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On Appeal Since 2000 (need To Know I'm Not Alone)

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  • HadIt.com Elder

Hi Everyone,

I am a DAV who served in the Marines 91-95. I have been on appeal since 2000 and recently received what I consider a lost BVA decision. Here is my story:

back 20% (on appeal)

neurological legs 10% (from back) (only thing I recieved from BVA)

adjustment disorder for back 30% (on appeal)

asthma 30% (on appeal)

right foot fracture 10% (on appeal)

left foot fracture 0%

chronic right testicle pain 0%

high blood pressure (second to back pain) 0%

eczema 0%

The BVA looked at my back, right and left foot, and chronic testicle pain which have been on appeal since 2000. I currently have three levels of degenerative disk decease. I had an operation on two levels in 2000 (laminectomy and discectomy) which failed. I can't stand or sit very long. I am in severe pain constantly. I take OXI 4 times a day. I have multiple panic and anxiety attacks daily which I take Ativan and buspar for. I can barely hold my children. I get nerve blocks done about six times a year without any relief. My pain doctor wants to try a spinal stimulator on me. No surgeon will touch me again (8 or 9 didn't want to in 2000). My leg pain is severe and I limp most of the time. So the BVA decides 20% compensates me for my back. They did throw in 10% for the legs. Since I was already 74.x the 10% did nothing for me. I know have a lawyer at the U.S. court of appeals who thinks she can reverse all four decisions. So I sit and wait.

My asthma, mental, high blood pressure, and eczema all sit still at the regional office since 2002. I have a feeling these will be all headed down to the BVA soon. I can only get 10K of life insurance for my family from the VA. I have been turned down four times from four different companies because of the asthma, mental, and pain killers. Yet I still get up on most days and go to work. The Marine in me and I guess my family keep me going. I can't afford to wait for 100% which I know I could get if I played it right. I am driving my wife insane because she has to do all the work around the house.

Any comments, questions to resolve this crap or anything at all would be appreciated.

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  • HadIt.com Elder

You are not alone unfortunately. I know that this may sound weird but I resolved a somewhat similar situation by first asking for a Hearing which removed my claim from BVA and back to Regional Office and asking President Bill Clinton for help.

Believe it or not my claim after over 5 years plus was approved in less than 2 months and the money was in the bank.

Also another avenue is to look at a Writ of Mandamus where you petition a Court to make the VA take action.

Good Luck to you.

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Pete can we do one these "Writ's" of whatever in a VA iris request on authoization of a claim that has been decided and pending and wating on official notification. If we can send me one please.

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You might not have gotten a VCAA letter due to the date you filed- has the VA even sent you one since you applied?

Were you able to provide them the evidence they asked for in the VCAA letter?

If the CAVC remands your claims back to the BVA-this is better then a denial from the CAVC-

a remand is one more chance to see if all of the evidence was being considered.

Unfortunately once a claim is at the CAVC NO further evidence can be sent-

their decision is based solely on the established record at that point.

A BVA decision however -you can request a reconsideration at the BVA in some cases -not all- and even send them more evidence before they make a final decision.

It is difficult to know the status of your claim because CAVC has not acted on it yet but your lawyer sounds confident if it gets to the CAVC.Has the lawyer considered filing a reconsideration yet at the BVA?

Are you watching the appellate time frame for the NOA if this has to be filed at the CAVC?

Have you formally applied for SSA disability benefits?

Can you tell us the excact wording of the BVA decision as to why they denied or give us the Citation and Docket number-it may be public knowledge by now at the BVA web site.

I see you get 70%-have yopu foprmally applied for TDIU yet?

Why didnt VA award you TDIU when they sent the 70% decision?

are you still employed or did you stop being employed since that decision?

welcome here and Semper Fi.

Edited by Berta
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  • HadIt.com Elder

I agree with Pete to try and get this claim back to the VARO and get a personal hearing. You can get more done with a personal hearing than waiting ten years for the BVA to do something. It does not always work that way, but if you have good evidence just having someone look you in the eye and consider your claim can work wonders. The way the VA works is that you have to get in front of a human being to get anything done.

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  • HadIt.com Elder

Thanks for the postings everyone. I did have a hearing at the local office in 2004 for the back etc. I sat there and talked with a woman from the VA that actually made a comment "they went out of their way to give you the lowest possible ratings". Everything sounded good, like I was going to get some proper ratings. Then I get the DRO decision and every increase was denied. I don't know if I trust bringing this back to Hartford, CT. I don't anyone with the VA period.

I have what I thought was tons of evidence. All the documentation from pain clinic doctor who gives nerve blocks, pain killers, he stated three levels are unstable and scar tissue from the surgery is intrapped, dr. Bash (some of you might know him) wrote me two letters, letter from physical therapist with orthopedic / neurological findings on exams, letters from multiple surgeons stating nerve / leg issues, three levels blown, recommending spine stimulator, no surgery available to fix. Seems to stack up to move than 20%.

Does anyone know what happens if the BVA decisions are reversed? Does that mean the BVA has to give me higher ratings? Or another year or two to get nothing?

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Did the VA fully address the IMO from Dr. BAsh?

I have been waiting for them to do that for 2 IMos from him dating back to Nov 2004- even the DRO ignored them-I have been raising hell ever since on that-

I am confused here- where is your claim at right now?

The CAVC can reverse the BVA-but it is often better to get reconsideration at the BVA level- or a BVA remand baxck to the RO-

You might be able to do what I did- the VARO didnt use or even read my evidence-and transferred my claim to the BVA-I got it back tp the RO in 3 weeks by raising 3 legal arguments-

your lawyer should consider doing that-

If your SC conditions, and the meds you take for them preclude employment- a TDIU form filed right away and sent to the RO-might cut through a lot of VA BS-and save time-

if you still have a lawyer I hesitate to really give any advise-that is their job-

but if you can get a doc to say you cannot work due to the SC conditions (including any that should be secondary SC conditions)

and attach that opinion with a full medical rationale to the TDIU form (21-8940) you might get a faster award.

Did the VA ever turn you down for Voc Rehab due to any SC condition- that too is evidence of unemployability- as well as any SSA award solely for SC conditions.

A Writ of MAndamus isnt appropriate here in this vet's situation.

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