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Somewhat Confused



After coming to Hadit.com, I reviewed all of my claim information and then determined based on the SOC I received in 09/05 to file a new claim.

I initially refiled a claim for a rate increase in 05/2003 (which is pending an appeal) for my SC low back disorder (described as "chronic" lumbosacral strain, awarded 01/17/1979). The first time I filed for an increase was in 02/1979. The claim was closed when I failed to appear for a personal hearing in December 1980.

Okay, moving forward. I re-enlisted into the Army with the above SC from the AF indicated on my enlistment exam. Condition worsened while in the Army. Filed another claim for increase in 1984 (no record of this claim).

Well, like I said, I have been coming here over the past several months and gotten some great information. So, in May 2007 I filed a new claim for condition my 2003 claim was denied. I requested a copy of my C-File. I obtained copies of my Army SMR, which the VARO had indicated "any further search would be futile."

I submitted a claim to re-open the request to entitlement for SC for migraines.

Well, I received a "formal" VCAA letter dated 09/10/07 (the first time) in the history of me filing claims. It indicated that another C&P exam was going to be scheduled, which I went to on 09/27/07.

My real question has to do with the fact that the RO is re-ajudicating on the issue that is on appeal. I was told that they could award the increase while it is still pending an appeal. But I thought if the DRO denied the increase as well the same VARO could not re-ajudicate on the matter.

At any rate, my increase was denied because the rating specialist determined that my low back condition (today) is the result of a new diagnosis- Ankylosing Spondylitis. So, my claim for increase was denied based on that fact. However, VARO never devloped the claim for increase of my sc condition because they got hung up on the "new" condition. VARO is now processing or "working" the new claim and tying everything in together...to include TDIU (for which I was also denied upon reconsideration of my claim in 2004). But I had submitted through my NSO my SSD award in 2005.

Nothing seemed to be happening until I requested a copy of my C-File in May, which I finally did receive 09/17/07. I was wondering if my request for the C-File and obtaining my own Army SMR, after being told any future attempts would be futile, is what has the VARO "working" the claim right now (seemingly so expeditiously)?

Can the VARO go back and award the claim for increase that is currently on appeal?

NSO is suggesting everything looks to be going in my favor, especially with a C&P exam within two weeks of the VCAA notification.

Any comments would be greatly appreciated. I really would like to move on with my life. It has been a long haul already, which I know most of you can appreciate because you've been there or are going through yourselves. Thanks, in advance, for your input.

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I don't know for sure the VA regs permit it -- someone will step in and address the appropriate reg -- but I would think they do, so I'd say YES, the VARO can decide to award a claim waiting for appeal and if you are satisfied with VARO's decision, that would cancel the appeal because the issue would no longer need appealing (naturally) and therefore be moot.

The BVA has enough on its plate -- as does VARO of course -- so an appeal case dropping from the docket would be welcomed...for whatever reason. And the VARO can also win by closing another claim.

This is just some common-sense being applied so I don't know if it's relevant. ;-)

-- John D.

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"Can the VARO go back and award the claim for increase that is currently on appeal"

Yes they do that all the time-

"But I thought if the DRO denied the increase as well the same VARO could not re-ajudicate on the matter."

Even if the DRO denies- you can request an additional DRO review at some point-hard to say in your case what is really going on.

I had a denovo review in 2005 that I got the VA to CUE, then I got DRO conference in 2005 and Wednesaday my claims went to a new DRO for additional review and a decision.

The DRO who prepared the initial denial is not supposed to handle any subsequent DRO reviews.

We have discussed here recently what can happen with newly discovered SMRS.

If the VA said they couldnt get them and you got them make sure the VA has copies of them too and send them a 21-4138 as a cover letter in support of your claims attaching the copies of the SMRs to it.

"I was wondering if my request for the C-File and obtaining my own Army SMR, after being told any future attempts would be futile, is what has the VARO "working" the claim right now (seemingly so expeditiously)?"

I recently provided (Sept 10)the VA with a response to the first VCAA I ever got in 4 1/2 years and the response went to an adjudicator on Sept 12 and then went to the DRO Wednesday.

This is the fastest and most significant action I have had yet on my claims.

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Thanks, John D and Berta, for responding.

So, then great. If the claim on appeal is not awarded with an effective date of 05/2003, which is when I initally filed for increase, then I probably won't agree with the decision. I believe I went from noncompensable to at least 10% in 05/2003 (before the diagnosis of ankylosing spondylitis came in 2004). So, even if the rating board awards the 40% for lumbosacral strain, they will more than likely not make it effective before the day of my most recent C&P dated 09/27/2007. I will be okay with the 40% and effective date for the 40%. But not with it being the effective date for when I became eligible for a compensable rating (like I said, even it was only 10%) I met the criteria for it.

On the matter of the new claim. It is not a major deal. I simple perfected a claim to service connect what my rate increase claim was denied for (ankylosing spondylitis). I already had four VA physicians (and two previous C&P exams) stating my condition was service connected (or rather "had to incur in service") and they (VAMC physicians) have reviewed my SMR's, which is how they concluded my condition existed in service "but was not then recognizable as such." I have the IMO from my treating Rheumatologist (now in private practice) but use to be a rating examiner in Washington. I have the NSO telling me they (VARO) have service connected the condition (ankylosing spondylitis).

But I still needed a C&P to determine the rating for the sc condition-"chronic" lumbosacral strain (the condition the rate increase was denied on). There is no rebutted medical opinions or evidence regarding the ankylosing spondylitis and whether or not it is service connected. VARO has accepted that it is because the medical evidence stands alone. I was just wondering about them re-deciding a claim for the rate increase. But if it happens all the time...then that works for me too.

I was none to the wiser until I started coming to this forum. Then a LTC friend of mine pointed out that the VARO already considers my ankylosing spondylitis condition severe and four VA officials are saying it was incurred in service. Claim it as service connected. So, I did. SSA has already awarded me SSD (since 2005) for the ankylosing spondylitis and severe lower back pain.

I was just wondering about the same VARO...but I get it...it is the same DRO that can't reconsider or handle the claim...not the VARO.

You all are great and I have been telling everyone (all my vet friends and their spouses) I know about this website; Hadit.com. When my claim is granted I will also have you all to thank. GOD will be the first! B)

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