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jlrith

Second Class Petty Officers
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jlrith last won the day on December 17 2013

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About jlrith

  • Rank
    E-4 Petty Officer 3rd Class

Previous Fields

  • Service Connected Disability
    90
  • Branch of Service
    Marines
  • Hobby
    Kids; so Legos and Barbies

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  1. Here is my question: Given two ratings, one primary and one secondary to that primary disability, is the VA required to evaluate the overall symptoms in the most favorable way? Rating using the secondary disability results in a vastly higher rating and both ratings cannot be evaluated due to pyramiding. I am service connected with "Raynaud's syndrome with Chilblains Syndrome and Hyperhidrosis": 40%. The VA lumped my secondary disabilities of Chilblains and Hyperhidrosis into the Raynaud's rating. As part of this many of my symptoms are secondary to Raynaud's. These secondary symptoms are basically cold injuries and include all but the 'X-ray evidence of arthritis' for cold injury residuals in diagnostic code 7122. I'm even service connected for a type of cold injury, Chilblains syndrome. Pyramiding comes since both ratings (and my symptoms) include cold sensitivity, color changes and pain as basic establishing symptoms. My disability picture more closely matches the Cold Injury Residuals rating, and in accordance with 38 CFR 4.7, this should be used. However, in 3.310 there is the line stating: "When service connection is thus established for a secondary condition, the secondary condition shall be considered a part of the original condition." Does that mean that my overall rating must be done under Raynaud's to avoid pyramiding since the secondary condition "shall be considered a part of the original condition?" In addition, the following court cases may apply: Buie v. Shinseki, 24 Vet. App. 242 (2011) • “VA has a well-established duty to maximize a claimant's benefits.” AB v. Brown, 6 Vet. App. 35 (1993) • “A veteran is presumed to be seeking the greatest possible benefit unless he specifically indicates otherwise” Bradley v. Peake, 22 Vet. App. 280 (2008) • “This duty requires use of the Diagnostic Code that is most favorable to the Veteran. The applicable Diagnostic Code that results in the highest evaluation must be used, in other words.” § 3.310 Disabilities that are proximately due to, or aggravated by, service-connected disease or injury. (a) General. Except as provided in § 3.300(c), disability which is proximately due to or the result of a service- connected disease or injury shall be service connected. When service connection is thus established for a secondary condition, the secondary condition shall be considered a part of the original condition. 7117 Raynaud’s syndrome: With two or more digital ulcers plus autoamputation of one or more digits and history of characteristic attacks ................. 100 With two or more digital ulcers and history of characteristic attacks ............................. 60 Characteristic attacks occurring at least daily ........................................................... 40 Characteristic attacks occurring four to six times a week ............................................. 20 Characteristic attacks occurring one to three times a week ............................................. 10 NOTE: For purposes of this section, characteristic attacks consist of sequential color changes of the digits of one or more extremities lasting minutes to hours, sometimes with pain and paresthesias, and precipitated by exposure to cold or by emotional upsets. These evaluations are for the disease as a whole, regardless of the number of extremities involved or whether the nose and ears are involved. 7122 Cold injury residuals: With the following in affected parts: Arthralgia or other pain, numbness, or cold sensitivity plus two or more of the following: tissue loss, nail abnormalities, color changes, locally impaired sensation, hyperhidrosis, X-ray abnormalities (osteoporosis, subarticular punched out lesions, or osteoarthritis) ... 30 Arthralgia or other pain, numbness, or cold sensitivity plus tissue loss, nail abnormalities, color changes, locally impaired sensation, hyperhidrosis, or X-ray abnormalities (osteoporosis, subarticular punched out lesions, or osteoarthritis) ............................... 20 Arthralgia or other pain, numbness, or cold sensitivity ......................... 10 NOTE (1): Separately evaluate amputations of fingers or toes, and complications such as squamous cell carcinoma at the site of a cold injury scar or peripheral neuropathy, under other diagnostic codes. Separately evaluate other disabilities that have been diagnosed as the residual effects of cold injury, such as Raynaud’s phenomenon, muscle atrophy, etc., unless they are used to support an evaluation under diagnostic code 7122. NOTE (2): Evaluate each affected part (e.g., hand, foot, ear, nose) separately and combine the ratings in accordance with §§ 4.25 and 4.26.
  2. Hello Peggy, You may be eligible for Special Monthly Compensation S (SMC(s)) since you will have two 100% independent disability ratings for a while. You may also be eligible for aid and attendance during your recovery time. (see 38 CFR 3.352) I would submit a claim. 38 CFR 3.350: (i) Total plus 60 percent, or housebound; 38 U.S.C. 1114(s). The special monthly compensation provided by 38 U.S.C. 1114(s) is payable where the veteran has a single service-connected disability rated as 100 percent and, (1) Has additional service-connected disability or disabilities independently ratable at 60 percent, separate and distinct from the 100 percent service-connected disability and involving different anatomical segments or bodily systems, or 7016 Heart valve replacement (prosthesis): For indefinite period following date of hospital admission for valve replacement ....... 100
  3. Good day, The VA service connected me for "Raynaud's Syndrome with Chilblain's Syndrome" in 2013. I am interested as to whether or not the following statement in the rating decision might constitute a CUE, based on various VA lawsuits (inferred claims) "NOTE: It was unclear from your statement received April 1, 2012 if you were claiming paresthesias, hyperhidrosis, nail abnormalities, persistent athletes foot or you ears as part of Raynaud's / Chilblains. Please clarify your statement and notify us if you are specifically claiming those issues separately from your already service connected disabilities." ** I did appeal the Raynaud's rating, however the above items were never addressed nor were they evaluated. Specific court cases: Shockley v. West, 11 Vet. App. 208, 214 (1998); Collier v. Derwinski, 2 Vet. App. 247, 251 (1992) Buie v. Shinseki, 24 Vet. App. 242 (2011) • “VA has a well-established duty to maximize a claimant's benefits.” AB v. Brown, 6 Vet. App. 35 (1993) • “A veteran is presumed to be seeking the greatest possible benefit unless he specifically indicates otherwise” Bradley v. Peake, 22 Vet. App. 280 (2008) • “This duty requires use of the Diagnostic Code that is most favorable to the Veteran. The applicable Diagnostic Code that results in the highest evaluation must be used, in other words.” Here is the text of the evaluation: "As the evaluation criteria for Chilblain's is so similar to the evaluation criteria for your Raynaud's syndrome, a separate evaluation cannot be established. 38 CFR 4.14 notes that the evaluation of the same manifestations under different diagnoses are to be avoided. Therefor, your condition is evaluated with your Raynaud's syndrome." " We have assigned a 40 percent evaluation for your Raynaud's syndrome based on: - Raynaud's syndrome with characteristic attacks occuring at least daily. - Chilblains syndrome with cold sensitivity, color changes, hyperhidrosis."
  4. Vync is right: "if you give up, then they win" If you feel like the local VSO's stink, find someone else or get a lawyer. Having dealt with 2 regional offices and gone 3 times to the BVA: The local office can be spotty. Sometimes they get it right, but when they get it wrong, boy do they get it wrong. BVA is way better, more through and will provide a clear rational if they deny you. At the least, let it ride to the BVA.
  5. Per the VA, the veteran must fill out form 21-4140 each year to verify employment status. In accordance with the below reference: "When VA Form 21-4140 shows that the Veteran regained employment during the past 12 months: • notify the Veteran that the total evaluation will continue at the present, but VA will reconsider entitlement to a total evaluation in the future." "VA Form 21-4140 shows the Veteran has been gainfully employed for 12 or more consecutive months: • refer the case to the rating activity" and "The rating activity prepares a rating decision proposing to reduce the Veteran to the appropriate schedular evaluation for failure to return VA Form 21-4140." "Note: The effective date of the reduction will be no earlier than the first day of the month following the end of the 60-day due process period. Be sure to properly notify the Veteran’s designated representative of the proposal." As I understand it, she would be entitled to IU until such time as it has been established that she can hold "substantially gainful employment." The VA sets that threshold at 12 months of employment. I would simply continue to fill out form 21-4140 with the understanding that if she is able to stay employed for a year then they will remove the IU. NOTE: Being employed with "substantially gainful employment" is not illegal (so long as you don't lie about it) but will make you ineligible for IU. In addition, until the rating reduction is put in place, the veteran is still entitled to IU, so the veteran will not owe anything for the time between stating employment and the rating reduction taking effect. Keeping the veteran on IU until they are employed for 12 or more months ensures that the veteran is truly capable of being employed. http://www.benefits.va.gov/warms/docs/admin21/m21_1/mr/part4/subptii/ch02/m21-1mriv_ii_2_secf.doc
  6. I saw that the other day. In Vets.gov it gives the total number of appeals in the docket and your position in line. Not sure how accurate that is since I'm 50,000 out of 200,000 and I have a hearing scheduled for April, and the BVA customer service website says they are distributing appeals with docket dates through December, 2014 and my docket date is October 2014. Also, vets.gov has a bug where it shows all my appeals, but clicking into any of them just yields information about one from 2003.
  7. The affordable care act limits how much medical insurers can charge you extra for pre-existing conditions. When you go looking for insurance you should be up front with your broker and ask about policies with exclusions for your pre-existing conditions. I have disability insurance that covers everything but what I was service connected for, and it doesn't cost me anything extra due to the pre-existing conditions.
  8. RAMP is still pretty new, but it sounds like they have been working through NODs in about 3 months. I expect that will change as it ramps up, but there is a lot of focus on RAMP, and so far little participation, so processing should go quickly for the near future. Non-RAMP NODs sound like they are taking forever, but it depends on the regional office. Mine in 2013/2014 took a year. Others have taken 3, 4 even 5 years.
  9. It means they received the hearing transcript and your case is now in the hands of the judge's staff for adjudication. "Your appeal may fall into this category more than once" means the status you see may bounce between stages depending on what they are doing. It's basically the same as the regular ebenefits notifications: They can change back and forth until it you get the big brown envelope. And none of the changes really mean anything to you.
  10. Jl, what did the RO issued SSOC contain as far as instructions for continuing your Appeal at the BVA?

    Have you heard anything from your VSO, or tried to contact them regarding your SSOC and Appeal options?

  11. Just received an SSOC denial for my claim. So, originally my claim was for worsening Raynaud's syndrome, which started in the military. After my first C&P exam and some research I connected the dots that my symptoms were due to an in service cold injury. My appeal had been based around the fact that my Raynaud's and other symptoms are actually a cold injury. Lots of evidence, a NOD, a form 9, about a half dozen statements in support of claim. My just received SSOC didn't even bother to address anything having to do with cold injuries. It just denied an increased Raynaud's rating because my latest C&P exam shows that my Raynaud's hasn't gotten worse, even though that same exam has a diagnosis of cold injury sequelae! An increased Raynaud's rating isn't what my appeal is about! So anyways, no question. Just an update.
  12. The lack of a proper Nexus is a good point, which I will be remedying. I have one from Dr Oakley, but they VA completely disregarded it. I'm going to ask my Rheumatologist for one. He previously wrote one, but it didn't specify the 'in service' portion, it just said that a cold injury is the appropriate primary diagnosis behind my symptoms. Since my symptoms started while in service, I thought it sufficient. Any thoughts on how to better prove the in-service cold injury? I have no medical records showing one, only the Raynaud's diagnosis later, while still in service. And no buddy statements to corroborate my statement since it was sorry training and I was there with people I didn't know. Any thoughts on getting a cold injury rating without using the inn service cold injury? I am already service connected for Raynaud's, chilblains, cold sensitivity, color changes and hyperhidrosis, the VA simply chose to evaluate it all under the Raynaud's DC.
  13. Hello broncovet, You are correct that neither C&P exam provided a Nexus on the cold injury. Dr P, the first examiner declined to opine on it citing that such an opinion was outside the bounds of the exam (even though the VA specifically asked him to do so) and that he wasn't my regular physician and didn't have experience in cold injuries. The Nexus is really continuity of disability though; I've had symptoms since the being in the military and diagnoses of Raynaud's. Plus the VA service connected me for Raynaud's, chilblains, cold sensitivity, color changes and hyperhidrosis. They are just refusing to either 1- acknowledge that a cold injury underlies my disabilities and evaluate then as such or 2- properly evaluate my disabilities as is under DC 7122.
  14. Good day all, I am currently waiting to receive a copy of the SSOC relating to my case, which means I was denied again. I am looking forward to having a competent person review my case as I believe it to be well grounded and well documented. I am asking any of you who are interested, to review what I provide below and provide feedback and potential avenues to a successful appeal. Basis of appeal: Service connection for a cold injury Facts: I suffered a non-freezing cold injury while in Marine Combat Training in 1997/1998. I was service connected for Raynaud’s in 2002, based on an in service diagnosis of Raynaud’s Had worsening symptoms in 2011 and was diagnosed with chilblains. Submitted claim February 2012. Denied, appealed, denied by DRO, appealed (form 9), waiting on SSOC (completed 16 Feb 2018. Not yet received) Evidence: 16 April 2014 – Dr. H Medical Opinion that my Raynaud’s and other symptoms are due to a cold injury. 7 August 2014 – Dr. O Medical Opinion that my symptoms are due to a cold injury, plus explanation of why I did not seek medical attention for the original injury. 02 April 2015 – Dr. A Medical Opinion Certified meteorological records for Camp Pendleton covering the time I was in MCT. VA training: “Cold Injury: Diagnosis and Management of Long Term Sequelae” VA training letter 00-07 Service medical records: Diagnosis of Raynaud’s from a military general practitioner. He had to look up the symptoms in his desk reference. Service entrance exam records: Evaluated for cold injury and Raynaud’s. Nothing found. Buddy letters from my parents detailing no cold injury or Raynaud’s symptoms prior to the military. Letter from Dr. P (C&P #1 examiner) stating he was unable to provide an etiology for my symptoms as it was outside the scope of his exam and he was not my regular physician. Buddy letter from friend stating we had at one point discussed the symptoms I had during MCT. C&P exam #1: https://www.dropbox.com/s/fzzfafizakct2zw/2013-03-30 C%26P exam.pdf?dl=0 Denial: https://www.dropbox.com/s/oo9upihjzt4vnna/2013_09_10 va decision.pdf?dl=0 Statement Of Case: https://www.dropbox.com/s/rsi183kfekcrv9a/2014_09_10 Statement of Case 9.pdf?dl=0 C&P exam #2: https://www.dropbox.com/s/mp73bygjbre2rsy/2016-05-11 C%26P exam 0.pdf?dl=0 My response to the Statement Of Case: #1: “The preponderance of the evidence would indicate the condition was incurred before service.” This is in contradiction to 38 CFR 3.304 (b): “Presumption of soundness. The veteran will be considered to have been in sound condition when examined, accepted and enrolled for service, except as to defects, infirmities, or disorders noted at entrance into service, or where clear and unmistakable (obvious or manifest) evidence demonstrates that an injury or disease existed prior thereto and was not aggravated by such service. Only such conditions as are recorded in examination reports are to be considered as noted.” Military entrance exams specifically call for the symptoms of Raynaud’s to be noted. My entrance exams show no Raynaud’s. Likewise my medical records are absent mention of Raynaud’s until 2012. In addition, since I did not have Raynaud’s prior to military service, there is no ‘clear and unmistakable’ evidence that I had Raynaud’s prior to military service. There is a gap of time between my entrance exams and when I reported to boot camp. It is conceivable that I could have sustained a cold injury during this time, however my military medical records are silent for symptoms until 2012. I am including witness statements from my parents to cover the time between my entrance exams and entrance into boot camp. I lived with them and was on their medical insurance. Given the symptoms of a cold injury, they certainly would have noticed and I would have sought medical attention. J’s statement concerning my symptoms is overly specific; that is my doing. J is extremely smart and has an excellent memory, but not that good… Since I have had issues with the cold for so long I needed to be very specific concerning the symptoms. He does remember me talking about the original cold injury symptoms and situation (MCT) and them being separate and distinct from my later symptoms. #2: “The preponderance of the evidence does not show this is a cold weather injury. “ In accordance with Layno v. Brown, 6 Vet. App. 465, 470 (1994), I am competent to report the conditions I was exposed to during MCT and the symptoms I experienced. I have also submitted certified weather records from the National Climatic Data Center, which show precipitation and cold weather during the time I was in the field during MCT. The acute symptoms of a cold injury are quite different than the later symptoms. In addition, the acute symptoms are very similar to the effects of military training or any type of strenuous and varied physical activity: tenderness, swelling, temporary loss of feeling, itching, blisters, cracked skin, weakness… thus I disregarded them. Until I had the C&P exam on 30 MAR 2013, I had no idea that my symptoms could be from a cold injury, in fact I had zero knowledge about non-freezing cold injuries. This is why I failed to mention my cold exposure during MCT to any medical professional until after the 30 MAR 2013 exam; up to that point I still thought the problems I experienced during MCT were from the training, not cold injury. Dr. O explains in his report why the above is commonplace. Dr. O’s report details his diagnosis that I have sequelae of a cold injury and not Raynaud’s. Seeing as he is the world’s expert in cold injuries, his medical opinion on my condition should be considered in preference to all others. Dr. A concurs with Dr. Oakley that my symptoms are indicative of a cold injury and not Raynaud’s. In denying my claim for my disability to be rated as a cold injury, the VA has failed in it’s duty to assist me. My claim is well grounded. If there is any doubt as to the validity of my claim, the VA has options for developing my claim, which I am unable to pursue due to cost. Dr. O has offered his services to examine me, however he lives in the United Kingdom. In his report he provided two options for diagnostic testing, one of which, the thermal threshold test, would be useful in discriminating between a cold injury and Raynaud’s. In addition, the VA has the option of scheduling an exam with a cold injury expert. As Dr. P detailed in his letter, he does not have the training and experience necessary to determine if my symptoms are due to Raynaud’s or a cold injury. The two cold injury experts I have consulted with, Dr. H and Dr. O, and Dr. A, who provides treatment for my symptoms, all concur that my symptoms are consistent with a cold injury, not Raynaud’s. Dr. O has offered to perform an examination either at his facilities in the United Kingdom or in the United States. Due to the cost, I am unable to utilize either option, however, the VA is urged to explore these options since cold injury experts are vanishingly rare and Dr. O is the world expert. Dr. H practices in Telluride, Colorado and is willing to perform an exam.
  15. This claim is between the SSOC stage and BVA. I-9 form filed 3.5 years ago. I have done tons of research into BVA cases similar to mine. From those cases I expect a win at the BVA: - They actually read through the case and apply the law properly (at least compared to the RO) - They are sympathetic to veteran when it comes to complications (in my case, no direct documentation of my cold injury) - I am service connected for of Raynaud's, which is a common cold injury sequelae - I am service connected for Chilblains, a type of cold injury - The BVA has leeway on applying disability ratings; Many of the decisions remand or rate Raynaud's under diagnostic code 7122 (cold injury residuals) and my symptoms align very closely with diagnostic code 7122. Thank you for the info on reconsiderations at the BVA and CAVC.
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