free_spirit_etc

" but said we still are denying you for hips because your service treatment records didnt change our opinion about your hips. nothing in your record states anything about hips.. i got a copy of my c-file and yes there it was,,, service treatment records for my hips in fact in service doctors also stated that i had bilateral hip strain BUT said it existed prior to service. i submitted this paper and they gave me a c+p exam." So - did the in-service medical records state your hip strain pre-existed service? Or the VA doctor on your claim say it pre-existed service?

See Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006) (stating that the Board erred in relying on a medical examiner who “ultimately relies not on the objective medical evidence, but rather the absence of such in reaching her opinion”) Since you were granted benefits for the lower back, did the VA doctor give reasons why he concluded the trauma your lower back experienced somehow bypassed your hips and only affected your back? Those are body parts that generally work together. (<<my lay opinion).

Sorry this is dragging out so long for you. Do you have a copy of what they said in the remand order?

Great news diver! I think it is wonderful that a door is now open where vets don't have to spend years and years correcting obvious errors on their claims. I am also hoping the door stays open. When I think it took 5 years, and sending the same evidence in several times, before the VA finally agreed I buried my husband and paid me the $300 burial award -- decisions such as the one where they straightened yours out so quickly makes my heart happy.

ranger11bv, You will need to file a NOD, as bronchovet indicated. How you appeal would depend on what evidence they already have and what reasons they gave you for denying your claims.

That is scary - that the BVA just denied someone's claim but didn't know what they were supposed to do...

This is such GREAT news airborne!!! The amount of time and resources the VA spends making veterans fight for years for benefits that had enough evidence to be granted from the start is ridiculous.

diver, Chris Attig has some interesting info here about Inadequate Exams http://www.attiglawfirm.com/communicate/inadequate-c-and-p-exams/ Here are a couple cases that might also help. See Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006) (stating that the Board erred in relying on a medical examiner who “ultimately relies not on the objective medical evidence, but rather the absence of such in reaching her opinion”) See Dalton v. Nicholson, 21 Vet. App. 12, 39-40 (2007) (examination inadequate where the examiner did not comment on Veteran's report of in-service injury and relied on lack of evidence in service medical records to provide negative opinion); see also Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006).

I agree. That is where I got the "A non-precedential decision may be cited "for any persuasiveness or reasoning it contains." See Bethea v. Derwinski, 252, 254 (1992)." - from a BVA decision. And diver -- once you find something you might want to cite -- you can do an additional search for that case. For instance, in the above, do a search for Bethea v. Derwinski, and it will pull up BVA cases that cited that case, and you can find the reasoning worded in a variety of ways, and look for one that best supports your claim. But with that being said, there are still times when citing the BVA cases might be the best thing you can come up with. My husband's doctor told him that his cancer started a long time before he got out of the service. He explained that was based on his type of cancer's doubling time / growth rate. When I did a BVA search on cancer doubling time and growth rate, I found that most of the claims I pulled up were granted. Most of the claims were similar to my husband's -- where the cancer was diagnosed within a few years of getting out of service, but the nature of that type of cancer was that it would take many years to reach the size it was at diagnosis. It wasn't a case where I was able to find a case or two that were granted. I started clicking on the cases I pulled up under the doubling time search term, and found most of them were granted. The ones that were not granted were usually ones in which the claimant did not get an IMO, and just gave their own opinion and a couple articles to support the claim. Despite the fact I found many of those cases, most people continued to tell me that my husband's cancer couldn't be service connected unless it was diagnosed in service, or he had boots on the ground in Vietnam. Even the couple of lawyers I contacted turned down representing me, and the VSOs told me I wouldn't be granted benefits because his cancer wasn't in his SMRs and he didn't have boots on the ground. Despite the fact, §3.303(d) specifically addresses Post-Service diagnosis of disease, most people will tell you it has to be diagnosed in service, or exhibit noticeable symptoms in service. But the BVA cases told me different. Of course, I had my IMOs, but I couldn't find precedential cases that specifically addressed cancer onset based on growth rate. So I used the BVA cases in my argument. I submitted the following: "Entitlement to service connection based on doubling time and / or growth rates of cancer is not uncommon. Service connection has been granted on this basis in various claims. (See BVA Citation Nr: 0932955, BVA Citation Nr: 1132635, BVA Citation Nr: 0202424, BVA Citation Nr: 0905201, BVA Citation Nr: 0022373, BVA Citation Nr: 0521737, BVA Citation Nr: 1308760). A non-precedential decision may be cited "for any persuasiveness or reasoning it contains." See Bethea v. Derwinski, 252, 254 (1992)." Ironically, one of the cited cases was decided by the judge who was deciding my case. I also attached a copy of the excerpts of the portions of the decisions that addressed the issue. The way I used the BVA decisions was similar to the way you are using them. In your case, the C&P doctor didn’t just state that YOUR sciatica isn’t caused by lumbar strain. He stated lumbar strain CANNOT cause sciatica. All the BVA cases you found certainly point out that the doctor did not use sound medical reasoning in his decision. However, though you can point out that the opinion was inadequate because of that statement (and other issues in his report) you will still need to have a doctor state that YOUR sciatica is more likely than not caused by your SC condition. They can’t just base that on the other BVA cases.

Also - Read this https://asknod.wordpress.com/2013/02/25/fed-cir-walker-v-shinseki-%C2%A73-303b-says-what/

I feel for you rootbeer2. The VA got a medical opinion after my husband died. It was used to deny my claim. It was so short and brief, and just scribbled on a Statement of Case form. It was like the doctor couldn't even be bothered with sitting down and writing a real opinion. I thought - my husband deserved MUCH better than that. He spent his life serving his country and the VA could dismiss him with a few scribbled sentences? Of course, such a pathetic medical opinion was easy to defeat at the BVA level, but still - it just seemed so disrespectful to me.

A BVA decision is not "binding" on other claims - but A non-precedential decision may be cited "for any persuasiveness or reasoning it contains." See Bethea v. Derwinski, 252, 254 (1992).

Does this help? https://www.law.cornell.edu/cfr/text/38/21.282

Great news!

diver, I never claimed for this. I am a widow and filed for accrued benefits and DIC after his death. I used IMOs and medical articles. If we would have known during his lifetime what I know now -- he could have been awarded several claims that he had been denied previously. We would have known to go over the medical records, the decisions, and the law. Back then, we didn't know as much about the VA games, and how to win them. That was before we knew about hadit.

That's great Vern2! I emailed her March 6 about getting my BVA decision processed. I already received notification today from the Assistant Director at the RO. "The award action on your full grant of benefits should be authorized today. Typically, you should expect to receive the benefit award notification letter in the mail in 7-10 business days, maybe less. "

I talked to someone from the VA Monday who was able to update my contact number and add my direct deposit information. She told me that RO and BVA information is in different areas, and if you have a BVA decision and go to the RO, they can't see that you have an open claim because it isn't open with them. But it is still odd because ebenefits also has a section for BVA appeals, and mine says that I don't have any records of appeals at the BVA since 2000 (though I had a BVA hearing September 2013 and decision November 2014). But my compensation section does show an update - Preparation for Notification.

Make sure you include in the NOD any information you have in your medical records that show that you are, indeed, diagnosed for, and being treated for, those conditions. I would think a C&P exam that said you were not diagnosed with a condition that you are being treated for would be inadequate. "I was also denied for sciatica. The reasoning was also that there were no diagnoses and also that lumbar strain cannot cause sciatica." Did the C&P examiner say this? Or did the VA make a medical determination that lumbar strain does not cause sciatica on their own? Do you have copies of all of your medical records, and exam reports? If not, you want to get them and so you can go over them and point out what your record actually say. You might find this thread useful:

Sad....

Diver, I am sorry to hear you had to leave your job. Though you are considered "young" by SSA standards, and thus they will see if you can be retrained for a different kind of job, the percentages on the back disability and depression are very relevant for your claim. The back injury would most likely rule out many non-sedentary jobs, and the depression might rule out many sedentary jobs. You might want to contact a few SSA attorneys and see what they tell you. You might want to contact NOSSCAR http://www.nosscr.org/for referrals. You may call NOSSCR at 1-800-431-2804 during regular Eastern Standard Time business hours. Some attorneys like to handle claims from the beginning to make sure everything is filed correctly before an initial decision is made. Other attorneys don't want to take claims until the person has already been denied. So keep that in mind when you talk to them. Some people prefer to go it alone when filing, and other people prefer to get an attorney involved from the start. If you get an attorney involved, they will generally get a percentage of your retro pay regardless of what step in the process they enter representation. So some people prefer to get an attorney from the start, rather than do a lot of their own legwork, and then end up having to get an attorney later. Some people also use Allsup http://www.allsup.com/Some people have liked them; others haven't. But a good first step is to contact some representatives and see how interested they are in taking your case. The more interested they are, the less you probably need an attorney. Good luck! Have you also considered filing for any increased ratings and TDIU with the VA?

Berta, No. I didn't get referred for a VACO review. But my issue with the VA was pretty simple (I hope). It was to act on the award the BVA had granted. I am not as familiar with the process with the VA, but I do know SSA instructs offices to seek opinions from General Counsel on matters that involve legally complex matters. If this is similar, I could very much see the RO referring your claim to someone who has a better ability to understand the legal issues you have raised. But then, again, since you already have medical opinions from the previous VACO review that support your 1151 claim, it seems like the RO would have granted the claim. And since the record shows you only received 6 months of the 20 months of accrued you were entitled to on the CUE, it doesn't seem like it would take a great amount of legal expertise to subtract 6 from 20 and arrive at 14.

"I sent them the healthgrades credentials of this top VA doctor at VACO." It is amazing that you would even have to do that. They deny claims all of the time based on VA doctors' opinions. They should be able to grant claims on them too.

You might want to submit the information directly to the BVA. Or send them a fax and let them know you sent _____ (a list of what you sent) to the AMC on March 10. No. They should not be able to decide your claim without the evidence that you timely submitted. I am not sure how much you sent, but I would make sure that IME and your argument was in their hands.

Great news that he was willing to use VA-speak! Good luck with your claim! Are you also submitting an argument? You may want to include something like these: There is no medical opinion, nor medical evidence in the record, that directly conflicts with the recently submitted medical opinion. As there is substantial competent medical evidence establishing my XXXX is related to my service, and no competent medical evidence that actually conflicts with this, I believe that the probative evidence is in favor of the claim. See Mariano v. Principi, 17 Vet. App. 305, 312 (2003) (“The Court has cautioned VA against seeking an additional medical opinion where favorable evidence in the record is unrefuted…).” When the evidence is in relative equipoise, the claimant prevails. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The preponderance of the evidence must weigh against a claim for benefits to be denied. See Alemany v. Brown, 9 Vet. App. 518 (1996).

Do you think they just muddle things up to try to confuse you? Or do they muddle things up because they are confused?