Iris Response Today

[donews]

I sent an IRIS inquiry on February 29, 2008 about my most recent grant for Service Connection for my Heart Disease.

I basically told them I did not understand the 60% rating and that I thought it was an error. I explained that I wanted a conferrence or meeting or hearing with the DRO that made the decision to discuss the issue. I also explained that I verified that all the evidence needed for this claim was present in my VA records and even had my VA cardiologist verify it as well.

Here is the response I received via IRIS today:

3-12-08

Dear Mr. XXXXXXX:

Thank you for your inquiry to the Department of Veteran Affairs. A decision was made on your claim on January 8, 2008. A notification was mailed to you which afforded you the opportunity to reply to us via the Appeals Response Form. Please complete the form and mail the form to: Department of Veteran Affairs, Attn: Appeals, 251 North Main Street, Winston Salem, NC 27155.

Thank you for contacting us. If you have questions or need additional help with the information in our reply, please respond to this message or see our other contact information below.

Sincerely yours,

X.X. XXXXX Jr.

Veteran Service Center Manager

How to Contact VA

On line: www.va.gov

By phone: 1-800-827-1000

1-800-829-4833 (TDD hearing impaired)

By letter: U.S. Department of Veteran Affairs

251 North Main Street

Winston Salem, NC 27155

//as

Very helpful as you can see.

[tssnave]

Don,

Let's step back a minute to get a handle on the progress of your claim. You say this was a DeNovo review so I assume you sent in an NOD for a previous Decision? Please let us know the timeline of your claim. For instance, here's a rough outline of my claim:

Jan 2004 - Original Claim

Jan 2005 - Decision: Service Connection Denied

Aug 2005 - NOD for Service Connection request DRO review (you cannot argue any downstream issues like your

actual rating until you have established sc)

Dec 2005 - Decision: Service Connection Approved with a 50% rating

Jun 2006 - NOD 50% rating request DRO review (with disclaimer stating I was NOT appealing the service

connnection) included in NOD was a civilian shrink IMO

~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~

I am going to put the NOD in another post on this thread so we don't muddy the waters w/ multiple questions - Don, please give us a timeline in a single post on this thread so we know where you are in the process.

Thanks,

TS

Edited March 13, 2008 by tssnave

[tssnave]

Berta - I'm with you on this form not being a formal NOD. They just want to know what you AGREE with not what you DISAGREE with (though, by inference, when you say your are satisfied with the following issues it could be assumed that you disagree with the other issues but I sure wouldn't base my NOD on this form). What say ye?

Don - Do you have the IRIS inquiry? What, exactly, did you write? I would not assume the VA will "understand" my intentions without clearly spelling them out so when I wrote my NOD I said, "This is my Notice of Disagreement with my Decision dated xxxxx. I am contesting the 50% rating which I believe the evidence shows is higher than I was rated." I am curious just how clearly you stated your dissatisfaction or disagreement. Being "confused" is not necessarily being dissatisfied nor does being confused mean you disagree with them. I think you are skating on thin VA legal ice - Berta, Free, others - please chime here because I am inexperienced with the VA regs though I have years of reading and interpreting military regs and civlian contracts I understand the VA is its own beast. I don't want to see Don snookered into telling the VA what he AGREES with and then they turn around and say he didn't file a timely NOD because he didn't say what he DISAGREES with.

Here's what the VBM says about NODs:

"After a claimant receives an adverse RO decision denying a claim in whole or in part, the initial step in the appeal process is to file a Notice of Disagreement (NOD). For any appeal, filing an NOD is mandatory and cannot be circumvented. 261

Current VA regulations define an NOD as a “written communication from a claimant or his or her representative expressing dissatisfaction or disagreement with an adjudicative determination by the agency of original jurisdiction [the RO] and a desire to contest the result.” 262 The regulation further states that the NOD “must be in terms which can be reasonably construed as expressing disagreement with that determination and a desire for appellate review” 263

In 2002, the Federal Circuit upheld the requirement that an NOD must express a desire for appellate review. In Gallegos v. Principi, 264 the Federal Circuit reversed a prior CAVC ruling that the VA’s regulation could not legally require a claimant to express the desire for BVA review. 265

**Advocacy Tip** Due to the Federal Circuit’s decision in Gallegos v. Principi, advocates should ensure that all NODs expressly indicate a desire for appellate review. The addition of such language will ensure that the NOD will not be dismissed as inadequate by the BVA or the CAVC. A discussion regarding the language to use in an NOD is found in Section 12.7.4.

There is no special VA form for filing an NOD. The NOD does not have to be expressed in any special language. It must simply be expressed “in terms which can be reasonably construed as disagreement with [the] determination and a desire for appellate review.” 266 The Court has liberally construed correspondence from a claimant to determine whether an NOD was filed. In Anderson v. Principi, 267 the appellant’s statement that he “wonder[ed] why [my claim] wasn’t allowed back in 1985” was an expression of disagreement with the effective date assigned.

One exception to the general rule that no special language is necessary to qualify as a NOD is that in cases involving multiple issues and decisions, “the specific determinations with which the claimant disagrees must be identified.” 268 Failing to initially comply with this requirement should not be a fatal error because the companion regulation in part 19 of 38 C.F.R., which requires the VA to request clarification from the claimant, or the representative, whenever the NOD is deficient in identifying specific issues being appealed in multiple-issue cases. 269"

Don, On another thread I copied a small section from the VBM on how to write a legal disclaimer in an NOD. If you can't find it by looking at my profile and recent posts let me know and I'll either copy it in again or post a link to the other thread. This form does NOT look to me to meet the requirements of an NOD. Berta? Free? Others?

Thanks,

TS Snave

[tssnave]

Don,

Are you working w/ the DAV at the VARO in Winston Salem? I am interested what they have to say about this form.

Don, please post this form on a new thread and simply ask the board if anyone else has gotten one of these forms and if so at what point in the process. I'm not clever enough to figure out how to copy it from this thread onto a new thread but if Berta hasn't seen it and I haven't seen it (Berta because of her experience and me due to my recent NOD) I'm curious just how often the VA is using this form.

My concern is that because it only addresses what you are SATISFIED with that it could be used as evidence against whatever part of your claim you want to NOD because you are stating what you are satisfied with and not DISATISFIED with. I want to see if I'm being paranoid (not my usual problem) and everyone but me has seen this form or if my Spidey senses may be accurate (or neither and it's just a routine admin form that doesn't really amount to a hill of beans).

Thanks,

TS

Edited March 13, 2008 by tssnave

[vetswife]

Send a one or two paragraph letter stating that you do not agree with thier decision and are exercising your right by filing a Notice of Disagreement on your claim. Make it clear, and understandable that you are filing a NOD.

When you emailed them, you said you were not clear. . this would appear to me that you are not disagreeing, you just need more information. And, if it appears to me that way, guess how it appears to the VA?

File a formal NOD letter.

[john999]

Yes, the take you over the hurdles via the formal appeals system. Even when they make a gross and obvious error.

[donews]

Ts,

Timeline ok this might get a little long, and is entagled in multiple claims but I will try to line it up.

03-17-2005 Original Claim for Compensation

• The VSO that was assisting me at the time listed HBP, Heart Problems, Diabetes, Diabetes Type II, PAD, AICD, and Angina as the claimed conditions.
  
  
  
  • They appeared to have the claimed conditions incorrect. They said I was claiming Peripheral Artery Disease with Implantable Defibrillator. This is not the case, so I prepared a 21-4138 to send to them.
    
    
    
    • I attached a copy of the statement I sent.
      
      
      
      • They left off a few of the conditions I listed in the 21-4138 when they sent this new request for evidence. (I never noticed this until about 4 months ago)
        
      • I had nothing to send as the VA was the one treating me for the listed conditions.
        
        
        
        • They basically said that they know I was in Vietnam so Agent Orange Exposure is a given, but that since I was not being treated for any of the listed conditions, that there was nothing to service connect.
          
        • I called and was told they needed me to send a letter stating that the VA was treating me and requesting that they reconsider my claim and to check the VA system for my records.
          
          
          
          • I sent a 21-4138 with the information as told to me by the person at the RO during my phone conversation with them.
            
            
            
            • I attached a copy for you to see.
              
              
              
              • Faxed the requested form to the RO completed by Three seperate doctors.
                
                
                
                • They deffered the decision on the rest.
                  
                  
                  
                  • I saw and eye doctor, Mental Health, and a Quack for my Heart I think but he was just a reg doc not even a cardiologist.
                    
                    
                    
                    • They gave me 20% Severe Diabetic Retinopathy
                      
                    • They gave me 10% Left Leg Neuropathy
                      
                    • They gave me 10% Rigth Leg Neuropathy
                      
                    • They gave me 0% w/ smc for the Impotence
                      
                    • They denied the Depression as they claimed it was due to my Heart Disease and since my heart disease was not Service Connected its a no go
                      
                    • They denied my skin conditions as they claim it was not active when examined
                      
                    • The denied all Heart Conditions as " No Causial Relationship Between Diabetes and any Heart Disease" their words not mine.
                      
                    • They denied Peripheral Vascular Disease as they had denied the Heart Disease and hence no bases for connection.
                      

                    03-16-2007 Filed NOD for Heart Conditions and for Increase in DMII

                    [*]Filed two separate forms one NOD and one Request for Increase

                    [*]I had a VSO do this for me.

                    [*]Also sent in a opinion letter received from my non-va cardiologist. It wasn't quite "as likely as not" but better than nothing.

                    04-19-2007 Received request for evidence for DMII increase

                    [*]Sent in several 21-4138's.

                    [*]My 21-4138 stating why I felt I deserved an increase and what has changed.

                    [*]My son sent a 21-4138 stating the changes he has notice since he is the one caring for me.

                    [*]My daughter-in-law sent in a 21-4138 stating the changes she has noticed.

                    04-24-2007 Reply to RO with 21-4138's

                    [*]Sent the completed forms to RO

                    04-30-2007 Received request for how I wanted my NOD on Heart Disease handled.

                    [*]They sent a request to see if I wanted a regular review of my NOD or if I wanted a De Novo Review of my claim.

                    [*]I requested a De Novo Review.

                    09-19-2007 Received a request for evidence for my Heart Conditions

                    [*]They requested 21-4142's for all the treating locations.

                    [*]I sent them

                    09-25-2007 Sent 21-4142's

                    [*]Sent requested form for treating locations for heart disease

                    11-19-2007 Received decision - Denied increase for DMII but approved for a separate condition Gastrparesis at 30%

                    [*]They denied my DMII increase caliming my Regulation of Activited was due to my non service connected heart disease not my DMII

                    [*]They gave me approval for Gastroparesis at 30%, this is not something I ever claimed, they grabbed this I assume as an inferred claim from the 21-4138 that I sent in re: to the DMII increase.

                    [*]The odd thing is they did not do any thing else even though if the Gastroparesis was infered the other 4 conditions on the same form should have been infered as well.

                    12-20-2007 Called RO to check on Heart Claim

                    [*]They said the claim was sent to an outside doctor for the IMO.

                    [*]They requested if I called back around the end of the month they would check to see if it was back.

                    12-27-2007 Called RO to check on heart claim

                    [*]They said it was back and sent for signatures, but they couldn't pull it up on the screen yet, and to call back in a few days.

                    01-08-2008 Received decision - Given full grant for Heart Conditions as Agravated by and rated at 0%, denied Peripheral Vascular Disease again.

                    [*]This is where I am at at the moment.

                    Hope this is what you were asking for TS.

                    Reply__to_RO.pdf

                    Reply_2.pdf

                    Diabetes.pdf

Edited March 14, 2008 by donews