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Still Loosing It, Help Please.

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livingrock21

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Hello To All Again,

I haven't posted here for a while! I'm still in the same boat and on my last appeal. Here is a link from my original post http://www.hadit.com/forums/index.php?showtopic=15124&hl= .

A little background. I got medically retired from the Navy August of 07. Filed my BDD claim July of 07. Got my findings in Nov. of 07. When I got my findings I immediately saw an error on the VA's part. They rated me per a condition that I didn't have, nor was it even really related. They had me rated under "Paralysis of the median nerve" (unsure of the VASRD code, believe it was 8517). I should have been rated under Erythromelalgia, diagnostic code 7119.

I've been appealing this since. I'm on my third and final appeal and am very discouraged. At one point I thought I was going to recieve help from a VFW Service Officer. He said he would take my claim to the STAR Review, and it would be fixed there. Seemed as though he was going to be very helpful, only to have him come back and say they were no help.

On my last Statement of the case, they agreed they made an error rating me under paralysis of the median nerve and agreed to rate me under erythromelalgia, but didn't change my percentage as they should have.

_____________________________________________________________________

Here's an excerpt from the VASRD on this particular condition (this pertains to my questions:

7119 Erythromelalgia:

Characteristic attacks that occur more than once a day, last an average

of more than two hours each, respond poorly to treatment, and that

restrict most routine daily activities.................................................................. 100

Characteristic attacks that occur more than once a day, last an average of

more than two hours each, and respond poorly to treatment, but that

do not restrict most routine daily activities........................................................ 60

Characteristic attacks that occur daily or more often but that respond to

treatment.......................................................................

...................................... 30

Characteristic attacks that occur less than daily but at least three times

a week and that respond to treatment................................................................ 10

Note: For purposes of this section, a characteristic attack of erythromelalgia consists of burning pain in the hands, feet, or both, usually bilateral and symmetrical, with increased skin temperature and redness, occurring at warm ambient temperatures. These evaluations are for the disease as a whole, regardless of the number of extremities involved.

________________________________________________________________________________

_______________

My questions:

Is there anything else I could be doing? I'm so scared their going to come back and say everythings fine and deny my appeal to correct the percentage.

I have a letter from my active duty dr, in my medical record, stating that the attacks occur daily. They last more than two hours, and do not respond to treatment. So how could they have me rated at 30%?

Also, while in the appeals process, I have been granted Social Security Disability due to this condition. If you look at the rating criteria, the diference in 60% and 100% is the ability to perform daily activities. I can't do the most daily activity, work. Should I submit evidence as to the fact that SSD found me disabled? I called today and my appeal is in the DRO's hands. I was told it's been there for atleast the past 5 months.

This is off topic with the VA claims processing, but.... I don't get SSI because they include my VA compensation. I'm rated at 40%. Are they allowed to use this as income? I've seen people on here that are 100%, getting SSD and SSI. What am I doing wrong? I'm only at 40% and can only get SSD?

Thanks for your help in advance. Hopefully someone can point me in the right direction.

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Any other input?

They now wont give me an exact date that the DRO has had my claim file.

Talked to the VFW rep and he told me to get my SSD documents and send them to him. He said he'd then do a STAR Review, does this sound promising?

Any input is greatly appreciated.

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  • HadIt.com Elder
Why on earth would you recommend that anyone that has been in the claims process as long as this veteran has drop their appeal????? He already has a portion of it fixed in that he now has the appropriate disability rating code. Very, very bad advise. A more productive recommendation would be to obtain a new IMO or update older ones or obtain any other medical evidence available to support his claim and submit it to the VA. jmho

Ricky, The dx code has already been changed to the correct one. Now the trick they are going to pull is to not send this vet to a new C&P so that they can continue the low ball rating based on a old C&P. This vet is living on the good graces of family members and cannot afford a IMO. SInce he is low on funds, he may need the steady flow of monthly income worse than he wants a large lump sum check. With that in mind, if he dropped the appeal, and filed a claim for increase on the condition with the dx code change, he could have a new C&P and decision within six months, and have a steady flow of income to sustain him and his family. Otherwise, his claim could lanquish at the DRO level for over another year (it's been there less than a year, and waiting two or more years for a DRO review is far from unheard of), and during that time he could fall further into financial despair. Sometimes it's not all about the retro. Sometimes it's all about sheer survival, and getting the flow of income in as short a time as possible. Therefore my advice was not bad, and made perfect sense. I personally have a appeal working, and I doon't really care if it takes 5 years. I have a steady flow of income, and a mindset that the longer it takes, the bigger the retro check will be.

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  • HadIt.com Elder

I would have to agree with Rental Guy on this one, except with the caveat of how long you have been waiting for the retro. If the retro is 12 months, that's one thing, if it's 5 to 10 or 20 years that is quite another. I don't think it would hurt to at least consult a lawyer that is involved with the VA and deals with them on a contingency fee basis so that it does not cost you anything. That is just an email or a phone call and pretty easily done.

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MikeR,

The only thing I'm trying to understand, what would the lawyer actually be doing? Would they help speed up the process? I'm not trying to sound dumb, but I'm def. naive to the situation. Any help on this would be greatly appreciated!

To MikeR again, I do need the money. The retro would be a nice chunk of change though. It would be potentially an increase from 40% to either 70% or 100% and we're talking about atleast 18 months worth at this point. If it's going to be another 6 months regardless if I closed the appeal and filed for increase, then I should continue with the appeal? I think?

Also, a little more tid bit. Any time I called the 1-800 number the said the DRO had my claim. The VFW rep. made it sound like the DRO wouldn't be doing anything with my appeal. He said he wanted to get this SSD info so he could keep the claim at the regional office due to new evidence and then do a STAR review. He was talking about my claim being transferred to the BVA. So if I just left my claim alone at this point, we could be talking about months apon months, correct?

Any input and info is greatly appreciated.

Very confused and frustrated.

I would have to agree with Rental Guy on this one, except with the caveat of how long you have been waiting for the retro. If the retro is 12 months, that's one thing, if it's 5 to 10 or 20 years that is quite another. I don't think it would hurt to at least consult a lawyer that is involved with the VA and deals with them on a contingency fee basis so that it does not cost you anything. That is just an email or a phone call and pretty easily done.
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  • HadIt.com Elder

A lawyer cannot do anything that you could not do or a VSO could not do. They do not have magical powers to speed things up. All they can do is go before the BVA judge (or the DRO) and argue your side of the claim as it applies to the law. You or a VSO could do that. At this point in your appeal, it would be a waste of your time.

Concerning the BVA; if you have not filled out and turned in a VA Form 9, then your claim will not go to the BVA. From reading your threads, it seems that you first filed for reconsideration, which changed the dx code, but left the rating the same. Then you filed for a DRO review, which is in the works now. The confusion lies in where exactly you are at this point. I am guessing from your posts that you requested the DRO review sometime prior to April 2007. If this is correct, then your claim could be getting close, or you could still have a year or more to wait.

If you requested a DRO hearing, then you are waiting on a hearing date to be scheduled. Once this is scheduled, you will still have many months to wait. If you really desire to ride out this appeal, I hope this is the route you have taken. I say this because when you sit in front of the DRO, you can effectively argue your case, and most likely get a new C&P scheduled.

If you have only requested a DRO review, then you can expect a cut and paste denial. They most likely will not schedule you for a new C&P, and they will deny a increase based upon the same exact reasons the reconsideration denied the increase. If this is the case, then your next step would be to fill our the Form 9 and appeal to the BVA. This, of course, will take years.

If you formally drop your appeal, in writing, today, the VARO would have that document by next week. Your claim would be ended within a few weeks after that. At that point you can fill out a VA Form 21-4138 requesting a increase in compensation for that one specific condition. They will most likely schedule a new C&P for you, and you could very well have a increased rating on this claim in six months. Again, if you need the monthly income now, that is exactly what I would do. If you have enough money to live on, though, I suggest riding out the appeal as long as that may take. It all boils down to your specific monetary needs at this particular time (or in the forseeable future).

Just know that there is no magical way to speed up the appeals process, though. A lawyer will not be able to do anything special for you at this point, with the exception of taking a percentage of whatever retro money you may receive several months or years down the road.

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Rental Guy,

I'm actually on my last appeal. The first appeal was denied completely. The second appeal was partially granted, dx code change. Now I'm on my third and final appeal.

The funny thing is, they said I filled out a Form 9 and sent it in. I honestly don't remember doing this. I'm glad that it was done, but I'm pretty sure I didn't fill it out. Apparently I requested my claim be forwarded to the BVA.

I'm just so confused about everything, and what's best. I can def. see where you and MikeR are going with the whole stop appeals process, and file a claim for increase. Which I may do.

Does anyone think I might have a chance with what the VFW service office wants to do. Basically reconsider on evidence that I can perform daily activities(work) from SS disability? Anyone know of any success stories with STAR review?

Everyone, thanks for all the help thus far! It's greatly appreciated!

A lawyer cannot do anything that you could not do or a VSO could not do. They do not have magical powers to speed things up. All they can do is go before the BVA judge (or the DRO) and argue your side of the claim as it applies to the law. You or a VSO could do that. At this point in your appeal, it would be a waste of your time.

Concerning the BVA; if you have not filled out and turned in a VA Form 9, then your claim will not go to the BVA. From reading your threads, it seems that you first filed for reconsideration, which changed the dx code, but left the rating the same. Then you filed for a DRO review, which is in the works now. The confusion lies in where exactly you are at this point. I am guessing from your posts that you requested the DRO review sometime prior to April 2007. If this is correct, then your claim could be getting close, or you could still have a year or more to wait.

If you requested a DRO hearing, then you are waiting on a hearing date to be scheduled. Once this is scheduled, you will still have many months to wait. If you really desire to ride out this appeal, I hope this is the route you have taken. I say this because when you sit in front of the DRO, you can effectively argue your case, and most likely get a new C&P scheduled.

If you have only requested a DRO review, then you can expect a cut and paste denial. They most likely will not schedule you for a new C&P, and they will deny a increase based upon the same exact reasons the reconsideration denied the increase. If this is the case, then your next step would be to fill our the Form 9 and appeal to the BVA. This, of course, will take years.

If you formally drop your appeal, in writing, today, the VARO would have that document by next week. Your claim would be ended within a few weeks after that. At that point you can fill out a VA Form 21-4138 requesting a increase in compensation for that one specific condition. They will most likely schedule a new C&P for you, and you could very well have a increased rating on this claim in six months. Again, if you need the monthly income now, that is exactly what I would do. If you have enough money to live on, though, I suggest riding out the appeal as long as that may take. It all boils down to your specific monetary needs at this particular time (or in the forseeable future).

Just know that there is no magical way to speed up the appeals process, though. A lawyer will not be able to do anything special for you at this point, with the exception of taking a percentage of whatever retro money you may receive several months or years down the road.

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