Still Loosing It, Help Please.

[livingrock21]

Hello To All Again,

I haven't posted here for a while! I'm still in the same boat and on my last appeal. Here is a link from my original post http://www.hadit.com/forums/index.php?showtopic=15124&hl= .

A little background. I got medically retired from the Navy August of 07. Filed my BDD claim July of 07. Got my findings in Nov. of 07. When I got my findings I immediately saw an error on the VA's part. They rated me per a condition that I didn't have, nor was it even really related. They had me rated under "Paralysis of the median nerve" (unsure of the VASRD code, believe it was 8517). I should have been rated under Erythromelalgia, diagnostic code 7119.

I've been appealing this since. I'm on my third and final appeal and am very discouraged. At one point I thought I was going to recieve help from a VFW Service Officer. He said he would take my claim to the STAR Review, and it would be fixed there. Seemed as though he was going to be very helpful, only to have him come back and say they were no help.

On my last Statement of the case, they agreed they made an error rating me under paralysis of the median nerve and agreed to rate me under erythromelalgia, but didn't change my percentage as they should have.

_____________________________________________________________________

Here's an excerpt from the VASRD on this particular condition (this pertains to my questions:

7119 Erythromelalgia:

Characteristic attacks that occur more than once a day, last an average

of more than two hours each, respond poorly to treatment, and that

restrict most routine daily activities.................................................................. 100

Characteristic attacks that occur more than once a day, last an average of

more than two hours each, and respond poorly to treatment, but that

do not restrict most routine daily activities........................................................ 60

Characteristic attacks that occur daily or more often but that respond to

treatment.......................................................................

...................................... 30

Characteristic attacks that occur less than daily but at least three times

a week and that respond to treatment................................................................ 10

Note: For purposes of this section, a characteristic attack of erythromelalgia consists of burning pain in the hands, feet, or both, usually bilateral and symmetrical, with increased skin temperature and redness, occurring at warm ambient temperatures. These evaluations are for the disease as a whole, regardless of the number of extremities involved.

________________________________________________________________________________

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My questions:

Is there anything else I could be doing? I'm so scared their going to come back and say everythings fine and deny my appeal to correct the percentage.

I have a letter from my active duty dr, in my medical record, stating that the attacks occur daily. They last more than two hours, and do not respond to treatment. So how could they have me rated at 30%?

Also, while in the appeals process, I have been granted Social Security Disability due to this condition. If you look at the rating criteria, the diference in 60% and 100% is the ability to perform daily activities. I can't do the most daily activity, work. Should I submit evidence as to the fact that SSD found me disabled? I called today and my appeal is in the DRO's hands. I was told it's been there for atleast the past 5 months.

This is off topic with the VA claims processing, but.... I don't get SSI because they include my VA compensation. I'm rated at 40%. Are they allowed to use this as income? I've seen people on here that are 100%, getting SSD and SSI. What am I doing wrong? I'm only at 40% and can only get SSD?

Thanks for your help in advance. Hopefully someone can point me in the right direction.

[MikeR]

Good information from Rental Guy. My thought was if it did not cost anything to talk to a lawyer than it could not hurt. You can read Jim Strickland's posts on VA Watch Website where he discusses this on some of them. I am not saying that it is the best route, just an option.

Rental Guy has a good point, I think you may be at a decision point for yourself.

[livingrock21]

Another thing, if I just let my claim ride out(continue to BVA), I'd be possibly waiting for years?

From the information I provided. Claim screw up on the VA's part. They admitedly screwed up on DX code. Obviously percentages aren't going to match from one DX code to another. Could I possibly have a CUE on my hands? Wouldn't it be worth a shot? Along with my Service officer doing a STAR Review.

My head feels like it's about to explode. If it weren't for you guys, I'd already be off the deep end.

A lawyer cannot do anything that you could not do or a VSO could not do. They do not have magical powers to speed things up. All they can do is go before the BVA judge (or the DRO) and argue your side of the claim as it applies to the law. You or a VSO could do that. At this point in your appeal, it would be a waste of your time.

Concerning the BVA; if you have not filled out and turned in a VA Form 9, then your claim will not go to the BVA. From reading your threads, it seems that you first filed for reconsideration, which changed the dx code, but left the rating the same. Then you filed for a DRO review, which is in the works now. The confusion lies in where exactly you are at this point. I am guessing from your posts that you requested the DRO review sometime prior to April 2007. If this is correct, then your claim could be getting close, or you could still have a year or more to wait.

If you requested a DRO hearing, then you are waiting on a hearing date to be scheduled. Once this is scheduled, you will still have many months to wait. If you really desire to ride out this appeal, I hope this is the route you have taken. I say this because when you sit in front of the DRO, you can effectively argue your case, and most likely get a new C&P scheduled.

If you have only requested a DRO review, then you can expect a cut and paste denial. They most likely will not schedule you for a new C&P, and they will deny a increase based upon the same exact reasons the reconsideration denied the increase. If this is the case, then your next step would be to fill our the Form 9 and appeal to the BVA. This, of course, will take years.

If you formally drop your appeal, in writing, today, the VARO would have that document by next week. Your claim would be ended within a few weeks after that. At that point you can fill out a VA Form 21-4138 requesting a increase in compensation for that one specific condition. They will most likely schedule a new C&P for you, and you could very well have a increased rating on this claim in six months. Again, if you need the monthly income now, that is exactly what I would do. If you have enough money to live on, though, I suggest riding out the appeal as long as that may take. It all boils down to your specific monetary needs at this particular time (or in the forseeable future).

Just know that there is no magical way to speed up the appeals process, though. A lawyer will not be able to do anything special for you at this point, with the exception of taking a percentage of whatever retro money you may receive several months or years down the road.

[livingrock21]

Couldn't I base the CUE off of the fact that they never had the DX code right? Which led to incorrect C&P exams, which lead to incorrect percentages.

Rental Guy,

I'm actually on my last appeal. The first appeal was denied completely. The second appeal was partially granted, dx code change. Now I'm on my third and final appeal.

The funny thing is, they said I filled out a Form 9 and sent it in. I honestly don't remember doing this. I'm glad that it was done, but I'm pretty sure I didn't fill it out. Apparently I requested my claim be forwarded to the BVA.

I'm just so confused about everything, and what's best. I can def. see where you and MikeR are going with the whole stop appeals process, and file a claim for increase. Which I may do.

Does anyone think I might have a chance with what the VFW service office wants to do. Basically reconsider on evidence that I can perform daily activities(work) from SS disability? Anyone know of any success stories with STAR review?

Everyone, thanks for all the help thus far! It's greatly appreciated!

[rentalguy1]

Couldn't I base the CUE off of the fact that they never had the DX code right? Which led to incorrect C&P exams, which lead to incorrect percentages.

yes, that is a CUE. It will be a uphill battle, but with the correct information you can win it. You need to first settle the appeal at hand on way or the other. If you have filled out a Form 9, then you are headed to the BVA, and there is nothing a VSO can do to stop it. He is full of bologna. And yes, waiting for your claim to be decided at the BVA will take well over a year, and two to three years is a more likely time frame.

I still suggest your first action should be to contact the VARO and set up a time to review your C-file. That way you will know exactly what action has been taken by the VA and what you need to do to fight it. You will know right away if your claim has already been forwarded to the BVA. Next, if I needed the money, I would withdraw the appeal, and file a new claim for increase on that particular disability. Then, after I had secured my increase, I would file a CUE claim, based upon misapplication of the regs concerning the dx code, and using the current increased evaluation under the correct dx code as evidence. That should be able to gain you the retro money that you lost by giving up the appeal to seek a quicker monthly income.

Give this a lot of thought. It is a tough decision to make. You are doing the right thing by asking as many questions as you can and getting as much information as you can before making a hasty decision.

[Berta]

There is no basis for CUE if the claim is still pending and active- what I see here is that I think the VA failed to consider your SSA award for the same condition.

And it looks like they disregarded the Army doc's active duty medical statement too.

These are CRITICAL pieces of evidence to your claim-

Make sure the VA knows of the SSA award and then make sure you send them an authorization form, signed, (keep copy of it) so they can get the SSA files.

It might take months for them to get these records.

If they listed them as evidence but did not consider them at all in the decision narrative-raise Hell-

but first make sure they have them.

Is it possible for you to ge to the SSA office that handled your claim and ask them for at least a copy of the actual award and medical reports from SSA that this was based on?

They might make you pay fpr a copy of the whole SSA file- not sure- but any possibly way you can get this SSA info to the VA will help you!.

By the way did your rep advise you to apply for TDIU?

I didnt read this whole thread and maybe you did-

When a vet gets SSA for solely the exact condition they get SC for - it means they are unemployable due to the SC condition.

[Berta]

If the VA was fully aware of the SSA award for the same condition and then they failed to get those records- you could ask the VSM to CUE the decision-

this tactic got me an additional DRO review-

it didnt work however as the DRO still ignored my evidence but it could work for you.

"Talked to the VFW rep and he told me to get my SSD documents and send them to him. He said he'd then do a STAR Review, does this sound promising?"

Not to me!- the VA needs the SSA records- not him-and he doesnt have the power to do a STAR review- he is talking out of his butt-

He should have made sure that SSA got your SSA records-and he certain,ly should have whipped out a TDIU form right away- dont wait for this rep to do that-here is the form- make sure you save a copy of this after you fill it our and send this directly to the DRO.

Under # 18 Check yes and Under # 25 Remarks tell them you have attached a separate page and then on this page put ypur C file number, name addy, etc etc and tell them what the SSA award is for,solely for you SSA condition , tell them that established VA case law states this award has probative value to any claim for TDIU (Washington V. Derwinski), and tell them the side affects of your meds that also render you unemployable and any other info they should have.And ask them to consider the Army doc's statement if they haven't and enclose it again.

Here is the TDIU form-

if your rep tells you (send him a copy of it too for his records) that you cannot apply fpor TDIU because your rating is too low- tell him to contact me (and I will give you my contact inf0) and I will prov to him how wrong he is.

I have to post it as a reply to this- am on the fast reply thing