Higher Level Review - Rater Missed and Did Not List Evidence on Rating Decision

[Theopolis]

Hello hadit Community.  I submitted an initial claim for Claustrophobia in 2011 and my claim was denied in March 2015.  I submitted my NOD and  appealed the decision.  I recently  (March 19, 2020) received another rating decision on my claim for Claustrophobia and was denied again for service connection.  The issue in 2015 was that I had no evidence of my account of being mistakenly locked in the Arms Room.  My period of service in the US Army was from 1985 to 1994, where I was a Supply Sergeant/Unit Armorer and stationed primarily overseas.  I submitted buddy statements and a description of my Unit Armorer duties which required me to work in a vault like setting for long periods of time.  

In September 2019, I submitted an affidavit from Allstate Insurance Company, (on their company letterhead) along with the date and time of the accident to include the Allstate claim number (the accident took place in January 1988) to the Evidence Intake Center.   I called the VA Call Center (1-800-827-1000) numerous times afterwards and they confirmed receipt of the document and stated it was in my C- file.  I also hand delivered a copy of the Allstate Insurance Company affidavit to my Regional Office in October 2019 and have a stamped copy of the documentation as evidence of my submission.

In March 2020, I finally was scheduled for a C&P exam for Claustrophobia.  My C&P exam took place on March 13, 2020 and I showed the C&P examiner the Allstate affidavit and discussed my automobile accident and my duties as a Unit Armorer as my stressor events for Claustrophobia.   My case was decided on March 19, 2020.  When I reviewed the March 19, 2020 Rating Decision, the Allstate affidavit was not listed in the evidence section. The author of the rating decision spoke vaguely about the evidence and on Page 3 of the three (3) page decision, made the following statement; “ There is simply no evidence to confirm that the reported incident(s) occurred, or that you sought treatment documented during service as a result.”  

In the March 19, 2020 Rating Decision, the rater stated: “that the March 13, 2020 C&P examination reported a diagnosis of situational phobia (claustrophobia) and the examiner opined that the present diagnosis was at least as likely as not due to the event you subjectively reported.” The March 13, 2020 C&P examination is also listed as a Favorable Finding in the March 19, 2020 decision. What is troubling about the rater’s language is they reference the “event” but does not refer to what the “event” specifically is.  In addition to the Allstate affidavit, I submitted a lay statement from my sister also confirming the accident.  I also included in the evidence:

• a copy of a February 2015, C&P exam, which was held at the Baltimore Maryland VA Hospital and conducted by VA Psychologists and they opined that my conditions of Claustrophobia and Agoraphobia is directly connected to my military service,
• a copy of a August 2019, Mental Health DBQ which was conducted at the Washington DC VA Hospital and conducted by a VA Psychologist.  The DBQ states my Claustrophobia is linked to my military service;
• a September 2019 medical opinion letter from my VA Contracted Psychologist, where the doctor states that the automobile accident and my Unit Armorer duties are directly responsible for my Claustrophobia and Agoraphobia.
• a very detailed Statement in Support of Claim chronologically listing the events in service along with the previous diagnosis that I received.

My question for my fellow Veterans is this Rating Decision a Clear Unmistakable Error or just clear incompetence?

I have been examined four (4) times and currently by Psychologists and all of them have diagnosed me with Claustrophobia. I also have evidence of the automobile accident that I was involved in (thanks to Allstate keeping records over 30 years).

I requested a Higher Level Review on April 13, 2020 and  articulated all of the above on the VA form. I also requested that a different office conduct the HLR in addition to requesting the informal telephone conference.

Thanks!

[broncovet]

Ok.  Yours is a "classic case" of Caluza elements.  1.  Current diagnosis check.  2.  Documentation of in service event.  No check.  3.  Nexus or doc statment that your in service event caused your current diagnosis.  

An "in service event" can not be documented by a current medical exam.  It must be either documented by your service records, OR a buddy statement to the effect he knew you were locked in the arms cabinet should suffice.  

You seem to be missing item 2 of the Caluza elements, and until you fix that expect continued denials.  

Also, YOU CAN NOT SUBMIT NEW EVIDENCE with a HLR.  Read the info on HLR, it specifically EXCLUDES the submission of new evidence.   You have some choices, but none of those matter UNTIL/UNLESS you are able to provide "documentation of an in service event".  (Caluza element 2).  

Its pretty straight forward:  NO complete Caluza elements (all 3 are required), NO benefits.  

Get the Caluza elements, and get the benefits.  You can file a nod now, but, get the Caluza elements or expect another denial.  I suggest you either:

Request to reopen under 38 cfr 3.156 "if" you can find in your service records evidence you were locked in the gun cabinet.  

If you need a buddy statement, then you will need to appeal to the BVA With this buddy letter, and select "appeal with new evidence".  

 

Edited June 3, 2020 by broncovet

[GBArmy]

Theopolis Unless I missed it your problem seems to be evidence of an in-service event. It isn't a question that you have a disability. You said your evidence includes a dbq that says it was caused by service. I'd like to see the wording on that. If it isn't expressed and backed up by detailed documentation, it wouldn't be accepted as strong enough. You have a buddy letter from your sister. Can you get additional from someone in your unit that could substantiate the event and what happened to you after? HLR isn't going to work. You need something that the DRO can't miss. Your case, already denied would not fit that category. As Bronc has said, get stronger evidence. If you are claiming MH issues, it might be worth exploring getting the help of a lawyer with experience in winning these types of value  claims. You have to improve your evidence and resubmit. I'm no expert on CUE claims, but it sure doesn't look like that would be the way I would go.

[Theopolis]

2 hours ago, broncovet said:

Ok.  Yours is a "classic case" of Caluza elements.  1.  Current diagnosis check.  2.  Documentation of in service event.  No check.  3.  Nexus or doc statment that your in service event caused your current diagnosis.  

An "in service event" can not be documented by a current medical exam.  It must be either documented by your service records, OR a buddy statement to the effect he knew you were locked in the arms cabinet should suffice.  

You seem to be missing item 2 of the Caluza elements, and until you fix that expect continued denials.  

Also, YOU CAN NOT SUBMIT NEW EVIDENCE with a HLR.  Read the info on HLR, it specifically EXCLUDES the submission of new evidence.   You have some choices, but none of those matter UNTIL/UNLESS you are able to provide "documentation of an in service event".  (Caluza element 2).  

Its pretty straight forward:  NO complete Caluza elements (all 3 are required), NO benefits.  

Get the Caluza elements, and get the benefits.  You can file a nod now, but, get the Caluza elements or expect another denial.  I suggest you either:

Request to reopen under 38 cfr 3.156 "if" you can find in your service records evidence you were locked in the gun cabinet.  

If you need a buddy statement, then you will need to appeal to the BVA With this buddy letter, and select "appeal with new evidence".  

 

I appreciate the response Broncovet.  I have the second element covered via the insurance company affidavit which is a business document that was made contemporaneously.  I am not submitting new evidence with the HLR, I'm asking for evidence that is already in the record to be listed and examined.  The rater listed and referred to evidence that was submitted in the same fax as was the insurance company affidavit.  The insurance company affidavit was submitted in September 2019 (last year). The rating decision was made on March 19, 2020.  

As for an in service event not be documented at a medical exam. 

On Page 32 of the VHA Office of Disability and Medical Assessment (DMA) Compensation and Pension (C&P) Disability Examinations Procedure Manual, published July 31, 2019

The regulation states:

3.i. Claimant Records

(a) If the claimant provides records at the examination, review the records, document them in the report, and then return the records to the claimant with instruction that they should immediately submit the evidence to VBA. VHA C&P examiners must not take the evidence to transmit to VBA. The evidence can be reviewed and documented, then returned to the claimant for submission to VBA.

(b) If the Veteran indicates there are private treatment records the examiner should refer them to VBA for assistance obtaining these records

 

I provided a copy of the Allstate affidavit to the C&P examiner during my March 13, 2020 C&P examination and specifically stated that I was involved in a motor vehicle accident on January 16, 1988.  The C&P examiner immediately entered notes onto her computer detailing what I told her and she looked at the Allstate affidavit. That is why I have a favorable finding of Claustrophobia from this C&P examiner.  So, for the author of the March 13, 2020 rating decision to declare there is no evidence is false and disingenuous.  All 3 elements are covered.

 

 

 

 

[Theopolis]

2 hours ago, GBArmy said:

Theopolis Unless I missed it your problem seems to be evidence of an in-service event. It isn't a question that you have a disability. You said your evidence includes a dbq that says it was caused by service. I'd like to see the wording on that. If it isn't expressed and backed up by detailed documentation, it wouldn't be accepted as strong enough. You have a buddy letter from your sister. Can you get additional from someone in your unit that could substantiate the event and what happened to you after? HLR isn't going to work. You need something that the DRO can't miss. Your case, already denied would not fit that category. As Bronc has said, get stronger evidence. If you are claiming MH issues, it might be worth exploring getting the help of a lawyer with experience in winning these types of value  claims. You have to improve your evidence and resubmit. I'm no expert on CUE claims, but it sure doesn't look like that would be the way I would go.

Greetings GBArmy and thanks for the reply.  I appreciate it tremendously. You and Broncovet are really preparing me for this Higher Level Review. I have a copy of the Allstate Insurance Company affidavit  which verifies the automobile accident by listing the time, date location, damage and accident number. This document is already in the record.  This is a business document which can be verified by calling Allstate. It is objective, not subjective.

On Page 3 of the M21-1 Part III, Subpart iv, Chapter 5. Evaluating Evidence and Making a Decision,

The regulation states:

 Verifying that the claim is properly developed and procedurally prepared for a decision involves making sure that:

 ·   all issues were recognized

·   the duty to notify was discharged

·   the duty to assist was completed or otherwise appropriately discharged, and

·   the appropriate procedures were followed when any other due process requirement was implicated by the facts in the case. 

As a lawyer myself, I know the rater is not following the due process requirement. Due process is the legal requirement that the state/agency must respect all legal rights that are owed to a person and in this case, veteran.  In layman terms, the rater should examine all evidence. If the evidence, as it does in my case, directs you to a document depicting an automobile accident, the rater should look for that document in the C-file, (due diligence).  That was not done but the rater made the mistake of saying that there is no evidence of the "event" I subjectively described. The event I "subjectively" described was the automobile accident!  My sister described the automobile accident. Allstate Insurance company verified the automobile accident. Allstate Insurance Company is a primary source for evidence because they are the custodian of the document I'm submitting.  Caselaw has held that contemporaneous insurance company documentation can be used to authenticate an accident.  How can the second element not be satisfied?  Lastly, the C&P examiner opined that I should be service connected and the rater actually listed it as a favorable finding, which by law, has to be recognized going forward.

 

 

[GBArmy]

Theopolis Your profile doesn't indicate if you have had any previous disabilities service connected. I'm assuming not and, therefore, making the assumption that you are relatively new to the VA "nightmare." First of all, please understand, I am not in any way trying to be obstinate or arbitrary. I wish every veteran the best in their striving to obtain what they should receive. The RO and people there are not trained in legal matters; so when I say I have a mistrust that they will due the correct thing, especially when reviewing facts and evidence, it is not to be taken lightly. When it gets to the BVA, your position , again based on facts, evidence, and legal principals, gets more to the point. But we have to get to the Court of Veterans Claims to actually get remedy based on legal principals. In my humble opinion, HLR based on evidence already presented is very hard to achieve. You can't present new evidence, so you have to show that there was an error made at the prior level. If the DRO can find that the rater looked at your evidence but didn't find it sufficient, he is going to deny. If he does, then it will go back to the rater for additional development. More than likely, that results in another denial. I just believe that you have a much better chance to just skip the HLR and go to BVA. You can go without additional evidence, or with more. Yes, the HLR is likely to take a less time; but, it is also likely to be denied. Your claim/disability, your decision. As Lucy would say to Charlie Brown: "Decisions are 5 cents!"

[Buck52]

Theopolis

It would help if you posted a redacted copy of all your denials. 

as the reason and bases of the VA Decision to deny your claim.

''What We Decided''

please black out your name and claim # and address.

And also a copy of the examiners report  that nexus your event to military. As GB Army mention we need to see that report.

VA Is good at not reading all the veterans information,,they just read so for and stop  and mention 

'' There is simply no evidence to confirm that the reported incident(s) occurred, or that you sought treatment documented during service as a result.”