims, a VA examiner indicated that the Veteran had generalized looseness of
joints due to congenital EDS. The examiner also specifically noted that the Veteran
was known to have a congenital condition of Ehlers-Danlos Syndrome with loose
joints. The VA examiner did not address whether EDS is a developmental defect or
disease or discuss any relationship to service.
In an October 2012 report, Dr. D.M. opined "[t]here is no question that the trauma
the veteran sustained to his right shoulder during military service has permanently
aggravated his [EDS] as it relates to the right shoulder." The October 2012
Independent Review by Dr. D.M. was undertaken for the purpose of determining
whether the Veteran had knee and shoulder disorders related to service. Thus, Dr.
D.M.'s report did not discuss whether EDS is a developmental defect or disease, or
offer rationale for the aforementioned opinion.
As the Veteran has not been afforded a VA examination specifically for the EDS
disorder and there remain pertinent medical questions, the Board finds that a VA
examination is required. See McLendon, supra.
With respect to the claims for service connection for a neurological disorder and
osteoporosis, the Board finds that these claims are intertwined with the claim for
EDS. In this regard, the Veteran asserts that these disorders are secondary to EDS,
if not directly related to service. See October 2014 Substantive Appeal Form 9. See
-4-
IN THE APPEAL OF MICHAEL
Parker v. Brown, 7 Vet. App. 116 (1994) and Harris v. Derwinski, 1 Vet. App. 180,
183 (issues are "inextricably intertwined" when a decision on one issue would have
a "significant impact" on a veteran's claim for the second issue).
Lastly, in order to ensure that all of the pertinent treatment records are reviewed,
any outstanding VA outpatient treatment records should be obtained. The most
recent VA treatment records in the file are dated in March 2013.
Accordingly, the case is REMANDED for the following action:
1. Obtain all outstanding VA treatment records dated since March 2013.
2. Afford the Veteran a VA examination to determine
whether the Veteran's hypertension is due to service or
service-connected disability. The content of the entire
electronic claims file, to include a complete copy of
the REMAND must be made available to the
individual designated to issue the opinion and the
examiner should discuss the Veteran's documented
medical history and assertions.
The examiner is asked to answer the following questions:
(a) Is it at least as likely as not (a 50 percent
probability or higher) that the Veteran's hypertension
had its onset in service, during his first post-service
year, or is otherwise related to service? In reaching
any conclusion, the examiner is asked to consider the instance of a high blood pressure reading (150/80) at service separation.
-5-
IN THE APPEAL OF MICHAEL
(b) If the Veteran's hypertension is not directly
related to service, is it at least as likely as not (a 50
percent probability or higher) caused or aggravated by
the Veteran's service-connected PTSD? In reaching
any conclusion, consider the Veteran's reference to
clinical studies which relate hypertension to PTSD.
The examiner must provide complete rationale for the
conclusions reached.
3. Afford the Veteran a VA examination to determine
whether his Ehlers-Danlos syndrome, type III (EDS)
is related to service. All necessary studies and/or tests
should be conducted. The content of the entire
electronic claims file, to include a complete copy of
the REMAND must be made available to the
individual designated to issue the opinion and the
examiner should discuss the Veteran's documented
medical history and assertions.
The examiner is asked to answer the following
questions:
(a) Does the Veteran's diagnosed EDS, constitute a
congenital defect or disease?
(b) If the Veteran's EDS is considered a congenital
defect, is it as likely as not that there was a
superimposed disease or injury in connection with the
congenital defect during the Veteran's active duty
service?
(c) If EDS is a disease, did it clearly and unmistakably
preexist the Veteran's active duty military service?
-6-
IN THE APPEAL OF MICHAEL
(d) If the answer to question (c) is "yes" is there also
clear and unmistakable evidence that EDS was NOT
permanently aggravated beyond its natural progress
during service?
(e) If the answer to either question (c) or (d) is "no,"
assume as true that the Veteran did not enter service
with the disability. With this assumption in mind,
is it at least as likely as not (i.e. a 50 percent or greater
probability) that EDS had its onset in service, or is
otherwise related to active service?
The examiner must provide complete rationale for the
conclusions reached.
4. After completing items 1 through 3, and any other
development as may be indicated by any response
received as a consequence of the actions taken in the
preceding paragraphs, the Veteran's claims should be
readjudicated based on the entirety of the evidence. If
any claim remains denied, the Veteran and his
attorney should be issued a supplemental statement of
the case. An appropriate period of time should be
allowed for response.
The Veteran has the right to submit additional evidence and argument on the
matters the Board has remanded. Kutscherousky v. West, 12 Vet. ApJ?. 369 (1999).
(CONTINUED ON NEXT PAGE)
-7-
IN THE APPEAL OF MICHAEL
This claim must be afforded expeditious treatment. The law requires that all claims
that are remanded by the Board of Veterans' Appeals or by the United States Court
of Appeals for Veterans Claims for additional development or other appropriate
action must be handled in an expeditious manner. See 38 U.S.C. §§ 5109B, 7112
(2012).
V. CHIAPPETTA
Veterans Law Judge, Board of Veterans' Appeals
Under 38 U.S. C. § 7252 (2012), only a decision of the Board ofVeterans' Appeals
is appealable to the United States Court of Appeals for Veterans Claims. This
remand is in the nature of a preliminary order and does not constitute a decision of
the Board on the merits of your appeal. 38 C.P.R. § 20.1100(b) (2017).
- 8-

Edited May 12, 2018 by miked23

[miked23]

Berta,

Here is the webpage that precipitated my first inquiry.  Notice that the wrong conditions are still listed, and when I called the help line, they also indicated the records showed the conditions as listed on this page.

An official website of the United States government

 Here’s how you know 

Get help from Veterans Crisis Line

 

Search

Help

Michael

 

• Explore and Apply for Benefits
• Manage Your Health and Benefits
• Request Your Records
• Find VA Locations

• Home
• Disability Benefits
• Track Your Claims and Appeals
• Appeal of October 2011 Claim Decision

Appeal of October 2011 Claim Decision

Up to date as of May 12, 2018, at 2:14 a.m. (ET)

• Status
• Issues

Issues

 

Currently on appeal

Remand

• Service connection, lupus
• Service connection, sciatic nerve neuritis
• Service connection, hypertensive vascular disease
• Service connection, osteoporosis

Need help?

Call the Veterans Affairs Benefits and Services  1-800-827-1000 Monday - Friday, 8:00am - 9:00pm (ET)

 

[Berta]

Have you used the IRIS system I had suggested ?

Have you called the White House  veterans Hot Line as I suggested?

If you mean the 1-800-827-1000 by " help line" - they usually dont have a clue.

That is why we call the 800# "Peggy" - I sure hope this video still works-

 

https://community.hadit.com/topic/65113-peggy/?_fromLogin=1

The remand states exactly what is still needed by the VA. But you might want to work on the remand yourself by making sure you can obtain a strong medical opinion from a real doctor if the C & P exams don't go well-for either issue.

 

Edited May 12, 2018 by Berta

[miked23]

Berta,

I did file a strong medical opinion, and it was totally ignored by the DRO, and only tangentially referenced in the remand.  The physician who wrote the medical opinion is both an attorney and doctor who specializes in VA cases.  it was really frustrating to have the DRO not even list the medical opinion as a document that was reviewed, even though earlier documentation from the VA described it as "well-reasoned". 

You are correct about the C & P "physician", who among other things stated that he looked at my 'C' file and there was no reference for continuity of problems, even though there were 12 different medical reports that showed exactly that.  Another thing you might find interesting is that my EDS is severe enough to require me to wear long-leg braces since the '70's.  The C & P "doctor" mentioned them but then stated that I didn't use any kind of device.  The VA has provided new braces for me 3 times and the 4th set is being made at this time, so evidently they agree that they are necessary.

Also, though the remand indicated the VA had never examined me specifically for EDS, in fact, I have been examined by orthopedics three different times, and rheumatology sees me every year to follow-up, and ophthalmology sees me every year for EDS as well. 

 I did call the white-house hotline as you suggested, and they were great, but I am still awaiting a response from them.  On the other hand, I didn't try the IRIS line.

You can see why I am so frustrated with the VA.  It isn't merely a matter of me disagreeing with their decisions, they have shown a surprising degree of incompetence.

[Berta]

" It isn't merely a matter of me disagreeing with their decisions, they have shown a surprising degree of incompetence."

I think 90% or more of us here would totally agree with you- it is Very frustrating- but we can get through it.

Please dont ever give up on these claims.

The remand is two fold:

"Regarding secondary service
connection, the Veteran asserts that clinical study evidence suggests that PTSD
causes hypertension. See October 2014 Substantive Appeal Form 9. Given his
current diagnosis of hypertension and the incident of a high blood pressure reading
in service as well as statements regarding clinical studies relating hypertension to
PTSD, a VA opinion is necessary under McLendon v. Nicholson, 20 Vet. App. 79
(2006) to determine whether the Veteran's current disorder is causally related to
active service or service-connected disability."

The examiner however may or may not SC  the hypertension as secondary.

 

You should raise any evidence or studies at the exam if the doctor lets you do that.

"Berta,

I did file a strong medical opinion, and it was totally ignored by the DRO, and only tangentially referenced in the remand.  The physician who wrote the medical opinion is both an attorney and doctor who specializes in VA cases.  it was really frustrating to have the DRO not even list the medical opinion as a document that was reviewed, even though earlier documentation from the VA described it as "well-reasoned". 

Yeah I had a double DRO review and the DRO would not enter my IMOs into records. The BVA gave them full weight.

The BVA can read.

The second part of the remand is thus:

The VA examiner did not address whether EDS is a developmental defect or
disease or discuss any relationship to service.( My note here......that exam was deficient)
In an October 2012 report, Dr. D.M. opined "[t]here is no question that the trauma
the veteran sustained to his right shoulder during military service has permanently
aggravated his [EDS] as it relates to the right shoulder." The October 2012
Independent Review by Dr. D.M. was undertaken for the purpose of determining
whether the Veteran had knee and shoulder disorders related to service. Thus, Dr.
D.M.'s report did not discuss whether EDS is a developmental defect or disease, or
offer rationale for the aforementioned opinion.( That is why the DRO rejected this)
As the Veteran has not been afforded a VA examination specifically for the EDS
disorder and there remain pertinent medical questions, the Board finds that a VA
examination is required. See McLendon, supra.
With respect to the claims for service connection for a neurological disorder and
osteoporosis, the Board finds that these claims are intertwined with the claim for
EDS. In this regard, the Veteran asserts that these disorders are secondary to EDS,
if not directly related to service. See October 2014 Substantive Appeal Form 9. See
-4-( The VA is quick to state that unless we are ourselves, medical prefssionals, they will not award due solely to a lay person's opinion. I did not have a IMO for my FTCA case nor any lawyer. I won because my evidence was medically impeccable and the Office of General Counsel and a VACO doctor could read. Still I spent many days weeks and months getting up to the medical knowledge I needed.I dont recommend anyone doing all that.

 

It seems to me that the IMO from Dr. D.M. did not conform to the IMO format we have here at hadit.

"Thus, Dr.
D.M.'s report did not discuss whether EDS is a developmental defect or disease, or
offer rationale for the aforementioned opinion."

 

The remand calls for 

b) If the Veteran's hypertension is not directly
related to service, is it at least as likely as not (a 50
percent probability or higher) caused or aggravated by
the Veteran's service-connected PTSD? In reaching
any conclusion, consider the Veteran's reference to
clinical studies which relate hypertension to PTSD.
The examiner must provide complete rationale for the
conclusions reached.

Thje VA doc might be happy to see some studies you have on this----that might garner an award)
3. Afford the Veteran a VA examination to determine
whether his Ehlers-Danlos syndrome, type III (EDS)
is related to service. All necessary studies and/or tests
should be conducted. The content of the entire
electronic claims file, to include a complete copy of
the REMAND must be made available to the
individual designated to issue the opinion and the
examiner should discuss the Veteran's documented
medical history and assertions.
The examiner is asked to answer the following
questions:
(a) Does the Veteran's diagnosed EDS, constitute a
congenital defect or disease?
(b) If the Veteran's EDS is considered a congenital
defect, is it as likely as not that there was a
superimposed disease or injury in connection with the
congenital defect during the Veteran's active duty
service?
(c) If EDS is a disease, did it clearly and unmistakably
preexist the Veteran's active duty military service?
-6-
IN THE APPEAL OF MICHAEL
(d) If the answer to question (c) is "yes" is there also
clear and unmistakable evidence that EDS was NOT
permanently aggravated beyond its natural progress
during service?
(e) If the answer to either question (c) or (d) is "no,"
assume as true that the Veteran did not enter service
with the disability. With this assumption in mind,
is it at least as likely as not (i.e. a 50 percent or greater
probability) that EDS had its onset in service, or is
otherwise related to active service?
The examiner must provide complete rationale for the
conclusions reached.
4. After completing items 1 through 3, and any other
development as may be indicated by any response
received as a consequence of the actions taken in the
preceding paragraphs, the Veteran's claims should be
readjudicated based on the entirety of the evidence. If
any claim remains denied, the Veteran and his
attorney should be issued a supplemental statement of
the case. An appropriate period of time should be
allowed for response.
The Veteran has the right to submit additional evidence and argument on the
matters the Board has remanded. Kutscherousky v. West, 12 Vet. ApJ?. 369 (1999)."

 

I will bump up the IMO criteria for you-you might well need the IMO doctor to amend the opinion so that it conforms to the IMO criteria.

But you also might get a half baked  C& P exam,done by somene wh had no expertise in this type of claim.(EDS)

 

If that is the case, with a more detailed IMO that complies to the IMO criteria here, done by a doctor with mor expertise, that will overcome the next EDS C & P exam, which might be too speculative anyhow-

 

The BVA remanded my claim for a cardio opinion ( this was one of many claims I have had.)

I had extensive evidence to include 3 IM0s ( the third was a very brief freebee)(IMOs because the veteran, my husband , was dead, no IME  possible  and VA had 2 negative opinions fro an Endocrinlogist ( which I also supplied to my main IM0 doctor-Dr Craig Bash- a NeuroRadiologist) Ths was a diabetes claim)

I was thrilled because I knew any VA cardio doc would understand and support my claim.

I got a PA (Physician's Assistant)C  & P opinion instead ,on remand,and immediately rebutted it as being too speculative and not what BVA had order.

BVA agreed and disregarded the PA opinion completely . The BVA  award letter  was subsequently

in the mail !

 

Edited May 12, 2018 by Berta