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Dro Denial Received


jmlo

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My husband received a denial for service connection of his fibromyalgia on Friday. It states that even though his doctor stated that the fibromyalgia is service connected, he didn't base his opinion on a review of his medical records. Also, he got out of the service in 98 and the fibro wasn't diagnosed until 2005. He is a gulf war veteran and served during the Southwest Asia Theatre. Wouldn't the service connection be granted under the presumptive period?

Where do we go from here? I really don't want him to have to wait years for the BVA. The RO said that we could request a hearing. Should he do that? Will they issue a SSOC after that? Also, his gulf war registry exam is in a week. VA cancelled the first one. Could this be why they didn't service connect it? Because they don't show it in the records yet? Everything they send us has on it that he is a gulf war vet but we just found out about the registry in July and he has been to va to determine that he is eligible and they scheduled his exam.

Should we close this claim and re-open another? We also want to include two other conditions but were trying to wait this out first.

Any help is appreciated.

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I'm sorry, I'm not so sure how much help I can be since my husband is in the same boat as yours and we are currently waiting on a decision. This is what I've read about presumed disability's relating to the Gulf war.

Served in the Southwest Asia Theater of Operations during the Gulf War with condition at least 10 percent disabling by 12/31/11. Included are medically unexplained chronic multi-symptom illnesses defined by a cluster of signs or symptoms that have existed for six months or more, such as:

· chronic fatigue syndrome

· fibromyalgia

· irritable bowel syndrome

· any diagnosed or undiagnosed illness that the Secretary of Veterans Affairs determines warrants a presumption of service connection

Signs or symptoms of an undiagnosed illness include: fatigue, skin symptoms, headaches, muscle pain, joint pain, neurological symptoms, respiratory symptoms, sleep disturbance, GI symptoms, cardiovascular symptoms, weight loss, menstrual disorders

When did you file? How long did it take for a denial? Did he have a C&P exam?

My husband received a denial for service connection of his fibromyalgia on Friday. It states that even though his doctor stated that the fibromyalgia is service connected, he didn't base his opinion on a review of his medical records. Also, he got out of the service in 98 and the fibro wasn't diagnosed until 2005. He is a gulf war veteran and served during the Southwest Asia Theatre. Wouldn't the service connection be granted under the presumptive period?

Where do we go from here? I really don't want him to have to wait years for the BVA. The RO said that we could request a hearing. Should he do that? Will they issue a SSOC after that? Also, his gulf war registry exam is in a week. VA cancelled the first one. Could this be why they didn't service connect it? Because they don't show it in the records yet? Everything they send us has on it that he is a gulf war vet but we just found out about the registry in July and he has been to va to determine that he is eligible and they scheduled his exam.

Should we close this claim and re-open another? We also want to include two other conditions but were trying to wait this out first.

Any help is appreciated.

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dont give up and try to keep it at the ro. i was denied 2 times by the dro. try to get as much medical evidence as possible. if you have to pay for a imo then do it. make sure it states his conditions are more than likely from the gulf war. also if he is not working have the doctor state that he can no longer work becuase of his service connection. very important rembember medical evidence is what counts. if he is not working fill out the iu app now do not wait. you can get by calling the 1-800-827-1000 number. some doctors need to be told what you need. so dont be afraid to tell the doctor that this is what you need to prove your claim. i was denied 2 times until i had my doctor state the above. i believe if you can obtain the above you should not have a problem. and better yet the more doctors that you can state the above even better. try to keep it at the ro the bva is way to long in my opion it should be used as a last resort. you still can add new evidence to your claim while your waiting for a hearing and the ro must look at all new evidence. so the faster you can obtain more medical evidence the better. good luck

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Here is some more information I've dug up.

<H5 style="MARGIN: 0in 0in 0pt">b. Information Required to Decide the Issue of Service Connection for an Undiagnosed Illness</H5>The following information is required in order to determine whether service connection for an undiagnosed illness is in order:

· when the illness arose

· whether the illness was severe enough to warrant the assignment of a compensable evaluation at any time during the presumptive period, unless manifested while in the Southwest Asia theater, and

· whether the illness chronically persisted for at least six months.

<H5 style="MARGIN: 0in 0in 0pt">c. Relevancy of Medical Evidence</H5>When the object of service connection is identification of a diagnosed illness, medical evidence is of paramount importance because a physician specializes in identifying disabilities through diagnoses.

The concept of “objective indications” expressed in 38 CFR 3.317 makes clear that the evidence required for undiagnosed illnesses, or illnesses which are outside the scope of medical understanding, is not so dependent on formal medical evidence.

Check out this link....

http://www.warms.vba.va.gov/admin21/m21_1/...2/ch02_secd.doc

My husband received a denial for service connection of his fibromyalgia on Friday. It states that even though his doctor stated that the fibromyalgia is service connected, he didn't base his opinion on a review of his medical records. Also, he got out of the service in 98 and the fibro wasn't diagnosed until 2005. He is a gulf war veteran and served during the Southwest Asia Theatre. Wouldn't the service connection be granted under the presumptive period?

Where do we go from here? I really don't want him to have to wait years for the BVA. The RO said that we could request a hearing. Should he do that? Will they issue a SSOC after that? Also, his gulf war registry exam is in a week. VA cancelled the first one. Could this be why they didn't service connect it? Because they don't show it in the records yet? Everything they send us has on it that he is a gulf war vet but we just found out about the registry in July and he has been to va to determine that he is eligible and they scheduled his exam.

Should we close this claim and re-open another? We also want to include two other conditions but were trying to wait this out first.

Any help is appreciated.

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fibromyalgia is an undiagnosed illness. The double speak of the VA is, well there is a diagnoses of fibromyalgia, therefore it is a diagnosed illness not an undiagnosed illness.

I posted this BVA decision a while ago.ibs cue (click here) The experts here (Berta,etc.) said it was a correct decision. I still say it's wrong. Check out the double talk.

Your husband should not need a medical opinion. He served in SW Asia, correct? You said he served during the Gulf War. Service in SW Asia is required. A diagnoses is also required. No nexus. Presumption till 2011 is the nexus.

If he did not serve in SW Asia then he will need a nexus opinion. The doctor giving the opinion must review the entire claims folder and base his opinion on that. I went thru the same thing. I filed a claim without getting a copy of my SMR's first. Then I was denied. When I realized I needed a copy of the claims folder the VA told me my case was in the rating board and it would have to come out to get a copy and I was advised against doing that. So I wnet to the American Legion and made them my Service Officer so I could get a copy of the claims folder. They steered me wrong. The gave me some verbage to get my doctor to sign, which he did, I turned it in, denied again. Guess what, he didn't review my service medical records. So I finally got the records, got my IMO from Dr. Bash (very good), and I wait. They move quickly when they know thay can deny. Not so quick when they have to grant.

Bottom line. Get a copy of the calims folder, get a good IMO. They will beat everything else down with double talk and delay.

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  • HadIt.com Elder

Ask for a personal hearing and get the doctor to review your medical records and write another letter. This is one of the VA's favorite tactics. Do you have a complete copy of your SMR's? Don't let this claim get away from you and do as Cal says and keep it local. You can keep it local by asking for personal hearings and sending in new evidence. It takes time but it is better than shipping it off to the BVA and then having them remand it two years later.

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  • HadIt.com Elder

You need to provide to the Doctor copies of Medical Records and the Dr needs to say that they reviewed them. In my opinion after that there is no way to go but to award the claim.

Good Luck

By the way if you can do it quickly I would send it to the DRO and say that the claim was cured per his objection

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"My husband received a denial for service connection of his fibromyalgia on Friday. It states that even though his doctor stated that the fibromyalgia is service connected, he didn't base his opinion on a review of his medical records"

Was this a VA doctor or a private doctor?

VA doctors definitely are supposed to review the medical records and SMRs-and it would be odd if a VA doctor's opinion did not refer to them-

Private doctors also -if the IMO is going to fit into the VA's criteria -must review medical records and in most cases the SMRs too-in order to be able to opine on the disability.

This is what gives them the medical rationale for their opinion.

If this was a private doc who charged you real money for this IMO- they need to give you a refund or do it right. The criteria is here under a search for an IMO that the VA cannot reject unless they have a good medical rationale themselves.

You should get the IMO clarified ASAP because the Manifestation period has not been aestablished yet for Gulf War "Chronic qualifying disabilities".

If VA decides that there will be a manifestation period they could say that the illness must have been manifested at 10% or more within one, two, three years of service---

claims pending will be on hold if the VA comes up with any regulation like that.

There is nothing pending at the Federal Register site yet.

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if you received a denial the process is simple file a NOD and receive a statement of case. With that you can then take it as an appeal. At that point you give the information to your agent, service officer or attorney and get imo's to back you up better at that level. You can get a DRO review at the local level and at the VBA

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VA is famous for this type of decision with GW1 vets and service connection. At this point I would not waste any money or time on IMO's (Sorry guys dont mean to go against you). IF he is a GW1 veteran; had active service in SWA; HAS DIAGNOSIS OF FIBRO; symptoms meet the requirements for a 10 percent rating then this is a presumption of service connection claim. IF THEY OFFERED A LOCAL HEARING TAKE IT!!!! Write the letter tonight requesting such a hearing and when you get one pound, YES literally POUND this into their ignort heads:

§ 3.317 Compensation for certain disabilities due to undiagnosed illnesses.

top

(a)(1) Except as provided in paragraph © of this section, VA will pay compensation in accordance with chapter 11 of title 38, United States Code, to a Persian Gulf veteran who exhibits objective indications of a qualifying chronic disability, provided that such disability:

(i) Became manifest either during active military, naval, or air service in the Southwest Asia theater of operations during the Persian Gulf War, or to a degree of 10 percent or more not later than December 31, 2011; and

(ii) By history, physical examination, and laboratory tests cannot be attributed to any known clinical diagnosis.

(2)(i) For purposes of this section, a qualifying chronic disability means a chronic disability resulting from any of the following (or any combination of the following):

(A) An undiagnosed illness;

(;) The following medically unexplained chronic multisymptom illnesses that are defined by a cluster of signs or symptoms:

( 1 ) Chronic fatigue syndrome;

( 2 ) Fibromyalgia;

( 3 ) Irritable bowel syndrome

In the past these idiots were incapable of understanding the meaning of a medically unexplained chronic multisymptom illness means a diagnosed illness without conclusive pathophysiology or etiology. Congress got tired of all the complaints so they went back and said look idiots, when we wrote this law we thought you were capable of interperting it. However, it appears that we were wrong so here is what the hell we meant and they added the words Fibro, CFS and IBS. VA then followed and did the same.

HOWEVER, this did not resolve the problem. For as we all know, the VA only hires one brain celled green monkeys from Wheretopia as raters. In the conduct of their, what they consider, welfare duties to the veteran community all they could recall was the term Undiagnosed Illness.

Now speed forward - here's one of them one brain cell, high speed, un-educated GS7 raters who is much better than the vet because my God he is a rater, with a claim in front of him/her in which the medical records provide a diagnosis of IBS or Fibro or CFS. He/she jumps and moves at the speed of light to protect the American taxpayer from a criminal minded veteran attempting to claim a few bucks so he can continue to buy weed and beer at the local 7-11 store while all other Americans are at work. WHAM DENIED then as he turns to his co-worker, one brain cell Susie, he declares - Boy did you see that? this idiot was trying to screw the taxpayers. I showed him what happens when he tries to screw over the taxpayers. Look at this what on earth was he thinking when he tried to claim service connection for an undiagnosed illness and then provided me with the medical evidence saying he had a diagnosed illness. What an idiot. I bet he will read the regulations better the next time before he fools with this protector of the American taxpayers, ole one brain cell John! Then as the supervisor walks by, sir, sir, look at what this idiot veteran tried to do. And as he quickly looks over the claim he does not have the heart to tell ole one brain cell John how fu(*& up he is. The only thing on his mind is the next step increase and the yearly bonus.............and the story repeats itself..............

Sorry for the rant but its late, I hurt, and the meds are twisting the ole mind plus did I mention that VA raters are idiots!!!!!!. Bottom line is this is a bad decision. No its not bad it is criminal. Demand a post determination hearing with a DRO. You have the right to demand a personal hearing with a VA employee at anytime during the rating process. It is part of your due rights process. Now one requirement for a presumptive rating is that it must meet the 10 percent level. This can be proven with medical documentation and LAY STATEMENTS. From the little bit you posted it appears that the denial was not based upon this fact. If it had been there is about three pages the idiots have to prepare which is outlined in the M21 bible for va raters.

Once again sorry to all for the rant and the story telling. However, I am pissed to the max - I see/help GW1 vets over and over again who have received the same denial. I was scolded on another board for beating up the va on another board in which the always pro va guys simply say just file a NOD that will solve the problem. No it won't. The problem is not the appeals process its the damn raters who can not get their heads out of their butts. Its the raters who can not read. Its the raters who do not know the regs. Its the raters who simply fail to follow the regulations due to incompentence or laziness or criminal intent. The problem is that now we have another deserving veteran who suffers the loss of his/her sanity for the next two years because he has to wonder if one of the ole one brain cell raters mated with another one and produced a one brain cell attorney who is now king at the BVA as evidenced by the BVA case posted by rdawg!

Forgive me my fellow Hadit family for taking up so much of your time with this post. I love all of yall!

Edited by Ricky
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rdawg forgot to address your statement in your post. Whats makes this BVA decision a good one. The Vet clearly has IBS. They provided every excuse in the world not to provide direct service connection so by their own addmitance they can not contribute the IBS to a medically definable etiology.

He served in GW1. He has IBS which as the board stated did not occur until years after his discharge. He is within the presumptive period. The regulation states that DIAGNOSED IBS is presumptive for GW1 veterans.

Makes no difference how he got it. Even if C/P exam said at least as likely as not he got it from his grandma's chicken soup its presumptive. Just as DMII is in AO cases. Does not make any difference if every individual in your family from 1600 - 2007 has died from DMII, if you served in VN, boots on ground, then it is service connected.

This is a CUE in its truest definition. Regulations says served in GW1, symptoms occur at the 10 percent level, happens before 2011, have diagnosis of IBS, Fibro or CFS then it is service connected.

BVA denial letter provides veteran the bases for presumptive service connection to include service requirements then states veteran service in SWA, has IBS therefore, it ain't service connected!!!! cue cue cue cue

See, just as in my post below, sometimes two of them one brain cell raters get together during work hours and reproduce. Result is a one brain cell attorney who can not work anywhere else in this country so he gets hired at the BVA. Most of them are probably unable to pass a state bar exam.

I can not for the life of me see how this could be seen as a correct decision - not if you follow the regulation jmho.

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Hey Ricky,

That's exactly what I was saying. CUE CUE CUE!!! The word CUE is even in the link I created in my first post. The BVA knows it's a cue. They have many other decisions exactly like this where they made the correct decision and service connected the undiagnosed illness on a presumptive basis. Now it looks like the RO is usng this decision as a precedent to deny claims.

I posted this BVA decision on Hadit a while back and asked the elders to look at it as I was just a newbie. They all said it was a proper decsion. My question at the time, and I'll ask it again, how do you find out who this vet is? how do you help him? is there a way to follow this case to CAVC?

JMLO,

I would knock down th RO's door and demand to speak to someone who is in charge of this idiot who denied your claim. This rater was obviously trained to deny everthing first on whatever grounds they can come up with. He could have said "Even though your doctor states "at least as likely as not" he did not review the records therefore humptey dumptey sat on a wall, humtey dunptey had a great fall, all the kings horses and all the kings men couldn't grant you benefits ever again." It would've had the same meaning as what he actually wrote.

Basically they are telling you to go to hell. Take your claim and shove it. Stick it where the sun don't shine. Kiss their hairy behind. Now that's how you read between the lines.

Sorry for the rant.

rdawg

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Thanks to everyone for your comments.

This was not an IMO, this was a VA Doctor. His opinions have referred to his SMRs in the past. This particular one vaguely referred to them. I guess we could start over with a Independent Doctor to review the records and give an opinion. I feel that they are in error based on 2 issues. First, the service records indicate he is a GW Vet, served during Southwest Asia Theater of Operations, and 2. This illness is presumed to be service connected under current law. We have already established that he has fibromyalgia with the medical records and that it is chronic, severe, and worsening.

In the meantime I've prepared a letter to go back to the RO. Please give your thoughts. Thanks.

D. Svirsky

Service Center Manager

Department of Veteran Affairs

Roanoke Regional Office

210 Franklin Road, S. W.

Roanoke, VA 24011

RE: VA FILE #

Dear D. Svirsky:

I am in receipt of the statement of my case dated August 28, 2007. I am in disagreement of your decision to deny service connection for fibromyalgia because these facts were overlooked.

  • The veteran served in the Southwest Asia Theater of Operations during the Persian Gulf War.

    • The competent and probative medical evidence of record shows that fibromyalgia, a condition presumed by regulation to have been incurred during service in the Southwest Theater of Operations during the Persian Gulf War, is chronic and was manifested to a degree of 10 percent or more prior to December 31, 2011.

    Thus, the criteria for entitlement to service connection for fibromyalgia are met. 38 U.S.C.A. §§ 1110, 1117, 5107 (West 2002); 38 C.F.R. §§ 3.102. 3.303, 3.317 (2006).

    Furthermore, as documented by my military records, I am a Persian Gulf War veteran, having served in the Southwest Asia Theater of Operations during the Persian Gulf War during the period of 1994. 38 U.S.C.A. §1117(e); 38 C.F.R. §3.317(d). Accordingly, the VA provisions pertaining to Persian Gulf veterans are applicable to my case.

    Under the provisions of specific legislation enacted to assist veterans of the Persian Gulf War, service connection may be established for a qualifying chronic disability resulting from an undiagnosed illness which became manifest either during active service in the Southwest Asia Theater of operations during the Persian Gulf War or to a degree of 10 percent or more prior to a specific presumption period. 38 U.S.C.A. § 1117; 38 C.F.R. § 3.317(a)(1)(i).

    Due to these facts being overlooked, I would like to have a hearing before a VA Regional Office Hearing Officer at your earliest convenience before proceeding with my appeal to the Board of Veteran's Appeals.

    "My husband received a denial for service connection of his fibromyalgia on Friday. It states that even though his doctor stated that the fibromyalgia is service connected, he didn't base his opinion on a review of his medical records"

    Was this a VA doctor or a private doctor?

    VA doctors definitely are supposed to review the medical records and SMRs-and it would be odd if a VA doctor's opinion did not refer to them-

    Private doctors also -if the IMO is going to fit into the VA's criteria -must review medical records and in most cases the SMRs too-in order to be able to opine on the disability.

    This is what gives them the medical rationale for their opinion.

    If this was a private doc who charged you real money for this IMO- they need to give you a refund or do it right. The criteria is here under a search for an IMO that the VA cannot reject unless they have a good medical rationale themselves.

    You should get the IMO clarified ASAP because the Manifestation period has not been aestablished yet for Gulf War "Chronic qualifying disabilities".

    If VA decides that there will be a manifestation period they could say that the illness must have been manifested at 10% or more within one, two, three years of service---

    claims pending will be on hold if the VA comes up with any regulation like that.

    There is nothing pending at the Federal Register site yet.

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JMLO,

Yo are correct in everything you say. The problem I see is this looks like a notice of disagreement that you've written. I hope you have 12-18 months to wait for a statement of case and then another 2 years at the BVA. I think you should state that you would like a reconsideration based on obvious errors. Keep this at the RO level but get it front of some senior persons eyes.

rdawg

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my bad... I just read that the denial was your statement of case. In that case file your appeal and wait. I think the BVA will deny based on the decision I posted earlier in this thread. You will need to take this one all the way up the totem pole.

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excellent idea, rdawg! That is my whole problem, I don't want to waste any more time, especially not 2 years waiting for a hearing at BVA.

It seems I saw on here the senior contacts for the RO in Roanoke. Could someone point me in the right direction?

JMLO,

Yo are correct in everything you say. The problem I see is this looks like a notice of disagreement that you've written. I hope you have 12-18 months to wait for a statement of case and then another 2 years at the BVA. I think you should state that you would like a reconsideration based on obvious errors. Keep this at the RO level but get it front of some senior persons eyes.

rdawg

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Please do not let this one drop. I understand the pain and worry that comes with the appeals process but hang in there with it for yourself and all GW veterans (don't forget the new guys and gals). Under normal circumstances a reconsideration requires the submission of new and material evidence so becareful with that word cause it will just result in a denial of your intentions.

I would say something in the first paragraph like : I request a POST DECISIONAL HEARING with YOU and YOUR APPEALS TEAM SUPERVISOR prior to the submission of this claim to the BVA. Such a hearing is guarnteed to by 38 CFR _______ (don't have time to look up the para now but it is in part 3 adjudication). The purpose of the HEARING is to discuss the blanet failure of your staff to correctly apply the laws and regulations that they and you have been employed and charged to comply with.

Then list the whys as you have done in your draft. In such a situation one needs to stay away from words such as disagreement, reconsideration, and meeting. Disagreement - you already had your chance for disagreement (your NOD) and due process only allows one DRO review/disagreement; Reconsideration will require submission of new evidence; Meeting - no where in the due process rights are you guarnteed a meeting. All of this is just my honest opinion and the way that I would proceed if it were my claim. Please read and remember presumptive rules for GW by heart; this goes for Part 3 adjudication also. Then SCREAM like a wild animal to insure you get your due process.

My last word of advice is to WATCH THE TIME LINES. NO MATTER WHAT OTHER ACTIONS YOU ARE CONDUCTING ON THE CLAIM, DO NOT LET THE TIME LINE FOR PERFECTING YOUR APPEAL EXPIRE!!!!!!!!!!! 60 DAYS FROM THE DATE OF THE STATEMENT OF THE CASE.

Ricky

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Can't they just issue a supplemental statement of the case that grants service connection when they realize the error? That would be too easy I'm sure ~ since they don't make mistakes. ;) We don't plan on letting it drop. Maybe if there are enough folks that will fight to the bitter end for their entitlement, we can make it easier for the next group coming in behind us. Thanks to everyone again for your help and comments, they have all been taken to heart and will be implemented and considered on our next journey. Hopefully, a hearing at the RO will settle it.

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rdawg and all - I did not intend to say that Berta or any other of the old guys were wrong so please do not take my post that way. All of them know more about the VA and VA law than I will ever know. Maybe they saw something in the decision that I skipped. With my meds and usual anger level that is, as VA would say, MORE LIKELY THAN NOT hahahahahaha. I just called it like I saw it late last night. When I get time I will sit down and really study the decision to see where they were coming from. It looks like he filed a claim for direct service connection due to his symptoms in service when he should have simply filed a claim for undiagnosed illness due to service in GW.

It appears that the VA assumed at some point and time that he was or would in the future do just that so they attempted to cover direct service connection and presumptive service connection - which is what they should have done so the only thing I see correct about the decision based upon the current laws is they looked at both angles.

Berta, Pete, John, Bob, Vike etc...... If I offended any of you guys, I am sorry. Next time I will think before putting my ole fingers into action. ;)

Ricky

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Okay, I've sent a modified version of my request taking out the language of disagreement, reconsideration, etc. I faxed it and mailed it to the Director at the VARO. Hopefully, we will get some results. I've also requested a hearing at the VARO before going to BVA.

My question is ~ should I go ahead and submit the request to appeal to BVA. I know I only have 60 days to do this. If anything results from the VARO I can always withdraw the request right?

Thanks again to everyone for your help with this!

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