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!

[Buck52]

Theopolis

You  might want to read about this case

https://www.va.gov/vetapp03/files/0315200.txt

[Berta]

You stated:

"As a lawyer myself, I know the rater is not following the due process requirement."

Theopolis, one of  my personal lawyers was a combat Vietnam veteran. He asked me to help him with his VA claim, years ago and I had to explain to him that Title 38 is nothing like regular civil law.

Evidence to lawyers is Everything! And it should be -to the VA as well.

Can you scan and attach here the actual decision? Cover your C file #, name, etc prior to scanning it.

"Due process" is not what it appears to be----and not subject to CUE- however that does not mean a lack of due process could definitely lead to a basis for a very valid CUE.

Claustrophobia is a ratable condition in certainly situations.

What does the accident have to do with the claustrophobia? Are these related events?

If we could see the actual decision and the Evidence list we could determine if they committed CUE. A CUE can be filed on a recent decision, whether denial or an award- most of my successful CUEs were filed within days after getting their erroneous decisions, at the RO level.

I filed a CUE on a 1998 decision that sat at my RO for 8 years before BVA transfer- but it never got to the BVA because I had filed addition AO IHDclaim and I asked the Nehmer VARO to make a proper decision the CUE as it hinged on a proper AO IHD and Stroke award. In mere weeks they awarded that CUE.

It was prime facie-and I knew the BVA would grant it but I believe valid CUEs on a VARO decision should be filed ASAP, because no vet should have to wait for year after year for the BVA to award a prime facie CUE.

I do not know if the HLR made a CUE- the decision will reveal if they did.

Please read my article here on the Power of 38 CFR 4.6 and other CUE info from me - and if I am not here others here can determine CUE if they made one, to your detriment.

38 CFR 4.6 is basically the main legal error they commited in every CUE they made in my claims.

I have 2 more pending now.

There may not be a CUE in the award  but something might be missing, that we could help define.

Do you have private medical records for the claustrophobia and if so did you tell VA and sign an authorization form for those records to be obtained?

 

 

Edited June 4, 2020 by Berta

[Berta]

I wrote that in 2015 and won the specific  CUE I had just filed, in that post, in 3 weeks,. at the RO level.

M21-1MR was changed as to having HLRs review decisions for CUE prior to sending the decision to the veteran.

Some vets here have benefited from that new provision. It added a little more time to their decision but the CUE was corrected by the RO.

It was changed due to a letter I had sent to Secretary Shulkin, regarding the CUE aspect and also a request from me, with full legal rationale , as to having  Reconsideration requests that would extend the past NOD deadline.

Shulkin changed that regulation as well. The 8 year prime facie CUE I had did get responses from the VA, even a regulation they actually made up- and would not produce it when I questioned them.I was forced to file the NOD with mere days left because I thought at some point the CUE would get to a rater would could read.VA even said it had been placed with a specialist- I think it was the guy who changes any burned out light bulbs at the RO- they had no CUE specialist.

I feel every decision from a RO should be read with potential CUE in mind. VA makes a lot of mistakes.

 

 

 

 

 

[broncovet]

"Higher level review" does not permit "new evidence" so a rater failing to consider new evidence in a HLR is not cue.  

Source:  https://www.va.gov/decision-reviews/higher-level-review/   Scroll down, and you will see that 
"new evidence is not permitted with HLR".  

If you have new evidence you need to submit SCL or, better yet, an appeal to the BVA "with new evidence", since there are now different types of BVA appeals now also.  

This is new with AMA after Feb 2019.    
 

You need to "make sure" you are appealing using the correct form, VA loves to reject them on the wrong form.  If unsure which form (which appeal) to use, ask on hadit which to use.  Never use HLR with new evidence.  Its specifically prohibited.  

Edited June 4, 2020 by broncovet

[Berta]

That is correct Broncovet-

But I have the impression that this did not involve new evidence, but evidence they already had, prior to the HL review ,  as I understood the post.

The actual decision and evidence list will reveal more.

Theopolis, do you have a copy of your SMRS and also your inservice 201 Personnel file?

 

 

[Theopolis]

5 hours ago, Berta said:

That is correct Broncovet-

But I have the impression that this did not involve new evidence, but evidence they already had, prior to the HL review ,  as I understood the post.

The actual decision and evidence list will reveal more.

Theopolis, do you have a copy of your SMRS and also your inservice 201 Personnel file?

 

 

Decision P1

Decision P.2

Decision P3

2015 C&P Exam

Diagnosis VA 2015

 

Greetings Berta!  I appreciate your knowledge and kindness in addressing my question. The same goes for Broncovet, Buck52 and GBArmy, I appreciate all of your input and consider you my veteran family!  Per Buck52's suggestion I posted a redacted copy of the March 19, 2020 Rating Decision. I also posted part of my 2015 C&P exam which took place at the Baltimore MD VA Hospital. As you can see I was diagnosed with Claustrophobia at that time and it was linked to my service by the C&P examiners. At the time of the examination (2015) I could not remember being involved in the automobile accident.

 

In 2019, during a conversation with my sister she reminded me of the accident in 1988 when I was stationed in Fort Drum, New York. I was involved in a accident in Canada where my car was totaled because I was hit from the side. They had to pry me from the car and I was knocked out upon impact.  While I was getting checked out at the hospital, they called my father who at the time was a Infantry SGM and told him about the accident. I had no physical injuries (or so I thought) but I did not take into account what the accident did to me mentally.  After my conversation with my sister I called my father and he told me the Insurance company and policy number I was insured under. I called Allstate Insurance Company and amazingly they had records of the accident.

To reiterate what I said in my initial post, the VA already had the Allstate affidavit. The problem is they did not refer to it during the rating process. I called the VA Hotline after receiving the March 19, 2020 decision and asked one question. I asked if the Allstate affidavit was in my C-File. The VA call center representative stated it was and was received into the system on September 28, 2019 and again in October 2019 from when I hand delivered a copy to the Baltimore Regional Office.  After talking with the call center representative I asked to speak to a supervisor.  They said a supervisor would call me back and they did. I asked the supervisor to look at the documentation I had faxed into the Evidence Intake Center over the past year and to see if the Allstate affidavit was included. She said it was.  I say the following respectfully, this is either a CUE or gross incompetence.  

I truly appreciate all the response and my goal is to succeed at the Higher Level Review. My claim has been in since 2011 and waiting for the BVA is just kicking the can down the road. I feel the facts and law are on my side.  Res ipsa loquitur!

Thank you for that case Buck52, it was definitely on point!  Thank you Broncovet, I know you are looking out for my best interests.  Ms. Berta, thank you for your tutelage and mentorship!  VA law is much different than labor law and I humbly appreciate your guidance!