Raybob

Yes it has in general ways. So far I haven't had any issues except for a few denials. But I use HadIt to research issues.

Thank you, Berta! And I found out something even more shocking today, but am getting the usual VA run around! Since I was able to go back to Walter Reed and have them issue an Addendum to the original Radiologist's findings on their CT scan, while at the VAMC today, I decided to ask for a copy of the original VA C&P x-ray that had been cited in the SOC and used for all the denials for the past three years. I had done this once before and was told I could only have the report, so I wanted it noted I asked and they could not supply the x-ray which I would use at my appeal hearing. Well, this time I was told I had to go to Radiology to get a copy! So I did. I got home, put the CD in my computer opened the x-ray taken of my skull (that was cited as a "normal" skull x-ray) and was shocked! Right there in front of this "layman's" eyes was my skull x-ray showing two separate back circles on the right profile shot of the skull. FYI, I only have one ear! I called VAMC Radiology to ask if it can be reviewed again, and was told I could not ask and that the Radiologists dont talk to patients. I was told to call my regular VA doctor, but I said he had nothing to do with the C&P x-ray. They then said to call the C&P office. I did, and they said, sorry, we have to be told by the VARO to do something. I let them know that I had two separate C&P exams for this issue in their office and that both had supported my claim, but that the VARO was using the x-ray report to dent it. Well, they then told me to call the VARO, which I expect to also be a dead-end call (hant made that call yet). Has anyone ever had any success getting VA take a second look at an x-ray? Any advice on how to do that would be appreciated. Cheers, Ray

Thanks for your recommendations, J and Broncovet... I will send in as soon as I get it in the mail. The initial claim was part of my BDD retirement claim (Dec 2009), so am expecting it to be retro back to my June 2010 retirement date. It involved a CT scan that was taken in Aug 2010 documenting the residuals of 2 surgeries I had at Walter Reed while on AD. I just had that same CT scan re-evaluated to get a second, more detailed write up by the Walter Reed Radiology Dept -- all the info and evidence was already in my records sent to VA, but now I have more specific language that "should" leave no reoom for denial of the claim (although, really, there should never have been doubt from the beginning with the medical evidence I submitted -- it is for skull loss, which is hardly a subjective claim). Cheers Ray

I filed an appeal on 3/1/13 for the denial of a compensable claim which had been repeatedly refused numerous times since 2010. I have asked for a personal hearing in DC. Although the Appeal is dated by the VA as 6/12/13, the eBenefits shows the claim as "Appeal Pending" and "You have initiated an appeal, but at this point your case is still with the local VA office that made the decision on your case. If you have questions about your appeal, please contact that office or your representative, if you have one." Following telephone confirmation today, next week I will receive new medical evidence that supports my claim -- which adds additional objective detail to evidence already in VA possession (as listed in their SOC). 1. Should I just hold on to this new evidence until I have my face-to-face appeal hearing in DC? 2. Or should I send it into the VARO. i don't think I want to do anything that will delay my personal hearing longer or start the clock over, but then again, perhaps this could resolve the issue and result in an approval of the claim without the need to wait xxx days for the personal hearing. Any advice is, as always, appreciated. Cheers, Ray

So I received a SOC dated 1/22/2013. After coming here to the board to seek input on wording for my Form 9 (see earlier posts with the subject "Best Place to Hold a Bva Appeal?" -- I mailed it (regular mail) to Winston-Salem on 3/1/2013. After a week, I checked e-benefits every day to verify it was received. Nothing was ever reflected that it was received. I contacted VA by phone twice.... the second time on 3/20/2013 to ask about receipt. That second time the customer assistance rep said they would make an inquiry of the W-SRO for the letter I mained on 3/1/2013, and also gave me a fax number to fax in a copy of the Form 9. The fax number never answered. I looked up a fax number for the W-SRO online on their RO website and found one, tried it, never answered. I told him I could laos send it certified mail, but was concerned about mail time and he said they go by the date the appeal letter is postmarked. So, that same day 3/20/2013, I re-printed out my Form 9, added a cover letter citing that I sent it in on 3/1/2013 and all the actions I had taken to verify receipt and this time sent it certified mail. I have the tracking information: sent 3/20/2013, "available for pickup" in Winston-Salem on Saturday 3/23/2013 and "delivered" to the W-S RO on Monday 3/25/2013. I noticed on e-benefits on 4/1/2013 that it finally updated and said the case was decided and closed by the BVA. I thought this was unusual since I requested a hearing in DC, but waited another couple of weeks for a letter and never received anything, so I called VA last week to ask what the e-benefits "closed' meant. The customer service rep then told me the file was annotated as "no appeal received" so the claim was closed out! I told her the entire saga and she entered an inquiry to the W-SRO (this time giving me the inquiry tracking number) including my statements that it was sent twice (and the dates) asking that the RO search for the Form 9 and told me the RO would reply back to me in 7-10 days. She said if they find it, they will re-open the appeal. Any advice on what to do now? On top of having to appeal at all and several rounds in the ring with this particular RO, I feel like I have been put through the ringer yet once again! Thanks for any suggestions. Cheers, Ray

Berta, I am going to use the CUE language to start off my Form 9 response -- I really need to get that in. Then I am going to send a CUE letter to the Director of the W-S VARO. My challenge will be trying to get all the evidence and SMRs copied again (esp a CD of the CT Scan which would be down in DC, 3 hours away) in the next two weeks. If I say VA has all the evidence, do I also need to send another set of copies with the CUE letter to the RO Director?.. or do you think just the CUE letter by itself would work to generate a re-look down in W-S? THANKS A MILLION!!! Ray

Thanks, Carlie! I guess I could ask them if I could show the video... it is not me because they did not video my surgery, so too late for that, BUT it is the surgical procedure I had performed = mastoidectomy.

I wish I could do the video. The reasons I am choosing a face-to-face with someone are: (1) one can physically see the indented area of my skull where they covered the hole with muscle tissue - may be hard to show that on video; Also, I will have my laptop and will show (2) the CT Scan images where the skull loss is visible and (3) a video clip of mastoidectomy surgery (not mine) which shows how they use a drill to remove the skull bone to access the mastoid area to access the middle ear. Hoping all that helps. So I have a question... does the BVA hearing only remand back to the VARO, or can they award a rating? I guess I thought they could award and I wouldn't have to go thru the un-responsive VARO again... Cheers, Ray

I am going to send in my Form 9 tomorrow using the wording I have above (posted on 19 Feb 1:15pm). Just need to get that in before my appeal time runs out and to get that ball rolling. Have decided to ask for a hearing in DC rather than at my local VARO. Then, after my form 9 has been acknowledged, I plan to send a CUE letter to the attention of the SOC "Reply To" addressee citing all of the evidence submitted to VA that supports my claim, but is not included in the SOC... maybe something will be changed in my favor prior to any scheduled hearing date. If their "hard, objective" evidence is only an Xray taken in Jan 2010, and I had: 1. a second surgery with SMRs indicating additional drilling of the skull in May 2010 (while still on active duty) (sent to VA in Dec 2010), and 2. a CT Scan performed at my military hospital and a statement in my SMRs from my surgeon confirming skull loss in Aug 2010 (sent to the VA in Dec 2010), and 3. a C&P exam at my local VAMC confirming skull loss in Mar 2011... and none of the three items listed above are listed in the evidence, then maybe I stand a chance to get things corrected or at least have VA perform another Xray or CT scan to verify my claim. Cheers, Ray

Berta: "Has the VA ever made a statement that they didnt consider you for a schedular 100%? Did they say why?" Reply: They have never made that statement as far as I knew... I really am not aware of what you are asking, so I am assuming it has never been discussed with me. Ray

As you said, Berta, this gets complicated. I replied back that I had sent them all my evidence when I replied to the VCAA letter which was from VA's 2/14/2011 request. I had sent them all the evidence I had available (sent 12/27/2010 a copy of which is attached)... patricularly relying on the CT Scan and medical records from my surgeon identifying the skull loss and its measurements. I also sent them a CD containing the CT scans. All that was sent to them in December 2010, but they don't seem to include the information in the list of evidence directly -- at least they dont cite that they recieved a CT scan (which should have superceeded the Jan 2010 X-ray). Also, the evidence list does not cite the C&P exam I received for this claim on 3/2/2011 and in those progress notes the examining VA doctor confirmed the skull loss. That doctor reterated the same words from my surgeon on using a drilol to cut the skull and also cited my surgeon's notes and discussion with the radiologist who performed the CT scan and identified the skull loss and approxximate area. SCN_0002.pdf

Berta: "Also we need to know exactly what the 90% is for." Answer: Sleep Apnea 50, TMJ 30, Painful Scar R ear 30, Scar R ear 10, L Wrist Arthritis 10, Degen Disk Dis 10, Tinnitus 10, Rhinitis 10, Hiatal Hernia/GERD 10, Torn Meniscus R knee 10, Hypertension 10, Meniere's Syndrome 10 As I mentioned earlier, the additional 10% for skull loss (or it could be more) won't put me near enough to receive 100% comp. Ray

Hi again, Berta The full SSOC is 12 pages long... might be too big of a file to scan and attach. Most of it looks like boilerplate wording for the "Pertinent Laws; Regs; Rating Schdule Provisions... so I have just attached the first and last page. It will take me a while to gather all the stuff for the 90%... the skull loss is not related to most, but there are two that are somewhat related for "painful scar" and "meniere's syndrome." I don't have TDIU... is that the unemployable? I am not unemployable. Also, I am not trying to establish SMC. SCN_0001.pdf

Good Morning, Berta - thank you for your response. Regarding your statement: "I believe your opportunity to request a DRO hearing may have already passed." I am not sure. VA has denied this claim several times back to my initial award following retirement in 2010. I filed two 21-4138's back in Nov 2011 for this issue the first requesting a SOC on 11/1/2011, then another requesting VA assign a DRO to my appeal. In the first, I wrote "I am willing to consider attending an SOC Hearing with a VA hearing Officer, if offered." In the second, I wrote "I am very interested in the opportunity to participate in an informal conference with my appointed DRO to discuss my case since parts of the skull loss are visible to the eye (the skull was cut away and covered only by muscle tissue creating a sunken appearance)." I did not specifically state "I want a DRO hearing" so specifically. So I never received one. I just revieved my SSOC for this claim on 1/22/2013 which was the first communication I received received since filing those 4138's back in Nov 2011. The instructions for the Form 9 have a paragraph that states "HEARINGS BEFORE VA REGIONAL OFFICE PERSONNEL: A hearing before VA regional office personnel, instead of before a member of the BVA, is not a BVA hearing. You can request a hearing before VA regional office personnel by writing directly to the regional office. DO NOT use this form to request that kind of hearing. If you do, it will delay your appeal. You should also know that requesting a hearing before VA regional office personnel does not extend the time for filing this form." So, based on the above paragraph on the Form 9, I thought I could initivate a BVA appeal/hearing, then also ask for a Regional Office hearing. If it takes a year or more to get the BVA Hearing, perhaps in the interim I could get the RO hearing and possibly resolve the issue and, if favorable, cancel the BVA Hearing?? (I don't know, just a guess). This CUE is interesting. Would I put the CUE in this Form 9 or wait until the results of the BVA or RO hearing? Know I need the A.L. to help since some of this is getting above my knowledge and skill level, but I don't ahve time to see them before I need to get this Form 9 in (about 3 more weeks). I havent sent in the Form 9 yet but need to this week, so any other suggestions are welcome! Cheers, Ray

Hello Berta! Any thoughts or suggestions to my reply to your question which I posted above on 19 February 2013 - 01:15 PM? I'm hoping that a face to face hearing would be successful because I can point directly to surgeon statements of using a drill to remove the bone, pull up and show on my CT Scan where the bone is missing, and also if they physically see me, one can see where my skull bone is missing since where it was removed, they only covered the hole with muscle tissue so that it is sunken in. Thanks for all you do! Ray

Yep, agree... thus some of my frustration over the past 3 years this has gone on... I consider "skull loss" to be a pretty cut and dry issue. Don't know how CT Scans or notes and surgery transcripts from my surgeon could possible be "subjective" enough to even be having this tug of war with the VA. Evryone who has physically examined me has confirmed, but the evaluators down in Winston Salem don't seem to agree. They keep going back to an xray from my first C&P exam in Jan 2010 (an xray I have never seen). i dont know why it did not show the defect/hole, but I had more surgery after that Xray and the hole was enlarged and VA has never done a follow-up xray. It it is so clear on the CT scan that it jumps out at you. I sent the CT Scan to the VA on a CD that was made at Bethesda NNMC, but they never list it and I can only assume they have never looked at it. I have never had my surgeon write a separate letter saying "I used a drill to put a hole in his skill..." but I guess that would be something I should do for my Appeal hearing.

Yes, I believe I do... here is what I am putting into my Form 9: 38 USC Section 5107 "The Secretary shall consider all information and lay and medical evidence of record..." §3.102 "When... a reasonable doubt arises, such doubt will be resolved in favor of the claimant." I previously offered to attend informal hearings with my DRO and SOC officer which was never afforded. A. The VA has failed to consider all evidence provided to the VA and has not given precedence to statements made by physicians who have physically examined me and documented my skull loss on multiple occasions in service medical records, on DD Forms 2607, 2808 and 2697, and in VAMC C&P exams between the period 2009 and 2012 (including statements made by the surgeon who used a drill to cut through my skull). B. The "Evidence" listed in the Statement of Case only includes a VA C&P X-ray taken in Jan 2010 which is not able to show additional skull loss as a result of a second surgery conducted 5/7/2010 and documented in service medical records and on DD Form 2797 dated 5/19/2010. C. The "Evidence" listed in the Statement of Case does not include the CT Scan (X-ray) dated 8/31/2010 and sent to the VA 12/27/2010 (Statement in Support of Claim VA received 2/4/2011?) along with service medical records which document my skull loss “consistent with a mastoidectomy” along with service medical records from my surgeon indicating a “cortical defect secondary to mastoid surgery with a diameter of approximately two (2.0) cm.” D. The "Evidence" listed in the Statement of Case does not include my C&P Exam at the Lebanon VAMC conducted for this issue on 3/2/2011 which documents “concurrent underlying bone loss measuring 2 cm. in diameter.” E. The "Evidence" listed in the Statement of Case does not include photos taken during the 3/2/2011 C&P Exam at the Lebanon VAMC conducted for this issue, where one can visibly see the sunken area of my skull where muscle tissue was used to cover the hole resulting from the mastoid surgery skull loss. F. The VA has not provided a C&P Medical Examination Questionnaire which adequately covers an exam for a claim for skull loss (rating schedule code 5296). In being processed through two C&P Exams in early 2011 which were scheduled based on my claim for skull loss, the VAMC medical examiners were provided C&P Medical Examination Questionnaires for “Scars.” Nowhere in the questionnaire are there specific steps to examine or validate a claim for skull loss. Therefore, the VA has never provided me with a specific C&P examination for my issue. G. The SOC “Reasons and Bases” cites a VA C&P skull X-ray taken on 01/29/2010 as the only “objective” evidence submitted and does not cite the more detailed CT Scan which was submitted on 12/27/2010 as new evidence (and presumably received in Jan 2011) along with surgeon and radiologist medical notes confirming my claim. This CT Scan is not listed under SOC “Evidence.” Does this sound reasonable 9toa reasonable person) even though it has not seemed "reasonable" yet to the VA? Thanks a bunch! Ray

I am in the process of completing my VA Form 9 to do a BVA Appeal of a claim. My questions for the group are: 1. Would it be worthwhile to do my BVA Hearing at the Philly VARO which is about an hour away from me? Or would it be better just to go have my hearing in Washington DC which is 3 hours away from me? I know there is no compensation to travel to the hearing location. I am not in a big hurry -- it probably wont affect my overall comp rating of 90%. But having to only drive 2 hours roundtrip is certainly better than 6+ going into DC! 2. Do you think it will be OK to get Am. Leg. involved after I send in my Form 9. I need to get the Form 9 sent now since it has already been 30 days. I plan to send in, and then go to Am.Leg. to ask for assitance with the hearing. They are at the Philly VARO so its hard to go to them frequently to review paperwork, etc. I think my Form 9 is pretty clear to justify the request for BVA hearing. 3. I need to send the Form 9 in now to continue my claim, but I noticed at the bottom of the instructions that I might also be able to request a hearing at the Philly VARO in addition to filing the Form 9 to request a BVA hearing. I'm thinking the VARO hearing might be able to be processed faster than than the "out of DC" BVA hearing and it just might get me what I need. Is it possible to "double dip?" Any suggestions on that? Thanks for any suggestions --- and especially for the many benefits this forum provides! Cheers, Raybob

Thanks, Carlie. Yes my process started thru the BDD process. I filed my 21-526 on 1 Dec 2009, six months before retirement on 1 Jun 2010. I have one year from the decision letter dated 9 July 2010, but now have most of my additional supporting documentation, and especially the recent CT scan from 31 Sep 2010 and my doctor's annotation in my SMR verifying the existance and size of the hole. There are a few more doctor visit reports I am going to pick up next week. So now am working on pulling together this request (and a few others I am going back on that I disagree with). All BDD process claims are done thru a VA office (North Carolina?) that is different from my RO (Philly). And thanks, that case you attached was great and has some excellent words I can use.

John, Thanks for replying so fast. I saw several (about 8) VA doctors including an ENT doctor, but none of the progress notes from any of the exams mention the skull loss at all... it may have been overllooked by the doctor who was supposed to comment on it. The only comment was written on the xray disgnostic findings by a doctor. It does not even address the question skull loss at all (it does not say that there is no skull loss as claimed), just that 4 skull views were taken and that "There is no fracture of deformity or visible bone lesion. The visualized facial bones are unremarkable, visualized portions of the mandible are intact." --Ray

I filed my 21-526 last Dec which was 6 months before I retired. My C&P exams were all in Feb. In Jan, after filing, I was diagnosed with a torn medial meniscus via an MRI and went through physical therapy. Since this was after I filed, I was going to wait to file it as a new claim after I retired. During my C&P I discussed it with the VA doc and she included all the info in my C&P Progress Notes (she also was able to pull up the military's MRI report and look at it on her computer) and she added the diagnosis as "internal derangement of right knee with degenerative changes and tear of medial meniscus." However, when I received my rating, no mention or rating was included for this. There was another thing that VA found that I did not claim on my 21-526, but they DID include that in the rating section as service connected (at a 0 rating). I do have all the new SMRs from 1 Dec through 31 May that were not sent into the VA with the original claim. 1. Do I send this in as a reconsideration since it was included in the initial C&P exam notes? or as a NOD? 2. Should I just file a new claim for it to have it added? Thanks for any advice, Cheers, Ray

I had surgery while on active duty (retired this June 1st) and during each of 2 surgeries they cut and removed part of my skull (mastoidectomy and atticotomy). Annotations about cutting the skull with a diamond bit drill were in the SMRs I sent in with my original 21-526. During my C&P, they took skull xrays but the xray technician's report stated that the skull was normal. I intend to either file an NOD or request for reconsideration. During a followup appointment with my ENT doc (the surgeon) last month, I showed him the VA comments. He scoffed and sent me down to have an MRI done which verified (he showed me on the MRI) that I have a 2 centimeter diameter hole in my skull from the surgeries (would be 10% SC based on the size). He also added this comment in my medical records and verified it with the MRI folks. 1. When I re- file with VA, should I request this as a reconsideration or just a NOD? 2. Also, I now have a CD with the MRI images on it. Should I also send that in with my request? ...or 3. Should I just send in the medical record notes where the doctor verified the 2cm hole? (I am hesitant to send the CD if there is a chance the VA could lose it... not sure to send in or if they reschedule me for a follow-on C&P that I take it with me to that appointment instead. I can always get another copy of the CD though.) Thanks for any advice, Cheers, Ray

Thanks guys for the advice, I will at least file a NOD and see what they do. At the time, the Air Force only offered PRK to pilots and members who were deploying... so I had Lasik donw while staioned at the Pentagon....now PRK is open to all AF on actove duty, but they still only do PRK. Since it was so long ago, I dont remember if they said I needed a follow-on for tear ducts, but it was not in the literature. The military did get the benefit of improved eyesight and no glasses for the rest of my career after surgery. I did see the military optometrist to discuss before I had the surgery done (it is in my records).B But the key question I had was that since I was active duty, does that mean any elective surgery outside of the military is never covered? I would think it would be SC unless I did something unlawful or not allowed by regs. Cheers, Ray

While on active duty in 2002 (I just retired this past June 1st) I had Lasik surgery done by an outside physician (who also did Tiger Woods!). I developed dry-eye as documented in my SMRs which is treated with eye drops. On my C&P determination, VA said that since I had it done outside of the military as an elective procedure, even though I was on AD, they consider the dry-eye condition to NOT be service connected. Are all "elective" surgery and any resulting conditions treated this way? I chose Lasik as the Air Force only does PRK. I wasn't sure whether I should file a NOD on this finding. Thanks for any advice. Cheers, Ray

Thanks, Pete, answers my question perfectly... I wont be in for that long, so at least I know. Appreciate the quick reply! Cheers, Ray