The Dva Changed The Wording On My Claim.

[Guest Elmer]

Hi, I found out that the DVA has changed the wording of my claim. They changed it so instead of having two different service connected medical problems. They are combined as one and the wording is nothing like it was when filed. I first noticed this change, when my claim was being sent to the Board of Veterans' Appeal. I wrote a letter to the DVA and stated in the letter how the claim was writen when I filed it. I also requested that the letter be sent to the Board of Veterans' Appeal. They never made that change. Now the false wording has gone through the Board of Veterans' Appeal and the Court. I have an attorney. I found out the wording was not right when he sent me a copy of a letter they sent the DVA. I called him and told him the problem but he didn't sound like I have a way of getting it right. The DVA changed the wording in their favor. I know they have violated the law but what can I do? I sent a letter to my attorney with copies of the wording when the DAV and I filed the claim.

[Guest Berta]

Hi, Yes, I have had several done in service and many Xrays, MRIs and EMGs done on my head and neck. I have had several VA doctors state in my medical records that I have migaines Clasic. Also an EMG found that I have nerve damage in my cervical spine. Also they state I have cervical disc disease and several other problems in my neck. That is my biggest problem. My neck is so bad I have to take morphine to help with the pain. Here is the bad part. My attorney said he is trying to get me 30% for migraine but he said I can't get anything for my severe cervical neuropothy. Can anyone tell me why I can't get anything on my service connected sevical spine. Thanks for all the help.

The VA rates and grants SC cervical disc disease- such as within:

http://www.va.gov/vetapp05/files2/0509000.txt

and they grant cervical neuropathy too:

http://www.va.gov/vetapp05/files1/0504420.txt

[tec]

sort of off topic and on..Berta please jump in with advice if any or help.

First, Elmer, is DVA=DAV?

My claims are thru DAV too if that is what dva is.

I was not aware that DAV rewrote paperwork...all mine that I submitted to VA thru dav, was given to va that way, in fact they just took my papers and gave them to va as they got them. Am i missing something? Was DAV supposed to redo my writeup and submit it initially?

I know what you mean on your neck elmer. Right now my SC is the knees and ankles..and the cervical is one of the things I am trying to get as residual from the numerous falls over the years from knees giving or locking, and hitting head on the floor and things and whiplash from many falls. xray and mri show mild djd and significant narrowing of the foraminal whatever in there. Don't know how hard that will be to get connected, but I certainly know the pain you have..it is terrible many days. I take oxycontin and oxycodone for the knees and all of the pain.

My doctor is writing a letter to state the likely as not caused by the falls and whiplash, so hopefully..but I wish you luck. I don't know what all those things are you have as technical terms and what Berta called them but I know that there are many times that the nerves and things up the back of my neck literally are agonzing..10 on the scale is not high enough and then the joint another story in itself....t

[Guest Elmer]

sort of off topic and on..Berta please jump in with advice if any or help.

First, Elmer, is DVA=DAV?

My claims are thru DAV too if that is what dva is.

I was not aware that DAV rewrote paperwork...all mine that I submitted to VA thru dav, was given to va that way, in fact they just took my papers and gave them to va as they got them. Am i missing something? Was DAV supposed to redo my writeup and submit it initially?

I know what you mean on your neck elmer. Right now my SC is the knees and ankles..and the cervical is one of the things I am trying to get as residual from the numerous falls over the years from knees giving or locking, and hitting head on the floor and things and whiplash from many falls. xray and mri show mild djd and significant narrowing of the foraminal whatever in there. Don't know how hard that will be to get connected, but I certainly know the pain you have..it is terrible many days. I take oxycontin and oxycodone for the knees and all of the pain.

My doctor is writing a letter to state the likely as not caused by the falls and whiplash, so hopefully..but I wish you luck. I don't know what all those things are you have as technical terms and what Berta called them but I know that there are many times that the nerves and things up the back of my neck literally are agonzing..10 on the scale is not high enough and then the joint another story in itself....t

I was on Oxycotin and Oxycodone but they have made all but a few veterans, here at K. C. switch to another pain drug. I picked morphine. It doesn't do me much good. The Oxycotin and Oxycodone helped me more. I really think my attorney has put it to me. He has been going along with the VA on not doing anything on my cervical spine. My attorney didn't bring up my cervical spine problem, when my claim was in the U. S. court of Appeals so I may be srewed by my attorney. If my attorney wont go to bat for me on my neck problem, is there any way I can get it done another way? Short of filing a new claim. Can I fire him if another attorney will take my claim? My claim has been to the Board of Veterans' Appeals two time. The first time the Board remanded my claim back to the VARO for them to set up a C&P exam on my neck disorder. Thanks

[Guest Jim S.]

In a case I found at COVA "KENNETH W. PAYNE, APPELLANT vs. EDWARD J. DERWINSKI, SECRETARY OF

VETERANS AFFAIRS," The BVA Refusal to acknowledge or act upon Veterans claim for a Right knee disability due to his 30% left knee disability and should be evaluated for a higher rate.

8 U.S.C. § 4004 (a),©,(d)(1) (1988). The BVA is not free to ignore regulations which the VA has adopted. § 4004(a),©. Once a veteran raises a well grounded claim to which a regulation could reasonably apply, the BVA must apply that regulation or give the reasons and bases explaining why it is not applicable. See Gilbert v. Derwinski, U.S. Vet. App. No. 89-53 (Oct. 12, 1990). Thus, the BVA cannot, as it did in the present case through its failure to consider 38 C.F.R. § 3.310 in the context of the appellant's right knee allegations, refuse to acknowledge and act upon relevant assertions and issues which the record clearly shows. Such a refusal in light of § 4004(a),©,(d)(1) is "arbitrary, capricious, an abuse of discretion," and "not in accordance with law," and must be set aside as such. 38 U.S.C. § 4061 (a)(3) (1988). We therefore vacate the BVA decision in this matter and remand this case back to the BVA for a determination by it (or the agency of original jurisdiction) which takes into account the condition of the right knee.

the regulation 38 C.F.R. § 3.310(a) (1989) states: 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.

The regulation pretty much explains itself. All you have to do is show the medical evidence to support it.

Jim S.

[Guest Berta]

I was on Oxycotin and Oxycodone but they have made all but a few veterans, here at K. C. switch to another pain drug. I picked morphine. It doesn't do me much good. The Oxycotin and Oxycodone helped me more. I really think my attorney has put it to me. He has been going along with the VA on not doing anything on my cervical spine. My attorney didn't bring up my cervical spine problem, when my claim was in the U. S. court of Appeals so I may be srewed by my attorney. If my attorney wont go to bat for me on my neck problem, is there any way I can get it done another way? Short of filing a new claim. Can I fire him if another attorney will take my claim? My claim has been to the Board of Veterans' Appeals two time. The first time the Board remanded my claim back to the VARO for them to set up a C&P exam on my neck disorder. Thanks

Do you have link to your BVA remand at the BVA web site?

Do you mean you have an additional claim at the CAVC?

Edited November 3, 2005 by Berta

[Guest Elmer]

In a case I found at COVA "KENNETH W. PAYNE, APPELLANT vs. EDWARD J. DERWINSKI, SECRETARY OF

VETERANS AFFAIRS," The BVA Refusal to acknowledge or act upon Veterans claim for a Right knee disability due to his 30% left knee disability and should be evaluated for a higher rate.

8 U.S.C. § 4004 (a),©,(d)(1) (1988). The BVA is not free to ignore regulations which the VA has adopted. § 4004(a),©. Once a veteran raises a well grounded claim to which a regulation could reasonably apply, the BVA must apply that regulation or give the reasons and bases explaining why it is not applicable. See Gilbert v. Derwinski, U.S. Vet. App. No. 89-53 (Oct. 12, 1990). Thus, the BVA cannot, as it did in the present case through its failure to consider 38 C.F.R. § 3.310 in the context of the appellant's right knee allegations, refuse to acknowledge and act upon relevant assertions and issues which the record clearly shows. Such a refusal in light of § 4004(a),©,(d)(1) is "arbitrary, capricious, an abuse of discretion," and "not in accordance with law," and must be set aside as such. 38 U.S.C. § 4061 (a)(3) (1988). We therefore vacate the BVA decision in this matter and remand this case back to the BVA for a determination by it (or the agency of original jurisdiction) which takes into account the condition of the right knee.

the regulation 38 C.F.R. § 3.310(a) (1989) states: 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.

Thank you Jim S. for this information. I will send it to my attorney and see what he has to say about it. When I refured DVA, I should have said VARO. One question. If my attorney fails to act on this issue, can I send all my information , on my cervical spine, directly to the BVA? My attorney didn't address my cervical spine condition at the BVA. Would that hurt my chances of getting the BVA to act? Thank you all for the help, Elmer

The regulation pretty much explains itself. All you have to do is show the medical evidence to support it.

Jim S.