I Hate The Va! I Hate Them I Hate Them I Hate Them

[SouthernBelle]

So, I'm so mad I can't see straight right now. They denied the increase again. I can't believe it, I really just can't understand how a DOCTOR'S OPINION, the DOCTOR WHO TREATS MY HUSBAND TREATS HIM! can be ignored for a lower rating. RATERS ARE NOT DOCTORS! DAMN, I'm pissed. I am sitting here shaking I'm so mad.

Edited December 15, 2008 by SouthernBelle

[broncovet]

Belle,

I just noticed something in YOUR NOD that you posted. There are two things required of a NOD:

1. Veteran expresses disagreement or dissatisfaction with VARO decision.

2. The Veteran desires to contest the result.

(Maybe someone can look up the NOD regulations, I am doing this from memory)

When you file your NOD, (and I certainly recommend you do exactly that..sooner is better than later but NEVER wait more than a year) make sure you have those two elements. I recommend you specify either (as in number two above):

The Veteran desires to contest the result with a Decision Officer Review. (Of course, you can also elect to skip the Decision officer Review and go straight to the BVA. In that case, state something like "The VEteran waives the right to a decision officer review and elects instead for a BVA appeal")

I recommend you CHANNEL YOUR ANGER into doing a great job stating your case with the NOD.

I have been working on perfecting my NOD for MONTHS. The BVA (or DRO) will read your NOD, but may not read other stuff in your file. So make your case very clear. State exactly why you think your hubby should get a higher rating. Copy down the criteria for the disability rating you are trying to achieve. If you look it up, you can find the criteria for a 70%PTSD depression rating, for example, if you are seeking TDIU. Then, look through your hubbies entire medical records and LOOK FOR THINGS that the doctor said about your hubbys med exams that support your position of a 70% (or 100% rating) using the rating criteria.

In my case, I am alleging the Regional Office "mishandled" evidence. (See fast letter 08-41) That is, they failed to cosider certain evidence through 5 regional office decisions, one DRO review and one BVA appeal. I stated it this way:

This medical exam documents the Veterans 2002 claims for depression and TDIU, and, reveals the Veterans suicidal ideation's. The evidence of the Veterans suicidal ideation's was NOT considered in any Regional Office decisions. Instead, the Regional Office, in the 2005 decision rated the Veterans depression as if the Veteran had no suicidal ideation's, because suicidal ideation's are present only in the rating criteria for 70% and higher disability ratings. The Regional office rated the Veteran's depression at 30% and offered no explanations as to why it would be rated at 30% when the criteria would indicate that suicidal ideation's would warrant a minimum 70% rating. Surely, the issue of this medically documented evidence of the Veteran considering taking his own life would be worthy of consideration if this evidence were known at the time of the ratings review! The suggestion that the Regional Office knew of the Veterans suicidal ideation's but did not deem that information important enough to be included in the decision would both insult and trivialize the Veterans life. It is simply unacceptable for the Regional Office to consider the Veterans own life so trivial that it was unworthy of consideration when evaluating the Veterans depression ratings.

I hope this helps. I am in nearly the same boat you are in. Good luck.

[tssnave]

Belle,

I agree w/ others - take a break. I do not agree w/ those who say skip the DRO and go to BVA. The one good tihng about a DRO review is that you get a senior rater who was NOT involved in the previous Decision. Now, I realize that many here think an entire RO is in cahoots w/ one another, and that may be the case, but in my situation the the DRO route (twice) finally got my bipolar claim rated 100% P&T.

Mind you, that was after they denied sc by ignoring information in the cfile and letters attesting my treatment on active duty. Then they low balled me 50% despite the C&P examiner stating I was 100%. They finally awarded me 100% after I sent in my second NOD with an IMO. Took about 4 years all total. Did it suck ?? - BIG TIME!!

Here's how I would fight your situation:

A) Point out the evidence that supports the 70% rating. Highlight it (literally).

:P Apply for IU with this NOD (that's what I did)

C) Point out the regulations and court cases that are in your favor.

It would look something like this:

This is my Notice of Disagreement regarding the Decision dated xx for yy% on my claim. I do not agree with this Decision. I would like DRO review for a 70% rating as well as 100% IU because symtoms of my sc PTSD render me unable to hold down a job.

The evidence clearly shows symptoms consistent with a 70% rating and 100% IU (highlighted in yellow):

1. Psychological Evaluation by Dr QQ stating " (get a good IMO)

2. Treatment report dated xx stating "suicidal ideation..."

3. Treatment report dated xx stating "wife must come with husband..."

4. Dr. ZZ statement that "veteran is unable to hold down job...."

5. VA IU Form

6. VA IU Employer Verification Form (if it's relevant to his claim)

7. Spouse's statement that "I have to go with him....he can't drive....won't bathe....."

8. Parent's (or in-laws) statement that ......

Furthermore, VA regulations and court cases support a higher rating:

CFR 38 § 4.7 states “where there is a question as to which of the two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating.”

Rating Criteria Not an Exhaustive List (Mauerhan v. Principi, 16 Vet. App. 436, 442-43 (2002))

Since the rating criteria are not intended as an exhaustive list and there are many symptoms listed in the Decision that fall out in the 70% rating criteria, I request that you assign a higher ratiny by applying Mauerhan v. Principi to my claim.

Giving Veteran Benefit of Reasonable Doubt (38 CFR Book C §4.3)

If the VA still contends the evidence was not overwhelmingly in support of a higher initial rating, 100% Individual Unemployability and Permanent and Total status, effective May 17, 2004 then I would ask the VA to apply 38 CFR Book C §4.3 and give my claim the benefit of reasonable doubt and award a higher rating.

Thank you for your consideration of my request for a higher rating of 70% with 100% IU.

Joe Snuffy

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

Hope this helps. IME the only way you win your claim is with evidence, regs, court cases and reminding the VA that the evidence, regs, and court cases mandate they adjudicate your claim properly.

Also, is there an inferred claim in the cfile for IU? If the veteran raised the issue during his C&P exam then it can be considered an already inferred issue. I don't know where you are in the process but this can be important when it comes to your effective date.

Good luck with your husband's claim. Take a break and enjoy that baby during the holidays. As many of us can attest, you will blink and your little ones will be grown. I have a grandson not much younger than your son.

God Bless,

TS Snave

[poolguy11550]

SouthernBelle- this is a clear-cut example of the VBA failing to apply the reasonable doubt, it appears that the rater has one foot in the 70% camp and one foot in the 50%- simply put it should have clearly & legally been resolved in favor of your husband. In such, I would go the DRO route and cite failure to apply Reasonable Doubt persuant to 38 U.S.C. 3.102.

I also think that the rater had mistake in two areas. 1. A complex medical desicion was made by the rater along with the (2) complex legal desicion refered to above.

So, if you really wanted to drive your point across the R/O- file a FOIA request and ask for the medical and legal background of the perosn/s whom rated your husbands claim. If the R/O does not give the details use this as your basis for appeal. If the R/O gives you the info then use that as the basis unless the person/s where a licensed M.D. that made the desicion (not likely).

Edited December 18, 2008 by poolguy11550

[SouthernBelle]

Amazing. You said exactly what I needed to do, and gave me the actual steps to do it. Thank you, I hadn't thought of that route, but doggone it, I'm on it as of today. I know I said I'd take a few days, but this is the point I was trying to make (not nearly as eloquently as you put it) about the rater. They're not qualified (generally) to make medical decisions. THANK YOU THANK YOU THANK YOU! I'm on it right now!

SouthernBelle- this is a clear-cut example of the VBA failing to apply the reasonable doubt, it appears that the rater has one foot in the 70% camp and one foot in the 50%- simply put it should have clearly & legally been resolved in favor of your husband. In such, I would go the DRO route and cite failure to apply Reasonable Doubt persuant to 38 U.S.C. 3.102.

I also think that the rater had mistake in two areas. 1. A complex medical desicion was made by the rater along with the (2) complex legal desicion refered to above.

So, if you really wanted to drive your point across the R/O- file a FOIA request and ask for the medical and legal background of the perosn/s whom rated your husbands claim. If the R/O does not give the details use this as your basis for appeal. If the R/O gives you the info then use that as the basis unless the person/s where a licensed M.D. that made the desicion (not likely).

[Pete53]

Thanks Poolguy that is very useful advice and I think it made things a lot easier for Belle. She has a good plan and she can say that the reason she wants to see the DRO is copy and paste your explanation.

Thanks for helping Veterans and their families.

[jbasser]

I second Petes reply.

J