MartyL16

Yes, thanks. Actually, and there was no way for you to know it but since 2011, I have been puting the "pieces" together on their errors, my "evidence" supporting my increases, where I am telling them the % shoul be, and then finding the 'perfect" case law supporting it and my appeal. I have 2 years of "printed" to PDF cases, with keywords in the title, stored on an external hard disk. Maybe 400 cases or links. Since I never explained that I was somewhat organized, I will just reiterate, that for the most part, I understand the laws and rules but don't know, pretend to know, or do more than guess at "what are the best practices" For those answers, I come to all of you for "guidance" Marty

WOW, this explains a lot. They didn't have a rating, so they "dumped" it into the bag of tricks. Where did you find this? Under the last paragraph, IF they had looked at my X-rays from '85-87 for the extensive fibrosis, took the Cushing's into consideration, the final doctor's notes that I was still "active" sarcoid, tested for the severe dyspnea on slight exertion and obviously, the "ventilatory deficit", I might have been given a 60%. One can dream...... This info is terrific.....I think. Does anybody have any ideas on what to do with this info?"?????? If I can get them to reevaluate back to then, or after 1988, when I again asked for an increase, and was denied from then to now. It appears that they "NEVER" actually looked at my records in depth. You see some of my court citations. Could this be a CUE, or should I just try the "reopen" on new and material as it is apparent they never reference and PFT exams from '85 except their own. Wonder what the laws were, or where to look. I see a lot of VN and KOREA vets using the "due process" approach. This from a rebuttal to a SOC: The American Constitution requires that a person cannot “be deprived of life, liberty, or property, without due process of law.” The Federal Circuit also stated, “We find that a veteran alleging a service-connected disability has a due process right to fair adjudication of his claim for benefits.” Thank you so much for this info, your research is so valuable and appreciated Marty

This is good, no great! Thanks Marty

I guess I missed this one. The ratings for 2011 and before always state VA TREATMENT RECORDS, and until this rating I never "made anything out of this". I don't use the VA for medical treatment, except optical, hearing, "shrink", and PTSD/Depression counselor. That has always been their "clear and unmistakeable error". That is why my ratings refer to CIGNA, and ASSOCIATED INTERNISTS since 1990. Because of their error, they say no evidence found in VAMC medical records. You have to be a pretty dumb rater to not be able to figure this out for all of these years. Actually, I have found a few court citations the actually refer to what the VA needs to do when no evidence is found. There is law established that states (specially, related to a VCAA letter), that if "they" cannot found evidence/records where the claimant states there are, or in the cases where doctors and hospitals fail to provide those records, "they" are required to notify the claimant, or the representative, of that "result". Citation NR: 9634762 Decision Date: 12/09/96 Archive Date: 12/19/96 DOCKET NO. 94-24 656 ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida The veteran should be requested to provide names, addresses, and approximate dates of treatment for all health care providers who have treated him for his respiratory disorders since January 1995. With any necessary authorization from the veteran, the RO should attempt to obtain and associate with the claims file copies of treatment records identified by the veteran. If no records can be obtained, the veteran and his representative should be informed of the negative results. 38 C.F.R. § 3.159 (1995) Marty

The question is: how do I get them to read this "stuff" when they haven't read it over the years???????? Marty

Previously, the 60 had "AND" instead of "OR" and that change came from court decisions recently. The "or" makes it easier to qualify for the higher rating IF a claimant can satisfy the "Regulation of activities" and the "more than one daily injection of insulin". I have no problem with the multiple injections of insulin per day and when my Internist read the "regulation of activities" he showed me what he already had in the computer all along. I am not worried about the VA interpretation that he will provide for this. There are a few "legal opinions" on the books against the VA always trying to force ALL the symptoms/criteria on the claimant, all the time. Here are a few citations that kind of advise against that:" 2.07 EVALUATION OF EVIDENCE The rating specialist has responsibility to recognize the need for evidence in relation to a claim. The members have responsibility to determine admissibility of and the weight to be afforded evidence that is presented, the need for additional evidence, and the need for physical examination. If all the evidence is favorable, the claim must be granted. (See Beaty v. Brown, 6 Vet. App. 532 (1994).) a. Probative Value. The rating specialist will determine the probative value of medical or lay testimony. Accept evidence at face value unless contradicted by other evidence or sound medical or legal principles. In the presence of questionable or conflicting evidence, further development may be needed to corroborate testimony to include, if in order, field examinations and/or social surveys to obtain transcripts of original or other appropriate records. Rating decisions must clearly explain why evidence is found to be persuasive or unpersuasive. Decisions must address all the evidence and all of the claimant's contentions. b. Medical Opinions. Medical conclusions must be supported by evidence in the file. Rating specialists cannot refute with their own unsubstantiated medical conclusions medical evidence submitted by the claimant. Recognized medical treatises or an independent medical opinion may be cited to support a conclusion. Such evidence, when relied upon, must be identified in the decision. See 38 C.F.R. § 4.130. The Veteran is not required to prove the presence of all, most, or even some, of the enumerated symptoms recited under the rating criteria. See 38 U.S.C. § 7104(d); see also Dela Cruz v. Principi, 15 Vet.App. 143, 149 (2001) (noting that the Board is not required to discuss all evidence of record but must discuss relevant evidence) Only reference this citation because of the “official” note below NOTE:3 Cushing syndrome is "a complex of symptoms caused by hyperadrenocorticism due either to a neoplasm of the adrenal cortex or adenohypophysis, or to excessive intake of glucocorticoids." DORLAND'S at 1852. Hyperadrenocorticism is "abnormally increased secretion of adrenocortical hormones." Id. at 898. To provide an adequate basis for fair adjudication, the examining physician's report must furnish "in addition to the etiological, anatomical, pathological, laboratory and prognostic data required for ordinary medical classification, full description of the effects of disability upon the person's ordinary activity." _CFR_4.10 38 C.F.R. § 4.10 (1991); see also _CFR_4.2 38 C.F.R. § 4.2 , § 4.41 ("it is essential to trace the medical-industrial history of the disabled person from the original injury . . . and the course of recovery to date"), § 4.42 ("when complete examinations are not conducted covering all systems of the body affected by disease or injury, it is impossible to visualize the nature and extent of the service connected disability") (1991). Or from the "manual" 4.7 - Higher of two evaluations. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. Actually I think my diabetes is at 20%. I have requested increases but all were ignored and denied. A point I am making in the appeal is: Look at the 2011 rating regarding my A1C and their measured glucose reading as all "normal", the go check those numbers at the American Diabetes Association website, and you will notice they don't reference DORLANDS or any other "source" of their lunacy. Thanks. Maybe my doctor's statement will help. I showed him the specific "VA SPEAK" and he said "semantics" from them. Marty

Helpful is good and critical is ALSO helpful as far as I am concerned. Like I said, I am just guessing at a lot of this and all of you are helping. I appreciate it. Now if I could figure out exactly how and where to get the C&P notes, doctor's notes and statements, and all previous ratings, I believe it would help, as you have said. Since my original rating for sarcoidosis was 0% , I really don't know how to get "them" to reopen that item. Yes, I have more than 5 cases where claimants got 30% or more at the initial rating and they were ONLY Stage 1 sarcoidosis. I was Stage 4 while in the service and AGAIN IN '92-'95. As for presumptions: I may be confusing it all here. I have found court cases, where doctors have stated for various claimants, "sarcoidosis more likely than not, came from AO expose in 'Nam", and other cases where DM II more likely than not came from sarcoidosis. So why is this important to me? I am already SC for sarcoidosis because of active duty, I am presumptive AO for DM II, so it is SC right? I am fighting to establish SC for a "chronic" PVC problem that in this 2011 rating, the VA rating states what I wrote in another post here on HADIT, from my private medical records that ONLY refer to 1990-2003 (CIGNA), AND 2004-20087 (ASSOCIATED INTERNISTS), which the VA refers to shows PVC evidence in BOTH record groups, They have been denying SC for this since 1987 but now confirm PVCs in 1990-2008, and from my SMR, just not recently. What I am saying is the SC proof, for previous ratings is proven in their own words. How does fit together . 'NAM IN 68-69, Thailand 69-70(both confirmed AO locations for me), PVC problems for more than 10years, starting in 1980, prescribed NORPACE for many years, still showing through 1987 retirement, then CIGNA 1990-2003, and also from 2004-2008 at ASSOC. INTERNISTS, and "on and off" from 2008-2013 from "new claims" at EAST VALLEY INTERNISTS. Those records will be seen as soon as they request them from my doctor release. So my "mind" says that maybe, just maybe there is a possible presumptive AO, "more likely than not" for the "CHRONIC PVCs" what came first, "the chicken or the egg" and with ALL of that association, presumed or otherwise direct, I have "ammunition" for the sarcoidosis and my "acquired" exo-Cushing Syndrome(not disease) residual effects as secondary to sarcoidosis treatment by high dosage prednisone (corticol steroids). BTW, actually I have also found cases with the "more likely than not" presumption of high dosage prednisone causing DM II. I could care less that they failed to find evidence of PVCs in two separate 5 second EKGs that they are using for denial. Why??? because that means that they never reviewed the cardiologist report that was submitted way before this rating and "can't see the trees" How do I know this? Because they disapproved me for "ischemic heart disease" in this rating, the cardio Dr. diagnosis was "mitral valve prolapse", that I again told them of in the phone conversation with the San Diego "Nehmer" team when they were trying to prove that I was "not boots on the ground in VN". That mitral valve diagnosis was in 2008-2009. This Nehmer fiasco was in 2010. Their crime of ommission was in June 2011. If you and/or Berta would like to actually see my "appeal" when I believe I am close to "final", I would appreciate it. I won't post it here on the forum for personal reasons. That would still be a few weeks away. Send me a message pls. I am also in a quandry about the '87 sarcoid rating for reopen on "new material" claiming the lack of any rating to actually refer to '85-'87 in service, and again in '92-95, after service. BTW, the SAME CIGNA records hold the recurrence in '92-95 and actually have PFT EXAMS, one per year, the treatment and the Stage 4 references, or doing a CUE as they never followed my request for reconsideration/increase or anything else. Advice would be appreciated. Thank you Marty

Thank you Berta. I hope my answers were helpful to you ( so you can direct me), and others and not too direct, but hopefully detailed enough for you to advise me as to what and where I need to go and do. I thank you for that. Marty

Tried the full edit but that doesn't allow a "title" change. The title is the "key" to the "thread" I suspect. She will find me by my "moniker", or searching for ''...the ugly one with the big feet". MartyL

Yes, they are very low. When I retired, I was still very sick from the years of prednisone and was invited to the VAMC here in Phoenix for exams. They took xrays of my knee, gave me hearing test that was so loud, I opened the door and told her to turn it down. I still had the "hump" and "moon face" and adrenal insufficiency, osteporosis, and a gaggle of other things. Had a family and a new house. Did I mention how depressed I was and these exams were a joke in '87. I was told that I couldn't fight for my rights, never knew about appeals, VSO, or whatever. I got the rating, cried, and decided all was in vain. Found a civil service job that paid more than my AF rank and liverd my life with my family. By 2004 I couldn't stand the pain, my barber was a vet, a Marine (Semper Fi), and he "put me on the path" to APPEALS. Met a terrific VSO and he submitted my 1st request for increases, PTSD, knees, neck, back, etc. then retired. No replacement. Tried the DAV, VFW, and others who did nothing for a long time. What a bunch of jerks. All the while, I am goinmg through a divorce, paying lawyers that do nothing, fighting with CHASE, lost my house, filed for a BK. Then I went online and found HADIT, and BVN, and others. Started doing a lot of case review and again tried to get help here and found you guys. My "shrink" doubled my meds, the VA psychologist is wonderful, knowledgeable, and doesn't use a "baseball bat" so I am getting better. The fight is on, I can't work, lately can't drive but that will get better for awhile. Between, what I read and what I learn, I believe I have a chance to"play catchup" and get my ratings up where they should be. I am 65. I am sure you didn't need to read all of this but from what I read, I am not alone, and I am thankful for all the help I can get. Someday, I will also be able to help other vets. I welcome any and all comments and advice. Marty

Waiting to see if I can get a SOC based on this 2011 rating, from the DRO???? They sent me a letter for me to manually fill in doctors names addresses, phone, etc. Just for the record, because of the radiating pain all down my right arm, writing and even using a fork are a challenge. This and all other replies are left hand, one finger. I told the American Legion VSO, who does nothing, to send my request for a 60 day extension to the DRO, now that they are back. I have nerve inpingement at C6-C7 that "acts up" and also gives me vertigo for months. Am I complaining, yep. So the rating is from June 2011, then the NOD, then a DRO video this past June. Marty

Another thing to do. My current Internist and Pulmonologist are going to do the questionaires. Have to see the Podiatrist and the Cardiologist, and the Neurosurgeon. In the past I have had doctor's that "didn't want to get involved". Another suggestion that will help. Thanks Marty

Yes, thanks

Thank you. I went to that site again but cannot find ANY records except those that I created, name, address, favorite ice cream, etc. Could I be looking in the wrong place? For the record though: only have an eye exam doctor. hearing aid doctor, psychiatrist and psychologist at the VA hospital for years, although I haven't even found them listed. I was all TRICARE before and now MEDICARE. I was thinking of doing FOIA letters to all the VA facilities that could have or would have any records. Maybe even AF hospitals that I can think of. Marty

Thank you. I found a lot of cases where the VA failed to evaluate many disabilities based on pain, loss of function, etc. I am trying to develop my appeal but this my 1st appeal, so I have a long way to go. Marty

Thank you. I downloaded a copy. Yes, good info. Marty

Thanks to all of you for your comments and suggestions. Especially,..... All of Them! Never thought of other vets records mixed with mine. During the DRO conference that I presented, I stated re: the SC for PVC that this rating states "that which occurred in service" , which I stated, began in 1980-'83, Clark AB, RP. and thru my DISCHARGE in '87 and the rating states PVCs shown in both CIGNA and Associated Internists so how can it NOT be service connected, as it was also denied in 2004, '06, '09 because the VA gave me an SC 0 for sarcoidosis in 1987 which means the VA had/has my service medical records. i also told "him" to look for NORPACE from '80 thru 2008 as that was continuously prescribed for that condition. I was contemplating CUE for this one but just want the SC for PVCs then I will ask for increase later as "they are back" since 2010 records they will receive soon. As for the Cushing's (it is the syndrome) I am aiming for as my SC records mention Cushing's Syndrome because of the very high dose prednisone for 2.5 years(100mg) while still on Active Duty, and again in '92-'95 (60mg). Among other things, the extreme weight gain from 206 to 330 with severe muscle loss, depression, etc was ALMSOT too much to bear. Never lost the Cushing's "look alike" except no hump and no moon face now. Meaning still morbidly obese but good looking. Sometime maybe I will upload the before and after photos. Got SNCO of the Quarter 6 months before prenisone so I have an official dated picture with date right on the award. This and the sarcoidosis caused me to be forcibly retired at 20yrs, with loiss of World Wide Duty status, forced out of my 17yrs profession, had to change careers for the balance of my AF career. Became really almost impossible to find a job that I could do "physically" and who wants to hire the "fat" guy with lots of apparent medical conditions. Not to mention the fact that I could have made "big bucks" in my career field. Which is what I will throw at the VA later. Have DM II SC since 2004 presumptive to AO and believe I can get closer to 100% for that one than 60%. Even my doctor agrees and records will show. Just want what is due to me. Do I just get the records from them and page by page show them the errors, or "that is someone else", etc. I really want to go back to '87 records and show them the "Stage 4" records(that they repeatedly ignore), along with '92-'95. I see vets getting 30% for less in citations for sarcoidosis. Also have PFTs from '90 thru 2013 that are much worse than the VA claims. To clarify "exams never had" i.e. in March of '10, sent them 2 MRIs, one of the cervical stenosis and one of the DDD of the lumbar, plus VRE official evals from a psychologist and physical therapist, radiologist report stating "mild scoliosis". The Va sent to a rating doctor for ROM and I sat there while he recorded his "findings" into a recorder on the phone. Ignored my obvious pain, lack of flexion, radiating pain through arms, told him about my twice weekly pain and cortizone shots plus 3 times per week traction, and the neurosurgeon's report, my claims of being dizzy when neck hits a nerve, etc. all of which never showed up in this rating. As far as the cervical rating from 10% to 20% and the reasons for it. They do not come close to the PT/ROM before and after July 2010. Mild pain my butt! All of your comments and suggestions mean a lot to me, so keep them coming! I actually cut and paste them into my notes on "what to do". Again, I never ramble! and I never extrapolate. Marty

Thanks for your comments. I am thinking more of them doing a lot of "cut and paste" from other claims and not correcting matching my claim info. Afterall, these guys couldn't even correctly ascertain that I actually had "boots on the ground" in Nam in '68 as well as '69. The Quang-Tri postmark plainly shows 1968. There are so many errors that show, without a doubt, that they did not review my records. My records also reflect TET but they missed that also until I actually showed them. But that is my opinion. My plan is to secure ratings, exam notes, etc. back to 1987 because all my ratings were as bad as this one. I gave up for many years and now I won't. I will appeal until I die. If you perceive that I am "rambling", you are right as it helps me to talk about it. Thanks again for your help. Marty

Hi Berta, Here is my complete 2011 Rating that is in appeal status. Removed personal info. NOD filed timely in 2012. Formal DRO video conference June 2013. No SOC ever received regarding this rating. Thanks for the help. Marty Attached is a PDF of the entire rating, including NEHMER cover, and notes by me VA Rating 2011 (very small file).pdf

Thanks Berta. Actually, the DRO is in MN, the NEHMER review was in th the San Diego VARO that originated the rating I filed a NOD on. The rating stated, send "da da da" to Phoenix (where I live) but Albuquerque actually is where my C-FILE was stored as I was a VA employee for awhile so Albuquerque had jurisdiction since June 2009. To be safe, we sent a copy of the NOD to San Diego and Albuquerque ROs When I retired from the AF in 1987 and moved to Phoenix, the VAMC here in Phoenix did my initial claims review in Oct. '87 In 2004, I went to the Phoenix VAMC and requested copies of everything they had from 1987 through 2004. They gave me 2003-2004 and I asked where the rest was. They said the Phx VARO had the rest. I put in a request, in writing, at the Phx VARO for those remaining records and never got them. The '87 rating gave me 10% for arthritis and 0% for sarcoidosis. Both shown as SC. This intimates that the Phx VAMC and/or the Phx VARO had my active duty medical records to do that rating. When I request (online) all personnel records and medical records from 1967-1987, they send me the personnel records but state they do not have my medical records. As for this: ...Judicial review was not available to veterans who were denied benefits at the agency level until Congress passed the Veterans' Judicial Review Act in 1988. See Pub.L. No. 100-687, § 402, 102 Stat. 4105, 4122 (1988). Some cases that actually state the above: 1) US COURT OF APPEALS FOR VETERANS CLAIMS, NO. 12-0138 MICHAEL A. PRINCE, v.,ERIC K. SHINSEKI 2) US COURT OF APPEALS FOR VETERANS CLAIMS, NO. 11-3007 GERALD R. PIACENTINI, v., ERIC K. SHINSEKI 3)US COURT OF APPEALS FOR VETERANS CLAIMS, NO. 10-2018 H. D. WILHOITE, V., ERIC K. SHINSEKI All of this is what is causing me headaches, etc. I am trying to find where to send a "formal" written request to get copies of whatever was written down concerning those "original" 1987 exams. Maybe I am asking the wrong questions. BTW, if this is posted in the wrong place, I apologise. Thank you all for helping.

All the way back to 1987. Usually with the same denials. Never did they ever go back to the active duty records to "confirm" what I was telling them. Rating usually stated "...is continued at %". or "remains denied" and you know what. I was too depressed and sick, and ignorant of how to proceed, how to fight for me, until lately! My questions: Since they referenced no "codes", never explained why, and even when I stated extreme pain, on movement, did the wincing, refused to go past my "pain point", the ratings always said "mild pain". Since 2009 they stated they had no access to my records on the computer, so the only info that they had was my verbal answers to their questions. Have to mention that I have NEVER seen "them" use a worksheet from the VA. Always saw them scribble a word or two on a regular tablet. Also never had an exam that went more than about 15 minutes. I am thinking maybe since the info does not actually reflect what is in my "actual" records(that are only) referenced by "clinic name" but no specifics confirming my claims, shouldn't I have other appeal or legal rights? Maybe their failure, over at least 4 separate ratings, to give me my rights of "due process", or whatever. Since they always failed to describe the details, or use codes, maybe I can submit as "reopened claims" based on facts that they "missed"? Afterall, they now at least "mention" records that they have and should have had since 1967 and beyond. For the record, I have an SC 0 from active duty, DM II from 2004 with a marginal SC % presumptive to AO from 'Nam and Thailand. Thanks

I am confused. After many years of getting unsatisfactory ratings, I finally got a clear enough brain (still depressed but the light is on) to NOD my rating from 2011. I asked for DRO video conference and had that this past June. Made it formal and have a transcript. The rating was June 2011, my NOD was timely and about 1 week before the clock ran out(2012). My confusion is this: I read in M21 that the RO (of jurisdiction) should have given me a SOC. My understanding is that the DRO actually has "jurisdiction" now (he is NOT from my local RO) and the rating was actually "performed" at San Diego under Nehmer. I am almost 5 months after the DRO and 17 months past the NOD. Shouldn't I be asking for a SOC regarding that rating the NOD and DRO refer to ? I can't be sure on my appeal content because the rating contained DENIED statements but no codes, or definitive reasons for denial. I was left with ''Evidence shows ...." and "VAMC records showed no treatments for.....". Considering the facts that I use TRICARE, and CIGNA, and others, I was "dumbfounded and angry". Read below concerning those records. The 2nd issue is the DRO office, is requesting the same documents(evidence), that they should have in their possession already, as they are the same medical records files, same clinics, same doctors, exact same years, actually "referenced" in this rating, incuding my USAF RECORDS, I want them to inform me whether they still have the files ref'd above, or did they lose them, or what. Maybe they are still not paying attention, or just making me jump thru "hoops". Even during the DRO conference, I fully explained where the correct "evidence" was in those records, for my claims, almost down to the months and years, doctors at that time, specific words and phrases used in those documents, medications prescribed, etc. San Diego referenced nothing and denied all. Some of those medical records may have been destroyed because of their 10 year rule at various HMOs or HIPAA, or whatever. I don't use VA doctors for much. Any ideas?

I really hope someone has some answers here. I am stumped! I retired in 1987 after 20 years in the USAF, was still under treatment by AF doctors for active sarcoidosis since 1985. When I request all medical records pertaining to active duty thru 2004 from the VAMC they state they are not in the hospital but at the RO. I have requested these before from ONLINE but have never received them all the way back to AD. I also really want the "exams" notes and records used at this same VAMC from my 1st rating after filing my VA claim just before I actually retired. I keep hitting "brick walls" trying to get BOTH of these groups of records. How do I "force" the issue, who do I send the "formal" request to, what form do I use? I want those records as that would really help my claims. Never knew until a few days ago that back then, there was NO WAY to NOD, or APPEAL my rating, That changed in 1988, I have been SC at 0 from that year. Thanks

Actually, one of favorite T-shirts says " Common Sense is so rare these days that it should be classified as a "super power". It usually gets lots of comments from people that they agree, or just smile, or chuckle.