.desperally In Need Of Advice

[JSM754]

I was granted my Motion for Reconsideration of a BVA Decision, which I'm told doesn't happen very often. Does anyone know what my chances are that the OBVIOUS ERRORS found by the RECONSIDERATION Panel will get corrected????

[Berta]

I have no idea what you can expect-

A BVA Lawyers name should be at the bottom of the order-

I suggest calling them- I used the two numbers I gave you but one was for the FOIA attorney regarding something else I had there-the BVA operator can switch if you get their FOIA lawyer-

I also have Chairman of the Board , James Terry's phone number and a list of numerous other BVA key personnel lawyers with their current phone numbers-

lots of numbers-dint know which one to give you---- but I think you should just call their main number BVA (which I cant find!) and ask to speak to the attorney who prepared the decision that granted the motion.

or tell me who signed the order and maybe I have their desk phone number.

[Vike17]

JSM754,

http://www.va.gov/vetapp05/files2/0507182.txt

After reading the BVA decision, it looks like you are confusing the issue of being reduced from 40% to 20% in one evalution. The VA decided to do this because it was mor beneficial to you as a whole (rating wise) to rate you under multiple disabilities which affected different bodily etiologies rather than one seperate rating. The BVA decsion stated;

"In a rating decision of November 1996, the RO discontinued

the previous 40 percent evaluation under Diagnostic Code 5293

for the postoperative residuals of spondylolysis of the

cervical spine with radiculitis to award a more favorable

combined evaluation by separating the symptoms, effective in

June 1991. In place of the single evaluation, the RO granted

a combined 50 percent evaluation for the veteran's cervical

spine disorder and its various related disabilities, which

consisted of a 20 percent evaluation for the postoperative

residuals of spondylolysis of the cervical spine with

limitation of motion; a 20 percent evaluation for radiculitis

of the left lower extremity; and a 20 percent evaluation for

radiculitis of the left upper extremity"

Also the 20% rating was increased to 30% in a rating decision from your RO in 2002 with an effective date of Oct. 5. 2002. Then two years later your RO conceded the effective was March, 1998, in another rating decision.

Futhermore, this wrangling over the 20% to 30% to an eventual 40% actually is a moot point because your RO granted 100% due to IU retro back to March of 1998 also. I don't see any way finacially this appeal could be of any benefit. There isn't the possibility of an SMC according to your medical records such as LOU and your 40% was initially reduced to 20% so the VA could assign a more favorable overall evalution which ultimately resulted in more monthly disability pay. I would also venture to guess that this more favorable combined rating probably enabled the VA to consider IU which wouldn't have been possible under the sole 40% evaluation. The only way this could benefit you is if the VA determined that you should have been receiving a 40% instead of the 20% and 30% combined with the two 20% prior to March 1998. Based on whatthe BVA stated in their decision;

"The Board notes that the 30 percent evaluation now in effect

for the veteran's service-connected residuals of

spondylolysis of the cervical spine was based primarily on

the results of a VA examination in May 2002. The effective

date established for that evaluation was March 10, 1998,

considered the date of receipt of the veteran's claim for

increase. Based on a review of the entire record, there is

no evidence that, for the period prior to March 10, 1998, the

veteran was suffering from orthopedic symptomatology

associated with her cervical spine sufficient to warrant the

assignment of an evaluation in excess of the 20 percent then

in effect. Accordingly, the veteran's claim must be denied.

In reaching the conclusions above the Board has considered

the applicability of the benefit of the doubt doctrine.

However, as the preponderance of the evidence is against the

veteran's claim, that doctrine is not applicable in the

instant appeal. See 38 U.S.C.A. § 5107( ; Gilbert v.

Derwinski, 1 Vet. App. 49, 55-57 (1991)."

... your Motion to reconsider was probably based on additional evidence that the BVA was unaware of and they want to take another look see.

Vike 17

[JSM754]

JSM754,

http://www.va.gov/vetapp05/files2/0507182.txt

After reading the BVA decision, it looks like you are confusing the issue of being reduced from 40% to 20% in one evalution. The VA decided to do this because it was mor beneficial to you as a whole (rating wise) to rate you under multiple disabilities which affected different bodily etiologies rather than one seperate rating. The BVA decsion stated;

"In a rating decision of November 1996, the RO discontinued

the previous 40 percent evaluation under Diagnostic Code 5293

for the postoperative residuals of spondylolysis of the

cervical spine with radiculitis to award a more favorable

combined evaluation by separating the symptoms, effective in

June 1991. In place of the single evaluation, the RO granted

a combined 50 percent evaluation for the veteran's cervical

spine disorder and its various related disabilities, which

consisted of a 20 percent evaluation for the postoperative

residuals of spondylolysis of the cervical spine with

limitation of motion; a 20 percent evaluation for radiculitis

of the left lower extremity; and a 20 percent evaluation for

radiculitis of the left upper extremity"

Also the 20% rating was increased to 30% in a rating decision from your RO in 2002 with an effective date of Oct. 5. 2002. Then two years later your RO conceded the effective was March, 1998, in another rating decision.

Futhermore, this wrangling over the 20% to 30% to an eventual 40% actually is a moot point because your RO granted 100% due to IU retro back to March of 1998 also. I don't see any way finacially this appeal could be of any benefit. There isn't the possibility of an SMC according to your medical records such as LOU and your 40% was initially reduced to 20% so the VA could assign a more favorable overall evalution which ultimately resulted in more monthly disability pay. I would also venture to guess that this more favorable combined rating probably enabled the VA to consider IU which wouldn't have been possible under the sole 40% evaluation. The only way this could benefit you is if the VA determined that you should have been receiving a 40% instead of the 20% and 30% combined with the two 20% prior to March 1998. Based on whatthe BVA stated in their decision;

"The Board notes that the 30 percent evaluation now in effect

for the veteran's service-connected residuals of

spondylolysis of the cervical spine was based primarily on

the results of a VA examination in May 2002. The effective

date established for that evaluation was March 10, 1998,

considered the date of receipt of the veteran's claim for

increase. Based on a review of the entire record, there is

no evidence that, for the period prior to March 10, 1998, the

veteran was suffering from orthopedic symptomatology

associated with her cervical spine sufficient to warrant the

assignment of an evaluation in excess of the 20 percent then

in effect. Accordingly, the veteran's claim must be denied.

In reaching the conclusions above the Board has considered

the applicability of the benefit of the doubt doctrine.

However, as the preponderance of the evidence is against the

veteran's claim, that doctrine is not applicable in the

instant appeal. See 38 U.S.C.A. § 5107( B) ; Gilbert v.

Derwinski, 1 Vet. App. 49, 55-57 (1991)."

... your Motion to reconsider was probably based on additional evidence that the BVA was unaware of and they want to take another look see.

Vike 17

Sorry it has taken so long to get back to you. The Board's Decision dated 14 March 2005, denying an Earlier Effective Date as it pertained to the Cervical Spine Condition,was nothing more to me than temp setback. As soon as found out that the issue before the BVA for review, I knew I had a problem. I knew for a fact that the NYRO had screwed me, and there was absolutely no way I would get a Favorable Decision. You may be missing the point, I was issued Docket Number 95-30-377 in September 1995, and was closed as Advanced Allowed in the Field 21 October 1998, no matter how you slice it, 10 March 1998 was taken as a Second Appeal in Error because the first Appeal was still open. In addition had it not been for the Social Security Administration needing Medical Records from Claims Folder which was and still in Washington this is when I found an unsigned Certification of Appeal, dated 11/24/2004, that was never filed with the Board. So much for All Evidence of Record has been considered. This is no longer about any percentages those issues had long been resolved, it's about and only about the Date I Filed for an increased rating. The Cervical Spine Condition was still in Appeal Status at the time it was upgraded from 20% to 30% and made the Effective Date 5 October 2000, the Date of a Personal Hearing where in Error they took the Cervical Spine Condition as a reopened Claim. The more I disputed the Effective the worse things got. Once I was granted P&T IU I was given three different Effective Dates the last one being 10 March 1998. Once they realized that my Cervical Spine Condition was still in an Active and Open Appeal Status they made IU an issue which I could not understand because I never argued about an earlier Effective Date for IU.What I didn't know at the time, is that they couldn't grant the 60% back to June 1991 it all would have to be moved as a whole, 13 Years at 100%. It now has become Cover Up time at my expense. So this is the reason I am where I am today. I knew I had been screwed, but I just had to prove it.

[JSM754]

JSM754,

http://www.va.gov/vetapp05/files2/0507182.txt

After reading the BVA decision, it looks like you are confusing the issue of being reduced from 40% to 20% in one evalution. The VA decided to do this because it was mor beneficial to you as a whole (rating wise) to rate you under multiple disabilities which affected different bodily etiologies rather than one seperate rating. The BVA decsion stated;

"In a rating decision of November 1996, the RO discontinued

the previous 40 percent evaluation under Diagnostic Code 5293

for the postoperative residuals of spondylolysis of the

cervical spine with radiculitis to award a more favorable

combined evaluation by separating the symptoms, effective in

June 1991. In place of the single evaluation, the RO granted

a combined 50 percent evaluation for the veteran's cervical

spine disorder and its various related disabilities, which

consisted of a 20 percent evaluation for the postoperative

residuals of spondylolysis of the cervical spine with

limitation of motion; a 20 percent evaluation for radiculitis

of the left lower extremity; and a 20 percent evaluation for

radiculitis of the left upper extremity"

Also the 20% rating was increased to 30% in a rating decision from your RO in 2002 with an effective date of Oct. 5. 2002. Then two years later your RO conceded the effective was March, 1998, in another rating decision.

Futhermore, this wrangling over the 20% to 30% to an eventual 40% actually is a moot point because your RO granted 100% due to IU retro back to March of 1998 also. I don't see any way finacially this appeal could be of any benefit. There isn't the possibility of an SMC according to your medical records such as LOU and your 40% was initially reduced to 20% so the VA could assign a more favorable overall evalution which ultimately resulted in more monthly disability pay. I would also venture to guess that this more favorable combined rating probably enabled the VA to consider IU which wouldn't have been possible under the sole 40% evaluation. The only way this could benefit you is if the VA determined that you should have been receiving a 40% instead of the 20% and 30% combined with the two 20% prior to March 1998. Based on whatthe BVA stated in their decision;

"The Board notes that the 30 percent evaluation now in effect

for the veteran's service-connected residuals of

spondylolysis of the cervical spine was based primarily on

the results of a VA examination in May 2002. The effective

date established for that evaluation was March 10, 1998,

considered the date of receipt of the veteran's claim for

increase. Based on a review of the entire record, there is

no evidence that, for the period prior to March 10, 1998, the

veteran was suffering from orthopedic symptomatology

associated with her cervical spine sufficient to warrant the

assignment of an evaluation in excess of the 20 percent then

in effect. Accordingly, the veteran's claim must be denied.

In reaching the conclusions above the Board has considered

the applicability of the benefit of the doubt doctrine.

However, as the preponderance of the evidence is against the

veteran's claim, that doctrine is not applicable in the

instant appeal. See 38 U.S.C.A. § 5107( B) ; Gilbert v.

Derwinski, 1 Vet. App. 49, 55-57 (1991)."

... your Motion to reconsider was probably based on additional evidence that the BVA was unaware of and they want to take another look see.

Vike 17

Sorry it has taken so long to get back to you. The Board's Decision dated 14 March 2005, denying an Earlier Effective Date as it pertained to the Cervical Spine Condition,was nothing more to me than temp setback. As soon as found out that the issue before the BVA for review, I knew I had a problem. I knew for a fact that the NYRO had screwed me, and there was absolutely no way I would get a Favorable Decision. You may be missing the point, I was issued Docket Number 95-30-377 in September 1995, and was closed as Advanced Allowed in the Field 21 October 1998, no matter how you slice it, 10 March 1998 was taken as a Second Appeal in Error because the first Appeal was still open. In addition had it not been for the Social Security Administration needing Medical Records from Claims Folder which was and still in Washington this is when I found an unsigned Certification of Appeal, dated 11/24/2004, that was never filed with the Board. So much for All Evidence of Record has been considered. This is no longer about any percentages those issues had long been resolved, it's about and only about the Date I Filed for an increased rating. The Cervical Spine Condition was still in Appeal Status at the time it was upgraded from 20% to 30% and made the Effective Date 5 October 2000, the Date of a Personal Hearing where in Error they took the Cervical Spine Condition as a reopened Claim. The more I disputed the Effective the worse things got. Once I was granted P&T IU I was given three different Effective Dates the last one being 10 March 1998. Once they realized that my Cervical Spine Condition was still in an Active and Open Appeal Status they made IU an issue which I could not understand because I never argued about an earlier Effective Date for IU.What I didn't know at the time, is that they couldn't grant the 60% back to June 1991 it all would have to be moved as a whole, 13 Years at 100%. It now has become Cover Up time at my expense. So this is the reason I am where I am today. I knew I had been screwed, but I just had to prove it.

[JSM754]

Sorry it has taken so long to get back to you. The Board's Decision dated 14 March 2005, denying an Earlier Effective Date as it pertained to the Cervical Spine Condition,was nothing more to me than temp setback. As soon as found out that the issue before the BVA for review, I knew I had a problem. I knew for a fact that the NYRO had screwed me, and there was absolutely no way I would get a Favorable Decision. You may be missing the point, I was issued Docket Number 95-30-377 in September 1995, and was closed as Advanced Allowed in the Field 21 October 1998, no matter how you slice it, 10 March 1998 was taken as a Second Appeal in Error because the first Appeal was still open. In addition had it not been for the Social Security Administration needing Medical Records from Claims Folder which was and still in Washington this is when I found an unsigned Certification of Appeal, dated 11/24/2004, that was never filed with the Board. So much for All Evidence of Record has been considered. This is no longer about any percentages those issues had long been resolved, it's about and only about the Date I Filed for an increased rating. The Cervical Spine Condition was still in Appeal Status at the time it was upgraded from 20% to 30% and made the Effective Date 5 October 2000, the Date of a Personal Hearing where in Error they took the Cervical Spine Condition as a reopened Claim. The more I disputed the Effective the worse things got. Once I was granted P&T IU I was given three different Effective Dates the last one being 10 March 1998. Once they realized that my Cervical Spine Condition was still in an Active and Open Appeal Status they made IU an issue which I could not understand because I never argued about an earlier Effective Date for IU.What I didn't know at the time, is that they couldn't grant the 60% back to June 1991 it all would have to be moved as a whole, 13 Years at 100%. It now has become Cover Up time at my expense. So this is the reason I am where I am today. I knew I had been screwed, but I just had to prove it.

I'm not sure you received my reply. There seemed to have been a problem when I tried to reply to you. I have until Monday 16 July 2007 to present further argument.(With Overnight Mail) There is no doubt that this has not happened to only me. What angers me the most and should anger every Disabled Veteran, is the fact of errors being made at the Veteran's Expense. The VA screws up and I and you are left to pay the price. I mean no disrespect to you, but you read the Board's Decision and decided I was the one confused just as they had. The Issue that was Certified as Appeal Ready for Review by the NYRO, there was no way in Hell I would be granted favorable relief. As far as "All Evidence of Record," has been considered if thatwere true the NYRO would have caught their Error 13 Years ago. Make no mistake I intend to go all the way.

[Vike17]

JSM754,

You're correct, the VA is out to screw you! There's no question about it! Hell, the New York RO is even out to get you since they, and not the BVA, were the ones that awarded the IU retroactive back to 1998!

I wish you the best of luck with your issues with VA.

Vike 17