Dro Denial Received

[jmlo]

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.

[rdawg]

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

[rdawg]

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.

[jmlo]

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

[Ricky]

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

[jmlo]

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.

[Ricky]

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