Cox Vs Nicholson 03-1671 Final.wpd

[Guest allan]

03-1671

Cox, Byron, 03-1671 FINAL.wpd

--------------------------------------------------------------------------------

Search Terms: MEDICAL OPINIONS VA HEALTH CARE PRACTITIONERS

--------------------------------------------------------------------------------

UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS

No. 03-1671

Byron S. Cox, Appellant,

v.

R. James Nicholson,

Secretary of Veterans Affairs, Appellee.

On Appeal from the Board of Veterans' Appeals

(Decided January 19, 2007)

http://search.vetapp.gov/isysquery/d0c52a8...a6f58fc9/1/doc/

[Guest rickb54]

Josephine,

Sounds like yours is one of those cases that really got screwed up. I really don't know what to tell you. Once a va adjudicator determines that a case did not occur it service it is very hard to overcome a denial without knowing how they came to such a decision. Some times two well meaning people can read the same evidence and come to two completely different conclusions.

Often times in cases like your it helps to review the statement of the case, line by line, word by word in an attempt to understand and then discredit their conclusion while at the same time, you have to review the medical evidence that Contradicts their statements. And write a substanial letter of appeal, outlining your position, how you came to the conclusion and attach all supporting documents, even if the va already has copies of the documents.

The VA has a duty to assist, that is to attempt to obtain all records that you have told them exist. If a medical faculity that is holding the records fails to send them to the va, or fails to send them in a timely mannor under the law, this cannot be blamed on the va. This is why when I was a service officer I always told veterans to obtain a full copy of there medical records, copy them and keep a copy for their records, submitting the other copy with the claim. Notice I did not say submit the claim and then submit the records seperately. With all the paper files va adjudicators have, it is my position that it is best to submit a claim packet rather than to submit a paper here or a paper there. It makes it eaiser for the va if eveything they need to review the claim is right in front of them and they don't have to ask for additional evidence or sort through a pile of papers received willie nillie. This is not to say that you should hold evidence after you have submitted the claim, in fact you should submit any new evidence with a cover sheet as soon as you can. Also in some cases you may have a good idea how long it will take to get certain records, if it is a month or two don't wait for the records. Submit a letter indicating you are opening a claim, and the evidence is forthcoming.

If you were able to go back and secure the records yourself, and you had submitted them within one year of the denial the va must go back and consider the records. IF howerver it took you over a year to obtain the records after the denial, you must reopen the claim. The va didn't write laws pertaining to the one year time limit on appeals congress did.

If the records were in the hands of the va when the inital claim was denied you could claim cue, this was not the case however since they did not have the records to begin with.

Again when a De Novo review is denied you must read the soc carefully to determine if you can over come their reasoning. The va always tells exactly why a claim is denied, so it should not be hard to overcome the denial if you have the medical evidence. It is very hard to over come a denial that states the condition did not occur or was not incurred, or was not aggravated in service, That is because this is a subjective deterination. Often times a veteran has a medical record showing treatment on active duty and the claim is denied because he was not treated after service for years, or maybe he was only treated once or twice on active duty within a 20 year period. So if there is a record of treatment and the va recognizes there was treatment in service, they will still use the term did not occur or was not caused during service and it is hard for the veteran to understand how can the va recognize the record shows treatment but still not have occured on active duty.

I don't understand why the va did not allow your husband to be present with you during a c/p exam. I often have my wife with me when I go just to get medications, and always when I went to c/p exams.

It sounds like you have every right to be angry, but It also sounds like there were mistakes on both sides.

I am glad to see that you did get a service connected pension, I sincerely hope you can overcome the denial and that you receive what the service connection you are rightly due.

If I can be of any help let me know. It is hard to determine what actually went wrong without seeing the evidence and reading the SOC.

Edited February 26, 2007 by rickb54

[Josephine]

Josephine,

Sounds like yours is one of those cases that really got screwed up. I really don't know what to tell you. Once a va adjudicator determines that a case did not occur it service it is very hard to overcome a denial without knowing how they came to such a decision. Some times two well meaning people can read the same evidence and come to two completely different conclusions.

Often times in cases like your it helps to review the statement of the case, line by line, word by word in an attempt to understand and then discredit their conclusion while at the same time, you have to review the medical evidence that Contradicts their statements. And write a substanial letter of appeal, outlining your position, how you came to the conclusion and attach all supporting documents, even if the va already has copies of the documents.

The VA has a duty to assist, that is to attempt to obtain all records that you have told them exist. If a medical faculity that is holding the records fails to send them to the va, or fails to send them in a timely mannor under the law, this cannot be blamed on the va. This is why when I was a service officer I always told veterans to obtain a full copy of there medical records, copy them and keep a copy for their records, submitting the other copy with the claim. Notice I did not say submit the claim and then submit the records seperately. With all the paper files va adjudicators have, it is my position that it is best to submit a claim packet rather than to submit a paper here or a paper there. It makes it eaiser for the va if eveything they need to review the claim is right in front of them and they don't have to ask for additional evidence or sort through a pile of papers received willie nillie. This is not to say that you should hold evidence after you have submitted the claim, in fact you should submit any new evidence with a cover sheet as soon as you can. Also in some cases you may have a good idea how long it will take to get certain records, if it is a month or two don't wait for the records. Submit a letter indicating you are opening a claim, and the evidence is forthcoming.

If you were able to go back and secure the records yourself, and you had submitted them within one year of the denial the va must go back and consider the records. IF howerver it took you over a year to obtain the records after the denial, you must reopen the claim. The va didn't write laws pertaining to the one year time limit on appeals congress did.

If the records were in the hands of the va when the inital claim was denied you could claim cue, this was not the case however since they did not have the records to begin with.

Again when a De Novo review is denied you must read the soc carefully to determine if you can over come their reasoning. The va always tells exactly why a claim is denied, so it should not be hard to overcome the denial if you have the medical evidence. It is very hard to over come a denial that states the condition did not occur or was not incurred, or was not aggravated in service, That is because this is a subjective deterination. Often times a veteran has a medical record showing treatment on active duty and the claim is denied because he was not treated after service for years, or maybe he was only treated once or twice on active duty within a 20 year period. So if there is a record of treatment and the va recognizes there was treatment in service, they will still use the term did not occur or was not caused during service and it is hard for the veteran to understand how can the va recognize the record shows treatment but still not have occured on active duty.

I don't understand why the va did not allow your husband to be present with you during a c/p exam. I often have my wife with me when I go just to get medications, and always when I went to c/p exams.

It sounds like you have every right to be angry, but It also sounds like there were mistakes on both sides.

I am glad to see that you did get a service connected pension, I sincerely hope you can overcome the denial and that you receive what the service connection you are rightly due.

If I can be of any help let me know. It is hard to determine what actually went wrong without seeing the evidence and reading the SOC.

Rick 54,

I can tell you that in the statement of the case, my private medical records from 1965 - 1979 were not used. Yes this is included in my nod.

My claim is a very strange one.

I received the statement of the case and included was a statement stating your claim for anxiety with depression is denied and included was the form- 9.

Also in the same Statement of the Case was a statement by the DRO stating - " This is not my final decision", " You are going for a C&P for " an acquired psychiatric disorder and your claim is re-opened, due to New and Material Evidence.

Before the results of the C&P came in, I had to turn in the Form-9.

Everything in my claim is backwards and sideways.

I am at the BVA and remanded by the AMC to try to figure out this mess.

Thanks.

Josephine

[jbasser]

In the world of the VA the MD is King. That is why if you get an outside opinion you should make sure it is from an MD.

Pete is right. it would help if the Md is a specialist in his area, Fellow or higher. Diagnostic ewvidence is the Key, That often envokes the benefit of doubt rule.

[Josephine]

In the world of the VA the MD is King. That is why if you get an outside opinion you should make sure it is from an MD.

Pete is right. it would help if the Md is a specialist in his area, Fellow or higher. Diagnostic ewvidence is the Key, That often envokes the benefit of doubt rule.

John,

After I sent you my Statement of the Case, I have been fighting the whole system. Since I went straight to the horses mouth and mailed him his own service medical records and his credentials are impeccable, He was there, treated me and says it all.

I will find out how The BVA takes his letter.

Thanks for asking for my records,

Josephine

[Hoppy]

"I accept that many claims are not adjudicated properly and that many veterans fight years to receive the rating they are owed."

This is a fact and that is why we have SO's and hadit.

I tell this story again and again because this board is like a revolving door and I feel that new people could be reading any one of these posts at any time. If somebody starts the topic and starts citing statistics as to what a good job the VA does, I will throw in my two cents worth in response. If you do not whan to here my side of the story do not post statistics or guesses as to what a good job the VA does. I keep posting this on hadit not to express frustration with a weak or loser claim. I do it because I am of the opinion that many people at both the RO and the VA hospital contributed to the lunacy of this system and veterans need to be alerted to the potential for problems with some but not all VA employees.

My case was not blown by a single employee. Several denials were issued by different adjudicators. I have been told that at one time my claim was reviewed by a team. Several doctors contributed to the lunacy by refusing to get involved. The system by design is out of touch. A similar claim under workers comp. would have been settled in less than two years. That is why I claim the VA wasted five years of my life. If it was not for the advice I recieved on hadit from Wings, Alex and Clark Evans the VA would never have gotten my claim right (details below). In denials on various claims the VA did not explain anything to me as to how to advance my claims. In two denials the wording was such as to explain that the claim could not be won. I won both claims at the DRO level.

I post the details of my battle in order to keep my post from looking like generalized ramblings of a veteran burned out by the holes in the safety net of a dysfunctional adjudication system. I am glad the system eventually worked. However, even though I rec'd back pay I feel like I lost five years of my life while the VA fumbled an easy claim to adjudicate. I had worked for city gov't making a good salary when they found out I had a life threatening disease and refused to allow me to work and terminated vocational rehab. They told me to apply for Social Security. SSI did not go far while I was waiting for the VA to recover their fumble. Try living on $700.00 a month. I had to live in a small 24 foot boat. By the time I paid dock fees and food and for a bus pass I did not have any money to do anything except look at the walls and post to hadit on a computer a friend gave me. My appearance diminished. While sitting on bus stops people would throw their spare change out the windows of the car at me. People offered me food. I did not drive a car for five years. It has taken me years to re-adjust to having some money in my pocket to spend on entertainment.

It took the RO 7.5 years to award my angioedema claim. There were two denials prior to my claim being awarded by a DRO. There was only one medical exam performed in the 7.5 year period. The VA refused to schedule a C&P exam. When I tried to get a nexus letter, doctors at the VA hospital made up false excuses and would not even look at my SMR. Eventually, I found the head of immunology who agreed to look at my SMR. He was the first and only doctor to review my SMR. His nexus letter was a slam dunk. The claim was awarded based on the one nexus letter.

I am absolutely convinced by the lack of action I received after numerous letters to the RO requesting a C&P that they did not read anything I sent them. On the first denial they claimed that I was not treated for the disease in the military. Having not found hadit yet and having an SO who would not talk to me about my claim I developed some mis-conceptions about the qualifications of the people who were making decisions on claims. When I appealed all I could do was tell them they were wrong and to re-read the file. Later, I found hadit and I figured out from the folks on hadit including; Adora, Alex and Clark Evans that even though the adjudicators stated in the decision that they read my SMR and made decisions that I was dealing with people who had no qualifications to comprehend an SMR. That is when I started sending them letters explaining that the disease I had was called about five different names. I sent them copies of post service exams where doctors had used both the terms used by military doctors and doctors post service to describe the same symptoms. I sent medical literature explaining the multiple diagnoses. The RO did not respond and never scheduled a C&P. I would give odds that the RO would admit that they did not read anything I sent them rather than admit that for five years they were so far in the dark as to not schedule a C&P for a case that was ultimately a slam dunk win based on the first exam the veteran had to struggle with idiot VA doctors to obtain. I call them idiots because they had no motivation to get involved. Considering I had no money and could not afford an IMO the VA was useless by the lack of action of the RO and the lunacy of the VA doctors who I originally tried to get involved. This system was an embarrassment to anybody with any sense. I got some real good advice from Adora (now known as Wings), Alex and Clark Evans.

The SO who eventually helped me was a rating specialist for twenty years at the same RO where my claim was handled. He was hired when the State of California became aware of the fact that the VA had gotten out of control. He was of the opinion that the level of incompetence at the RO was due to the lack of training. Every time I talked to him he told me about other cases that he had won from DRO's. He recommended DRO's because they were senior employees who were far superior at application of the law. As far as I know his salary was paid for by the State of California. He did tell me that when he retired he would get two pensions. One from the feds and one from the state. I am glad the State of California decided to get into the SO business. Before I changed SO's a big time service org. threw me out of their office and told me I was wasting their time. If you missed it before my first check was a six digit figure. I never went back to the original service org. to "rub it in".

Edited February 26, 2007 by Hoppy

[Guest rickb54]

Hoppy,

Thanks for your story, as long as I have used hadit I never knew your case. I guess I must have missed it or glanced over it, but I don't remember it just the same.

I agree stories like yours. Terry, Josephine, John999 and a few others need to be told. Veterans need to know that the claims process is not a part time job, that many fight for their benefits while others are awarded sc on the initial claim.

I have never said the va was looking out for veterans, I have only stated that they deserve credit when credit is do.

Heck, I have a couple of claims myself that I have had to appeal... actually 6 to be exact over the last 21 years, but at least I was awarded sc my first time out. In the end I have won all my claims, three on de novo, one on cue, one at the COVA, with one still pendng for the last 4 years... but I really don't worry much about it now.

What you say about service officers are true in many cases, I know 21 years ago a DAV so messed me up to.

I am glad that you finally got what was owed you, I hate it when the va does screw up, especially when it gets to the point that a veteran is on the street, there really is no good excuse for the errors they make.

As to doctor statements, in the past VA doctors did not want to give statements, they have gotten better over the years. In fact I just got a statement from my Primary care va doctor last week for A&A. I actually wrote the letter my self, took it to the doctor, he read it , stamped it and signed in. Then he had me go to the social worker, and get the A&A examination and he filled that out and signed it two.

Anyway thank your for your story, I am glad the system finally worked in your case.