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

[hurryupnwait]

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.

Someone on this forum, I think, was rated for bilateral sciatica and they received a separate rating for each leg. I do think that when something is bilateral there is an increase in percentage.

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.

[hurryupnwait]

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? I did not like the decision, but I did not send in anything that would be construed as a NOD

And were they REQUIRED to send you a supplemental SOC? Not sure, but the BVA made note of it in the remand letter, which tells me that it may have been needed

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...." What would be the but....?

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

MY opinion at least....

Free

[free_spirit_etc]

I didn't like the decison per se either. However the decision gives the exact regulation that tells you that they have to send you a statement of case or consider your case opened, reopened.

You could use THAT Reg - I just didn't have time to look it up. Or I am sure there are OTHER decisions that are more favorable - (though the case at point was denied because the person did NOT fit the criteria of not being issued an SOC) But again, I didn't have time to look it all up - I was just trying to point you in a direction.

I think what the BVA was saying that is important to YOU, is their "BUT" he didn't appeal the April decision. THAT is what you have to Beat to get the retro.

I don't think that just saying your weren't notified of the decision and therefore the claim was still pending will cut it.

The BVA already said that you weren't notified - but they had a BUT and did not grant you an earlier effective date.

I am not sure if you didn't send in anything that could be construed as an NOD - why where they sending you on exams on a final decision?

I am getting confused over the chain of events from the April denial until the Nov denial you didn't get..

Because the BVA's BUT is WITHIN that time frame.

Free

[john999]

I think I would say that Dr. Bash's exam was a physical examination, and a review of all my previous SMR's and other medical records. The key is for Bash to be able to say he reviewed all your medical records and in light of this along with a comphrensive medical exam he determined "X". This is what the VA pretends to do when the C&P doctor looks at your medical records to make sure your name is spelled right and that he has the right chart.

[rentalguy1]

Finding the old regs...I'm kind of swamped at work right now, but I might get to look it up later. If you want to look for it, I would go the end of the spine ratings section in 38 CFR 4.71a and find the Federal Register entry, then google that entry and start backtracking the FR from there. It was changed in 2001, and again in 2002 (I think). I have all the FR pages at home, and I'm pretty sure all the old criteria is listed in there.