Dro Hearing Today

[betrayed]

1230 TODAY. My last chance to get some stupid things fixed b4 it goes to the BVA. Been working on my brief, script, or what ever you want to call it for a week and I am fried. Actually its a 14 page typed statement in support of claim with about 20 pages of new evidence attached. I plan to read the statement in support of claim as my presentation, and then hand it to the DRO when I am done.

I am putting allot of hope into this Office of General Counsel Precedent Opinion

Department of Veterans Affairs, Office of General Counsel Precedent Opinions 15-95

VAOPGCPREC 15-95, VET. AFF. OP. GEN. COUNS. PREC. 15-95, 1995

Applicability of the Final Stipulation and Order Entered in the Nehmer Litigation

The Court of Veterans Appeals has held that, under certain circumstances, VA is obligated to consider whether a claimant is entitled to benefits under a particular law, regardless of whether the claimant specifically raised the issue of entitlement under that law. Douglas v. Derwinski, 2 Vet. App. 435, 439 (1992) (en banc) (Where evidence of record supports entitlement under a statute or regulation, VA must consider such entitlement, notwithstanding that the issue was not raised by the claimant.); Schafrath v. Derwinski, 1 Vet. App. 589, 592-93 (1991) (Where the potential application of a regulation is apparent from the record of a well-grounded claim, VA must consider the regulation, regardless of whether the claimant called it to VA's attention.); Akles v. Derwinski, 1 Vet. App. 118, 121 (1991)

I am fighting to have effective dates changed, during my first C&P the doctor and I talked about depression, sleep apnea, and chronic urinary trac infections (chronic prostatitus). Anyway she made notes in the C&P Report about all of this, even included sleep apnea in the diagnosis section. At that time I did not have a claim in for these. That claim came later and thus i have a later EED. I am arguing the above opinion relates to my situation, that they knew of these conditions and they had a obligation to do a infered claim on them. They didnt so now I am requesting the EED be moved back to day after seperation. This would mean a additional two years of retro pay = down payment on new home.

I found this precedent opinion on my Veterans Benifits manual (Lexis Nexus CDROM) got to love that thing!

[Boats]

Looks good, good luck I have the same situation that goes back to my first C&P 10 years ago, was a trusting soul back then...lol. But found out they should of inferred another 6 chronic items that showed up at then. Now I am having to fight to get them SC even though they are in SMR's.

Good luck

Boats

[Philip Rogers]

Generally the VA acknowledges additional conditions found by acknowledging them and calling them NSC. If they failed to do that you have a fair chance of winning. jmo

pr

[Berta]

Jim- Good Luck today-

Can this also help you?

I used it to support my SMC CUE claim:

http://64.233.169.104/custom?q=cache:swdyN...326217334650925

Go down to 3.09 and 3.10 -I might as well post the parts here-it might help someone else too in hyperspace:

3.09 ISSUE

a. General. Clearly state all issues of entitlement identified by the claimant, or those which can be reasonably inferred from the facts or circumstances of the claim. If there is more than one issue, list the issues by number. In RBA, the issues appear under the identifier “ISSUE.” In RBA 2000, the issues appear under the identifier “DECISION.”

b. Compensation Ratings. Consider all claimed disabilities in the rating decision. Also consider all chronic disabilities found in the service records even if they were not claimed. This is to be done on the original rating, or subsequently in cases where additional service medical records are received following an initial rating decision. Do not consider any of the following conditions unless specifically claimed:

(1) Acute and transitory disorders without residual disability;

(2) Noncompensable residual disability from venereal disease;

(3) Disabilities noted only on an induction examination, or disorders recorded by history only;

(4) Disabilities found by authorization not to have been incurred "in line of duty" (see pt. IV, par. 11.03); and

(5) Clinical findings such as cholesterol or blood sugar levels that are not generally recognized as "disabilities" or subject to service connection.

3.10 INFERRED ISSUES AND ANCILLARY BENEFITS

An issue is sometimes derived from the consideration or outcome of a related issue. The issue, decision and reasons and bases sections of the rating must explicitly address these inferred issues. Often the primary and inferred issues share the same fact-pattern, as when a psychosis is being evaluated and competency is confirmed. In such instances, the inferred issue may be incorporated in the same issue, decision, and reasons and bases numbered item as the primary issue. An example of such an issue statement might be "1. Evaluation of psychotic disorder currently evaluated as 30 percent disabling; Competency to handle disbursement of funds." Although each of the two issues would be separately justified within the same reasons and bases item, the sentences dedicated to the facts would be shared by both. If the primary and inferred issues are each itemized in separate issue, decision, and reasons and bases paragraphs, discussion of a common fact-pattern may be confined to the reasons and bases of the primary issue.

(That was critical part there- the rest is under 3.10)

a. Special Monthly Compensation (SMC). Consider entitlement to SMC as an issue in every case where there is a severe degree of disability involving the loss or loss of use of an extremity or sensory organ or any other functional loss providing entitlement to SMC. If SMC is not granted, the reason must be indicated.

b. Aid & Attendance or Housebound. Whenever a single 100 percent evaluation is assigned in compensation or pension cases, consider entitlement to aid and attendance. If aid and attendance is not payable, consider entitlement to housebound benefits. In pension cases use rating code 19C in the rating conclusion when both aid and attendance and housebound benefits are denied.

c. Retroactive Disability Pension. If retroactive disability pension is not claimed, but a qualifying disability may exist, the claimant should be advised that retroactive benefits may be payable.

d. Dependents' Educational Assistance (DEA)—38 U.S.C. Chapter 35

(1) Whenever a schedular total evaluation is granted for a service-connected disability and there are eligible or potentially eligible claimants, one of the following statements must be included in the rating conclusion: "Basic eligibility to benefits under 38 U.S.C. chapter 35 is established from [date]," or "Basic eligibility to benefits under 38 U.S.C. chapter 35 is not established."

(2) When permanency is subsequently established, this fact will be reflected by citing the statement contained in subparagraph (1) above. The effective date will be the date of examination which established permanency, the date of new evidence requiring cancellation of future examination, or the date of review when a future examination is canceled.

(3) In death ratings, when the issue of service connection for cause of death is resolved and there are eligible or potentially eligible claimants for DEA, the following statement is required in the conclusion below the coded rating: "Basic eligibility to benefits under 38 U.S.C. chapter 35 [is] [is not] established."

(4) A surviving spouse may again establish eligibility for DIC either upon termination of the remarriage by death, divorce, or annulment, or upon the cessation of living with another person and holding herself or himself out openly to the public as that person’s spouse (38 U.S.C. 1311(e)). Eligibility for DIC under 38 U.S.C. 1311(e) does not establish the surviving spouse’s entitlement to ancillary benefits such as CHAMPVA, DEA or loan guaranty benefits. (VAOPGCPREC 13-98)

e. Psychosis—38 U.S.C. 1702. Whenever a claim for service connection for a psychosis based on wartime service is denied, determine entitlement to service connection for treatment purposes under 38 U.S.C. 1702. Code the decision "48. Active Psychosis—SC for Treatment Purposes Only," or "49. Active Psychosis—Not SC; 38 U.S.C. 1702."

f. Consideration Under 38 CFR 3.324. Consideration of entitlement to a 10 percent rating under 38 CFR 3.324 must be shown as an issue in all ratings, including confirmed ratings, when a

veteran has no compensable evaluation but more than one noncompensable evaluation. If denied, the reasons and bases section of the rating must adequately address this issue.

g. Extra-Schedular Consideration Under 38 CFR 3.321((2). Consider an extra-schedular evaluation under 38 CFR 3.321(B)(2) whenever a pension claim fails to meet the schedular requirements for permanent and total disability. In the reasons and bases section of the rating discuss why pension can or cannot be granted under that regulation. If favorably considered, refer the rating to the VSCM recommending approval. A favorable decision will not require reference to extra-schedular consideration in the issue section of the rating. If denied, however, the issue must be identified and the veteran informed of the reason.

---------------------------------------------

I specifcally wonder if 3.09 and then the first paragraph in 3.10 would help you.

It sure helped me-

One of my CUE claims was based on the fact that VA admitted to misdiagnosing my husband's deadly heart disease for 6 years-

yet they never listed or rated the very disability that caused his death.

The evidence that I proved to VA that Rod had been misdiagnosed for 6 years yet had heart disease -as well as the VACO Strategic Health Team report from the OGC

which agreed were all based solely on VA medical records - but also which the autopsy also proved.

My point was if a veteran died due to significant misdiagnosed heart disease -the fact remains that -although I am not a doctor, as a layperson his heart disease became evident to me- the VA admitted they malpracticed in this regard by no diagnosis or treatment of it, it was one of "multiple" misdiagnoses caused his death (Sec 1151 award) and the prior heart attack he had in 1988(called sinus infection) appeared in the narrative of his autopsied heart as past myocardial scar due to infarction.

Therefore -if VA cannot diagnose and rate a disability-

even after they got sued and had to pay me a settlement under FTCA-

that does not mean the disability should not have been rated posthumously.

The VA committed a CUE in their failure to acknowledge and rate the veteran's heart disease found within 6 years of records of VA 'medical' care.

This claim becomes critical to my other CUE on lack of SMC claim.

100% SC PTSD plus 100% CVA (1151 proven) and 100% CAD (Sec 1151)-never acknowledged- equals SMC.denied to the veteran.

Then they have Nehmer to deal with and to rate the misdiagnosed DMII.Also part of SMC.-That decision kicks in direct SC for all of above.

My long point here is-

a veteran never knows what disability might ultimately cause their death-and it could be a SC disability- or a death that a SC disability contributed too.

The first paragraph of 3.10 is critical for vets to use if they need it:

"An issue is sometimes derived from the consideration or outcome of a related issue. The issue, decision and reasons and bases sections of the rating must explicitly address these inferred issues."

This is why I was appalled when a friend of mine got 40% for diabetes, yet his clinical record and the VA DMII trainlng letter clearly show that he should have been awarded 100% and possibly SMC-as he had "issues" that were documented sever medical complications of his diabetes and yet the VA failed to address these multiple issues in their lack of "consideration or outcome of a related issue."

Not to mention how the VA has tried to get out of SMC in my husband's case.

They stated twice in the past-"the veteran was not eligible for SMC under any circumstance."

They will eat those words.

I also used OGC Pres Op # 30-97.-He was fully eligible for SMC at a very high level by virtue of all established VA case law and regulations.

I often say I think the ROs employe illiterates-

but I do think they can add quite well-

I think early on some of them can make a monetary assessment of a claim-

then stall it as long as they can-if it involves mega bucks and/or if they know the claimant has lousy representation. My claims involve both.

Edited August 23, 2007 by Berta

[Testvet]

Berta, I agree on your summation because in my case if the SC the heart conditions then it brings in another year of backpay, SMC at least 2 100% problems if not other problems, the housing grant of 50,000 becuase of the power chair due to heart disease, the auto grant what another 11,000 possibly aid and attendance I have to pay for yard work, and everything else that gets done around here as I am not physically capable of doing it they approved the PTSD at 100% and then attempted to close my file I have been appealing it ever since at least until they SC the cardiovascular problems I have no intention of quitting until I run out all of my options

[Berta]

You bet-continue the fight----

SMC and the ancillary benefits can sure add up to cash and better accommodations in the way one lives- and drives-

A Navy Seal I know got a inground pool as part of a special housing grant.

It is beautiful and necessary as he lost his leg in Vietnam and needed pool therapy for circulation problems.

Another vet friend of mine got an adaptive grant as he needed to have his entire bathroom redone due to his SC disabilities.

[betrayed]

I had my DRO Hearing on Thursday and I think it went pretty good. My DAV VSO told me the DRO I had was probably the most liberal DRO in the VARO. I Thought its about time I get a brake. I sat across the table from him, I saw he had my written appeal to the BVA in front of him. I asked permission to record the hearing, he replied yes after I told him due to the depression, ptsd and drugs I take my memory is non existent, so I digitally recorded it and have it saved on my pc already. Several times during my presentation I forgot where I was and what I was talking about, and had to be reminded by the VSO or DRO. I asked for the following benefits:

Chronic pain 9422 currently ignored,

be rated at 70% effective 06/01/04

DJD in the Neck currently ignored

Rated or denied

Lacunar Disease currently ignored,

rated or denied

Incoordination of right upper extremity hand and arm currently SC 0%.

Be rated 60% disabling EED 6/1/04

Bulging Disk C6-7 currently SC 20%.

Rated at 40% due to the pain and the limitations placed on me by the medications.

Hemorrhoids – currently denied service connection

Service connected 10% with EED of 06/01/04

Vertigo/Benign Positional Vertigo/Meniere’s Disease currently SC 10%.

Rated as Vestibular Disequilibrium @ 30%

Depression currently rated at 70%,

70% EED changed to 06/01/04

TMJ currently denied.

granted at 10%, measurements taken during C&P justify 10%

Sleep Apnea Granted at 50% with a EED of 06/01/04. I had VA Sleep Apnea Test and failed them, I do meet the criteria, I have been issued a CPAP machine by the VAMC.

Heart Disease EED currently SC 60% EED 4/6/06

changed to 60% 06/01/04

The VSO did his presentation which was mostly questioning me. After each area he covered he asked the DRO if he had any questions and the answer was usually no.

Then I had my turn. I told the DRO reasons why I thought I deserved a change,

I told the DRO how during my first C&P which was 10 months after separation how I and the doctor discussed depression, chronic Prostatitus, and sleep apnea. And all this was documented in her report. I said that

“DVA Office of General Counsel Precedent Opinion 15-1995 states

The Court of Veterans Appeals has held that,

under certain circumstances, VA is obligated to consider whether a claimant is entitled to benefits under a particular law, regardless of whether the claimant specifically raised the issue of entitlement under that law. Douglas v. Derwinski, 2 Vet. App. 435, 439 (1992) (en banc) (Where evidence of record supports entitlement under a statute or regulation, VA must consider such entitlement, notwithstanding that the issue was not raised by the claimant.); Schafrath v. Derwinski, 1 Vet. App. 589, 592-93 (1991) (Where the potential application of a regulation is apparent from the record of a well-grounded claim, VA must consider the regulation, regardless of whether the claimant called it to VA's attention.); Akles v. Derwinski, 1 Vet. App. 118, 121 (1991) (VA should have inferred a claim for a particular benefit from the evidence submitted, although the claimant did not request consideration of entitlement to that benefit.).

I stated that my case was the same, the VA knew about these conditions and it was the VA’s requirement to file an inferred claim for these issues.

Because of the above General Counsel Precedent Opinion I request that I be awarded EED dates of 06/01/04 for depression, sleep apnea and Prostatitus.

When we talked about vertigo I told him that the last time I had it was when I was in the psyche ward. He said you were? In 2006? I replied yes I was in three times, my wife piped in and said also in 2007, he asked where and I said Ann Arbor VAMC.

I gave him a 14 page statement in support of case and 14 or 15 pages of medical evidence.

A small portion I read to him before I gave it to him. Some of it was printed in red ink, some bold and underlined, what ever to draw attention.

I told him I sent in (12) AUTHORIZATION AND CONSENT TO RELEASE INFORMATION TO THE DEPARTMENT OF VETERANS AFFAIRS (VA) forms.

The Veterans administration did not obtain any information from one of the doctors listed on the twelve forms, I learned this when I read what evidence was used to make the decision in the case.

I then read “VIOLATION Title 38 Part IV Chapter 51 Sub Chapter 1 § 5103A. Duty to assist

claimants:

(:) Assistance in obtaining records.

(1) As part of the assistance provided under subsection (a), the Secretary shall make reasonable efforts to obtain relevant records (including private records) that the claimant adequately identifies to the Secretary and authorizes the Secretary to obtain.”

The VA also did not notify me or my representative that they had failed to obtain records from those twelve doctors.

Then I read “VIOLATION. Title 38 Part IV Chapter 51 Sub Chapter 1 § 5103A. Duty to assist claimants: (B) Assistance in obtaining records. (2) Whenever the Secretary, after making such reasonable efforts, is unable to obtain all of the relevant records sought, the Secretary shall notify the claimant that the Secretary is unable to obtain records with respect to the claim. Such a notification shall--

(A) identify the records the Secretary is unable to obtain;

(B) briefly explain the efforts that the Secretary made to obtain those records; and

© describe any further action to be taken by the Secretary with respect to the claim.”

I told the DRO the C&P report states my SMR was not present, but it states I brought

a copy and she reviewed it.

I then asked the DRO have you seen my SMR?

That looks like Volume I and II over there,

and the DRO replied it was. I said that is over 600 pages long I know because I copied and paid for the copies for my SSDI Claim. I then said I pointed some things out to her but she did not review it. I looked at my wife who was sworn in at the start and asked her did the doctor review my records? My wife replied no.

Then I read “VIOLATION C&P Examiners not reviewing medical records

in accordance with paragraph 1.10.2 of the C&P Service Clinician’s Guide

states “Review the claims file, service records, medical records, previous C&P examinations, and BVA Remand if available”. The United States Court of Appeals for Veterans Claims has repeatedly held that such an exam is faulty and can not be used to rate a veteran.”

and

”VA Adjudication Procedures Manual M21-1

PART III Authorization and Clerical Procedures

Chapter 2 Claims Applications and initial actions

Subchapter 1. Claims Processing

201. General

The C&P Physical goes to the Pre-Determination Team who orders VA examinations and requests medical opinions. It prints and evaluates the completed examinations for sufficiency. This includes ensuring that all examinations were performed as ordered and that there is a response to any requested medical opinions.”

Its at this point where we have failure.

You’ve already been told that:

The report did not mention : Bulging Disc at C6-7, DJD in the neck, Frequent heartburn/Indigestion, Frequent Hemorrhoids, Chronic Skin problems

Kidney Stone Disease, Vertigo/Benign Positional Vertigo, Lacunar Disease/CVA Disease Hypocholestemia, Thoracic Outlet syndrome, Hearing Loss, Ringing in the Ears or Chronic left hip pain.

Not only did they (VARO) fail to return the report to the hospital for being insufficient.

They failed to infer claims for depression, sleep apnea and Prostatitus

I did not read all of this but it was included in the statement of support of claim

Chronic Pain – Evidence

This is being appealed because it has been ignored since the beginning. I understand that only one mental condition can be rated. My depression ratings’ earliest effective date is 50% on 7/25/05 and raised to 70% effective 09/29/06. It is my belief that I should have been granted a minimum of a 70% rating for 9422 Pain Disorder effective 06/01/04.

Synopsis: While still on active duty DR XXXXXXX treated me for chronic pain from July 2002 to the time I left MS. Which was December 2003. Doctor XXXXXX prescribed 20 mg oxycontin twice daily and tylox for break through pain. Doctor XXXX diagnosed me with Chronic pain Syndrome on 11/13/2002. Dr XXXXX record was submitted with my SMR, and VAF 21-256 on 1/21/05. Chronic Pain was listed on that VAF 21-256.

On Feb 3rd, 2005 I received a letter from the VA, I believe this to be a VCAA letter, but there was no VCAA election form included so I am unsure, regardless The very first sentence of the letter states “we are working on your service connected claim for chronic

pain” and goes on to list the other items I had listed on the VAF 21-256.

On March 24th 2005 DR XXXXXXX conducted a C&P Exam on me. In the opening paragraph of her report from the exam it states “He was recently discharged from military service and is claiming Chronic pain” other items were also listed but chronic pain is the first item listed.

When I received my award letter Chronic Pain was not mentioned once in the entire rating decision.

I listed Chronic Pain in my NOD of June 15th, 2005.

The VA ignored chronic pain in the statement of the case issued 2/13/2006 and the subsequent supplemental statement of the case issued 3/20/2007 .

VA Reasons and Bases for their decision: None, claim ignored.

Factual Evidence:

1. I was treated by DR XXXXX treated me for chronic pain from July 2002 to the time

I left MS. Which was December 2003.

2. I listed Chronic Pain was listed on the VAF 21-256 which was submitted Jan 21, 2005.

3. On Feb 3rd, 2005 I received a letter from the VA, The very first sentence of the letter

states “we are working on your service connected claim for chronic pain”.

4. On March 24th 2005 DR XXXXX conducted a C&P Exam, the opening paragraph

of her report “He was recently discharged from military service and is claiming

Chronic pain”. She also states “Examination notes from a Nephrologist state that he

has required numerous amounts of pain medication. This problem has definitely been

life altering and career altering.” On the final page of her report, the 5th of 8 diagnoses

she listed is Chronic Pain.

5. On June 15th, 2005 I filed a NOD and stated my disagreements, and that Chronic Pain

had been left out/ignored. When the statement of the case was issued again there was

no mention of Chronic Pain.

6.On 8/18/2005 Dr XXX from the Pain Clinic at the VAMC Ann Arbor states “He

does have local neck pain with neck extension and rotation as well as axial

compression with extension and rotation.” And on 10/6/2005 Dr XXXXXX stated “He

has pain with end of range of motion of the cervical spine. He has limitation of side

bending to the left. I recommend continuing the vicodin and trazadone (for sleep) and

encouraged stretching on a regular basis.”

7. On Jan 25, 2006 DR XXXXXXXXXX conducted a C&P Exam. In the Diagnosis

Under Axis I it states “Major depressive disorder secondary to pain syndrome”.

Under Axis IV it states “Serious pain Syndrome.”

Axis I refers to “Clinical Disorders” such as anxiety or schizophrenia and also “Other

Conditions That May Be a Focus of Clinical Attention” such as alcohol abuse;

Axis II refers to “Personality Disorders” and “Mental Retardation”;

Axis III refers to “General Medical Conditions” such as diabetes or a heart condition;

Axis IV refers to “Psychosocial and Environmental Problems” such as educational

problems, financial problems, unemployment;

Axis:V GAF

8. Dr XXXXX treated my neck pain with cervical manipulations 14 times in 2005 and

prescribed 10 lbs of cervical traction three times a day.

9. The Diagnostic and Statistical Manual for Mental Disorders, Fourth Edition (DSM-

IV) includes a specific category for somatic symptoms related to psychiatric origins

called the somatoform disorders. Specific somatoform disorders include pain disorder.

Pain disorder is marked by the presence of severe pain as the focus of the patient's

concern. This category of somatoform disorder covers a range of patients with a

variety of ailments, including chronic headaches, back problems, arthritis, muscle

aches and cramps, or pelvic pain. In some cases the patient's pain appears to be largely

due to psychological factors, but in other cases the pain is derived from a medical

condition as well as the patient's psychology.

Previous Doctors statements:

1. Dr XXXXXX Urologist stated on 5/16/02 “I think some of the pain that he is

having may be causalgia type pain possibly due to the large number of lithotripsies he

has”.

2. Doctor XXXXXXX Professor of Medicine University Alabama Medical School,

Nephrologist stated on 6/12/2002 “Mr. (Betrayed J) has chronic Nephrolithiasis

associated with renal colic and substantial discomfort as a result. He has required

numerous amounts of pain medication, and this problem has definitely been life

altering”.

Previously submitted evidence:

1. Dr xxxxx record, submitted Jan 21, 2005 with initial claim.

2. SMR Containing statements of Dr XXXXX AND Dr XXXXXX submitted Jan 21,

2005 with initial claim.

3. Dr XXXXXXX notes submitted again 11/28/2005 by DAV.

4. DR XXXXXX chart submitted by DAV on 11/28/2005.

Quality of Life issues:

1. I currently take Oxycodone and use fentanyl patches prescribed by XXXXXXX Ann

Arbor VAMC for pain management. My pain causes depression (as diagnosed by DR .

XXXXXXXXXX during a C&P exam) and anxiety, fatigue /weakness, and muscle

pain and stiffness. I am often unable to operate a motor vehicle due to the impairment

the medication causes on my body.

Veterans Benefit Manual, 2006 Edition, Part 1:Disability Benefits for veterans

Chapter 3 Compensation for veterans with Severe Service Connected Disabilities

3.5 Disability Compensation for mental disabilities other than Post-Traumatic Stress disorder.

As with other disability compensation claims, a veteran seeking service connection for a mental disorder must have the following:

-a medical diagnosis of current disability;

-evidence of in-service occurrence or aggravation of a disease, injury, or precipitating event; and medical evidence of a link or nexus between the in-service occurrence or aggravation of a disease or injury and the current disability.

-A mental disorder that was proximately caused by a service-connected physical condition may be service connected on a secondary basis. (DR XXXXXXXX C&P report states my depression is secondary to chronic pain.)

-Certain mental disorders may be service connected on a presumptive basis if first evidenced within one year after service or if manifest in a former prisoner of war.

3.5.1 Definition of a Mental Disorder and Terms Used in Mental Disorder Claims

In its regulations on service connection for mental disorders, the VA has adopted the psychiatric nomenclature employed by the American Psychiatric Association’s Diagnostic and Statistical Manual for Mental Disorders, Fourth Edition (hereinafter DSM-IV).541 According to the DSM-IV

On October 8, 1996, the VA published final rules revising the schedule for rating mental disorders.545 One of the significant changes was to expand from four to eight the number of categories of mental disorders for which service connection is available. They are listed in 38 C.F.R. § 4.130 (2006) and are the following: Schizophrenia and other psychotic disorders; delirium, dementia, and amnestic and other cognitive disorders; anxiety disorders (including PTSD); dissociative disorders; somatoform disorders; mood disorders; chronic adjustment disorder; and eating disorders.

The Somatoform Disorders are listed in diagnostic code 9421 to 9425 and include somatization disorder, pain disorder, undifferentiated somatoform disorder, conversion disorder, and hypochondriasis.552

I meet the criteria of a veteran seeking service connection for a mental disorder.

-a medical diagnosis of current disability; I have been diagnosed WITH CHRONIC PAIN OR CHRONIC PAIN DISORDER BY EACH OF THESE DOCTORS by DR’S XXXXX1, XXXXXX2, XXXXX3, XXXXX4, XXXXXX6, XXXXXXX6. My 28 years active Duty coupled with my claim for chronic pain within one year of separation is evidence of in-service occurrence or aggravation of a disease, injury, or precipitating event; and medical evidence of a link or nexus between the in-service occurrence or aggravation of a disease or injury and the current disability.

A mental disorder that was proximately caused by a service-connected physical condition may be service connected on a secondary basis.

Dr XXXXXXX (in her C&P Report) listed my chronic pain as secondary to chronic Nephrolithiasis.

Certain mental disorders may be service connected on a presumptive basis if first evidenced within one year after service or if manifest in a former prisoner of war. I fill the bill for every requirement.

I meet the requirements of 9422 under DSVM-IV

In Alemany v. Brown, 9 Vet. App. 518 (1996), the Court noted that in light of the benefit of the doubt provisions of 38 U.S.C.A. § 5107(B), an accurate determination of etiology is not a condition precedent to granting service connection; nor is "definite etiology" or "obvious etiology." In Gilbert v. Derwinski, 1 Vet. App. 49 (1990), the Court stated that "a veteran need only demonstrate that there is an 'approximate

balance of positive and negative evidence' in order to prevail." In Gilbert, the Court specifically stated that entitlement need not be established beyond a reasonable

doubt, by clear and convincing evidence, or by a fair preponderance of the evidence. Under the benefit of the doubt doctrine established by Congress, when the evidence is

in relative equipoise, the law dictates that the veteran prevails. Thus, to deny a claim on its merits, the preponderance of the evidence must be against the claim.

I have been diagnosed by two doctors at two C&P Exams as having chronic pain, one of which is a psychiatrist.

I request a rating of pain Syndrome 9422 at 70% effective 6/1/04

Just like Chronic pain DJD in the Neck and Lacunar Disease have been ignored and not rated, and I request they be rated or denied.

Incoordination of right upper extremity hand and arm currently SC 0%.

Be rated 40% disabling EED 6/1/04. I have submitted numerous amounts of evidence from numerous doctors concerning this problem. I have seen so many Doctors I can not remember them all. It is a well documented fact by my SMR, Statements by Neurosurgeons, statements of VA contractors such as Mr RobertXXXXXX, Mr JoeXXXXXXX. Most recently I have been examined by JO Ellen XXXXXXXX whom is a licensed Physical Therapist, License #550XXXXXXX7. JO Ellen XXXXX is also a employee of the Ann Arbor VAMC. On 8/2/07 she certified that I qualify for a crossbow permit because I meet the 80% permanent Disability required by the state of Michigan.

Title 38 §3.350 Special monthly compensation ratings.

3.352

(2) Foot and hand.

(i) Loss of use of a hand or a foot will be held to exist when no effective function remains other than that which would be equally well served by an amputation stump at the site of election below elbow or knee with use of a suitable prosthetic appliance. The determination will be made on the basis of the actual remaining function, whether the acts of grasping, manipulation, etc., in the case of the hand, or of balance, propulsion, etc., in the case of the foot, could be accomplished equally well by an amputation stump with prosthesis; for example:

grasping, manipulation, etc., in the case of the hand, or of balance, propulsion, etc., in the case of the foot, could be accomplished equally well by an amputation stump with prosthesis; for example:

(a) Extremely unfavorable complete ankylosis of the knee, or complete ankylosis of two major joints of an extremity, or shortening of the lower extremity of 3 1/2 inches or more, will constitute loss of use of the hand or foot involved.

(B) Complete paralysis of the external popliteal nerve (common peroneal) and consequent footdrop, accompanied by characteristic organic changes including trophic and circulatory disturbances and other concomitants confirmatory of complete paralysis of this nerve, will be taken as loss of use of the foot.

(3) Both buttocks.

Bulging Disk C6-7 currently SC 20%. Just for the incredible amount of pain.

Hemorrhoids – currently denied service connection

Service connected 10% with EED of 06/01/04

Medical records dated 10/21/03, 10/21/03, 11/10/03, 12/1/03, 12/3/03, 12/3/03. 3/22/04

records speak for themselves

Vertigo/Benign Positional Vertigo/Meniere’s Disease currently SC 10%.

Rated as Vestibular Disequilibrium @ 30%

Medical record dated 8/7/98 highlighted portion “unsteady gait”

Medical record dated 8/10/98 highlighted portion “decreased mobility, gross nystigmus”

Medical record dated 12/21/98 highlighted portion “unsteady heel to toe walk”

Medical record dated 2/18/03 highlighted portion “ current episode causing mild

difficulty walking. Neuro Exam with mildly ataxic gait”

From the library.med.utah.edu definition of ataxic gait.

In my book that’s called staggering, the medical community doesn’t use words like staggering, they use words like Hemiplegic Gait,Diplegic Gait, Neuropathic Gait

Myopathic Gait Parkinsonian Gait Choreiform Gait Ataxic Gait Hemiplegic Gait

Diplegic Gait Neuropathic Gait Myopathic Gait Parkinsonian Gait Choreiform Gait

I HAVE NEVER HAD A PHYSICAL FOR DISEASES OF THE EAR

Or had the below work sheet from the VA Clinicians Guide completed.

Worksheet - EAR DISEASE

A. Review of Medical Records: Indicate whether the C-file was reviewed.

B. Medical History Subjective Complaints:

1. Describe history of hearing loss, tinnitus, vertigo, balance or gait problems, discharge, pain, pruritus. State onset and frequency and duration of each, if not constant.

2. Describe current or past treatment for ear conditions.

3. If a malignant neoplasm of the ear is or was present:

4. a. State date of confirmed diagnosis.

b. State date of the last surgical, X-ray, antineoplastic chemotherapy, radiation,

or other therapeutic procedure.

a. State expected date treatment regimen is to be completed.

b. If treatment is already completed, provide date of last treatment.

c. If treatment is already completed, fully describe residuals.

C. Physical Examination Objective Findings:

1. Conduct an external and otoscopic examination. Address each of the

following and describe current findings, including abnormalities of size,

shape, or form:

a. Auricle. Any deformity? If there is tissue loss, state whether it is one-third or

more of auricle.

b. External canal - describe any edema, scaling, discharge.

c. Tympanic membrane.

d. The tympanum.

e. Mastoids. Discharge? Evidence of cholesteatoma?

f. State all conditions secondary to ear disease, such as disturbance of balance,

upper respiratory disease, hearing loss, etc.

2. State whether an active ear disease is present.

3. Infections of the middle or inner ear. Is there suppuration? Effusion? Are

aural polyps present?

4. For peripheral vestibular disorders, state the specific diagnosis and its basis,

whether there is dizziness and how often, and whether a staggering gait

occurs and how often.

5. For Meniere’s syndrome, state the symptoms, including the frequency of

attacks of vertigo and cerebellar gait. Is tinnitus present? If so, how

frequently and what is its duration? Is there hearing loss? See audio

worksheet.

6. Describe any complications of ear disease that are present.

D. Diagnostic and Clinical Tests:

1. Include results of all diagnostic and clinical tests conducted in the

examination report.

E. Diagnosis:

I DO NOT WANT ANOTHER PHYSICAL DONE, I AM MAKING THE POINT THAT IF PROPER PROCEDURES HAD BEEN FOLLOWED THIS WOULD HAVE BEEN COMPLETED.

Depression currently rated at 70%,

70% EED changed to 06/01/04, as a result of the conversation with DR XXXXXX on March 24th, 2005 “The Veteran states he is very depressed because of his chronic pain situation.” this should have resulted in a inferred claim resulting in a 6/1/04 EED.

TMJ currently denied.

granted at 10%, measurements taken during C&P justify 10%

Sleep Apnea Granted at 50% with a EED of 06/01/04. As a result of the conversation with DR XXXXXX on March 24th, 2005 this should have been inferred resulting in a 6/1/04 EED. I do meet the criteria, I have been issued a CPAP machine by the VAMC.

Heart Disease EED currently SC 60% EED 4/6/06

changed to 60% 06/01/04.

Had Dr XXXXXXXX followed procedure on March 24th, 2005 and

reviewed my SMR, utilized a work sheet for General Medical Examination, the heart disease I have would have been diagnosed long before it was.

The worksheet states

“This is a comprehensive base-line or screening examination for all body systems, not just specific conditions claimed by the veteran. It is often the initial post-discharge examination of a veteran requested by the Compensation and Pension Service for disability compensation purposes. As a screening examination, it is not meant to elicit the detailed information about specific conditions that is necessary for rating purposes. Therefore, all claimed conditions, and any found or suspected conditions that were not claimed, should be addressed by referring to and following all appropriate worksheets, in addition to this one, to assure that the examination for each condition provides information adequate for rating purposes.”

If DR XXXXXXX would have had my SMR and reviewed it prior to my C&P Exam on 03/24/05 she would have seen:

- Years and years of high cholesterol readings.

- Feb of 1990 Where I was instructed in the prevention of hypercholesterolemia

- April of 1992 I was diagnosed with hyperlipidemia and referred to a Dietician

- I went to a Emergency room in May of 1994 with chest pains

- May of 2000 a stress test from which documented Intermittent Claudication during the

test which is suggestive of Peripheral Vascular Disease.

- Nov 2000 I was taken off zocor and put on baycol.

- April of 03 cholesterol of 247.

- Documented family history of premature CHD.

All of the above would have alerted a M.D. to suspect Heart Disease, and it would have been her duty to look and check for heart disease.

THE REQUIREMENTS OF THE VCAA ARE SET OUT IN 38 USC 5103, AND ARE EXPANDED upon in 38 CFR § 3.159. In general, VA has a duty to assist a claimant in obtaining all relevant records, to provide medical examinations, and where appropriate for compensation claims, to obtain medical opinions. It is my opinion that under the VCAA DR XXXXXXX had an obligation to provide the best possible medical examination possible, and by completing the examination on 03/24/05 without reviewing my SMR she failed to comply with the VCAA. Her report states that my SMR was not present during the examination.

38 C.F.R. §§ 4.1, 4.2 (2005).

Disability evaluations are based upon the average impairment of earning capacity as determined by a schedule for rating disabilities. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. Part 4 (2005). Separate rating codes identify various disabilities. 38 C.F.R. Part 4. In determining the current level of impairment, the disability must be considered in the context of the whole recorded history, including service medical records.

From my Ann Arbor VAMC Record 04/20/2007, “I reviewed the patients cardiac catherization performed on 6/1/06, which shows 2 vessel coronary artery disease with successful stenting of the mid LAD and an occluded, very well collateralized RCA. Based on the robust nature of the collateral vessels seen on this film, I would judge the pt’s RCA infraction to have occurred in the more remote (i.e. greater than 1 year ago) past. It is impossible to ascertain precisely when the RCA closed, and indeed closure of the vessel could have occurred silently without a noticeable myocardial infraction. Certainly, given the appearance of the vessel, it did not close recently. I also reviewed the patients service records at this time.”

Signed XXXXXXXX XXXXXXXX MD, Attending Physician Cardiology (good Doc is a professor at the U of Mich Med School.)

My Cardiologist is stating that the vessel had been closed greater than a year when it was found. My point is that I had this heart disease for sometime, it did not just appear after I retired from the service.

Evaluating Evidence

M21-1MR, Part III, subpart IV, Chapter 5

1. Guidelines for Evaluating Evidence, Continued

c. Provisions Applied by the RVSR

When making decisions or taking action on claims that require a rating decision, the Rating Veterans Service Representative (RVSR) must apply the provisions of all pertinent laws, regulations, schedules for rating disabilities, policy statements, procedures, administrators’ decisions, Secretaries’ decisions, Court of Appeals for Veterans Claims (CAVC) precedents, and, other legal precedents governing Department of Veterans Affairs (VA).

Signed

Betrayed Veteran

Edited August 27, 2007 by BETRAYED