First Rough Draft Reconsideration Letter

[hurryupnwait]

Decision

Service connection for Lumbar spondylolisthesis, (no diagnostic code), is granted with a evaluation of 10 percent effective November 9, 2001.

Reconsideration

I would like to have a reconsideration of this rating. After reviewing my latest independent medical examination, October 2007, by Craig N. Bash M. D., Neuro-Radiology, a highly credentialed specialist in the field of my disability. This was a medical examination, not a medical opinion after reviewing medical records. I feel the rating should be as follows;

Diagnostic Code 5243 IVDS

40% rating for forward flexion (range of motion) of the thoracolumbar spine 30 degrees or less, mine is 25 degrees.

Diagnostic Code 5243-8520

20% moderate incomplete paralysis sciatic nerve, left leg, ( this is pain shooting down the legs.)

20% moderate incomplete paralysis sciatic nerve, right leg.

My claim was opened in January 1973 and according to my remand letter from the Board of Veterans Appeals it was not closed properly, because I was not sent a determination and appellate rights letter. Therefore, I consider this claim still open because I never received a decision that I could file a Notice of Disagreement. My effective date should be January 1, 1973.

Any input

Happy Trails

Paul

Edited January 22, 2008 by hurryupnwait

[free_spirit_etc]

I'm not an expert by any means but I would add a bit of how it Affects you in with it.

Diagnostic Code 5243 IVDS gives a 40% rating for forward flexion (range of motion) of the thoracolumbar spine 30 degrees or less.

Mine is 25 degrees. This causes me _____.

Diagnostic Code 5243-8520

20% moderate incomplete paralysis sciatic nerve, left leg, ( this is pain shooting down the legs.)

The pain in my legs ____

20% moderate incomplete paralysis sciatic nerve, right leg.

On the earlier effective date I would add in a bit more on WHY you considered it open. I was thinking you stated in another post that the BVA indicated that you were not notified of the decision - but that you had been denied earlier and had not appealed.

Yet they said you were denied for not appearing for an exam - and you notified them and went to the exam.

Did you write ANYTHING back then that should be CONSTRUED of a notice of disagreement.

I would point that out. I was notified on ___ that ____. I contacted the VA to disagree with that decision as I was willing to go to the exam. The VA responded by sending me to the exam. However, after I disagred with the decision and appeared at the exam - I was not notified of any denial.

I would point out some way, any way that you had disagreed with the decision - and that you were not notified after that -

But since the VA did mention it - I would spell it out - how you DID disagree - and how THEY dropped the ball.

Even to point out that as the LAST action the VA took was to send you for an exam - your case was opened THEN (why would they send you to an exam if you were already denied?") and that you did not hear from the VA again.

I think they might have to PAY this one. THEY messed up.

Dang. I remember reading a VA court case like this. Since the guy did NOT appeal an earlier decision - the BVA did the same thing - well, since he didn't appeal THEN, he wouldn't have appealed even if notified.

The court said NO NO NO - you can NOT make assumptions about what someone would or would not have done.

also - there is something in the M whatever manuals about EED on claims that states that they should go ahead and process the REST of the claim and not hold it ALL up on the EED decision.

I think this might be important since the EED will probably have to go to the BVA - as THEY have already assumed you wouldn't have appealed even if notified.

So you might want to put in - if you can find the reg - Under ___ I request that my claim for increased rating not be delayed --

Oh heck - I'm not thinking right -- but letting them know that you know you can get the increased rating NOW - and not have the whole dang thing held up for the EED.

[hurryupnwait]

I'm not an expert by any means but I would add a bit of how it Affects you in with it.

Diagnostic Code 5243 IVDS gives a 40% rating for forward flexion (range of motion) of the thoracolumbar spine 30 degrees or less.

Mine is 25 degrees. This causes me _____.

Diagnostic Code 5243-8520

20% moderate incomplete paralysis sciatic nerve, left leg, ( this is pain shooting down the legs.)

The pain in my legs ____

20% moderate incomplete paralysis sciatic nerve, right leg.

On the earlier effective date I would add in a bit more on WHY you considered it open. I was thinking you stated in another post that the BVA indicated that you were not notified of the decision - but that you had been denied earlier and had not appealed.

Yet they said you were denied for not appearing for an exam - and you notified them and went to the exam.

Did you write ANYTHING back then that should be CONSTRUED of a notice of disagreement.

Here is a letter I wrote dated May, 18 1973

To whom it may concern

The enclosed statements are from my doctor and my company accident report. Please review these records in relation to my disability compensation claim.

I would point that out. I was notified on ___ that ____. I contacted the VA to disagree with that decision as I was willing to go to the exam. The VA responded by sending me to the exam. However, after I disagred with the decision and appeared at the exam - I was not notified of any denial.

I would point out some way, any way that you had disagreed with the decision - and that you were not notified after that -

But since the VA did mention it - I would spell it out - how you DID disagree - and how THEY dropped the ball.

Even to point out that as the LAST action the VA took was to send you for an exam - your case was opened THEN (why would they send you to an exam if you were already denied?") and that you did not hear from the VA again.

I think they might have to PAY this one. THEY messed up.

Dang. I remember reading a VA court case like this. Since the guy did NOT appeal an earlier decision - the BVA did the same thing - well, since he didn't appeal THEN, he wouldn't have appealed even if notified.

The court said NO NO NO - you can NOT make assumptions about what someone would or would not have done.

also - there is something in the M whatever manuals about EED on claims that states that they should go ahead and process the REST of the claim and not hold it ALL up on the EED decision.

I think this might be important since the EED will probably have to go to the BVA - as THEY have already assumed you wouldn't have appealed even if notified.

So you might want to put in - if you can find the reg - Under ___ I request that my claim for increased rating not be delayed --

Oh heck - I'm not thinking right -- but letting them know that you know you can get the increased rating NOW - and not have the whole dang thing held up for the EED.

Free

I thought the no notice of determination was a cue.CUE?

see link

Edited January 23, 2008 by hurryupnwait

[free_spirit_etc]

Hmmm. I was thinking that a CUE was more that the DECISION was made in error. You aren't appealing that the decision was in error. You are appealing that as you did not receive an SOC - the decision was NOT final.

Does the other case on the CUE link MENTION that it is a CUE?

Actually, if there are NONCUE wasys to argue it - it might be better - because CUE cases have different standards - and they are harder to win.

I would think you would be APPEALING

1. THe rating

2. THe effective date of the award, but not based on a CUE (that an error was made in the decision --even if it was) but that the decision wasn't final - and therefore still pending when you filed in 2001.

And again - there is a regualation that says they are supposed to split these. Meaning if you can show enough evidence for an increased rating - they can go ahead and grant that and start paying higher -NOT holding it up over the effective date....

Free

I thought the no notice of determination was a cue.CUE?

see link

[rentalguy1]

The diagnostic code for Lumbar spondylolisthesis is 5239, and it ratable under the general diseases of the spine criteria. In other words, you don't have to have a dx code of 5243 in order to get a 40% rating based on limited ROM of the TC spine. I can understand wanting to get the code changed if your actual medical diagnosis states that you have IVDS, because I am in the same boat. Be aware that you were rated under the old criteria, and that it has changed twice since then. You may want to go back review the old criteria, the interim criteria, and the current criteria to see which one yields you the highest rating, as you are eligible to be rated under any of the three.

As to the CUE claim, I'm just not sure. On the surface, it doesn't seem to be, because a SOC isn't a regulatory item, but is instead a policy. Somebody correct me if I'm wrong on this, but I can't find an actual reg that covers SOC's. It is explained at length in M-21, MR, but there are no references to a regulatory authority in that manual. If, however, there is a regulation that covers SOC's, and they did not issue one, then that would be a CUE. Good luck.

M-21, MR section on SOC's

[free_spirit_etc]

I'm thinking about it and reading - and I am not coming up with CUE. You are not attacking a the decision made (that there was an error in how they made the decision) as much as arguing the claim was still pending... for earlier effective date. You are basically appealing the decision that the effective date is Nov 2001 is in error - you are not claiming that the OLD decision was in error. Because it was NOT final...

A CUE can make a final decision - UNfinal

But I don't think you have to do that - which is good because they really twist around on the CUES.

Again - what I think will be important to go through that the BVA said about the April Notice - is what occured to keep your claim Open from April --

Free

[free_spirit_etc]

I am not getting the actual link to the pdf to work - but this one was in my notes and if FROM:

http://www.cavcbar.net/

Court of Appeals for Veterans Claims Bar Association

PO Box 7992

Washington, DC 20044-7992

http://www.cavcbar.net/files/12571787.pdf

Later, the veteran filed a motion with the BVA to vacate its 2002 decision on the ground that there was a violation of due process in the proceedings leading to the 2002 denial of benefits. This motion was filed pursuant to Section 20.904, which provides that

[a]n appellate decision may be vacated by the Board . . . at any time upon request of the appellant . . . on the following grounds:

(a) Denial of due process. Examples of circumstances in which denial of due process of law will be conceded are:

(2) When a Statement of the Case or required Supplemental Statement of the Case was not provided, and

(3) When there was a prejudicial failure to afford the appellant a personal hearing . . .