dav_marine72

Does anyone know a good attorney for the USCAVC? My attorney told me my motion for reconsideration at the BVA was granted so I told her to dismiss my case from there. Come to find out that is not the case. What happened was the court found out that I submitted my motion for reconsideration to the BVA prior to my appeal to the USCAVC. So the court wants to send it back. I do have strong evidence they overlooked but I don't want this thing sitting around forever. If I can get a GOOD attorney I may dismiss the motion at the BVA and stay at the court. Thanks.

Hi Southern, Everyone has brought up valid points here. I don't think the protesting thing would work. Don't get me wrong I have protested a lot in my life but the bottom line is we would need the politicians and the American people behind us. The problem with getting the politicians is we don't have money to donate to them. Most act concerned but only to a certain point. Humans are greedy by nature and they look out for 1#. On to the American public. I don't see a vast majority of Americans supporting us. Why? Many Americans think we are getting welfare when we get disability. I have had many people tell me because I medicate myself to work I shouldn't get VA disability. Sure like the politicians they will give us lip service and say we are patriotic and heroes but that is it. Again they are out for themselves not us. There is only one possible solution and that would take someone full time with business experience to run it this organization. There would need to be many others players including a board, volunteers, etc. This organization would be a veterans lobbyist group. Money is what makes the government go round and the lobbyist provide the money, gifts, etc. Unfortunately I have the experience as a business owner and the education in business needed but not much time. I have three small children and wife and need to bring money in. Then there is my million medical appointments I go to and all the time I spend on my appeals. When all is said and done with my appeals I should be at 90%. I talked with my wife and we decided once she goes back to work I would file for TDIU. If and when that happens I would need something like this idea to keep me going. I love the thought of it and as long as it's a non-profit the VA can't say poop to me. Those are my thoughts. I do like the idea of having the fund to help families in need until they get their claim money. This organization would need to be setup tight and have strict controls along with many checks and balances. As the old saying goes "Power tends to curropt, absolute power curropts absolutely". I would definitely love to be involved in something like this in whatever time I could find.

Thanks for your comment. I understand what you are saying about an IMO. My point is based on a presumptive service connection. I'll have to go back into my SMRs to see if Pes Cavus was diagnosed or not. However I have three appointments to a VAMC Podiatry for pain in my feet based on the two fractures in service. All three diagnosed Pes Cavus including by X-RAY. That was within the one year limit after service. I've already spent $3000 on Bash and haven't seen a penny yet. Presumptive service-connection is concerned, a veteran needs to be able to show that a condition listed in §3.307, §3.308, and §3.309 has manifested itself within the prescribed time limits after separation from the service. A presumptive condition does not need to be noted in a veteran’s SMR’s, hence presumptive, or it’s presumed that the said disability/disease occurred while in the service. There are some presumptive disabilities that do need to have manifested themselves within the first year after separation and to degree of 10% disabling in order to warrant presumptive service-connection. One common one is Arthritis.

Question for everyone, I am service connected for right and left 3rd metatarsal fractures which occurred in boot camp and then Marine Combat Training respectively. I got out of the Marines 11/12/95. Initially in 1996 I received 10% for right and 0% for left. This was based on more complaints of right foot pain. Just to give a little history in 2000 I was service connected for three levels of DDD, post discectomy and laminectomy. The VA examiner in 2000 was asked by the RO if it was possible that my back condition was either direct service connection or secondary to my in service connected fractures of my feet. He stated that he thought it was directly connected and secondary to my SC feet based on the way I would try not to bear weight on the sc fractured metatarsals causing me to re-distribute the weight bearing up to my back. So I asked for an increase of both feet at the same time I asked for connection of my back in 2000. The back was connected but my feet were denied. I had a hearing with a DRO and explained that my feet were perfect prior to the Marines and after I got out I had Pes cavus, pain all the time, etc. When I was going after my back I had a Podiatrist write a letter stating my aquired Pes cavus possibly caused my back problem. As stated below the VA exaiminer basically agreed. Here is the kicker. When I explained the daignosis of Pes Cavus, unforgiveing feet, etc. to the DRO she stated I would need a VA or civlan Podiatrist to state this was due to my service connected fractures or service time. She denied me an increase based on the fact that all my VA and civilan records since 96 had documented a variety of feet problems none were related to what she called my toe problems. She quoted a May 1997 diagnosis from a private prodiatrist of pes Cavus feet with neuritis secondary to compression from "unforgiving feet". That same doctor also gave me steriod shots for what he was calling possible tarsal tunnel syndrome related to my Pes Cavus feet in 2000 and 2001. She stated this was all not related to my sc feet. Well now that I am going back through all of medical evidence for my BVA reconsideration for my back and my mind is clearer I realized the VAMC diagnosed aquired Pes Cavus on a 06/14/96 Podiatry appointment. That would be less than a year after service. The exam showed anterior cavus, psuedo-equinus, and the xray showed high metatarsal declination angle, evidence of 3rd metatarsal shaft, mild FF adductus. This was my first visit to VA podiatry to complain about my feet since service. Now the Pes Cavus, etc. started after the fractures. I have a MEPS exam showing perfectly normal feet before I went in. This case is going back to the BVA. Do I try to say it is all related to my fractures like I have been or go to the RO for service connection of bilateral Pes Cavus? I am posting back exam 00, feet exam 01, and DRO decision on feet. Feet_Post.pdf DRO_Feet_1.bmp

Southern your not alone. My wife has her days with the VA. I certainly have had my days with the VA. We all have and that's why this place is so therapeutic for me.

As far as the eight additional discs go they base it on this: Separately evaluate disability of the thoracolumbar and cervical spine segments, except when there is unfavorable ankylosis of both segments, which will be rated as a single disability. The way I read this and chime in if I am wrong anyone is that if all the discs you are complaining about are in the thoracolumbar area it's one rating. If you have more discs damaged in this area of the back I would think they would need to consider it for the overall rating and not just L4-5 I think you said. But overall you'll just get the one rating unless it goes up into the cervical spine. Have you gotten MRIs in this 18 year period?

Brax, Did you file a motion for reconsideration at the BVA back then? How about an appeal with the U.S. Court of Appeals? Like jbasser said you'll need to prove they made a procedural error to go back to that date. You state you have been fighting the VA for 18 years. Have you filed any increases or NODs since then or just now? Your case looks similar to mine. I am currently 20% ortho, 10% neuro for my back and leg pain. I had L3-4 and L4-5 laminectomy and discectomy in 2000. They had exams where they showed I could bend to 60, 80, and 85 degrees. The RO and BVA based my case on this and said it means I have no more than mild back and legs issues. They base it all on that and not the full disability picture. Did your back get worse after surgery? I just got my motion granted for reconsideration at the BVA because I have so much evidence they didn't look at it's not funny. What type of medical evidence do you have for your back? Did you keep your records from the military hospital and surgeon? Did you see anyone after you got out? That's where the meat and potatoes may be. One thing they didn't do on my exams and looks like your too is they didn't ask me to bend a few times. I actually found cases where the examiner asked the patient to do the forward bending multiple times and each time it got worse. The repetitive motion can severely limit a back like yours. I'm not an expert on Duluca but I'm sure an elder an chime in.

Yes well I thought I was just crazy when I got my decision. I plummeted into depression. I couldn't believe with evidence like that I stayed at 20%. The surgery is being done by a civilian pain clinic. I still have insurance and I like and trust my doctor. The VA would scare me for any surgery honestly LOL. Actually in CT we have it pretty good. Our West Haven hospital partners with Yale so the care there is good. The bad thing for me though is that it's an hour a way. Newington campus is about 15 minutes from me. It used to be a full hospital with an ER and everything. Cuts years ago made it into just a day clinic.

They barely considered Deluca. One of my lawyers points was it wasn't a full work up. They missed everything though. The last treatment notes quoted were 2002. The based most of the decision on my condition from 97-00 when I wasn't even connected. They of course skipped any positive evidence. From 2002 on they only talked about the two VA exams I had. Didn't mention any VA visits in severe pain, couldn't bend at all, flare-ups, no civilian evidence with steroid injections and nerve blocks every two months, diagnosed with epidural adhesions entrapped at two nerve roots, narcotics since 2006, constant 8-10 pain, panic attacks, 2 letters from Bash, 2 letters from my Pain DR., letter from my Chiropractor / physical therapist, letter from employer saying I missed 12 weeks in 18 months due to my back, letter from neurosurgeon stating L4 nerve issue, numbness, rather advanced DDD for my age, recommended spinal stimulator implant, the list goes on. Actually doing the spinal stimulator trial on the 22nd of this month. None of this was mentioned for the most part by the BVA first time around. I guess that's why it's going back.

Hi Jessie, Just to share my story I am sort of the opposite of your son. I have Pes Cavus which was not picked up on my initial physical at MEPS. I fractured both my feet while in (one in boot and camp, one in MCT). I got out in 95 and then in 1997 found out my back went to hell. I went after the VA for my back in 2000. Both my feet were service connected when I got out. Since 2000 was five years after I had my surgeon who performed my failed back surgery write a letter stating it was possible my back condition was directly related to service. Then I got a podiatrist to state that my Pes Cavus feet possibly caused my back problem. The VA exaimer determined that it was directly connected and secondary to my feet. He stated because of the way my Pes Cavus makes me walk that my feet shift the impact of walking, hiking, and running up to my back. Question: Did your son's feet get worse because of service? He can get connected that way too. If they try to say it was pre-service you need to prove service caused it to get worse. Probably need a Podiatrist letter for this one.

I'm in Connecticut so going down to DC is kind of out. I wasn't sure if I could do a video conference from the RO. I may be learning towards the audio testimony. I just want to avoid going back to the USCAVC. I see all these BVA decisions and it looks like I am a lock for 60% under the old back criteria IVDS. Since I am on initial rating from 2000 I still fall under that. I'm just scared that if I don't testify then one little piece of evidence will weigh against me and give me 40% instead. Adding time is something I don't want to do but if it's the difference between 40% and 60% it would be worth it.

I got my back service connected in 2000 five years after I got out of the Marines. There was only one mention of a sick bay visit for my back in service. My back problems started in 97 and I should have filed then but I was just trying to get fixed. After failed surgery in 2000 I went after them. I have high arch feet. Both were service connected because of fractures in service. I had my surgeon write a letter stating it was possible the back condition was directly do to training. I also got a podiatrist to write a letter saying because my feet didn't support the shock of walking, hiking, and running it was possible my back condition was caused by my service connected feet. The VA examiner thought it was both direct and secondary and connected me. At that time my back was three levels DDD, failed surgery at 2 levels, etc. The moral here is if it's possible go after it early. I lost a ton of money from 97-00 because I never filed. However, don't forget there needs to be in service documentation of an injury or decease (or secondary to feet), a current disability with a diagnosis (back complaints and possibly image findings), and a nexus (which usually comes in the form of a letter or letters like I stated above).

Hi Everyone, Now that my case has been sent back to the BVA from the U.S. Veterans Court based on my motion for reconsideration being granted I have a last push to do. I have sixty days to send in any new evidence including the time period after their initial decision which was in March 2008. I have a ton of data to send on that end so I am covered there. The second piece is a hearing with the BVA and or audio cassette testimony from my wife and I. My evidence is pretty strong and I didn't have a hearing the first time because I thought it would prolong my case. I guess not have a hearing the first time actually screwed me because they may have caught their error before making their decision. I am not sure at this point if I should request a hearing or make audio cassette testimony from my wife and myself. It seems like they don't view our own testimony as being worthy. Has any had a hearing with the BVA that impacted a decision? Should I have the hearing so that I add a human element to this?

Thanks Everyone, Talked to the lawyer today. She was actually quite cordial. Let me know the Court attorney would be filing a stay motion at the court and a dismissal of the case back to the BVA. She said once it's filed our relationship is terminated. Another good thing out of this is she is getting my full c-file today or Monday. She said she would sent it to me. Even though I have tried to save everything possible at home I may be missing some reports, etc. So this will give me my file without the BS of asking for it. Then I can comb it to see what exactly the BVA had. I'll send my new evidence, write a short NOD / SOC about what they missed / VA law, and then make testimony cassette tapes for my wife and myself about my disability. I guess you can't have a hearing in front of the panel only taped testimony. I can have the SO at the BVA testify for me but he obviously didn't do a good job last time so I'm thinking why? I can actually enjoy this win today. With all the pressure from the lawyer yesterday I felt anxious. Time to get to work and win this thing at the BVA.

Berta, No American Legion represented me at the board. I know she is only thinking of herself. Why would we not go back? The way I see it I get three more people at the BVA to look at my case and then if need be the AMC looks at it to. With her just AMC looks at it? What I need to find out today is where is the letter stating the BVA wants my case back is. I don't want my attorney somehow screwing me on this.

Thanks William and halos2, Just left a message for my attorney. She will be mad at me tomorrow. I don't think that's right of her and I really don't care. This is my case. I wrote the reconsideration document and it obviously got someone's attention.

Thanks Vaf, halos2, I just left a message for my attorney telling her I wanted to go back to the board. I'm sure she will have an attitude tomorrow with me.

Hi Everyone, Allow making calls to DC did me nothing I managed to find the information on my own. I should have done it in the first place but you know how it gets when our cases get talked about. Makes me feel sick because I just want it over. So I found the regs on this reconsideration: § 19.11 Reconsideration panel. (a) Assignment of Members. When a motion for reconsideration is allowed, the Chairman will assign a panel of three or more Members of the Board, which may include the Chairman, to conduct the reconsideration. (Number of Members constituting a reconsideration panel. In the case of a matter originally heard by a single Member of the Board, the case shall be referred to a panel of three Members of the Board. In the case of a matter originally heard by a panel of Members of the Board, the case shall be referred to an enlarged panel, consisting of three or more Members than the original panel. In order to obtain a majority opinion, the number of Members assigned to a reconsideration panel may be increased in successive increments of three. © Members included in the reconsideration panel. The reconsideration panel may not include any Member who participated in the decision that is being reconsidered. Additional Members will be assigned in accordance with paragraph (:P of this section. (Authority: 38 U.S.C. 7102, 7103) [61 FR 20449, May 7, 1996] After seeing what I didn't get from the BVA. I welcome a panel to look at my case. They also give me sixty days to send additional evidence. Here is the motion allowed reg. (2) Motion allowed. If the motion is allowed, the appellant and his or her representative, if any, will be notified. The appellant and the representative will be given a period of 60 days from the date of mailing of the letter of notification to present additional arguments or evidence. The date of mailing of the letter of notification will be presumed to be the same as the date of the letter of notification. The Chairman will assign a Reconsideration panel in accordance with §19.11 of this chapter. (Authority: 38 U.S.C. 7103, 7108) That gives me time to send all my pain center, chiro, and VA evidence up to the present. This will include a trial on the 22nd of this month for a spinal stimulator. I'll take my chances with the panel.

Think I just found some information on my own. It looks like I get 60 days to file new evidence and then they assign a reconsideration panel: 20.1001 Rule 1001. Filing and disposition of motion for reconsideration. (a) Application requirements. A motion for Reconsideration must be in writing and must include the name of the veteran; the name of the claimant or appellant if other than the veteran (e.g., a veteran’s survivor, a guardian, or a fiduciary appointed to receive VA benefits on an individual’s behalf); the applicable Department of Veterans Affairs file number; and the date of the Board of Veterans’ Appeals decision, or decisions, to be reconsidered. It must also set forth clearly and specifically the alleged obvious error, or errors, of fact or law in the applicable decision, or decisions, of the Board or other appropriate basis for requesting Reconsideration. If the applicable Board of Veterans’ Appeals decision, or decisions, involved more than one issue on appeal, the motion for reconsideration must identify the specific issue, or issues, to which the motion pertains. Issues not so identified will not be considered in the disposition of the motion. (Filing of motion for reconsideration. A motion for reconsideration of a prior Board of Veterans’ Appeals decision may be filed at any time. Such motions must be filed at the following address: Director, Management and Administration (01E), Board of Veterans’ Appeals, 810 Vermont Avenue, NW., Washington, DC 20420. © Disposition. The Chairman will review the sufficiency of the allegations set forth in the motion and, depending upon the decision reached, proceed as follows: (1) Motion denied. The appellant and representative or other appropriate party will be notified if the motion is denied. The notification will include reasons why the allegations are found insufficient. This constitutes final disposition of the motion. (2) Motion allowed. If the motion is allowed, the appellant and his or her representative, if any, will be notified. The appellant and the representative will be given a period of 60 days from the date of mailing of the letter of notification to present additional arguments or evidence. The date of mailing of the letter of notification will be presumed to be the same as the date of the letter of notification. The Chairman will assign a Reconsideration panel in accordance with §19.11 of this chapter. (Authority: 38 U.S.C. 7103, 7108) [57 FR 4109, Feb. 3, 1992, as amended at 67 FR 16023, Apr. 4, 2002]

Sorry I hope people don't think I'm spamming the boards here. I started this thread under research because I forgot this one existed. I was notified by my lawyer today who has my case at the U.S. Court of Appeals for Veterans Claims that the BVA granted me reconsideration. To me this sounded like a good thing. She doesn't agree. She wanted me to overnight a letter to the BVA saying I withdraw my motion. Then Berta replied to my first post and I talked to my SO at the American Legion. They both think this is a good thing. They think the BVA does not grant this reconsideration unless they realize they made a mistake. I tend to see it that way too. The problem is my lawyer does not. I'll have to look at the agreement I signed with her but I'd rather let it ride at the BVA. I can always appeal to the court again if needed. This is such a grey area it seems. No one I called at the BVA could tell me if my reconsideration goes to the bottom of the pile or if it has a separate queue. I don't want to wait months and get screwed at the BVA either. It just seems they granted this for a reason. My lawyer was so mad she told me if I had I told her in the beginning I filed for a motion of reconsideration she would have not taken the case or waited until the BVA made a decision. The American Legion who advised me on this told me they hardly ever grant the reconsideration so I forgot about it. Has anyone gone through this? Any information at all would be appreciated.

Thanks Berta, I must have missed the second reply. I will call Mike and speak with him. I'm not going to overnight the motion to withdraw my BVA reconsideration. I don't like what this lawyer is doing to me. I'm going to read my agreement tonight and see what my options are. I spoke with my SO who is pretty good. He said he called around to the SOs in DC and they said that the BVA usually doesn't grant a motion for reconsideration unless they feel they made an error. This gets me mad because I feel my lawyer should have been honest with me. She also stated had she known in the beginning I had filed a motion for reconsideration she would have thought differently about my case. I finally get what seems like the VA to admit a **** up with my case and I still feel like crap because my lawyer now is trying to pressure me into making sure she gets paid. Here is how I see this. I go back to the BVA and wait for their decision. If they give me a proper rating I take it. If they don't I go back to the court of appeals. Now here is another question: My SO said I should be able to have my lawyer issue a stay at the U.S. Court of Appeals for Veterans Affairs. That way if I do want to go back I have a placeholder. Anyone know if this can be done?

Hi Berta, Thanks as always. I didn't receive a letter from the BVA, my attorney called me today frantic. She says that the attorney for the U.S.C.A. will file a motion on Monday to send my case back to the BVA unless I overnight the letter today and provide my attorney with a copy and tracking number / received receipt for her Monday morning meeting. My problem here is whats the rush? My wife only wants me to do it because she has PTSD from the VA and feels more secure with the lawyer. I say if they are pulling my case back then they know they screwed up. I sent the director of the BVA the BASH IMEs and all my records showing narcotics, nerve blocks, etc. for my back with the motion for reconsideration and said i can't possibly see how I rate 20% ortho and 10% neuro. I just don't want to make a wrong move here.

Hi Everyone, I currently have a case at the U.S. court of Appeals for Veterans Claims. It's almost to the point where my lawyer gets my c-file (waited six months). She called me today all freaked out. After I got my decision from the BVA which basically didn't consider a ton of evidence I called my SO American Legion. They said there was nothing they could do and all I could do was move on to the Court and file a BVA motion for re-consideration. They said that the motion for re-consideration was hardly ever granted. Well today my lawyer found out it was granted and they want the case back. She got all pissed at me because I forgot to tell her I did this. Well I never expected a reply. Anyway she and my wife want me to send a letter to the BVA stating I am withdrawing my motion for reconsideration and that I want the case heard at the court. Now I do feel more comfortable with a lawyer but I do understand if this goes back to the BVA and they rate correctly she doesn't get any money. On the flip side this could be more PTSD training by the BVA and I wait forever and they give me nothing. Has anyone ever been in this position? is it true that the BVA doesn't reconsider often or is this just a formality? I need to overnight my letter within a couple of hours at the latest. Thanks.

Hi Skunk, I would say if you can get your DOC to sign a nexus letter you might be okay. I actually just filed for secondary GERD to the meds i take for mental, back, and asthma. I'm not sure what they rate the condition under. Maybe someone with sc for GERD can give us more information. I'll keep you posted on my case.

Hi Jessie, I think everyone here has given great advice here. I use a SO if I really need to. I look at it this way. Most SOs are not payed or trained well and have tons of cases to handle. I always looked at my VA claims as it was my job to get it done and they could help if need be. I remember going to DAV in 2000 and asking for help with getting my DDD service connected. My first medical evidence appeared in 1997 and I got out in 1995. I had only one visit in service for back pain. The SO looked at me and said your never going to get that connected it's been too long. Well I ended up getting my surgeon to write a direct nexus letter and then had a podiatrist to try go secondary to my sc feet. I ended up getting service connected in 2001. The examiner actually stated he thought I should be directly connected based on training in the Marines. They can piss you off when it comes to service connections. I think we are all emotionally tied to our issues and when we here someone shoot us down we feel belittled. Like you said earlier you helped your son get 70%. You know what to do. Use these guys only when needed. By the way after a bad hearing with DAV and a DRO that shot down 5 increases I cut DAV loose. I now use American Legion and think the SO is great. Again I make sure the Is are dotted and Ts are crossed. Good luck.