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

[rentalguy1]

I also got to thinking more about this. You are actually putting in a claim for an increase, and to change the dx code, but you are not actually claiming cue on the 1973 decision. They way this is written, you are effectively asking the VARO to make a final decision on the 1973 case, which would be the correct method to use, instead of claiming CUE. I'm still not sure if you were denied in 1973. Maybe I missed that part. If they did deny you, I don't think either the reconsideration of that decision, or a CUE would make a difference. In other words, they denied based on the medical evidence of the time, and not on whether or not a SOC was issued. The only thing that an SOC would have provided, was the information that they based the denial on, and your appealate rights. If they will give you an SOC for the 1973 denial, then you can appeal it, but it would still be based on the medical information from that time period. They cannot rate you back to 1973 based on more current medical evidence.

One last point: I think ratings for bilateral sciatica would be pyramiding. I think they can only grant "sciatica," and not for the condition in each leg, as it's actually one nerve and not two seperate ones. It splits in the pelvic region and travels down both legs, where each splits again below the knee and again in the feet.

If it were me, I would probably just put in for an increase in the current condition, and a new claim for SC of the neuropathy as secondary to the SC'd spine condition.

Edited January 23, 2008 by rentalguy1

[free_spirit_etc]

I think a CUE would have to argue about the evidence in the record back then. But if he was not notified of the decision (and given the right to appeal that decision) then the decision would NOT be final - and therefore any NEW evidence CAN be added. I don't really know how they decide what level of disability you are at one point.

I THINK they have to give you whatever rating you are given BACK to the date of the orginal filing.

Maybe that is ONE good thing about them always taking so long on everything - is that by the time they finally make a decision - the vet is much worse - and gets a higher rating all the way back to filing.

Heck - the new vets should realize that - file when you get out and by the time you make it all the way through the system you will be bad enough to get a decent rating - and it goes back to the 500 years ago that you filed.

But I think on a CUE - they would look at did the evidence in the file at the time aupport the decision.

But on a non-final decision -- or open claim -- which is basically what he can argue -- the current rating goes all the way back to the date of filing..

which is why they nitpic so much on them

BUT I COULD BE WRONG!!!

Free

I also got to thinking more about this. You are actually putting in a claim for an increase, and to change the dx code, but you are not actually claiming cue on the 1973 decision. They way this is written, you are effectively asking the VARO to make a final decision on the 1973 case, which would be the correct method to use, instead of claiming CUE. I'm still not sure if you were denied in 1973. Maybe I missed that part. If they did deny you, I don't think either the reconsideration of that decision, or a CUE would make a difference. In other words, they denied based on the medical evidence of the time, and not on whether or not a SOC was issued. The only thing that an SOC would have provided, was the information that they based the denial on, and your appealate rights. If they will give you an SOC for the 1973 denial, then you can appeal it, but it would still be based on the medical information from that time period. They cannot rate you back to 1973 based on more current medical evidence.

One last point: I think ratings for bilateral sciatica would be pyramiding. I think they can only grant "sciatica," and not for the condition in each leg, as it's actually one nerve and not two seperate ones. It splits in the pelvic region and travels down both legs, where each splits again below the knee and again in the feet.

If it were me, I would probably just put in for an increase in the current condition, and a new claim for SC of the neuropathy as secondary to the SC'd spine condition.

[free_spirit_etc]

http://www.ll.georgetown.edu/federal/judic...ns/02-7015.html

United States Court of Appeals for the Federal Circuit

02-7015

MICHAEL D. HERNDON,

Claimant-Appellant,

v.

ANTHONY J. PRINCIPI, Secretary of Veterans Affairs,

Respondent-Appellee.

Finally, Herndon argues that the board’s 1998 decision, that its 1987 decision subsumed the 1984 rating decision, constitutes a denial of due process of law under 38 C.F.R. § 20.904. The failure of the statement of the case to list termination as an issue for appeal and to cite the regulations concerning termination, however, does not rise to the level of a violation of due process contemplated by the regulation. See 38 C.F.R. § 20.904(a)(2) (2001) (“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.”).

So it looks like it IS in the law - and relied on in FEDERAL courts.

So the important thing is Did you get an SOC?

IF so were any supplemental SOC's REQUIRED?

I wouldn't just put in the EED arguement that you weren't notified of the decision - and thus it is still open. THe BVA already said it doesn't show you were notified - but that you WERE notified in April and did not pursue an appeal.

So you need to address THAT

Did you get an SOC in April?

If so - did you disagree?

And were they REQUIRED to send you a supplemental SOC?

I would certainly think if they were still sending you to doctors that your case was still OPEN -- but you have to spell it out for them.

They have already acknoledged you weren't notified - but said "BUT...."

You have to address why the "BUT>>" is not valid.

MY opinion at least....

Free

[free_spirit_etc]

EEK! Also - I think they might go by the regulations in effect AT THAT TIME - can you get a copy of the 1977 regs?

Free

[hurryupnwait]

EEK! Also - I think they might go by the regulations in effect AT THAT TIME - can you get a copy of the 1977 regs?

Free

Where do I find a copy of the 1973 regs

[hurryupnwait]

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. Where do I find the old rating criteria

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