Jump to content
VA Disability Community via Hadit.com

VA Disability Claims Articles

Ask Your VA Claims Question | Current Forum Posts Search | Rules | View All Forums
VA Disability Articles | Chats and Other Events | Donate | Blogs | New Users

  • homepage-banner-2024-2.png

  • donate-be-a-hero.png

  • 0

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

Rate this question


Theopolis

Question

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!

Link to comment
Share on other sites

  • Answers 18
  • Created
  • Last Reply

Top Posters For This Question

Recommended Posts

  • 0

I regret I cannot read the downloads.I cannot even magnify them.

What disability  is the 30% you have service connection for now?

Maybe others will be able to read the downloads.

You stated :

"As you can see I was diagnosed with Claustrophobia at that time and it was linked to my service by the C&P examiners".

You added this:

"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.”

Subjective reports have to be proven to the VA.

Unfortunately I am unclear on what the "event" is myself, that clearly could have  caused the claustrophobia, as in this statement, but maybe others will be able to read the downloads:

What is troubling about the rater’s language is they reference the “event” but does not refer to what the “event” specifically is.

 

 

I

:

 

 

Link to comment
Share on other sites

  • 0
  • Moderator

In the reasons and bases for decision, it says that your "STRS fail to show treatment or documentation of claustrophobia".  (Caluza element 2).  Your insurance company, after the fact, can not document an in service event, nor can your doctor.  This has to be documented by your service records OR by a buddy letter who served with you and witnessed said event.  

Again, neither your insurance company, your doctor, nor Donald Trump can document an "in service event" UNLESS they were there and treated or witnessed the event in service.  

Its my opinion until/unless you fix "Caluza element 2" (in service event or aggravation) you will continue to be denied.  This will require either additional service records, or a buddy from service letter that he witnessed you being locked in the cabinet.  

If you do get some documentation in your service records (after the fact insurance records will not suffice..they may work if you sought treatment IN service, and used your insurance while in service)  or buddy letters, make sure your appeal allows "new evidence"  (NO HLR).  

 

 

Link to comment
Share on other sites

  • 0

I'm sorry. What is the in service 201 personnel file.

How do you get a copy?

This isn't the c-file?

Link to comment
Share on other sites

  • 0

The 201 file ( Called NAV 201by the USMC and USN- and it might just be called the Inservice personnel file for other branches) can be an highly probative piece of evidence for anything like sleep apnea claims to correcting bad paper, to proving in an inservice nexus ( event):

Go to https://www.archives.gov/veterans

and fill out the SF 180 on line ( I assume you definitely might have a copy of your SMRs, and not your inservice   Personnel records), but ask them for what you need. Most vets need both files.

Make a copy of the signed SF 180 for your records.

I used NARA years ago, and the format might have changed.

If so someone else will chime in.

I requested my dead husband's inservice Personnel Records for his two periods of service, along with his SMRs.

I received his Navy SMRs and his NAV201 file and a destination record.

The NARA letter said his complete USMC SMRs and Personnel records were with the Buffalo VARO- ( which is where they were supposed to be- I was relieved to know that as I had assumed two claims he had pending at his death)

I made the request on line at NARA, and then was advised to print off a form that I had to sign and mail to NARA, so that they could associate my signature with the request.It might have changed since then to electronic signatures.

I have a bi polar vet friend who became homeless when they closed the Bath VA Domiciliary years ago-to NSC vets.

he had been living there for years with no SC.His denied claim was in appeals.

I had to remind him many many times to file out the SF 180 form I had sent to him. He finally did.

Long story -I helped him prove he had bi polar inservice with the SMRs and his NAV201 file  was the BEST proof we had. BVA granted and his award was a little less than 1/4 a million in retro.

Nothing is impossible- it just takes a lot of work .

 

 

 

 

 

 

Edited by Berta
Link to comment
Share on other sites

  • 0
  • Moderator

Theopholis posted:

Quote

Res ipsa loquitur

There actually is something in VA regs that implies something similar, but that is not what its called.  

"If" you go into the military and, like all military are given a pre service physical, AND

after service, you are diagnosed with a disorder not mentioned in your pre service physical,

Res ipsa loquitur 

suggests that you got that disease as a result of service.  It really helps when you apply for benefits within a year of exit from service.  

Link to comment
Share on other sites

Create an account or sign in to comment

You need to be a member in order to leave a comment

Create an account

Sign up for a new account in our community. It's easy!

Register a new account

Sign in

Already have an account? Sign in here.

Sign In Now
×
×
  • Create New...

Important Information

Guidelines and Terms of Use