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Pedro L

Seaman
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About Pedro L

  • Rank
    E-2 Recruit

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  • Service Connected Disability
    100%
  • Branch of Service
    USA

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  1. Broncovet/Berta: I apologize for my confusing question. I originally applied for Meniere's. I went to a C&P exam to an ENT expert and he was directed to decide if it was "as likely/not likely" for hearing but not for Meniere's. I was already service connected for hearing and already had gone to a C&P for hearing 4 years prior. The VA ENT doctor service connected me again for hearing loss but he also included the fact that I was diagnosed for Meniere's by a private ENT and had been treated for hearing loss, tinnitus, and vertigo in service. I was denied and I appealed, but not to the BVA. I testified in 2 video hearings (waste of time). Three years later, I applied for a heart condition and a benign brain tumor. I was sent for a C&P for the 3 conditions and all were denied by the RO and I appealed to the BVA. I testified in a video hearing by a BVA judge. For the first time during the application/appeal process, I felt like I finally felt as if someone was actually going to read all the evidence in my service records and the IMO I had submitted. The BVA judge approved service connection for Meniere's and remanded heart and tumor for additional C&P. After VA stonewalling, I was awarded back pay (6 figures) and continued denial for heart and tumor. I appealed denials to the BVA and before the 90 days expired to send additional evidence, my appeal was denied by the same BVA judge. I had sent approximately 100 pages which were received by the BVA but not considered by the judge before she made her decision. I appealed the denial to the CAVC. I originally filed pro se but decided to hire an attorney. The CAVC attorney and my attorney agreed to a Joint Motion for Remand back to the BVA judge. This is where my original question originated. I wanted advice on how to convince the BVA judge NOT to remand my case back to the Agency of Original Jurisdiction(AOJ) for another "bite at the apple" by ordering another C&P examination, which the Joint Motion recommends. The VA had two bites at the apple in an C&P examination and an addendum by a VA doctor. I am not a physician but after reading the reasoning by the C&P doctor, I am convinced that he was not qualified to provide an opinion. The CAVC attorney and my attorney also agreed. Hence the joint remand. Time is not on my side because I am not a young rooster. I croak and the VA wins; they know it and so do I. This is my dilemma, and the reason I am asking for advice. I am pro se at the BVA. I will not consider hiring an attorney because there is no reason to do so (I understand that 20% of something is better than 100% of nothing). Perhaps I am needlessly worrying about something that has not happened. I am worried that the BVA judge will remand for another (maybe more) useless C&P exams. However, if the BVA judge decides that the evidence I submitted and was not considered before she denied my appeal a year ago should be given greater weight than the negative opinion by the VA doctor, I should prevail. I understand I am not a doctor but the evidence I submitted include scholarly studies that have been conducted on acoustic neuromas and opinions by numerous hospitals, all supporting my position. Additionally, I was treated for my heart condition during service and are in the Record Before the Agency but the VA continues to deny their existence. I have a current diagnosis by the VA and medical history of continuity of medical treatment after discharge from service. Funny but sad. Berta: Thank you for your compliment. I hope that I have done my homework and will prevail at the BVA.
  2. Bronco, thanks for the response. I already have an IMO and the VA has had two bites at the apple. Both of the VA opinions are from the same physician, and both saying exactly the same thing. The CAVC has jointly remanded my case back to the BVA. A decision by the BVA judge was made before the 90 day window to submit additional evidence expired. That was one of the major reasons my case was jointly remanded from the CAVC to the BVA. I submitted over 100 pages of additional evidence to the BVA judge which was received but not considered before the denial was issued. Unfortunately, I followed the directions on the denial and my evidence was diverted to Janesville for scanning into my my file before the judge could take it into consideration before making her decision. Coincidentally, each of the reasons for denial was addressed in the 100 pages I submitted. I do not believe the VA should get a "3rd bite at the apple". That's the reason for my post. I would like some advice on how to persuade the judge to grant me service connection without remanding it back to the AOJ. Thank you for your feedback.
  3. My appeal is being jointly remanded from the CAVC to the BVA. I am trying to determine the best way to convince the BVA judge not to remand my case back to AOJ, and to approve service connection. JOINT MOTION FOR REMAND Pursuant to U.S. Vet.App. R. 27(a) and 45(g), the parties respectfullymove this Court to issue an order vacating and remanding the November 30,2017, decision of the Board of Veterans’ Appeals (Board or BVA), whichdenied Appellant’s claim for entitlement to service connection for a heart condition, to include as secondary to service-connected Meniere’s disease,and a benign trigeminal schwannoma, to include as secondary to noise exposure and/or head trauma sustained in service. BASIS FOR REMAND The parties agree that the Board erred when it did not ensure that VA procured an adequate examination. The Secretary’s duty to assist includes “providing a medical examination or obtaining a medical opinion when suchan examination or opinion is necessary to make a decision on the claim.” 38U.S.C. §5103A(d)(1). As the Court has noted, “once the Secretary undertakes the effort to provide an examination when developing a service-connection claim, . . . he must provide an adequate one or, at a minimum, notify the claimant why one will not or cannot be provided.” Barr v.Nicholson, 21 Vet.App. 303, 311 (2007). In this case, the Board found that Appellant is not entitled to serviceconnection for a heart condition or a benign trigeminal schwannoma. Inconcluding that Appellant is not entitled to service connection to a heartcondition, the Board relied on a July 2016 VA heart examination with a May2017 addendum in which the examiner opined that Appellant’s report of in-service heart problems was not credible because such symptoms wouldhave been so worrying that Appellant would likely have sought medicalevaluation for them. [R. at 52 (50-54)] (May 10, 2017 addendum opinion);[R. at 20-27] (July 1, 2016 VA heart examination). In concluding thatAppellant is not entitled to service connection for a benign trigeminalschwannoma, the Board relied on a July 2016 examination with May 2017addendum in which the examiner opined that “review of availablemedical/scientific literature does not show evidence-based medicalinformation that had established a cause and effect relationship of noiseexposure and/or head trauma as a risk and/or aggravating factor beyond itsnatural progression for trigeminal schwannomas.” [R. at 50 (48-50)] (May 10,2017 VA addendum opinion); [R. at 27-35] (July 1, 2016 VA examination). 2 The parties agree that remand is required for VA to procure an adequate opinion. See Barr, supra. The examiner’s opinion was inadequate as to the trigeminal schwannoma. Under Wise v. Shinseki, 26 Vet.App. 517, 531 (2014), it is not required that a “medical principle reach the level of scientific consensus in order to support a claim for VA benefits”. Here, the examiner’s rationaleseemingly required a level of scientific consensus that is not required underWise, opining that Appellant’s schwannoma was not due to noise exposure or head trauma because “review of available medical/scientific literature does not show evidence-based medical information that had established a cause and effect relationship of noise exposure and/or head trauma as a risk and/or aggravating factor beyond its natural progression for trigeminal schwannomas.” [R. at 50 (48-50)]. The examiner’s opinion was also inadequate as to Appellant’s heartcondition. The examiner opined that Appellant’s report of in-service heartproblems was not credible because such symptoms would have been soworrying that Appellant would likely have sought medical evaluation forthem. [R. at 52 (50-54)]. However, Appellant sought treatment for his hearton two occasions in service: in September 1975, Appellant reported “chest pain” that “feels like pressure in chest” [R. at 3496] (Sept. 17, 1975 servicetreatment record), and in March 1977 Appellant underwent EKGs. [R. at3513-14] (Mar. 2, 1977 EKGs). On remand, VA must obtain an opinion that 3 adequately addresses whether Appellant’s schwannoma was as likely as not caused by his service and whether Appellant’s heart condition was as likely as not caused by his service. The parties agree that this joint motion and its language are theproduct of the parties' negotiations. The Secretary further notes that anystatements made herein shall not be construed as statements of policy orthe interpretation of any statute, regulation, or policy by the Secretary.Appellant also notes that any statements made herein shall not be construed as a waiver as to any rights or VA duties under the law as to the matter being remanded except the parties' right to appeal the Court's order implementing this joint motion. The parties agree to unequivocally waiveany right to appeal the Court's order on this joint motion and respectfully ask that the Court enter mandate upon the granting of this motion. Upon remand, Appellant will be free to submit additional evidence andargument on the questions at issue. Kutscherousky v. West, 12 Vet.App.369, 372 (1999) ); accord Clark v. O’Rourke, No. 16-2826, slip op. at 5-6,2018 WL 3357628 at * [4-5] (July 10, 2018). The Board will “seek any other evidence it feels is necessary” to the timely resolution of Appellant’s claim.See Fletcher v. Derwinski, 1 Vet.App. 394, 397 (1991) (requiring Board onremand to “reexamine the evidence of record . . . and issue a timely, well-supported decision in this case”); Quarles v. Derwinski, 3 Vet.App. 129, 141(1992). Before relying on any additional evidence developed, the Board shall 4 ensure that Appellant is given notice and copies thereof, and an opportunityto respond and submit additional argument and/or evidence. See Thurber v.Brown, 5 Vet.App. 119, 126 (1993); Austin v. Brown, 6 Vet.App. 547 (1994). In any subsequent decision, the Board must set forth adequatereasons or bases for its findings and conclusions on all material issues offact and law presented on the record. See 38 U.S.C. § 7104(d)(1); Gilbert, 1Vet.App. at 56-57 The law requires that “expeditious treatment” be affordedto all claims remanded by the Court or Board. 38 U.S.C. §§ 5109B, 7112;see Drosky v. Brown, 10 Vet.App. 251, 257 (1997); Allday v. Brown, 7Vet.App. 517, 533-34 (1995). Once ordered, a copy of this joint motion andthe Court’s order should be associated with the Appellant’s claims file. Finally, the Board shall incorporate copies of this joint motion for remand and the Court’s order into Appellant’s file before VA for appropriate consideration. The terms of this JMPR are enforceable, and Appellant has enforceable rights with respect to its terms. See Forcier v. Nicholson, 19Vet.App. 414, 425 (2006) (“We further hold that the Board has a duty under Stegall to ensure compliance with the terms of the agreement struck by the parties, which form the basis for the ‘remand order’ even if they are not incorporated explicitly”); Stegall v. West, 11 Vet.App. 268, 271 (1998). 5 CONCLUSION Considering the foregoing, the parties respectfully move the Court to enter an order vacating and remanding the November 30, 2017 Board decision which denied Appellant’s claim for entitlement to service connection for a heart condition, to include as secondary to service-connected Meniere’s disease, and a benign trigeminal schwannoma, to include as secondary to noise exposure and/or head trauma sustained in service.
  4. Pedro L

    24 X 48 ILP Greenhouse

    Alex, I just wanted to thank you for taking your time to share your ILP experience on the just completed talk show. I really enjoyed it and hope to continue learning from you. I am truly amazed at your knowledge and tenacity. Keep up the great work that you do to guide us veterans in the right direction; you are a great teacher. Pedro
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