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fireout

Dro Scheduled

Question

I have new evidence, ie IME, which among othe thins states "at least as likely as not" (equal to or greater than 50%) In her summary and the questionaire that summarizes the the records and exams used ind here evaluation rearding spine injury.

The question is where in the CFR 38 do I find the law or regulation that specifies the part where the Veteran is given the benefit of the doubt as in: at least as likely as not (equal to or greater than 50%)? And the other variations of the 50% more or less?

I believe I have all the requirements met but i would prefer to quote their own requirennts to leave little remove for interpretation.

I have no experience with this DRo stuff so I want to leave nothing to question and will take their SOC apart piece by piece.

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I have new evidence, ie IME, which among othe thins states "at least as likely as not" (equal to or greater than 50%) In her summary and the questionaire that summarizes the the records and exams used ind here evaluation rearding spine injury.

The question is where in the CFR 38 do I find the law or regulation that specifies the part where the Veteran is given the benefit of the doubt as in: at least as likely as not (equal to or greater than 50%)? And the other variations of the 50% more or less?

I believe I have all the requirements met but i would prefer to quote their own requirennts to leave little remove for interpretation.

I have no experience with this DRo stuff so I want to leave nothing to question and will take their SOC apart piece by piece.

Sounds as if you have already received a denial on this claim that the C&P examiner made those statements about and than you filed a notice of disagreement requesting a DRO appeal. When the DRO reviews your claims file they will review all the C&P reports again. Had you also received a letter explaining the reason for the denial listing all the claimed disabilities ? When you sent your notice of disagreement requesting the DRO appeal, did your list all the disabilites that the original decision disallowed ?

I would strongly urge you to seek out the assistance of a VSO, if you haven't already done so. Trying to navigate the appropriate actions the VA requires is more than often very confusing.

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You refer to the concept of Relative Equipoise (when the evidence is of equal weight-for and against -the VA should award the claim) ---but the VA owns the scale.

I requested that VA apply Relative Equipoise to my claim.No one should have to even ask.I even rehearsed with my POA how he could present my IMOs (I had 2 IMOs from DR CRB and a brief one from a Neuro doc) to a DRO and state that I raised to the level or beyond for Relative Equipoise.The DRO told him she couldnt read.(2005)

This is how the BVA applied this reg to my claim (April 2009) with the regulation cited:

Dr. CRB's opinion was based on an examination of the

Veteran's records and an accurate history. This is at least

as probative as the November 2005 VA examiner's conclusions.

Such favorable competent opinion evidence is sufficient to at

least place the evidence in relative equipoise on the

question of whether the Veteran had diabetes, and whether the

diabetes contributed substantially or materially to the

cardiovascular disorders that more immediately caused the

Veteran's death.

Based on this evidence, the Board finds that the weight of

the evidence is in relative equipoise exists in this case.

Resolving reasonable doubt in the appellant's favor, the

Board finds that the criteria for service connection for the

cause of the Veteran's death have been met, and the service

connection for the cause of the Veteran's death is warranted.

38 U.S.C.A. § 5107; 38 C.F.R. § 3.102.

ORDER

Service connection for the cause of the Veteran's death is

granted.

_____________________________________

(Source my case at the BVA)

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I have new evidence, ie IME, which among othe thins states "at least as likely as not" (equal to or greater than 50%) In her summary and the questionaire that summarizes the the records and exams used ind here evaluation rearding spine injury.

The question is where in the CFR 38 do I find the law or regulation that specifies the part where the Veteran is given the benefit of the doubt as in: at least as likely as not (equal to or greater than 50%)? And the other variations of the 50% more or less?

I believe I have all the requirements met but i would prefer to quote their own requirennts to leave little remove for interpretation.

I have no experience with this DRo stuff so I want to leave nothing to question and will take their SOC apart piece by piece.

fire,

Welcome to Hadit.

First off, your profile shows you are currently 60 % SC'd.

What disabilities are you SC'd for and what percentage for each.

Next, regarding your IME - what is the issue ?

Getting the spine SC'd or getting a higher percentage than you

currently have for your spine ?

Next, "at least as likely as not" etc...and the Benefit of the Doubt

are not the same thing.

The term, "at least as likely as not" etc... is used by

doctor's to show a medical nexus of a current disability

to active duty - or regarding a secondary condition.

Medical statements in regards to possible Service Connection:

Is due to- 100%

More likely than not- Greater than 50%

At least as likely as not- 50%

Not at least as likely as not- Less than 50%

Is not due to- 0%

AND

Benefit of the Doubt

http://ecfr.gpoaccess.gov/cgi/t/text/text-....46&idno=38

38 CFR

§ 3.102 Reasonable doubt.

It is the defined and consistently applied policy of the Department of Veterans Affairs to administer the law under a broad interpretation, consistent, however, with the facts shown in every case.

When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding service origin, the degree of disability,

or any other point, such doubt will be resolved in favor of the claimant.

By reasonable doubt is meant one which exists because of an approximate balance

of positive and negative evidence which does not satisfactorily prove or disprove the claim.

It is a substantial doubt and one within the range of probability as distinguished from pure speculation or remote possibility.

It is not a means of reconciling actual conflict or a contradiction in the evidence.

Mere suspicion or doubt as to the truth of any statements submitted, as distinguished from impeachment or contradiction by evidence or known facts, is not justifiable basis for denying the application of the reasonable doubt doctrine if the entire, complete record otherwise warrants invoking this doctrine.

The reasonable doubt doctrine is also applicable even in the absence of official records, particularly if the basic incident allegedly arose under combat, or similarly strenuous conditions, and is consistent with the probable results of such known hardships.

(Authority: 38 U.S.C. 501)

[50 FR 34458, Aug. 26, 1985, as amended at 66 FR 45630, Aug. 29, 2001]

EXAMPLE:

However, under the "benefit-of-the-

doubt" rule, where there exists "an approximate balance of

positive and negative evidence regarding the merits of an

issue material to the determination of the matter," the

veteran shall prevail upon the issue. Ashley v. Brown, 6 Vet.

App. 52, 59 (1993); see also Massey v. Brown, 7 Vet. App.

204, 206-207 (1994).

The mandate to accord the benefit of the doubt is triggered

when the evidence has reached such a stage of balance. In

this matter, the Board is of the opinion that this point has

been attained. Because a state of relative equipoise has

been reached in this case, the benefit of the doubt rule will

therefore be applied.

And last, you mention a DRO.

Have you requested a DRO De Novo Review or a personal Hearing

with a DRO - again these are two completely different things.

You stated you are going to take the SOC apart.

What does your SOC state in the Reasons and Bases Section

that you disagree with and what evidence do you have that supports

the issues being granted ?

carlie

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I preface this by saying I have made whatever gains by implementing the knowledge and experience given freely in this forum. I recognize this knowledge, successes, and failures were hard won and at times painful. Thank you for that the willingness to help as it would be very easy to keep it to yourself.

New concept of the day "Relative Equipoise", which after google I get the concept.

I received an increase from 30% to 60 % from a C&P dated April 2008. I received A SOC in June 2009 at which time I requested a reconsideration for radiculopathy then received another denial in August 2009. I, in consultation with my DAV Representative, requested a DRO with conference now scheduled 2 March 2010.

I will attempt to leave the irrelevant personal opionions out to better allow you to apply your knowledge in an attempt to help me but that is difficult to separate.

1. Original C&P Examiner Osteopathic 14 years in Family Practice.

Relevant to spine findings: The C&P Dr. in all candor did a very good examine sans the spinal portion.

Claimant reports being diagnosed with spinal injury existing since 1984. The condition is not due to injury or trauma. He reports the following symptoms from the spine condition: numbness. He has no stiffness, loss of bladder or bowel control. He reports pain in the L5 Back which occurs constantly.The pain travel to the left buttocks to thye right nside.The claimant reports sharp pain. Pain can be elicited through physical activity. It is relieved through rest and medication. the treatment is PT and has not resulted in incapacitation. The pain was currently reduced due to pain medication. The bone condition has never been infected. Lifiting is completely diminished, walking, standing is very difficult.

X-Ray Lumbarspine Minor lumbar spine degenerative joint Disease and disc (DJD)

THORACOLUMBAR SPINE examination reveals no evidence of radiating pain. Muscle spasm is absent. No tenderness noted. There is negative straight leg raise test on right side.

There is negative straight leg raise test on left side. There is no ankylosis of the lumbar spine.

RANGE OF MOTION ROM DEGREE DEGREE OF PAIN

FLEXION 0 TO 90 90 80

EXTENSION 0 TO 30 30 25

RIGHT LATERAL 0 TO 30 30 30

There are no signs of lumbar Intervertebral Disc Syndrome with with chronic and permanent nerve root involvement

The C&P Radiology report, although just an X-ray negates and omits vital findings. The part about the SLR findings is just plant not true, so how do you counter that other than point out the fact the S1 nerve is clearly compressed as shown on 2 MRI's and Explained by two VA Radiologists not with an agenda to deny a claim.

2. New evidence: IME

curriculum vitae

Carolina Spine & Neurosurgery Center (current Employment)

Certification:

American Board of Physical Medicine & Rehabilitation Spinal Cord Injury Medicine

American Board of Physical Medicine & Rehabilitation

Residency:

Physical Medicine, Ohio State University Hospitals

Internship:

Riverside Methodist Hospital, Columbus, OH

Medical School:

University of Maryland Medical School

Findings: Reviewed SMR's Emergency Room Notes/Follow up/Impression Chronic Left Lumbar Radiculpathy/in my professional opinion it is at least as likely as not related to his heavy repetitive lifting over 6 1/2 years in the military/M110 8" 200 lbs Self-Propelled Howitzer-M109 155-mm Projectile weights 98 pounds

From the VA Durham Consult the SOC (dated August 2009) stated your pain is not severe enough to undergo surgery: I have in the Doctor's writing he offered me (on his stationary that may or may not ocurred to him it would be used to counter the VA claim.

1. Surgery

2. Epidural Injections with fee basis form

3. PT which I opted for the PT.

VAMC X-Ray mild degenerative disc disease at multiple levels. there is stable grade 1 retrlesthesis of L3 and L4, L4 on L5. This does not change on extension and there is 1mm of correction on flexion views at both levels. There is stable entero wedging of L1 with associated kyphosis. Small osteophytes are noted. No acute fracture.

SOC does not deny the negative effect to my functioning only that it is not SC (well stating surgery was not offered which is disproven in the Neurologists handwriting on his stationary).

MRI Radiology reports that refute the C&P exam:

DEC 2006 MRI

the L5/S1 disc shows desiccation.

L1/L2, L2/3 no significant focal abnormalities identified (minimal annular buldging noted at L1/2).

L4/5Mild hypertrophic narrowing of the right L4 neural foramen.

L5/S1: Broad based posterior disc protrusion is noted centrally and in the left paracentral position, where an annular fissure appears to be present. Facet hypertophy appears to be minimal. The posterior protruding disc material appears to abut, and may slightly compress, the descending S1 nerve root within the lateral recess; the disc material is also associated with the L5 neural foraminal narrowing of at least a mild extent.

DEC 2008 MRI

FINDINGS

Mild ventral wedging of the L1 vertebral body with associated kyphosis. Mild focal levocurvature centered at th L4-L5 Minimal retrolisthesis of L4-L5. No focal abnormal signal. Diffusely hypointense marrow signal pattern.

L1-L2 Focal kyphosis. Anterior disc extrusion with marginal osteophysis. Minimal right paracentral disc protrusion. No significant spinal or neural foraminal stenosis.

L2-L3 No significant spinal or neural forminal stenosis.

L4-L5 mild circumferential buldge, small superimposed right for aminal disc extrusion and marginal osteophytes as well as miild facet hypertrophy. Mild to moderate right neural forminal stenosis.

L5-S1 Annular fissure. Minimal left paracentral disc extrusion. Disc material in the left subarticular zone contacts the descending left S1 nerve root and displaces it posterioriorly towards the left facet.

Impression: (Counters C&P)

Alignment abnormalities, this degeneration and facet hypertrophy result in varying degress of

of neural foraminal stynosis, as above. Disc material in the L5-S1 subarticular zone contacts the descending left S1 nerve root and displaces it posteriorly towards the left facet.

Mild ventral deformity of the L1 ventral body with associated kyphosis.

Mild local loevocurvature centered at the L4-L5. Minimal retrolisthesis of L4-L5

Diffusely hypointense marrow signal most likely due to systemic distress.

This is a radiology report from the VAMC Durham which differes signficantly from the VAMC Asehville and VAMC Columbia:

mild degenerative disease at multiple levels. There is stable grade 1 retrlesthesis of L3 and L4, L4 on L5. This does not change on extension and there is 1mm of correction on flexion views at both levels. There is stable entero wedging of L1 with associated kyphosis. Small osteophytes are noted. No acute fracture.

Impression

Grade 1 retrloisthesis at L3/L4 and L4/L5, does not change on extension, with extrension, with approxiametly 1 mm of correction on flexion views.

I have a DRO conference scheduled on March 2nd and should I seek the DAV rep for help? They have been very reluctant to be of assistance. But I would ask if it might help. I must say I really don't know what tangible help they could be, even if they would condescend.

I would be very greatful for any pointers.

I have an IME that connected my spinal injury to my service, at least as likely as not, emergency room records and battaion aid station. The Army medical staff shoose not to treat my ijury, as in I spent 25 minutes in the ER amd was told to leave the same way I got in.

PS

I had to use a new user ID because I couldn't find my old log in since it has been months but I ultimately found it.

Hope I'm getting closer to the end of this and I would really like to know what to expect from this DRO Conference.

I forgot to add:

Arrythmia30%

tinnitus10%

L and R feet10%

hypertension10%

carlie, I plan to disassmble the 2 SOC's, 1st was the initial findigs dated June 2009, which denied the spinal claim, and the 2nd SOC datd August 2009 denying the spinal injury claim again. First SOC basically denied due to lack of SC evidence. The second from what I gleaned was they foung little wrong with my spine. Through witnesses, IME, and various VA neurolgists exams and MRI's, and Radiologology reports. Example VAMC Columbia noted muscle spasms, where their C&P noted none. He was just a hired gun doing his job. Don't blame him for that. We all have to make a living.

I plan to use "At least as likely as not- 50%"

"The term, "at least as likely as not" etc... is used by

doctor's to show a medical nexus.

I consider a reasonble person would consider the cause of my spinal injury would be repetitive lifting 200 lbs from a dead ground lift with no lifting assists. NIOSH prohibits that for the express purpose to prevent injury. My post military employment was Safety and Occupational Health, Contract Administration... none of which would lead to back injuries.

Crimson, If experience is an indicactor I hold little hope that the DAV VARO will be willing to assist me in this but hope springs external so I will go to their office on the day of the conference or write them a letter asking for their assistance. I have only two items outstanding, one of which has little documentation since it involved special weapons and you didn't discuss personal problems if you intended to maintain your job as chief of tactical nuclear weapons section. The rating levels were fair so I don't feel it necessary to ask for an increase. Now the spinal injury is another story, It is not my fault the Army medical apparatus choose to not treat me, as in 25 minutes from start to finish in the ER. No X-ray just leave the same way you cam. I followed up but the same bums rush. Additioanlly not every person lifting 200 lbs from a dead ground lift will end up injuried. Called individidual differences plus I had a body frame of 128 lbs. NIOSH has rules to prevent such injuries. I recognize the military does not have to adhere to the requirements but the injuries occur all the same.

Edited by cannoncocker

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cannon,

Your long post needs to be posted as a new topic

that you start.

This is fireout's topic thread and it will be totally

diluted by member's responding to your post within this thread.

carlie

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