Rating Decision

[Dale Jr. 8]

I received my rating decision in the mail yesterday. I had applied for 1. Service connection for depression as secondary to my lumbar strain. 2. service conn for rt. ankle strain secondary to lt. ankle strain with residuals. 3.Reeval for lumbar strain. 4.Reeval of lt. ankle sprain. 5. SC for sciatica secondary to lumbar strain with DDD and 2 ruptured discs and 1 bulging discs. 6. Entitlement to I/U. I received 1. 10% for the depression. 2. SC and 0% for the rt. ankle. 3. Lumbar strain stayed at 20% 4 Lt. ankle sprain stayed at 10%. 5 SC for sciatica was denied. 6. I/U was denied. I started out with 505 and now have 60%. My questions are as follows. 1. The rt. ankle has the same ROM as the lt. ankle which is rated at 10%. All info on the rt. ankle in the dceision is the same as the lt. ankle. Should I appeal this? 2. the ROM on the lumbar strain went from a combined ROM of 165 to 135. The forward flexion was 60 deg and now it is 30 deg. The way I read the rating laws a forward flexion of 30 deg or less grants a 40 % and anything more than 30 deg but not more than 60 deg. Should I appeal this? 3. SC for Sciatica. The decision states the exam revealed no signs of intervertebral disc syndrome with chronic and permanent nerve root involvement. The exam lasted only for 10 mins for all items except the depression. That was a seperate exam. Should this be appealed. And lastly The I/U was denied. In Aug of 05 I was awarded Soc. Sec. disability for depression and lower back problems all SC conditions. That was the only things that were listed on the law judges decision. Should I appeal the I/U decision. I currently have 1 SC at 30% and a combined of 60% I believe I should have 1 SC at 40% the lower back and a combined of 70% Either way shouldn't the VA have sent this for extra-shedular consideration based on the Soc. Sec. decision that was submitted to them before this rating decision?. I have an appt with my local NC division of veteran affairs office this week coming up. I am afraid that they will not have the answers. They seem to only be good for filing the paperwork and forwarding any evidence to the VA. Sorry this is a lengthy post but I tried to include all the info that I had. Thanks in advance for the answers to all these questions. Dalejr 83

[Berta]

Dale- absolutely appeal this-

regardless of what your reps say-

you told us here exactly the way you can rebutt this decision-

you get SSA for the same conditions? If so they should have considered that, referred to the SSA award, in the Evidence part and stated in the narrative-why they did not put weight on the SSA findings-

I wonder if they even got your SSA records at all-that could be the problem- did they send you a SSA authorization form?

Perhaps your rep would definitely consider helping you prepare a Re-consideration request-it does not stop the NOD one year clock-you must make sure you file a NOD if they do not address the Recon request before the year is up- still it could get you a better and faster decision.

what I see here is proof of unemployability due to SC conditions-and the SSA award is proof of that-

Did you formally filed a TDIU 21-8940 form?

Regardless of a vet's SC rating-if the medical evidence (to include SSA findings) reveal that the SC prevents the veteran from working- they should file a 21-8940 and the VA should fully consider them as TDIU.

In the VCAA letter they sent you after you first filed this claim- in the highlighted underlined statement they made-

did you supply them with everything they requested?

I bet you did- this decision is awful-

at least you are in NC- the state Division locally here would probably not have a clue on this.

In the reconsideration request I suggest that you cite the regs I recently posted here- forget where-

under M21-1 and 38 CFR 4.6 and ask the VA to use them- here they are again-

"§4.6 Evaluation of evidence.

The element of the weight to be accorded the character of the veteran’s service is but one factor entering into the considerations of the rating boards in arriving at determinations of the evaluation of disability. Every element in any way affecting the probative value to be assigned to the evidence in each individual claim must be thoroughly and conscientiously studied by each member of the rating board in the light of the established policies of the Department of Veterans Affairs to the end that decisions will be equitable and just as contemplated by the requirements of the law

“b. Review of Evidence. Concisely cite and evaluate all evidence that is relevant and necessary to the determination. Rating decisions must evaluate all the evidence, including oral testimony given under oath and certified statements submitted by claimants, and must clearly explain why that evidence is found to be persuasive or unpersuasive. Decisions must address all pertinent evidence and all of the claimant's contentions. “

Source: September 23, 2004 M21-1, Part VI

CHAPTER I--DEPARTMENT OF VETERANS AFFAIRS

PART 3_ADJUDICATION--Table of Contents

Subpart A_Pension, Compensation, and Dependency and Indemnity

Compensation

Sec. 3.159 Department of Veterans Affairs assistance in developing

claims. (XC 24 884 978 Page 4 of 5)

(a) Definitions. For purposes of this section, the following

definitions apply:

(1) Competent medical evidence means evidence provided by a person

who is qualified through education, training, or experience to offer

medical diagnoses, statements, or opinions. Competent medical evidence

may also mean statements conveying sound medical principles found in

medical treatises. It would also include statements contained in

authoritative writings such as medical and scientific articles and

research reports or analyses.

(2) Competent lay evidence means any evidence not requiring that the

proponent have specialized education, training, or experience. Lay

evidence is competent if it is provided by a person who has knowledge of

facts or circumstances and conveys matters that can be observed and

described by a lay person."

I always copy and paste directly from the VA M21 regs etc- into my submissions to the VA.

It comes out in the exact font and format as they see when they open their copy of M21-1.

This way if they dont know the reg I use, they cant think I made it up.

Edited January 13, 2008 by Berta

[Dale Jr. 8]

Yes I do get SSA for the same conditions. I did not have the depression Sc'd when I got the SSA, but that was not required for the SSA claim. I now have the depression Sc'd at 10% and that is 1/2 of what I got the SSA based on. The other 1/2 of what I got the SSA on was my lower back which is 20% currently. I feel it should have gone to 40% based on the 30 degrees or less forward flexion. I sent them a copy of the SSA paper work. It was referenced as the last item under evidence. I did file a formal claim for I/U. This claim was kind of mixed up since I filed for rt. ankle as a secondary and a lower back increase in Nov of 06 then in Jan of 07 I added depression and sciatica( which they denied ). I have an MRI that was done that shows 2 ruptured discs and one bulging disc impinging on the left side nerve root. Maybe they rejected this claim because the sciatic pain stops just below the knee. I have no idea what kind of nerve damage there is. I just know that I have had thie sciatica since Aug of 06 and they won't do anything about it but give more pills. I supplied them with every thing they asked for. I even sent them a reply that I didn't have any more evidence to submit the last time they asked me. It seems to me they are just trying to move this claim out at 10% and get to the next one and hope I do not appeal. What is the difference between an NOD and a reconsideration? Do both stay at the local RO? I know the recon does because I used it once. It's funny because in May of 06 they tried to cut my 30% neck and 20% back down to 30% combined but they later decided after I asked for a personal hearing that they would leave it at 50% combined. What a system. Gotta love it.... Thanks for the help DJ 8

[Berta]

"What is the difference between an NOD and a reconsideration?"

I only recommend a reconsideration when it is very obvious that the RO made an error-a clearly and erroneous error-

A Notice of Disagreement begins the formal appeals process-

A NOD has to be filed within year of the decision-a recon request should be sent right away and could gain a better decision before the year is up- if not however the NOD can then still be filed-

I saw a case at the BVA where the RO said the vet had filed a recon request which they denied and failed to file a NOD in time- his Rep however sent the BVA a copy of a 21-4138 he sent them-also- which stated -if the reconsideration request is denied please consider this as a formal NOD.

The BVA did and remanded his claim for the preparation of a SOC.

"Do both stay at the local RO?"

Yes-

BVA decisions can also get Motions to Reconsider- different regs there-

"I know the recon does because I used it once. It's funny because in May of 06 they tried to cut my 30% neck and 20% back down to 30% combined but they later decided after I asked for a personal hearing that they would leave it at 50% "

GOOD FOR YOU!

Just think how much $$$ the VA saves if vets dont do all they can to fight back lousy decisions.

[Dale Jr. 8]

Thanks again for the info. DJ 8

[carlie]

I don't know if I would refer to the "weight" SSA put on any evidence - this would remain in your record and if you ever need to revisit something here (any area of CUE here or down the road) you can bet VA will put your wording in BOLD letters. I would find a bit different wording on it to get the same thought across.

No offense to anyone here and I just kind of skim read the thread.

jmho,

carlie

[cowgirl]

Carlie, thanks for chiming to help, I am reading with interest -do you mean, instead of the veteran using the 'terms' SSA and SSA rating decision, you would suggest simply 'restating' the diagnostic evidence from the SSA statement? Would this keep the claim to the point? or what? thanks Carlie and the best to ya, DaleJr8. cg

I don't know if I would refer to the "weight" SSA put on any evidence - this would remain in your record and if you ever need to revisit something here (any area of CUE here or down the road) you can bet VA will put your wording in BOLD letters. I would find a bit different wording on it to get the same thought across.

No offense to anyone here and I just kind of skim read the thread.

jmho,

carlie