Ro's Response To Imo....

[vetwife]

Hi all,

We got a IMO from Dr Bash for my husbands claim. Please read the attachment on the response from the RO in their decision (denial) letter. bash.bmp

This claim is a 1151 - the RO never ever sent him for a C&P , never got their own opinion, just swept this under the rug. Then they knock the IMO that we sent - the only medical opinion there is on this claim - it's not even disputed - because they never sent my husband in for one..... This came a while back...I'm am still REALLY upset.... please read & give me opinions on what to do ( I have just filed form 9).

I have his records! They x-rayed the wrong ankle & then reported that he only had a sprain - when he actually had a fractured ankle bone. They had him walking on it for over 4 months in excruciating pain before finally doing an MRI & seeing it was still fractured.

The decisions also reads "there is no evidence the VA caused additional damage" Could they truly believe walking on a fracture for months wouldn't cause additional damage?

If I am wrong - please set me straight here.... he ended up with sever nerve damage & having to have his whole ankle fused together. But they think they didn't cause additional damage? Is that possible?

[poolguy11550]

I sent someone to the psychiatrist I used for my IMO that got me TDIU. His IMO was rejected because they said he was doctor shopping. I read his IMO and it was really terrific. The doctor we used was an ex-VA shrink. They incorporated that shrink's opinion directly into my rating decision, but rejected my frieds's IMO from the same shrink. I think the VA was doctor shopping in reverse. We both had the same psychologist, and he eventually got 100% and HB. The VA orginally rejected my psychologist's opinion even though I had been seeing him for 30 years. They relied on a psychiatric resident over a clinical psychologist with 35 years experience.

Standard R/O practice.

[Pete53]

Blows the mind when you see the VA do everything it can to deny Veterans earned benefits when it should be their number 1 job to help them. Even the so called VCAA letter is supposed to show Veterans what they need to win their claim.

The VA still has the resources and the power to deal with the scammers.

[spike]

This is a copy and paste of the VCAA Notification Requirements so there is no confusions on what the VCAA is required to do. New rating decisions even if they are small seem to be 10 pages long now. This is the Vazquez-Florez v. Peake decision. Read this and you will see that they are sending rating decisions now with the diagnosis code(s) and the full rating criteria. The VCAA is not required to help you win or lose claims, it is there to show you what is required to make your claim complete.

As for representing your individual claims by yourself: If you are extremely vast in the knowledgable in the VA regulations and USC Codes, Appeal Rights....and have the time to represent yourself amongst the VA system. Then by all means. However, One service that VSO's should be providing is, a date stamp protection on your date of claim. Let's face is documents get lost in the VA System and documents are being shredded. Protect your date of claim. Just a recommendation.

Director (00/21)

All VA Regional Offices and Centers Fast Letter 08-16

SUBJECT: Vazquez-Flores v. Peake and New Veterans Claims Assistance Act (VCAA) Notification Requirements

This fast letter contains guidance on new notification requirements in claims for increased disability compensation. This letter supercedes any prior guidance regarding notification procedures resulting from a decision issued by the United States Court of Appeals for Veterans Claims (the Court) in Vazquez-Flores v. Peake on January 30, 2008.

Vazquez-Flores v. Peake created additional notice requirements for claims based on increased evaluation. The Court found that 38 U.S.C. § 5103(a) requires that VA notify the claimant of the following:

1) Medical or lay evidence that the claimant must provide, or ask VA to obtain, demonstrating a worsening or increase in severity of the disability and the effect that worsening has on employment and daily life;

2) At least general notice of the diagnostic code (DC) criteria, including any specific test or measurement with any applicable cross-referenced DC under which the veteran may be rated, if the requirements for an increase in evaluation would not be satisfied by a noticeable worsening or increase in severity of the disability and the effect that worsening has on employment and daily life;

3) A disability evaluation is determined by applying relevant DCs, which range typically between 0 percent to as much as 100 percent, and is based on the nature of the symptoms for which disability compensation is sought, their severity and duration, and their impact upon employment and daily life; and

4) Examples of the types of medical and lay evidence that are relevant to establishing entitlement to increased compensation (such as competent lay statements describing symptoms, medical and hospitalization records, medical statements, employer statements, job application rejections, and any other evidence showing an increase in the disability or exceptional circumstances relating to it).

Page 2.

Director (00/21)

Notification Requirements in Claims for Increased Evaluation

The section of the current VCAA notice titled How VA Determines the Disability Rating meets the Court's requirements for the third and fourth elements stated above. However, as explained below, regional office (RO) personnel must modify this section further in order to comply with the first and second elements. For the first element, the current VCAA notice is not compliant with 38 C.F.R. § 4.10, which states that the basis of a disability evaluation is the ability to function under the ordinary conditions of daily life. VA is litigating the second element regarding notice of the DC rating criteria.

To ensure compliance with the Court's holding, for all initial VCAA notification in claims for increased evaluation, veterans service representatives (VSRs) must delete the current section, How VA Determines the Disability Rating. They must replace it with the revised section of the same title contained in Enclosure 1.

VSRs must also provide the complete DC rating criteria, with any cross-referenced DC criteria, under which the disability at issue is currently rated. A cross-referenced DC is another four-digit DC noted within the DC criteria at issue, the criteria of which provides an alternate means to evaluate the disability. Provide the DC criteria even if the claimant appears to be rated at the schedular maximum. Attach the DC criteria at the end of the letter, after the VCAA Notice Response. Be sure to include for the claims record (whether paper or electronic) copies of all DC criteria provided to the claimant. See the attached RBA2000 Rating Schedule Help Tool instructions on printing the DC criteria. Refer any questions concerning DCs or cross-references to a rating veteran service representative (RVSR). The RVSR may subsequently evaluate the disability under a different DC without providing additional notice. See Enclosure 6 for a diagram of this process.

Appeal Notification Requirements

When the claimant files an appeal in response to a decision regarding an increased evaluation, the RO will cure any notice defect during the appeal. (Note that the requirements of Vazquez-Flores do not apply to appeals of increased evaluation resulting from initial grants of service connection i.e., when the evaluations are downstream issues. Please see the enclosed Vazquez-Flores Questions and Answers for more information.) As with curing defects in claims notification, identify and print the complete diagnostic code (DC) criteria, with any cross-referenced DCs, under which the disability at issue is currently rated. Provide the DC criteria even if the appellant appears to be at a schedular maximum. Attach the DC criteria in all appeal cure notices after the appropriate notice response. See Enclosures 7 to 9 for diagrams of the basic steps for curing the notice defect for the appeal stages.

Page 3.

Director (00/21)

See the RBA2000 Rating Schedule Help Tool instructions on printing the DC criteria. Be sure to include for the claims record (whether paper or electronic) copies of all DC criteria provided. The decision review officer (DRO) or RVSR may subsequently evaluate the disability under a different DC without providing additional notice.

Notice of Disagreement

After receiving a notice of disagreement (NOD), simultaneously prepare the appeal process election letter and a separate appeal cure notice, if needed. See Enclosure 2, Letter to Cure Pending Appeals for Increased Evaluation. Include with the notice Enclosure 3, Vazquez-Flores Notice Response. The 30-day response period for the cure notice may run concurrently with the 30-day appeal election response time.

If the appellant elects the DRO process in the NOD, send the appeal cure notice and allow 30 days for a response.

Statement of the Case

Prior to issuing a statement of the case (SOC), determine whether VA previously provided the appeal cure notice. If not, send Enclosure 2 and include the Vazquez-Flores Notice Response. Allow the appellant 30 days to respond to the cure notice. Unless the appellant waives that response time, after 30 days, if no evidence is submitted or the evidence submitted does not result in a full grant, refer the appeal to the DRO or RVSR to issue the SOC.

Supplemental Statement of the Case

If additional evidence is received after the SOC and the appeal cure notice has not been previously provided, send Enclosure 2 and include the Vazquez-Flores Notice Response. Allow the appellant 30 days to respond to the cure notice. Then, refer the appeal to the RVSR for the supplemental statement of the case (SSOC), regardless of whether the appellant submits any additional evidence.

Travel Board Hearings

After receipt of the VA Form 9, Appeal to Board of Veterans' Appeals, the appellant may request a local hearing before the Board of Veterans' Appeals (BVA) Travel Board or via videoconference. Do not reschedule, postpone or otherwise cancel a videoconference or Travel Board hearing strictly because of any Vazquez-Flores notice issue. For hearings scheduled in the near future, the RO should screen its Travel Board cases for appeals of increased ratings and, if a cure letter was not sent but required, send Enclosure 2 with Enclosure 3, the Vazquez-Flores Notice Response.

Page 4.

Director (00/21)

Follow the cure notice with re-adjudication of the appeal in the form of an SSOC. To emphasize that the appellant may waive the 60-day response time, on the SSOC cover letter, under the section titled I already filed a formal appeal, place in bold font the last sentence that reads, If you do not wish to respond, and you do not want us to wait for the full 60 days to expire, you can write to us and let us know that.

If a Travel Board hearing is currently scheduled, but the appellant does not have the full time to respond to the cure notice or its subsequent SSOC, proceed with the scheduled hearing, unless instructed otherwise by the Board. Give the appellant the opportunity to waive the 30-day response time and/or the 60-day response time, if the SSOC was issued. If the response time is not waived, re-adjudicate the appeal after the required time period has expired.

Be prepared to fill the Travel Board docket with other available cases if the hearing is rescheduled or cancelled (see M21-1MR, Part I, Chapter 5, Section H, Topic 38, Block i). If the hearing is scheduled in less than 30 days for these new cases, remember to include a waiver of advance notice of the hearing.

Certification to the Board of Veterans' Appeals

If the appeal is ready for certification to BVA and the cure notice is not of record, send Enclosure 2, Letter to Cure Pending Appeals for Increased Evaluation with a Vazquez-Flores Notice Response. If a response is received that indicates no additional development is necessary, or if no response is received after 30 days, re-adjudicate the appeal in the form of an SSOC. Wait for the 60-day SSOC response time to expire unless the appellant waives it. Certify the appeal and transfer the claims folder to BVA. If evidence is received after certification to BVA, follow the guidelines set forth at M21-1MR, Part I, Chapter 5, Section F.

Remands

The Appeals Management Center (AMC) typically receives and processes remands. However, if an RO receives a remand, the RO must comply with the remand instructions. The VSR will perform any required additional development, including, as necessary, sending the appropriate cure notice and notice response.

Page 5.

Director (00/21)

Questions?

If you have any questions about this letter, please refer first to Enclosure 4, Vazquez-Flores Questions and Answers. Otherwise, send your question via e-mail to VAVBAWAS/CO/212A.

/S/

Bradley G. Mayes,

Director

Compensation and Pension Service

Enclosures

Edited December 24, 2008 by spike

[gdsnide]

File a NOD & get a Lawyer...GARY

[Berta]

Spike I sure agree that a rep or VSO is one more place to seek proof of what you submitted to the VA and what they sent to you.

The VCAA- one only needs to access the BVA site to see how many times the ROs send out inadequate VCAA letters.

A Generic VCAA letter and a lack of any response form at all can doom a claim for years.

Vet reps and SOs should question an improper VCAA letter right off the bat.

I mitigatewd the damage of an illegal VCAA letter (I have never received any proper one yet for my AO claim) by figuring out what a legal VCAA letter should have advised me to do-

in one BVA case where a widow received a generic one like mine the BVA remanded telling the RO to suggest in a new VCAA letter that the widow obtain an IMO.

I had already done that so I did overcome an additional remand for a legal VCAA letter which would have added even more time to my claim (6 years since filing in Feb 2009)

It looks to me that since the VCAA letter was inadequate and the response form was lacking- this made it easy for the DRO to ignore my evidence.

A friend of mine always makes a copy of his submission with the green certified card of receipt right on the copy.

I save the Priority mail tracking info for my submissions.

Still a rep or SO 's folder on your claims is one more way to have some proof that your stuff was filed on time as long as they have a copy of it too.

[spike]

Has ANYONE seen the new VCAA notices and the information after you request for claim? They send you a whole list of the diagnostic codes and rating regs with your packet now due to the Vasquez decision. I will have to get one with no personal info on it to show you the new VCAA notices