Continued Appeals Process

[Ricky]

I am in the process of tearing apart the SOC that I received on my case and submitting my VA 9. However, it is a personal goal in my life to come face to face with the idiots they call DRO's in Montgomery VARO. Therefore, I am willing to add the additional time to my appeal to make this happen but I do have a couple of questions: During the DRO hearing is it possible to receive an on the spot approval of the disabilities you are appealing? Is it possible that after the hearing there will be maybe partial grants of appealed items? If no changes are made after the DRO hearing will I receive a SSOC?

Ricky

[Guest Jim S.]

It's a shame that the Raters at the VARO cannot put the evidence on a questionaire. the questions would consist of such question as you see in this posting so the Rater can determine how to assess the evidence.

Is it a factual statement from a buddy who whitnessed the event, such as an accident while in service, but not noted in the medical files. Is the buddy witness to a chonicity of complaints after the event. or is the buddy trying to play medical doctor and providing medical summery of the Veterns condition as it relates to the event.

If their are more answers to yes, that the buddy was a witness to an event, that after the event he was made aware of the Veterans condition, and he could attest to some physical or visual event relating to the actual event, such as he was knock out, was unconscious for a period of time, or he appeared to be dizzy or disoriented to day and time, THAN to what appeared to be medical findings, like the Veteran had a concussion, that he cracked his skull open without seeing the actual wound in the head. That the event was the cause of the Veterans Migrains later on. etc etc.

Then if the Rater later gets a reversal or remand, he can go back and see where he may have gone wrong and better learn from his mistake.

Like I said, they need some type of OVERSIGHT so they can see where they made the mistake and learn how not to make the same mistake again.

Jim S.

p.s. Anyone want to make an offer to the Secratery for a pilot program for some form of oversight at the VARO level for new Raters or as a refresher for slow learners?

[john999]

Ricky

Ask for a personal hearing with the DRO. Did you get a personal hearing the first time round or was it just a review?

[Ricky]

No hearing the last time just a review, if you call it that of the NOD. In the evidence section they left off medical statements that supported my claim. But they said they did review my lab work in the CFile from 1986 - 2002, and medical info from my DMII claim all of which had nothing to do with this current appeal/claim. I will submitt my request for a DRO hearing on Tuesday. Hopefuly I will get one within the next two years. I assume that I still have to also submit my VA9 to meet the 60 day period. My appeal will be based upon the fact that all medical evidence in the file clearly supports my claim and no medical evidence is held by VA to the contrary.

Ricky

[Guest Berta]

Ricky- that is a Very Good opening statement for the I-9-under # 10

"My appeal will be based upon the fact that all medical evidence in the file clearly supports my claim and no medical evidence is held by VA to the contrary."

That is exactly what I meant today-a strong statement to attack their decision---and catch their attention right away---

I just gave Josh some info on preparing the I-9s -I forget the topic???? Response??? Sec 1151?

It might help you-

Berta

[Ricky]

Berta, in another post you were providing guidance on getting to the point and attacking the SOC when preparing the VA9. Below is one of the shorter responses going into my VA9. Is this what you meant? is it to the point enough or is it too whinny? I would appreciate any and all comments from my fellow hadit family. Thanks

ITEM UNDER APPEAL: Entitlement to an increased evaluation of 20 percent for minimal spurring at L5.

BASIS FOR APPEAL:

1) VA failed to apply the regulatory requirements of 38 CFR to this claim as required by law.

2) 38 CFR 4.6 provides that “Every element in any way affecting the probative value to be assigned to the evidence in each individual claim must be thoroughly and conscientiously studied by each member of the rating board in the light of the established policies of the Department of Veterans Affairs to the end that decisions will be equitable and just as contemplated by the requirements of the law.” The lack of any logical reasons or basis for their decision ( as required by NORMAN GILBERT, APPELLANT v. EDWARD J. DERWINSKI, SECRETARY OF VETERANS AFFAIRS, APPELLEE) along with the lack of any negating medical evidence of record held or disclosed by VA provides proof beyond a reasonable doubt that VA failed to fairly evaluate the medical evidence of record in support of this claim.

3) The 18 May 2005 Compensation and Pension examination used to make this rating decision shows that the objective findings by the VA medical examiner clearly meet the requirement of a 20 percent rating. In summary the examination provided objective findings such as: “he can flex his back 45 degrees, extension 15 degrees’ ; lateral bending 30 degrees to either side”; He walks with an abnormal gait”; “There was some increased limitation of motion in the lumbar spine with repetitive use but no increase in weakness or fatigability or in-coordination.” VA Xrays provide that partial scarring is seen at L5, otherwise normal.

4) 38 CFR 4.71a (5237) which was provided with the statement of the case, provides that for a disability under 5237 to be evaluated at the 20 percent level “Forward flexion of the thoracolumbar spine is greater than 30 degrees but not greater that 60 degrees.” The 18 May 2006 Compensation and Pension examination provides that my forward flexion was limited to 45 Degrees.

5) The 27 January 2006 rating decision which denied my request for a 20 percent evaluation and assigned an evaluation of 10 percent provided that this was done based upon a difference of opinion due to the medical record of evidence being interpreted differently. It is beyond comprehension what the rater felt they were interpreting. The medical statement of “he could flex his back 45 degrees” contained in the 18 May 2005 VA examination is just that. It is a medical statement based upon scientific methodologies to gain exact measurements when limitation of motion are important in making a fair and just evaluation not simply an opinion placed upon the table for

interpretation. Neither myself nor the rater hold medical degrees or training of a “medical type” which would allow for such and interpretation of a medical fact. Such an interpretation would and has in this claim completely reverse the medical statement of a medical doctor which is why the VA does not allow such actions by lay persons.

6) 38 CFR 4.7 states “where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly

approximates the criteria required for that rating.” The SOC provided in the laws, rules and regulations section the requirements of the criteria for a 10, 20 and 40 percent evaluation under 5292 along with those required for an evaluation of 0-100 percent under 5327 both of which were directly preceded by a full quote of 38 CFR 4.7. It is assumed that the rater was attempting to show that they had considered both disability rating codes in determining the final evaluation for this disability. The examining VA doctor provided in his objective findings which are medical statements and not mere medical opinion, “veteran can flex his back 45 degrees” which not only approximates the criteria required for a 20 percent evaluation under 5237 but removes any doubt as to the level of evaluation and which disability code should be used in the evaluation. The VA doctors statement was absent of any wording such as severe, moderate, or slight which are required for an evaluation under disability rating code 5292. Once again he did however state the veteran could flex his back 45 degrees with is a clear stand alone scientifically obtained measurement meeting the criteria for an evaluation of 20 percent under disability rating code 5237.

ACTIONS TO BE TAKEN BY THE BOARD: Based upon the fact that the VA medical evidence of record in this claim shows undisputable evidence which meets the regulatory requirements of 38 CFR, Part 4, Section 4.71 Disability Rating Code 5237, I simply request the Veterans Administration, now being represented by the “Board” in this matter, comply with the mandated laws, regulations and internal operating manuals of the VA and issue a final rating decision on this claim granting an evaluation of 20 percent under disability rating code 5237 for this disability claim

[Guest Berta]

EXCELLENT!!!!

Men and women-this is exactly what I meant-

Tell them exactly why their decision is wrong-

Tell them exactly why any VA medical statement is wrong-

HMMMM 38 CFR 4.6 ! Nice touch! I usually use 38 CFR 3.102-

but this is exactly how the adjudicators are supposed to determine and apply the Benefit of Doubt

doctrine and to weigh the evidence- Fantastic-38 CFR Book C.

Men and women-when you begin to overcome the enemy- always good idea to take any weapons and ammo they leave behind and use against them- this is what I mean

Ricky has used their words, their misapplication of the facts and their 38 CFR against their decision---

NVLSP recommends to add to appeals that you "take exception to" and are "preserving for appeal" all legal and factual errors, all misapplication of M21-1 , 38 CFR, due process regs, and any failure to discharge the duty to assist that the VARO made or that the BVA ,hereafter, could make in deciding your appeal.

As I said somewhere- I sent my appeal priority and got a email verification from the PO with the tracking slip- the VARO started working on it immediately-

that surprised me-

either they are taking the time to fold all my stuff into paper airplanes or-

because I raised hell a few weeks ago with them, they are actually reading it all-

They DO take the I-9 seriously and when they know that you know how to access 38 CFR Book C (which is what they are supposed to do) they are on the defensive and have to consider appeals like this

conscientiously.

Most I-9s never get to the BVA- I think they would rather resolve an excellent I-9 like this at the VARO so the BVA never knows how lousy some of their regional decisions are.

GREAT JOB- Ricky is the hadit appeals EXPERT in my mind!!!

Most SOs and vet reps will not prepare appeals like this-they dont know how-

a simple statement of disagreement just wont do it-

even a supporting statement that many vet reps prepare to attach to the appeal usually doesn't cover much.

If the VA doctor or the C & P results are wrong- do not hesitate to tell them why.

Excellent work Ricky- I know this involved leg work but that is often the key to success!