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Scout Swimmer

Chief Petty Officers
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Scout Swimmer last won the day on November 4 2013

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About Scout Swimmer

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    E-5 Petty Officer 2nd Class
  • Birthday 11/01/1973

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  • Service Connected Disability

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  1. Brief summary of claim. Issue's ON BVA remand. Asthma, migraines, and all other respiratory conditions (bronchiolitis, sinusitis, rhinitis). Regional Office denied migraines March, 2016. Granted Asthma March of 2016. (1 day after denying Migraines) Received Statement of case. Notice of Disagreement sent day 3 and verified of 30 day response deadline. Note- On the NOD, we specifically asked the RO to further develop a nexus for migraines being a secondary to asthma (which was now granted) We also wanted them to address the other breathing conditions mentioned as per remand order. Yesterday (5 months later) after being told it was being further developed at the RO, we find that the file was sent to the AMC 1 day after the statement of case was dated. This is a violation of our due process of 30 days to respond. Moreover, from the AMC it was certified back to the BVA. We didn't have written notice which is a another violation of law. Luckily we found this out now so the BVA has our notice of disagreement. (I hope)? TRICKY TRICKY!!!!
  2. We won the main claim, which was asthma. We were denied on the secondary conditions only because they didn't have to look at the secondary nexus. (They decided the secondary's days before approving the asthma). We filed the NOD already for the secondary's which I expect to win on as well. We didn't get everything but we are pretty confident they will grant all conditions if not at the regional level than when it gets sent back to BVA for final review. Ultimately we are extremely satisfied with where things are at.
  3. I think you may be misunderstanding. We had no evidence in her SMR. Her conditions developed shortly after service, as well as her initial diagnosis. The only evidence we had was provided by Bash linking asthma to environmental hazards. I'm not sure what you mean by blaming you. I wouldn't blame anything on you. Maybe I am misreading? Anyway thanks for the advice.
  4. We tried to find a private opinion for years unsuccessfully. We couldn't locate a doctor who would even consider touching it. Even if we did find a doctor he probably wouldn't be versed in VA lingo and he wouldn't have any sort of knowledge base on clinical studies relating to breathing conditions for OIF veterans. That stuff is foreign language to civilian doctors. We hired Bash and John 2 weeks before my wife's appeal was with a VLJ at BVA. We sent the paperwork in literally hours before they were about to deny it. To answer you question Rudy, based on our circumstances and where we were with our claim, absolutely yes! We were about to lose the appeal and we just didn't have anyone willing to do anything. The American Legion did nothing for us. Our private physician was not willing to put his name on paper. It was hire Bash and Dorle or lose. Since John and Bash were hired on, the appeal did a complete 360. We won the appeal based on Bash's testimony and Dorle's representation, despite what the RO thinks. Evidence is evidence, case law is case law. When you have both working for you, the RO's personal opinion with a remanded appeal simply doesn't matter as long as you have your ducks in a row, as I'm slowly finding out.
  5. No offense taken, Rudy. I think the RO purposely decided the migraines before the asthma was connected. This made it possible for the RO to avoid Bash's primary evidence having to consider the nexus between her breathing condition casing her migraines. (A common tactic that I've nailed them on and won in the past).They couldn't get around Bash's testimony of the Asthma because it was specifically geared for direct connection. I am pretty confident I will win on all fronts either from the rebuttal to the SOC that points this out or when the RO sends it back to BVA for final review of the entire appeal. I was told on numerous occasions that Regional Offices hate Dr. Bash and often play these types of games with claims that have his name on it. Over the years he has caused them a lot of embarrassment. Unfortunately for them, the BVA and CVAC care little about them being butt-hurt. Nevertheless, our main objective was accomplished because of his IMO's. Service connection for asthma. You can do all the research you want. It means nothing without solid evidence or a private physician willing to do the right thing. Bash did that for us and I would use him again. Just my opinion.
  6. Buck, Here is why I think I will win. From BVA INTRODUCTION The appellant is a Veteran who served on active duty from September 2000 to November 2005. These matters are before the Board of Veterans' Appeals (Board) on appeal from a May 2012 rating decision by the St. Paul, Minnesota Department of Veterans Affairs (VA) Regional Office (RO). In May 2015, the case was remanded to afford the Veteran a hearing. In October 2015, a videoconference hearing was held before the undersigned; a transcript is associated with the record. As noted in the May 2015 Board remand, the issues of service connection for hearing loss and sleep apnea have been raised by the record (in a March 2015 medical opinion), but have not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over them, and they are again referred to the AOJ for appropriate action. 38 C.F.R. § 19.9(b) (2014). The appeal is REMANDED to the AOJ. VA will notify the appellant if further action is required. REMAND The Veteran claims that she has a respiratory disorder, including asthma, and headaches due to her active duty service. A remand is required to obtain additional medical opinions. An April 2012 VA addendum examination report includes the opinions that 1) the Veteran's "previous diagnosis of asthma was incorrect," 2) "chronic nasal obstruction caused by the septal deviation and resulting in significant rhinitis and mouth breathing can result in headaches and 3) "the diagnosed conditions of deviated septum with chronic rhinitis, and nasal valve collapse affecting nasal resistance in the presence of high nasal airflow, and the diagnosed condition of migraine headaches are not related to a specific exposure event experienced by the Veteran during service in Southwest Asia." The examiner noted that the Veteran had been diagnosed with asthma after undergoing pulmonary function testing (PFT) in 2009; however, these records were not available for review. NOTE- (We never filed for these other breathing conditions, we filed for asthma and headaches only. The VA tried to argue this was the reason she had headaches and that she didn't have asthma. Unfortunately for them, those conditions they listed are caused by asthma as well, which is now service connected, which in turn will be used to connect ALL listed conditions). Subsequent to the April 2012 VA opinion, private treatment records (including the 2009 PFT) and opinions in support of the Veteran's claim were added to the record. Specifically, statements (and hearing testimony) from Dr. Bash note that the Veteran's respiratory complaints are diagnosed as chronic persistent asthma (he also testified as to findings of sinusitis and bronchitis), are related to her active duty service and contribute to her headaches. Further, the Veteran has testified that she experienced respiratory symptoms and headaches during her active duty service which have persisted; however, she did not seek treatment for these complaints until approximately 2009. NOTE- The examiner failed to recognize the remand order from the BVA concerning Dr. Bash's testimony of a nexus between breathing conditions/asthma and migraines. Instead the examiner denied the migraine condition as a direct connection basis only, which is in clear violation according to these instructions. Because the April 2012 opinion does not address the Veteran's allegations of ongoing respiratory and headache symptoms since service, it is inadequate for rating purposes. See Dalton v. Nicholson, 21 Vet. App. 23 (2007) (finding that an examination must consider lay evidence of in-service incurrence or continuity of symptomatology since service). Accordingly, another examination and opinion, which shows consideration of the conflicting evidence of record, is necessary. Barr v. Nicholson, 21 Vet. App. 303 (2007) (finding that VA must provide an examination that is adequate for rating purposes). Finally, since the claims file is being returned it should be updated to include all outstanding VA treatment records. See 38 C.F.R. § 3.159(c)(2); see also Bell v. Derwinski, 2 Vet. App. 611 (1992). Accordingly, the case is REMANDED for the following action: 1. The AOJ should undertake appropriate development to obtain any outstanding records pertinent to the Veteran's claims, to include updated VA treatment records. 2. Schedule the Veteran for an appropriate VA (ENT or pulmonary disorders) examination to determine the current nature and likely etiology of any respiratory (including asthma, rhinitis, sinusitis and/or bronchitis) and/or headache disorder. The claims folder should be made available to the examiner for review in conjunction with the examination. Based on the examination and review of the record, the examiner should address the following: (a) Please identify (by medical diagnosis) each respiratory and/or headache disability entity found. (b) Please identify the likely etiology for each respiratory and/or headache disability entity diagnosed. Specifically, is it at least as likely as not (a 50 percent or better probability) that such is related to the Veteran's service Note- This never happened. They examiner only addressed the Asthma and Migraines and did not address all other mentioned breathing conditions. The examiner is to specifically consider and address the Veteran's assertions regarding her claimed in-service respiratory and headache symptoms and post-service continuity of such symptoms and the statements/opinions in support of her claims from Dr. Bash. The examiner should reconcile the April 2012 VA addendum opinion and the opinions of Dr. Bash. The examiner must explain the rationale for all opinions, citing to supporting factual data and medical literature, as appropriate. If the examiner determines that the questions cannot be resolved without resorting to speculation, then an explanation as to why this is so must be provided. NOTE- The examiner failed to support her negative finding with any medical facts. Her only retort was that Bash had no rational for findings on migraines when in actuality, he had 3 full paragraphs with medical studies. 3. The AOJ should then review the record and readjudicate the Veteran's claims. If either remains denied, issue an appropriate supplemental statement of the case and afford the Veteran and his representative opportunity to respond. The case should then be returned to the Board, if in order, for further review. he appellant has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). his claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014). _________________________________________________ MICHAEL MARTIN Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2014), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2015). Now maybe I'm just a crazy jarhead, but my thinking is I have a pretty decent argument here. If I am seeing things through a glass house please let me know. And thanks!
  7. That's awesome! Way to stick it out. I read that somewhere around 80% of initial claims are denied. I wonder if that statistic would change if Veterans were able to collect interest in cases like this.
  8. I have considered an attorney but have determined that as a last option. If denied service connection for migraines I will hire an attorney when the claim goes to CVAC. I really don't think I'm gonna lose so I'll just play my hand.
  9. But then I would lose out on 52 months of back pay, roughly around 50k. I will wait for 1) See if the RO considers my rebuttle 2) Let it go back to the BVA. I have them on reasonable doubt and relative equipoise and they know it. Their PA dismissed Bash's IMO based on no rational. Bash wrote a three page part on his rational followed by clinical studies. I believe the BVA will untimely overrule that decision. I have them dead to rights and I don't want to let them off the hook. It's funny.when I think about this. If the VA would have just given us a rating for the asthma initially, even a 0% (We just wanted prescriptions covered) it would have been the end of it but no, they had to call her a liar and made her feel bad. They messed with the wrong Veterans.
  10. Ok, so here is the denial for migraines "The appeal was remanded by the Board of Veterans Appeals for association of any outstanding treatment records with your claims file, a new VA examination to determine the etiology of your headache disability, and re-adjudication of the issue on appeal. We have reviewed the evidence of record. A review of yout STR does not show complaint, treatment or diagnosis related to a headache conditions. A review of your VA treatment records shows your history of headaches and an opinion relating your headaches to chronic nasal obstruction and septal deviation, neither of which are service connected conditions. Your updated VA treatment records were associated with your claims file. On your VA examination conducted on March 4, 2016, you reported that your headaces began in 2002 while you were at Barksdale AFB. The examiner reported a diagnosis of migranes including migrane variants and opined that your condition was less likely than not incurred in or caused by service. The examiner reported Dr Bash indicated that your headaches are related to your service, however the opinion is elated entirely on lay statements and does not present any documentation of any headache condistion that was treated while in service. The examiner also reports that Dr Bash does not offer a rationale for his opinion other than lay statements. The evidence does not show that your migranes were incurred in or caused by your service: therefore your claim for entitlement to service connection is denied. The rule regarding benefit of reasonable doubt does not apply because the preponderance of evidence is unfavorable". Note, Her Asthma claim was approved a day after we were denied for migraines. Dr Bash provided medical evidence and rational with clinical studies that asthma can cause a multitude of breathing problems, sleep disturbances, and migraines. Response to Statement of Case "With respect to the BVA issues on remand and my review of the CP exams that were conducted in FEB/MAR 2016, please consider, It would seem clear and I trust that the AOJ will agree, that service connection for respiratory condition is in order and should be rated at the highest allowable compensation rating back to the original date of claim, based on the CP examiners opinion. (This happened) What may not seem clear to the AOJ and I ask the adjudicator to review very closely, the issue of service connected headache/migraines. On the front, it may seem that service connection is not in order since the examiner was not able to opine in favor of service connection. But, it does not appear the examiner clearly opined whether it is least as likely as not, that the headaches/migraines are caused and/or aggravated by the respiratory condition. It seems that only direct military service connection was ever considered. I would also like to state that the CP exam that was conducted in FEB 2016 for respiratory condition, also addressed a Gulf War illness nexus. It appears that while service connection is not in order under the Gulf War nexus, it is clear that the examiner opined that the headaches are related to the respiratory condition that will likely be service connected. In summary, I ask that the AOJ rate service connection not only for the diagnosed respiratory conditions, but also the resultant prostrating headaches/ migraines related to the respiratory condition on a casual and/or aggravated basis. I feel the evidence is there to rate at this time. I only bring this to attention to ensure all available nexus's are addressed, Thereby, avoiding further development by both parties for a satisfactory and favorable result. Please ensure CFR 3.102 REASONABLE DOUBT IS ADDRESSED IN MY FAVOR AS WELL AS RELITIVE EQUIPOISE, since Dr. Bash did opine favorably in his last IMO that there is a correlation with the soon to be granted asthma and the headaches. I ask that all probative value be assigned to past testimonials under CVA precedent opinion Moore V Derwinski is adhered. to, in which the AOJ discusses all new and highly probative evidence/argument as noted. To do any less would severely hamper a rebuttal to the BVA and or CVA. Note, Service connection for Asthma was granted 1 day after submitting this disagreement to SOC. So what are our chances here?
  11. DOT, it's a bit complicated. Diagnosed with asthma in 2009 by private doc. . Filed with VA in 2011. The VA tried to say she didn't have asthma. They said she had chronic bronchiasitis, deviated septum, and sinusitis.rhinitis nasal blockage in her initial C&P in 2011. (Denied service connection) Turns out she suffers from all these condition including the asthma. Im not sure how this works from here, but now that asthma has been established as service connected, and it was the VA originally diagnosing her with these other breathing conditions, and that we have multipal Imo's stating that asthma caused the other breathing conditions including the Migranes, I would think they are now in the process of rating those as well. They did end up denying the Migranes but they only looked at direct connection. (Asthma was approved a week later) After we received the SOC for the Migranes. We responded by requesting a review to consider all available nexus's including medical evidence suggesting they are related. I tried to research all these secondaries to see if they will be rated with the asthma or rated separately but I could not determine anything. Its a complicated appeal for sure. The claim on ebenefits was always worded as (Breathing conditions to include asthma) since her initial C&P in 2011. I'm not sure if that means anything but it seems it should be included.
  12. We are not giving up. Especially now that her asthma has been service connected after a 60 month fight. The Migranes, deviated septum, nasal blockage, and chronic rhinitis should be now connected since they are related conditions. John Dorle was quick to correct the VARO about his accreditation and the worthless AL rep was fired. Our rebuttle to the SOC for migraines and related breathing issues has been submitted. i would just like to say how vital Mr. Dorle has been through this whole process. He is the real deal folks.
  13. Thanks Flores. The good news is we finally received the official rating today. I'm not very computer savvy but I wish I could post it because it's actually a bit funny. They offered no medical or legal explanation of why they ended up granting the service connection. Almost as if they just shrugged their shoulders and gave up. No retro yet but it looks like they got the timeline correct at least so that's good. Thanks for understanding. .
  14. I'm sorry if I am all over the place with this. I'm just really frustrated with these people. Its actually really simple and I do have a handle on it. The issues on remand where asthma, migraines, deviated septum, chronic rhinitis, nasal blockage. Case is on remand, C&P's were completed for Asthma and migraines (other breathing issues were not even addressed, which were in the BVA remand as well). Asthma granted at 30% over a month according to AB8 (still no retro or packet) Migraines denied (They only considered it as direct connect which is ridiculous because Bash and the first C&P DOC said they were a result of the Asthma that is now connected) Got a letter yesterday saying my Veteran Advocate (John Dorle is not accredited so American Legion is still my POA. Again, ridiculous since he is listed on the VA database is accredited. I really don't have any questions at this point. (Except maybe a timeframe to retro and the official decision for the asthma) ) I'm certain time will sort things out. I am just really frustrated with this 5 year appeal and these VA people. I don't know if they are incompetent or doing this stuff intentionally but I just wish it was over. Again, sorry for the confusion. I use this place to vent out my frustration. It helps.
  15. 03-19-16 Granted 30% asthma according to AB8 letter. (From 06-03-2011) 03-20-16. Received SOC regarding headaches. 03-21-16 Submittef rebuttal to SOC and fired VSO. (Did not follow remand instructions/failed to consider nexus for migranies related to service connected asthma, rhinitis, nasal blockage, deviated septum never addressed). Have not received official rating yet. Also did not receive retro payment or new monthly adjustment for April. Damn VA. Real good at sending BS denials. Not so good at getting Veterans their entitlements when proven wrong.
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